Florida/Georgia Personal Injury & Workers Compensation

...1997), and concluded that the ADA did not apply to police conduct during (b) Until the person’s blood-alcohol level or breath-alcohol level is less than 0.05; or (c) Until 8 hours have elapsed from the time the person was arrested. Fla. Stat. § 316.193(9). 9 Bircoll’s complaint also contained a 42 U.S.C....

...al preemption, which the state trial court denied. Appellees then pursued the matter through the Florida appellate courts. The parties agree that the issue has been exhausted. 1 Fla. Stat. § 860.13. 2 Fla. Stat. § 316.193(1). 3  Appellees then filed a pre-trial petition for writ of habeas corpus in the United States District Court for the Southern District of Florida....

...ation was unconstitutional. Rupp v. Bryant, 417 So.2d 658, 665-66 (Fla. 1982). Thus, petitioner Trinko was entitled under the 1979 statute to name Parker as a defendant. Two available theories of liability are discussed below: ministerial duty under section 316.193, Florida Statutes (1977), and the duty of those in charge of persons having dangerous propensities under Restatement (Second) of Torts, section 319 (1965)....

...The viable alternatives did not include leaving Willard behind the wheel of his vehicle where he posed an imminent threat to the public. The decision as to whether a police officer may release an intoxicated driver to continue motoring on his way has been taken at the highest policy level. § 316.193, Fla....

...ing the judiciary with the responsibility for hearing tort suits against the state, its agencies, and political subdivisions. We should not resurrect sovereign immunity under the label of the separation of powers or police powers doctrine. NOTES [1] § 316.1932(1)(b)(1), Fla....

...ntent in the blood. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In the instant case, each of the respondents was issued traffic citations for driving under the influence of alcoholic beverages and for unlawful blood alcohol in violation of section 316.193, Florida Statutes (1977)....

...ways and the suspension of this license privilege for those who demonstrate their disregard for the safety of others. The overall purpose of this chapter is to address the problem of drunk drivers on our public roadways and to assist in implementing section 316.193 which provides that driving while intoxicated is unlawful....

...peal affirmed the convictions. The district court concluded that Bautista's claim, although not based on the principle of double jeopardy, was nonetheless foreclosed by this Court's language in Melbourne. II. DISCUSSION The DUI manslaughter statute, section 316.193(3)(c)(3), Florida Statutes (2002), provides: Any person: (a) Who is in violation of subsection (1) [driving under the influence]; (b) Who operates a vehicle; and (c) Who, by reason of such operation, causes or contributes to causing: .......

...titution. [2] Bautista also fled the scene of the accident without rendering aid to the passengers or providing information to the responding police officers. Both counts of DUI manslaughter were charged as first-degree felony DUI manslaughter under section 316.193(3)(c)(3)(b), Florida Statutes (2002)....

...Explanation of amendments: The instruction begins on page 68 of the manual. The addition of "intentional" to (2)(a) and (2)(b) was approved by the committee after discussion of Taylor v. State, 444 So.2d 931 (Fla. 1983). [Page A-17] *1195 DUI MANSLAUGHTER (Amended) F.S. 316.193(3)(c)3 Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: Elements 1....

..."Alcoholic beverages" are considered to be beer, wine, whiskey, and all other alcoholic beverages of any kind and description which are made for human consumption. [Page A-18] *1196 Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c)....

...The words "or contributed to the cause of" were added to paragraph 2 after discussing Magaw v. State, 537 So.2d 564 (Fla. 1989). The committee decided that the definition of alcoholic beverages was unnecessary and perhaps too limiting. [Page A-19] *1197 FELONY DUI — PRIOR CONVICTIONS (New) F.S. 316.193(2)(b) Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt: Elements 1....

...(___) is a chemical substance under Florida law. 877.111(1) Ch. 893, F.S. (___) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one Judge or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c). State v. Rolle, 560 So.2d 1154 (Fla. 1990). [Page A-20] *1198 Explanation of proposed instruction: This instruction is based on F.S. 316.193(2)(b), which was created in 1986....

...It does not mention three prior convictions, the element that separates felony DUI from misdemeanor DUI. The issue of previous convictions must be determined after a guilty finding on the basic elements of DUI. State v. Rodriguez, 575 So.2d 1262 (Fla. 1991). [Page A-21] *1199 FELONY DUI — SERIOUS BODILY INJURY (New) F.S. 316.193(3)(c)2 Before you can find the defendant guilty of DUI with serious bodily injury, the State must prove the following three elements beyond a reasonable doubt: Elements 1....

...form the many mental and physical acts of our daily lives. F.S. (___) is a chemical substance under Florida law. 877.111(1) Ch. 893, F.S. (___) is a controlled substance under Florida law. F.S. "Serious bodily injury" means a physical condition that 316.1933 creates a substantial risk of death, serious personal [Page A-22] *1200 disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one Judge or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c). State v. Rolle, 560 So.2d 1154 (Fla. 1990). Explanation of proposed instruction: This instruction is based on F.S. 316.193(3)(c)2, which was created in 1986....

