impairment presumption in Florida

2002Appellant also argues on appeal that the trial court erred in giving the standard impairment presumption jury instruction in this case in light of the supreme court's decision in State v. Miles, *726 775 So.2d 950 (Fla.2000).

2002I agree that the trial court erred in giving the impairment presumption instruction in light of State v. Miles, 775 So.2d 950 (Fla.2000).

2003In Cardenas , the First District stated: "[w]e have considered whether the giving of the impairment presumption instruction constituted fundamental error, and conclude that it did not." 816 So.2d at 726 .

2002Fundamental error in a criminal case has been described as "error that `reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged *727 error'." Barnes v. State, 743 So.2d 1105, 1108 (Fla. 4th DCA) (quoting Kilgore v. State, 688 So.2d 895 (Fla.1996)), rev. denied, 744 So.2d 457 (Fla.1999).

2002The question then is whether the verdict can be sustained based on harmless error because of the clear proof of the alternative theory (driving with an unlawful blood-alcohol level) [1] underlying the jury's general verdict entered herein or because the jury would have without doubt found impairment even had the improper instruction not been given. [2] In Servis v. State, 802 So.2d 359 (Fla. 5th DCA 2001), we held that the harmless error rule cannot apply in such cases because "there is no way of analyzing the jury's verdict to determine the theory upon which it relied in rendering its verdict

1986Appellant cites Estelle v. Williams, 425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976), for the principle that forcing a defendant to face trial in prison garb impermissibly risks an impairment of his presumption of innocence.

1986Appellant cites Estelle v. Williams, 425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976), for the principle that forcing a defendant to face trial in prison garb impermissibly risks an impairment of his presumption of innocence.

1986In Estelle , however, the Court cited Illinois v. Allen, 397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970), in which the Court upheld the practice of shackling the defendant when necessary to control a contumacious defendant, and noted that in some circumstances physical restraints may further an essential state policy. 425 U.S. at 505 , 96 S.Ct. at 1693 .

1986In Estelle , however, the Court cited Illinois v. Allen, 397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970), in which the Court upheld the practice of shackling the defendant when necessary to control a contumacious defendant, and noted that in some circumstances physical restraints may further an essential state policy. 425 U.S. at 505 , 96 S.Ct. at 1693 .