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August 15, 2009
Revised DUI jury instructions

The Florida Supreme Court recently authorized for publication and use revisions to Standard Jury Instruction in Criminal Cases 28.1(a) (Driving Under the Influence Causing Property Damage or Injury) submitted by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases. The Court invites all interested persons to comment on the revisions, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before September 7, 2009, with a certificate of service verifying that a copy has been served on the Committee Chair, The Honorable Lisa T. Munyon, C/O Les Garringer, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until September 29, 2009, to file a response to any comments filed by interested persons with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004) (on file with Clerk, Fla. Sup.Ct.).

IN THE SUPREME COURT OF FLORIDA

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES —REPORT NO. 2009-03, SC09-946

28.1(a) DRIVING UNDER THE INFLUENCE CAUSING
PROPERTY DAMAGE OR INJURY
§ 316.193(3)(a)(b)(c)1, Fla. Stat.

To prove the crime of Driving under the Influence Causing [Property Damage] [Injury], the State must prove the following three elements beyond a reasonable doubt:


      (Defendant) drove or was in actual physical control of a vehicle.
      While driving or in actual physical control of the vehicle, (defendant)

Give 2a or b or both as applicable.
          a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
          b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

      As a result of operating the vehicle, (defendant) caused or contributed to causing [damage to the property of (victim)] [injury to the person of (victim)].
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence Causing [Property Damage] [Injury], you must also determine whether the State has proven beyond a reasonable doubt whether:
          a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving or in actual physical control of the vehicle.
          b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the driving under the influence.

Definitions. Give as applicable.
Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.
      ( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

When appropriate, give one or more of the following instructions on the presumptions of impairment established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.
      If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
      If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
      If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence Causing [Property Damage] [Injury] if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING PROPERTY
DAMAGE OR INJURY - 316.193(3)(a)(b)(c)1
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
DUI 316.193(1) 28.1
Attempt 777.04(1) 5.1
Comment

This instruction was adopted in 2009, In re Standard Jury Instructions in Criminal Cases-Report No. 2008-08, 6 So. 3d 574 (Fla. 2009), and amended in 2009.

[Revised: 08-07-2018]