...49.24) Bookmaking — 849.25(1) and (2) None Attempt [Page A-87] *1265 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Bookmaking 849.25(3) Bookmaking 849.25(2) Attempt Bookmaking on grounds of permit holder 550.361 Driving under the influence None Attempt — 316.193(1) DUI with damage to property or DUI — 316.193(1) None person — 316.193(3)(c)1 DUI with serious bodily injury DUI — 316.193(1) DUI — 316.193(3)(c)1 — 316.193(3)(c)2 DUI manslaughter DUI — 316.193(1) Vehicular homicide — — 316.193(3)(c)3 782.071 DUI — 316.193(3)(c)2 DUI — 316.193(3)(c)1 Sale, manufacture, delivery or None Attempt, except when possession with intent to delivery is sell, manufacture or deliver charged; controlled substance 893.13(1)(g) if — 893.13(1)(a) possession or delivery of cannabis charged 893.13...

...We accepted jurisdiction to answer the following question which was certified to be of great public importance: [1] IS THE STATE REQUIRED TO TAKE AFFIRMATIVE ACTION TO ASSIST A PERSON IN CUSTODY FOR DUI IN OBTAINING AN INDEPENDENT TEST FOR BLOOD ALCOHOL WHEN IT IS REQUESTED, PURSUANT TO SECTION 316.1932(1)(f)3, FLORIDA STATUTES? 658 So.2d at 1014....

...enforcement does not have an affirmative duty to ensure a defendant receives an independent blood test, and that the officer's actions did not actively prevent Unruh from obtaining a blood test. Thereafter, Unruh was tried and convicted of DUI under section 316.193, Florida Statutes (1991). On appeal, the circuit court reversed and remanded for a new trial, noting the apparent conflict between section 316.1932(1)(f)3., Florida Statutes, [2] which provides for the independent blood test, and section 316.193(9), Florida Statutes, [3] which requires a mandatory holding period for DUI arrestees....

...will depend on the circumstances of each case. We begin our analysis with a review of the law in this area. This Court has recognized that a DUI arrestee "has the right to have a [blood] sample taken and analysis made by an independent expert" under section 316.1932(1)(f)3....

...The requests were denied because "law enforcement policy did not authorize or require that a blood alcohol test be made available to a DUI arrestee upon request." Id. On motion of the arrestees, the county court suppressed the breathalyzer results for failure to comply with section 316.1932(1)(f)3....

...therefore useless, legislation." Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962). Contrary to these guiding principles, the Fifth District's interpretation in the instant case and the Second District's interpretation in Saylor render section 316.1932(1)(f)3....

...City of Troy, 481 So.2d 463, 467 (Ala.Crim.App.1985) ("The purpose of allowing an accused to obtain an additional test is to provide him a means of `cross checking' the state's test."). Indeed, as the arrestee must be held in custody as dictated by section 316.193(9), "the very status as custodian places a duty on the jailer to offer reasonable assistance" upon request....

...btain independent blood test). Accordingly, we answer the certified question in the affirmative and hold that when requested by a DUI arrestee, law enforcement must render reasonable assistance in obtaining an independent blood test authorized under section 316.1932(1)(f)3....

...We also disapprove Saylor to the extent it is inconsistent herewith. It is so ordered. OVERTON, SHAW, HARDING and ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion, in which GRIMES, C.J., concurs. WELLS, Justice, dissenting. I dissent because I do not read sections 316.1932(1)(f)3 and 316.193(9) to require the State to undertake any affirmative action to assist a DUI arrestee to obtain an independent *246 test for blood alcohol. I believe that Judge Thompson's majority opinion in the opinion below sets forth a correct and workable analysis of the statutes at issue, and I would approve that decision. Under section 316.1932(1)(f)3., a DUI arrestee has a right to have an independent blood test. [7] I do not believe, however, that in order to reconcile the apparent conflict between this section and section 316.193(9) we must require the State to take affirmative action to assist the arrestee....

...dent blood test. State v. Unruh, 658 So.2d at 1014. Accordingly, I would approve the district court's opinion in this case. GRIMES, C.J., concurs. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. [2] Section 316.1932(1)(f)3, Florida Statutes (1991), provides: The person tested may, at his own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervis...

...s blood or urine, or by chemical or physical test of his breath. The failure or inability to obtain an additional test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. [3] Section 316.193(9), Florida Statutes (1991), provides: A person who is arrested for a violation of this section may not be released from custody: (a) Until he is no longer under the influence of alcoholic beverages, any chemical substance set forth in s....

...or tests taken at the direction of a law enforcement officer. [7] This right is not absolute, as an arrestee's failure to arrange the test or to have the independent test performed does not affect the admissibility of the State's required test. See § 316.1932(1)(f)3., Fla.Stat....

