[751]*751RICHARDSON, J.
Defendant appeals his conviction after jury trial of burglary in the first degree. ORS 164.225. He raises three assignments of error: (1) that the trial court erred in denying his motion to dismiss the burglary charge after his acquittal of driving while under the influence of intoxicants (DUII) allegedly arising out of the "same criminal episode” or "same act and transaction,” in violation of ORS 131.515 and Article I, § 12 of the Oregon Constitution; (2) that the court erred in admitting into evidence in defendant’s burglary trial testimony given by defendant in the DUII trial; and (3) that the sentence imposed was excessive under ORS 138.040 or otherwise violated Article I, § 15 of the Oregon Constitution. We affirm.
At approximately 3 a.m. on September 5, 1979, defendant was observed by a police officer operating his vehicle in an erratic manner on a public highway. He was stopped, placed under arrest, and charged with DUII. At the time of his arrest, defendant was shirtless and shoeless. A few minutes earlier, within a mile and a half from the location where defendant was stopped, an unidentified intruder had entered a neighborhood residence through a kitchen window. The residence was occupied by defendant’s estranged wife, her children and her mother.
After defendant was placed under arrest for DUII and given Miranda1 warnings, he admitted being at his ex-wife’s residence that night. He subsequently made additional incriminating statements about his role in the burglary and admitted entering the home through the kitchen window after removing his shirt and shoes.
Defendant was charged with burglary. He was first tried on the DUII charge and acquitted. Prior to the trial on the burglary charge, defendant moved to dismiss that charge on former jeopardy grounds, claiming the DUII and burglary charges arose out of the "same criminal episode” or "same act or transaction.” His motion was denied, and he was convicted after jury trial.
[752]*752Defendant argues on appeal that the second prosecution was barred by ORS 131.515 and Article 1, § 12 of the Oregon Constitution. ORS 131.515 provides:
"Except as provided in ORS 131.525 and 131.535:
"(1) No person shall be prosecuted twice for the same offense.
"(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”2
The Supreme Court recently stated in State v. Knowles, 289 Or 803, 618 P2d 1245 (1980), that ORS 131.515 provides two "former jeopardy” protections for criminal defendants. The first, embodied in subsection (1), was intended by the legislature to restate the constitutional guarantee in Article I, § 12.3 The second, embodied in subsection (2), is a legislative prohibition against multiple prosecutions of distinct offenses which are factually related. See State v. Hammang, 271 Or 749, 756, 534 P2d 501 (1975). With regard to subsection (2), the court stated:
«* * * Thg policy underlying that subsection is that there should not be unnecessary separate trials stemming from conduct which constitutes more than one offense. The policy is to be effectuated by a rule of compulsory joinder. If the prosecutor fails to accomplish that joinder, the sanction for that failure is statutory prohibition of subsequent prosecutions. The subsection is not dependent upon any constitutional text or concept; the subsection is an independent method of preventing prosecutorial harassment of a defendant who has committed multiple offenses in a single criminal episode.” (Footnotes omitted.) 289 Or at 811.
We first examine defendant’s claim under subsection (2).
[753]*753To be entitled to the protection afforded in subsection (2), defendant must establish all three of the provision’s essential elements. If any of the three is not established, the statutory claim under this subsection fails. State v. Knowles, supra. The only concern here is whether defendant was "separately prosecuted for two or more offenses based upon the same criminal episode. ”4 (Emphasis supplied.) The specific issue is whether the two charges arose out of the "same criminal episode.”
The term "criminal episode” is defined in ORS 131.505 as follows:
"As used in ORS 131.505 to 131.525, unless the context requires otherwise:
Hit # #
"(4) 'Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.
* at * * ”
In State v. Boyd, 271 Or 558, 533 P2d 795 (1975), the Supreme Court stated that the term "criminal episode” as defined in ORS 131.505(4), was synonymous with the term "same act or transaction” enunciated by the court for former jeopardy claims based on Article I, § 12 in State v. Brown, 262 Or 442, 497 P2d 1191 (1972), and subsequently defined with respect to permissive joinder of charges under ORS 132.560(2) in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973). In Fitzgerald, the court stated:
"We hold that the two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge. * * *” 267 Or at 273.
