so that is why that instruction may not have been given. >> reporter: jean ellie, nbc bay area news. >>> so the state has 40 days to appeal. if they decline, the d.a. will decide whether or not to retry zarate on the gun charge. double jeopardy does not apply. >>> stay with nbc bay area for complete coverage, nbcbayarea.com. >>> hurricane dorian is getting bigger and moving faster. it has strel thinked strengthe category 4, but the path is still uncertain. millions in florida are still preparing. first responders from the bay area are headed east to help. it is kind of now a hurry up and wait situation. >> don't know how bad it will get. >> long lines at airports as flights are filling up with people hoping to leave dorian behind, others finding long lines there too. and many doing what they do every storm, riding it out. that means stockpiling food and water, filling up sand bags and boording up. >>> president trump says that he will be closely watching hurricane dorian and many floridians will be watching how the president responds.swing state is expected to see some of the worst f