...[8] New York, like Florida, does not have a statutory requirement that the defendant be affirmatively advised of the right to an independent blood test. However, in Finnegan, as in the case sub judice, the police informed the defendant of the right. [9] New York does not have a parallel statute to section 316.193(9) requiring the police to detain the arrestee....

...v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (recognizing that "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness"); see also State v. Muller, 693 So.2d 976 (Fla.1997) (holding that section 316.193(6)(d), Florida Statutes (1993), which requires impoundment or immobilization of a vehicle driven by a person convicted of DUI, unless the court finds that the family of the owner has no *76 other means of transportation, is not uncons...

...When the police arrested Reed at approximately 6:30 a.m., he had a blood alcohol concentration of .14 grams of alcohol per 100 milliliters of blood. The State charged Reed with two counts of driving under the influence (DUI) manslaughter in violation of Fla. Stat. § 316.193; two counts of vehicular homicide arising out of a failure to render aid or give information in violation of Fla....

...4th DCA 1987), which is in apparent conflict with State v. Weitz, 500 So.2d 657 (Fla. 1st DCA 1986). We have jurisdiction under article V, section 3(b)(3), of the Florida Constitution. John McClain was charged with vehicular manslaughter while intoxicated, contrary to section 316.1931(2), Florida Statutes (1983)....

...Therefore, we cannot say that the trial court abused its discretion in refusing to admit the evidence of the cocaine in McClain's blood. The question remains as to whether this decision is in conflict with State v. Weitz . In Weitz the driver was charged with DUI in violation of section 316.193, Florida Statutes (1985)....

...The court said: In Armenia, the Florida Supreme Court held that it is not necessary to prove a causal relationship between the manner of operation of defendant's motor vehicle due to intoxication and the death of the victim, in order to convict under section 316.1931, Florida Statutes (1983), and Baker v....

...In Baker the court held that DWI/manslaughter was a strict liability offense. 523 So.2d at 763. However, because of a 1986 amendment to the statute, the district court certified the following question: Is the holding of Armenia v. State, 497 So.2d 638 (Fla. 1986) still valid in light of section 316.193(3)(c) Florida Statutes (Supp....

...n for manslaughter by intoxication. The Court observed that nothing had occurred since the decision in Baker which would warrant receding from that case. [1] By 1986, the manslaughter by intoxication statute construed in Baker had been renumbered as section 316.1931, but its wording remained essentially the same. Immediately before the 1986 amendment, the statute read, in pertinent part: 316.1931 Driving automobile while intoxicated; punishment....

...(3) A conviction under the provisions of this section shall not be a bar to any civil suit for damages against the person so convicted. The pertinent portion of the manslaughter by intoxication statute, as amended by chapter 86-296, Laws of Florida, now reads: 316.193 Driving under the influence; penalties....

...t causation be a factor in a DUI manslaughter conviction. Fla.S., transcript of proceedings at 4 (June 19, 1986) (HB 8-B). We also note that Senate Bill 1218 which specified that negligence and proximate cause were not elements of manslaughter under section 316.193 was introduced during the 1986 legislative session but failed to pass. In view of the history of chapter 86-296, the legislative intent is clear. We conclude that the 1986 amendment introduced causation as an element of the crimes proscribed by section 316.193(3)....

...KOGAN, Justice. We have for review Robertson v. State, 569 So.2d 861 (Fla. 5th DCA 1990), which certified the following questions of great public importance: (A) May a chemical analysis performed in accordance with the approved methods contemplated by section 316.1933 be conducted under the supervision of a permittee by individuals not possessing [a Florida Department of Health and Rehabilitative Services ("HRS")] permit? (B) Can the state introduce into evidence test results of blood samples taken at the request of law enforcement if the requirements of section 316.1933 are not satisfied? If so, upon proof of qualification of the person taking blood or conducting the test, can the state nonetheless rely on the provisions of section [] 316.1933 to prove a violation of section 316.193 or must the state introduce competent proof wholly independent of the statute? Robertson v....

...It thus is clear both from this testimony and the overall record that Robertson did not actually consent to the withdrawal of blood, nor was blood withdrawn for some medical purpose. [1] Rather, blood was withdrawn at the direction of the officer pursuant to the implied-consent provision of section 316.1933(1), Florida Statutes (1987), [2] in an attempt to gather evidence to prosecute Robertson for a DUI-related offense....

...The Department of Health and Rehabilitative Services may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits which will be subject to termination or revocation at the discretion of the department. § 316.1933(2)(b), Fla. Stat. (1987) (emphasis added). Once a blood-alcohol test is validly taken under subsection 316.1933(2), the Florida Statutes then create a presumption that anyone with a blood-alcohol content of 0.10 percent or more is impaired. § 316.1934(2)(c), Fla....