With these definitions as guides, we conclude that the offenses here did not arise out of the "same criminal episode” under ORS 131.515(2). The circumstances of the two crimes are totally different. In one instance, defendant was charged with unlawfully entering his ex-wife’s residence with the intent to commit the crime of criminal [754]
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[751]*751RICHARDSON, J.
Defendant appeals his conviction after jury trial of burglary in the first degree. ORS 164.225. He raises three assignments of error: (1) that the trial court erred in denying his motion to dismiss the burglary charge after his acquittal of driving while under the influence of intoxicants (DUII) allegedly arising out of the "same criminal episode” or "same act and transaction,” in violation of ORS 131.515 and Article I, § 12 of the Oregon Constitution; (2) that the court erred in admitting into evidence in defendant’s burglary trial testimony given by defendant in the DUII trial; and (3) that the sentence imposed was excessive under ORS 138.040 or otherwise violated Article I, § 15 of the Oregon Constitution. We affirm.
At approximately 3 a.m. on September 5, 1979, defendant was observed by a police officer operating his vehicle in an erratic manner on a public highway. He was stopped, placed under arrest, and charged with DUII. At the time of his arrest, defendant was shirtless and shoeless. A few minutes earlier, within a mile and a half from the location where defendant was stopped, an unidentified intruder had entered a neighborhood residence through a kitchen window. The residence was occupied by defendant’s estranged wife, her children and her mother.
After defendant was placed under arrest for DUII and given Miranda1 warnings, he admitted being at his ex-wife’s residence that night. He subsequently made additional incriminating statements about his role in the burglary and admitted entering the home through the kitchen window after removing his shirt and shoes.
Defendant was charged with burglary. He was first tried on the DUII charge and acquitted. Prior to the trial on the burglary charge, defendant moved to dismiss that charge on former jeopardy grounds, claiming the DUII and burglary charges arose out of the "same criminal episode” or "same act or transaction.” His motion was denied, and he was convicted after jury trial.
[752]*752Defendant argues on appeal that the second prosecution was barred by ORS 131.515 and Article 1, § 12 of the Oregon Constitution. ORS 131.515 provides:
"Except as provided in ORS 131.525 and 131.535:
"(1) No person shall be prosecuted twice for the same offense.
"(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”2
The Supreme Court recently stated in State v. Knowles, 289 Or 803, 618 P2d 1245 (1980), that ORS 131.515 provides two "former jeopardy” protections for criminal defendants. The first, embodied in subsection (1), was intended by the legislature to restate the constitutional guarantee in Article I, § 12.3 The second, embodied in subsection (2), is a legislative prohibition against multiple prosecutions of distinct offenses which are factually related. See State v. Hammang, 271 Or 749, 756, 534 P2d 501 (1975). With regard to subsection (2), the court stated:
«* * * Thg policy underlying that subsection is that there should not be unnecessary separate trials stemming from conduct which constitutes more than one offense. The policy is to be effectuated by a rule of compulsory joinder. If the prosecutor fails to accomplish that joinder, the sanction for that failure is statutory prohibition of subsequent prosecutions. The subsection is not dependent upon any constitutional text or concept; the subsection is an independent method of preventing prosecutorial harassment of a defendant who has committed multiple offenses in a single criminal episode.” (Footnotes omitted.) 289 Or at 811.
We first examine defendant’s claim under subsection (2).
[753]*753To be entitled to the protection afforded in subsection (2), defendant must establish all three of the provision’s essential elements. If any of the three is not established, the statutory claim under this subsection fails. State v. Knowles, supra. The only concern here is whether defendant was "separately prosecuted for two or more offenses based upon the same criminal episode. ”4 (Emphasis supplied.) The specific issue is whether the two charges arose out of the "same criminal episode.”
The term "criminal episode” is defined in ORS 131.505 as follows:
"As used in ORS 131.505 to 131.525, unless the context requires otherwise:
Hit # #
"(4) 'Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.