...d by an individual possessing a valid permit issued by the department for this purpose. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid. § 316.1934(3), Fla....

...We find this language plain and unambiguous. Under both statutes, the test "must have been performed ... by an individual possessing a valid permit." Id. While there are "substantial compliance" clauses and a separate "savings" clause in the case of section 316.1934(3), by their own terms these clauses apply only to the "methods approved by [HRS]" and the "approved techniques and actual testing procedures." There is no reference whatsoever to "substantial compliance" in connection with the licen...

...Since there is no statutory ambiguity here, we have no need to resort to rules of construction, nor may we vary the language beyond its plain meaning. Accordingly, we hold that the test conducted by Dr. Duer in this instance was not an authorized test within the meaning of subsections 316.1933(2)(b) and 316.1934(3), Florida Statutes (1987), because Dr....

...evidence of blood-alcohol test results and related testimony produced by an unlicensed expert, subject to two important provisos. First, the blood must have been drawn by a person authorized to do so by the implied consent statute. [9] See Gillman; § 316.1933(2)(a), Fla....

...plied consent law, which would have been error. While the jury was told that a blood-alcohol level of 0.10 percent or higher could be an element of the crime, [14] this instruction clearly was derived from the statutory elements of DUI manslaughter, § 316.193, Fla. Stat. (1987), not from the statute creating a presumption of impairment. § 316.1934, Fla....

...In my view, the majority opinion does not change this principle. SHAW, J., concurs. SHAW, Justice, concurring in result. I agree that because the person testing Robertson's blood did not possess the "valid permit issued by the department [of Health and Rehabilitative Services]," required by section 316.1934(3), Florida Statutes (1987), the presumption afforded in section 316.1934(2)(c), Florida Statutes (1987), is not available to the State in its prosecution of this case....

...d sample would have been admissible independently of the implied consent law, for the reasons expressed more fully below. [2] The statute provides in pertinent part: Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof... . The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test § 316.1933(1), Fla. Stat. (1987). [3] The parties have not raised, and we do not address, the propriety of this procedure under the various provisions of article I of the Florida Constitution. [4] The implied consent law consists of sections 316.1932, 316.1933, and 316.1934, Florida Statutes (1987), which essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence....

...As applicable to the present case, this list consists of physicians, certified paramedics, registered nurses, licensed practical nurses, licensed clinical laboratory technicians, and licensed clinical laboratory technicians, and licensed clinical laboratory technologists. § 316.1933(2)(a), Fla....

...91-255, §§ 2-3, Laws of Fla. (1991). However, these changes are not applicable to the present case. [10] This includes the presumption that the test is reliable if conducted according to HRS regulations and the presumptions of impairment created by section 316.1934....

...In addition, effective May 31, 1991, the list of authorized persons was changed to include other categories of health-care professionals. Ch. 91-255, Laws of Fla. [14] Florida law authorizes two alternative theories for DUI offenses: actual impairment, or a blood alcohol level of 0.10 or higher. § 316.193, Fla....

...The second of these is a strict-liability theory, since the fact of operating a motor vehicle with a blood-alcohol level of 0.10 or higher is an offense even if impairment cannot be proven. There is some redundancy in the statute, however, since impairment is presumed if the blood-alcohol content is 0.10 or higher. § 316.1934(2), Fla....

...We have accordingly added these two alternatives to the committee's proposed instruction. FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER As ultimately submitted to this Court, the committee's proposed instruction regarding fleeing to elude a law enforcement officer under section 316.1935(1), Florida Statutes (Supp.1998) (fleeing/failure to stop), was not explicitly clear that the State must prove the subject defendant's knowledge not only of the order to stop but also of the fact that the person who ordered the stop was a duly authorized law enforcement officer. As urged by Assistant Public Defender Stanton, we have incorporated language from the controlling statute to ensure that these knowledge requirements are accurately reflected in the instruction. See § 316.1935(1), Fla. Stat. (Supp.1998). As further urged by Assistant Public Defender Stanton, we have also incorporated these knowledge requirements in the two remaining fleeing-to-elude instructions proposed by the committee under sections 316.1935(2) (willful fleeing/siren and lights) and 316.1935(3) (high speed/ recklessness), Florida Statutes (Supp.1998), respectively....

...1996), the court defined the elements of constructive possession that apply if the defendant has no control over the place where the contraband was found. [5: A Revised Instruction for the Crime of Driving Under the Influence] DRIVING WHILE UNDER THE INFLUENCE F.S. 316.193 Before you can find the defendant guilty of Driving or Being in Actual Physical Control of a Vehicle, While Under the Influence of (alcoholic beverages) (___________, a controlled substance) when affected to the extent that his normal facu...

...That the defendant had .10% or more by weight of alcohol in this blood, it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. F.S. 322.262(2)(c). DRIVING WHILE UNDER THE INFLUENCE F.S. 316.193 To prove the crime of driving under the influence the state must prove the following two elements beyond a reasonable doubt....

...(_________) is a controlled substance under Florida law. F.S. 893. (_________) is a chemical substance under Florida law. F.S. 877.111(1). When appropriate, give one or more of the following instructions on the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c)....

...The historical fact of a previous conviction shall be determined by the judge, and shall thereby fix the degree of the crime. State v. Harris, 356 So.2d 315 (Fla.1978). [10: A Revised Instruction for Eluding an Officer (Fleeing/Failure to Stop)] FLEEING OR ATTEMPTING TO ELUDE A POLICE OFFICER F.S. 316.1935 Before you can find the defendant guilty of Fleeing or Attempting to Elude a Police Officer, the State *703 must prove the following three elements: Elements 1....

..."Street or highway" means the entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic. 4. "Willfully" means intentionally, knowingly and purposely. FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1) Fla....

...devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. _________ Lesser Included Offenses Category One: None Category Two: None __________ Comment This instruction is based on the text of section 316.1935(1), Florida Statutes, (Supp.1998). *704 [11: A Revised Instruction for Eluding an Officer (Willful Fleeing/Siren and Lights)] [Existing Fleeing to Elude Instruction Struck as Reflected in # 10 above] FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(2) Fla....

...may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. __________ Lesser Included Offenses Category One: Fleeing to Elude, Fla. Stat. 316.1935(1) Category Two: None ___________ Comment This instruction is based on the text of section 316.1935(2), Florida Statutes, (Supp.1998). [12: A Revised Instruction for Eluding an Officer (High Speed/Recklessness) ] [Existing Fleeing to Elude Instruction Struck as Reflected in # 10 above] FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(3) Fla....

...r may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. _________ Lesser Included Offenses Category One: Fleeing to Elude Fla. Stat. 316.1935(2) Fleeing to Elude Fla.Stat. 316.1935(1) Category Two: Reckless Driving Fla. Stat. 316.192 _________ Comment This instruction is based on the text of section 316.1935(3), Florida Statutes, (Supp.1998)....

...It is a technicality that impedes rather than fosters the search for truth. I would therefore recede from cases requiring that the corpus delicti be proved before a confession can be admitted into evidence and adopt the "trustworthiness" test announced in the above cases. NOTES [1] § 316.193(3), Fla....

...We answer in the affirmative, but, based on the record in this case, approve the result reached by the district court. The City of Tampa Police Department arrested Jones for driving while under the influence of alcoholic beverages (DUI), a violation of section 316.193, Florida Statutes (1981)....

...Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee. EHRLICH, Chief Justice. We have for review Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988), in which the district court held unconstitutional section 316.1934(2)(c), Florida Statutes (1985), and the corresponding jury instructions. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and quash the decision of the district court below. Rolle was charged and convicted of felony driving under the influence pursuant to section 316.193(2)(b), Florida Statutes (1985). That statute prescribes felony sanctions upon a fourth or subsequent violation of the drunk driving law, section 316.193(1), Florida Statutes (1985). Rolle was sentenced to one year in the county jail. The district court reversed the conviction and sentence and remanded the cause for a new trial. The district court concluded that section 316.1934(2)(c), Florida Statutes (1985), and the corresponding jury instruction shifted the burden of proof to the defendant on an element of the crime, impairment, in violation of the due process clause of the United States Constitution....

...State, 329 So.2d 296 (Fla. 1976). However, in 1982 the statutory landscape changed dramatically. The legislature substantially reworded the statute, consolidating DUI and DUBAL and providing identical penalties for conviction. Ch. 82-155, § 2, Laws of Fla. (codified at § 316.193(1)(a)-(b), Fla. Stat. (Supp. 1982)). It is this statutory framework which concerns us today. Section 316.193(1), Florida Statutes (1985), provides: A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle wi...

...tself to establish that the Defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. (Emphasis added.) This instruction derived from section 316.1934(2), Florida Statutes (1985), [2] which creates three categories of blood-alcohol levels and assigns a different evidentiary value to each: (a) If there was at that time 0.05 percent or less by weight of alcohol in the person's blood,...

...closing argument and by the judge in his instructions. To the extent the challenged instruction allowed the jury to substitute proof of a blood-alcohol level of 0.10 percent or higher for proof of impairment it correctly stated the law. Essentially, section 316.193 allows proof of a blood-alcohol level of 0.10 percent or higher to be substituted for proof of impairment — not as an unconstitutional presumption, but as an alternate element of the offense. [3] We *1157 therefore find no constitutional error in the challenged jury instruction. We also find that section 316.1934(2)(c), Florida Statutes, creates a permissive inference, not an unconstitutional presumption....

...distinction should be made. Accordingly, I believe that the instruction on the alternative impairment theory of driving under the influence violated Rolle's due process rights. KOGAN, J., concurs. NOTES [1] Section 316.028 was renumbered in 1977 as section 316.193. [2] Prior to 1982, section 316.1934 was numbered as section 322.262....