* at * * ”
In State v. Boyd, 271 Or 558, 533 P2d 795 (1975), the Supreme Court stated that the term "criminal episode” as defined in ORS 131.505(4), was synonymous with the term "same act or transaction” enunciated by the court for former jeopardy claims based on Article I, § 12 in State v. Brown, 262 Or 442, 497 P2d 1191 (1972), and subsequently defined with respect to permissive joinder of charges under ORS 132.560(2) in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973). In Fitzgerald, the court stated:
"We hold that the two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge. * * *” 267 Or at 273.
With these definitions as guides, we conclude that the offenses here did not arise out of the "same criminal episode” under ORS 131.515(2). The circumstances of the two crimes are totally different. In one instance, defendant was charged with unlawfully entering his ex-wife’s residence with the intent to commit the crime of criminal [754]*754mischief therein. In the other instance, defendant was charged with driving a motor vehicle on a public highway while allegedly under the influence of intoxicants. The facts of each charge could be completely detailed without reference to the facts of the other. The only link between the crimes is the close proximity of time and place. The crimes, however, have wholly different elements and occurred independent of one another. They were not related to a single criminal objective. ORS 131.515(2) is therefore inapplicable. See State v. Fitzgerald, supra; State v. Oliver, 26 Or App 331, 552 P2d 562 (1976).
Defendant also argues that the prosecution for burglary violates Article I, § 12 of the Oregon Constitution.
"No person shall be put in jeopardy twice for the same offence (sic), nor be compelled in any criminal prosecution to testify against himself.”
Clearly defendant was not prosecuted twice for a single offense. The issue then is whether multiple prosecutions for separate offenses offends Article I, § 12.
In State v. Brown, supra, the Supreme Court interpreted Article I, § 12 to mean:
"* * * a second prosecution is for the 'same offense’ and is prohibited if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.” 262 Or at 458.
If the constitutional principles of Brown have continuing validity in light of State v. Hammang, supra, what we have said in our discussion of ORS 131.515(2) applies equally to defeat defendant’s constitutional claim. The two offenses for which defendant was prosecuted did not arise out of the same criminal episode or the same transaction, as those terms are explained in State v. Fitzgerald, supra, and State v. Boyd, supra.
If, however, Brown is no longer the current explanation of Article I, § 12 in light of Hammang and ORS 131.515, we are left with the "same evidence” test articulated in State v. McDonald, 231 Or 48, 365 P2d 494 [755]*755(1961), cert den 370 US 903 (1962). In summary, that test provides that if proof of one charge necessarily proves the other, then a prosecution of the second offense is barred. In this case none of the elements of the burglary or the conduct which constituted the burglary were necessarily proved in the defendant’s DUII trial.
Defendant’s second claim is that the court erred in admitting testimony given by defendant at his DUII trial. Defendant contends the testimony was inadmissible under ORS 41.900(8)5 and violated his privilege against self incrimination guaranteed by Article I, § 12,6 and by the Fifth7 and Fourteenth8 Amendments to the United States Constitution. The state contends there was no constitutional violation because the testimony was admissible under ORS 41.900(2). We agree with the state in this regard.
ORS 41.900 provides:
“Evidence may be given of the following facts:
* * * *
“(2) The declaration, act or admission of a party as evidence against such party.
«H* sfc * * »
Evidentiary admissions made under oath are admissible against a criminal defendant at a subsequent trial. State v. [756]*756Williams, 7 Or App 579, 492 P2d 513 (1972). Defendant does not contend that his testimony in the DUII trial was not knowingly or voluntarily given or given without the considered assistance of counsel. Under such circumstances, the testimony was properly admitted. Anderson v. United States, 417 US 211, 220, 94 S Ct 2253, 41 L Ed 2d 20 (1974); Harrison v. United States, 392 US 219, 222, 88 S Ct 2008, 20 L Ed 2d 1047 (1968); 8 Wigmore, Evidence § 2276 (McNaughten Rev. 1961).
Finally, defendant contends the sentence imposed by the court was excessive9 and violates Article I, § 1510 of the Oregon Constitution. Defendant was sentenced to three years’ incarceration. The period of defendant’s incarceration was within the maximum allowed by law. Considering the circumstances in this case, we cannot say the court was clearly mistaken or committed a clear abuse of discretion. State v. Dinkel, 34 Or App 375, 385, 579 P2d 245 (1978), rev den 285 Or 195 (1979).
Affirmed.