...in this context now that DUI and DUBAL have been consolidated. However, the legislature did not amend this section when it consolidated DUI and DUBAL in 1982. See ch. 82-155, Laws of Fla. It should also be noted, however, that while the inference in section 316.1934(2)(c) is essentially irrelevant in a case involving only a violation of section 316.193 (DUI and DUBAL), until 1986 it still served an important function with respect to prosecutions under section 316.1931, Florida Statutes (DWI), because proof of impairment was required....

...Mathis later reported that she had a broken right radius and complained of being nauseous at CBT. Based on his observations, Deputy McKenzie administered a series of field sobriety tests that Ms. Mathis could not satisfactorily complete. He concluded that she was driving under the influence, in violation of section 316.193, Florida Statutes (2003)....

...The instructions as set forth in the appendix [2] shall be effective when this opinion becomes final. It is so ordered. QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur. APPENDIX 7.8 DRIVING UNDER THE INFLUENCE DUI MANSLAUGHTER § 316.193(3)(a)(b)(c)3, Fla....

...0 milliliters of blood] [210 liters of breath]. 3. As a result of operating the vehicle, (defendant) caused or contributed to the cause of the death of [ (victim) ] [an unborn quick child]. See Magaw v. State, 537 So.2d 564 (Fla.1989) . *576 Give if § 316.193(3)(a)(b)(c)3b, Fla....

...An "unborn quick child" is a viable fetus. A fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures. In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by § 316.1934(2)(a)-(c), Fla. Stat., as follows: 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....

...if all the other elements of the charge have been proved beyond a reasonable doubt. Lesser Included Offenses -------------------------------------------------------------------------------------------- DUI DRIVING UNDER THE INFLUENCE MANSLAUGHTER— 316.193(3)(a)(b)(c)(3) -------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. -------------------------------------------------------------------------------------------- DUI Driving under the 316.193(1) 28.1 Influence -------------------------------------------------------------------------------------------- Felony DUI Driving under the 316.193(3)(a)(b)(c)2 28.3 influence causing serious bodily injury -------------------------------------------------------------------------------------------- DUI Driving under the influence 316.193(3)(a)(b)(c)1 28.1(a) causing damage to or person or property -------------------------------------------------------------------------------------------- Vehicular homicide 782.071 7.9 ---------------------------------------------------------...

...-------------------------------- Resisting a merchant 812.015(6) 14.4 ---------------------------------------------------------------------------------------------- Comment This instruction was adopted in 2009. 28.1 DRIVING WHILE UNDER THE INFLUENCE § 316.193(1), Fla._Stat....

...(______) 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....

...leged 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—316.193(1) ----------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....

...In 1992, a similar instruction was adopted for Florida Standard Jury Instructions In Criminal Cases. That instruction was amended in 1995 and 1998;, and both instructions were merged into a this revised instruction in 2000, which was amended in 2009. 28.1(a) DRIVING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY § 316.193(3)(a)(b)(c)1, Fla....

...( ) 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....

...of the charge have been proved beyond a reasonable doubt. *592 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. 28.2 FELONY DUI DRIVING UNDER THE INFLUENCEPRIOR CONVICTIONS § 316.193(2)(b)1 or § 316.193(2)(b)3, Fla....

...*593 ( ) is a controlled substance under Florida law. Chapter 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....

...all the other elements of the charge have been proved beyond a reasonable doubt. Give as applicable if the jury finds the defendant guilty of Driving under the Influence. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See § 316.193(6)(k), Fla....

...r Driving Under the Influence convictions took place within 10 years of the Driving Under the Influence that you found the defendant committed. b. the defendant was previously convicted three times of Driving under the Influence. Give if applicable. 316.193(12), Fla....

...the Influence conviction. Lesser Included Offenses ------------------------------------------------------------------------------------ FELONY BUI DRIVING UNDER THE INFLUENCE— [THIRD OFFENSE WITHIN 10 YEARS OF A PRIOR CONVICTION]S [FOURTH OFFENSE] 316.193(2)(b)1 or 316.193(2)(b)3 ------------------------------------------------------------------------------------ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------------ None Driving under 316.193(1) 28.1 the influence ------------------------------------------------------------------------------------ Attempt 777.04(1) 5.1 ------------------------------------------------------------------------------------ Driving under the influence causing 316.193(3)(a)(b)(c)1 28.1(a) property damage or injury ------------------------------------------------------------------------------------ Comment Use 28.1 when a felony DUI based on prior convictions is s charged....

...rior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla.2000) . This instruction was adopted in 2009. 28.3 FELONY DUI DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY § 316.193(3)(a)(b)(c)2, Fla._Stat....

...( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. § 877.111(1), Fla.Stat. (Specific substance alleged) is a chemical substance under Florida law. Chapter 893, Fla.Stat. (Specific substance alleged) is a controlled substance under Florida law. § 316.1933, Fla._Stat....

..."Serious bodily injury" means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by *596 §§ 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat., as follows: 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....

...nts of the charge have been proved beyond a reasonable doubt. *597 Lesser Included Offenses ----------------------------------------------------------------------------------------- DRIVING UNDER THE INFLUENCE DUI WITH CAUSING SERIOUS BODILY INJURY—316.193(3)(a)(b)(c)2 ----------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------------------- Driving under the influence 316.193(3)(a)(b)(c)1 28.1 causing injury ----------------------------------------------------------------------------------------- Driving under the influence 316.193(1) 28.1 28.1 DUI. ----------------------------------------------------------------------------------------- Driving under the influence 316.193(3)(a)(b)(c)1 28.1(a) causing property damage DUI ----------------------------------------------------------------------------------------- Comment This instruction was adopted in 1992 and amended in 1998 and 2009....

...[20] The question remaining to be answered is whether the HGN is admissible as the sole evidence to establish a precise bloodalcohol content. We think not in the absence of a statutory mandate authorizing use of the HGN test as direct evidence to establish an unlawful BAC. Under Section 316.193(1), Florida Statutes (1993), a person is guilty of DUI if the facts reflect that the person was in control of a vehicle and: (a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s....

...e person's normal faculties are impaired; (b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. Section 316.1934(2), Florida Statutes (1993), specifically provides that impairment is presumed *36 where a chemical analysis of blood or physical test of breath shows a BAC of 0.08 or higher....

...ers. Therefore, we must answer the fourth certified question in the negative. Accordingly, we hold that HGN test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Section 316.1934, and may not be used to establish a BAC of 0.08 percent or more. See State v. O'Key, 899 P.2d at 681; State v. Bresson, 554 N.E.2d at 1336. [22] However, HGN test results are admissible independently of other evidence as proof that a defendant was impaired under Section 316.193(1)(a)....

...As properly recognized by the trial court, this is a matter for the jury to decide. [23] The mere fact that DRE testimony is admitted, does not automatically translate to a guilty verdict. The State is still required to prove beyond a reasonable doubt that the defendant is impaired by a chemical or controlled substances. § 316.193, Fla....

...The defendant had a distinct odor of alcohol and bloodshot eyes. The officer asked the defendant to exit the vehicle and conducted several field sobriety tests. [27] The officer concluded that he had probable cause to believe that the defendant was impaired, and placed him under arrest for DUI pursuant to section 316.193(1), Florida Statutes (1993)....

...Insofar as pertinent here: (1) A person is guilty of the offense of driving under the influence ... if such person is driving ... and: (a) The person is under the influence of alcoholic beverages, ... or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired .... § 316.193, Fla....

...It is possible for a driver to be under the influence without his normal faculties being impaired. See Cannon v. State, 91 Fla. 214, 217, 107 So. 360, 362 (1926). Impairment. This is typically shown by nonscientific evidence: lay testimony. The proof must show that the "normal faculties are impaired ...." § 316.193(1)(a), Fla. Stat. (1993). "Normal faculties include ... the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life." Id. § 316.1934(1)....

...ance in urine does not establish whether an individual was impaired by that substance or how an individual was impaired by that substance."). Causation. The State must also show that the driver's impairment resulted from the substances consumed. See § 316.193(1)(a), Fla....

...We should exercise our discretion to decline to answer it. In the fourth certified question, the court posits a defendant who has been charged with driving with an unlawful blood or breath alcohol level ("DUBAL"), i.e., an alcohol level of 0.08% or higher. See § 316.193(1)(b), Fla....

...In the present case, the defendant took a breath test and the result was 0.07%. He is not charged with DUBAL, that is, with having an alcohol level of 0.08% or higher. He is charged with DUI, that is, driving under the influence "when affected to the extent that his normal faculties are impaired ...." Id. § 316.193(1)(a)....

...Defendant's HGN results do not show that he had an alcohol level in excess of 0.08%. B. If we are to answer the fourth certified question, then I agree that an HGN-based alcohol calculation cannot be used to establish an alcohol level of 0.08% or greater, see id. § 316.193(1)(b), nor may it be used to trigger any impairment presumptions under section 316.1934, Florida Statutes....

...The statute spells out what testing methods may be used, and HGN is not among them. *47 C. I respectfully disagree with the part of the majority opinion which goes on to say, "However, HGN test results are admissible independently of other evidence as proof that a defendant was impaired [50] under Section 316.193(1)(a)." Majority opinion at 36 (citing State ex rel....

...le cause to believe that the driver is guilty of driving under the influence. Bear in mind that an officer is not allowed to administer a breath- or blood-alcohol test under the informed consent law until after the officer has made a DUI arrest. See § 316.1932(1)(a), Fla....

...Bender, 382 So.2d 697 (Fla.1980), the Florida Supreme Court upheld the constitutionality of the implied consent statutes in Chapter 322 creating procedures for breath and blood testing for alcohol. The Court recognized the overall purpose of Chapter 322 is to assist in implementing Section 316.193 which provides that driving while impaired is unlawful....

...The study conducted by the group revealed that BAC can be accurately estimated from the angle of onset of nystagmus. The research group recommended the walk and turn test, the one leg stand and the HGN as being the most reliable indicators of alcohol impairment. [21] Section 316.1934 provides in relevant part: (1) It is unlawful and punishable as provided in chapter 322 and in s. 316.193 for any person who is under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person's normal faculties are impaired or to the extent that the person is deprived of full possession of norma...

...ntrolled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section are admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood or breath at the time alleged, as shown by chemical analysis of the person's blood, or by chemical or physical test of the person's breath, gives rise to the following presumptions: .......

...[28] The officer's report is in the record, but the officer's testimony was not taken. As explained in the majority opinion, "The drug influence evaluation will not be conducted if the breath test result is consistent with the degree or type of impairment." Majority opinion at 26 n.4. Under section 316.1934(2)(b), Florida Statutes (1993), a 0.07% reading does not give rise to any presumption that the defendant was, or was not, impaired. [29] See supra note 3. [30] The statute also provides that a driver is guilty of DUI if he "has a blood or breath alcohol level of 0.08 or higher." Id. § 316.193(2)....

...scientific validity. Id. (citations omitted). [48] See majority opinion at 28; see also infra Part VII. [49] State v. Bender, 382 So.2d 697 (Fla.1980). [50] In saying that HGN test results are admissible "as proof that a defendant was impaired under Section 316.193(1)(a)," majority opinion at 36, the majority opinion misspeaks....

...Gen., and Harry Morrison, Tallahassee, for appellee. PER CURIAM. On appeal from a conviction of resisting arrest with violence in violation of Section 843.01, Florida Statutes, and driving while under the influence of alcoholic beverages in violation of Section 316.193, Florida Statutes, the defendant below, Danny Lee Ivester, asks us to consider two points....

...he jury unless the traditional predicates of scientific evidence are satisfied. INTRODUCTION Both defendants challenged the admissibility of field sobriety tests in connection with their arrests for driving under the influence of alcohol pursuant to section 316.193(1), Florida Statutes (1991)....

...rformance and impairment.... In the final analysis, the clear implication of Dr. Burns' testimony was that the results of field sobriety tests were never intended as evidence of impairment beyond a reasonable doubt. APPLICABLE STATUTORY AND CASE LAW Section 316.193(1)(a), (b), Florida Statutes (1991), provides that a person is guilty of driving under the influence if he or she is "affected to the extent that his [or her] normal faculties are impaired; or ......

...The term "normal faculties" is defined as including "the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life." § 316.1934(1), Fla....

...ld sobriety test results, in State v. Taylor, 648 So.2d 701 (Fla.1995), our supreme court determined that a defendant's refusal to take the field sobriety tests could be admissible in a prosecution for DUI based on Florida's implied consent law. See § 316.1932, Fla....

...8, 1995); State v. Williams, 3 Fla.L.Weekly Supp. 70 (Fla.Dade Cty.Ct. Jan. 19, 1995), there was testimony from a dozen witnesses and thousands of pages of medical literature. [5] In Florida at the present time, the presumptive level of intoxication is .08. § 316.193(1), Fla....

...ction on the circuit court and to comply with due process of law. The state filed an information in the circuit court charging Narcisco Rodriguez with three traffic-related offenses on October 11, 1988. One of the charges was for DUI in violation of section 316.193(1), (2)(b) of the Florida Statutes (Supp. 1988). [2] Section 316.193(2)(b) provides that "[a]ny person who is convicted of a fourth or subsequent [DUI violation] is guilty of a felony of the third degree." The information here made no mention of any specific prior DUI convictions, nor did the state before trial provide Rodriguez any details of the alleged prior convictions....

...tit theft in violation of section 812.014(2)(c). Thus, the Court concluded that the circuit court had jurisdiction. The jurisdictional issue in this case is even more clear than in Phillips. The information charged Rodriguez with DUI in violation of section 316.193(1), (2)(b) of the Florida Statutes (Supp. 1988). Those provisions read as follows: 316.193 Driving under the influence; penalties....

...the essential facts constituting the offense charged." ) (emphasis supplied). As the state conceded at oral argument, the combined existence of three or more prior DUI convictions is an element of the substantive offense of felony DUI as defined by section 316.193(1), (2)(b)....

...Justice Hatchett concluded for the Court that the felony petit larceny statute "creates a substantive offense and is thus distinguishable from [s]ection 775.084, the habitual criminal offender statute." Harris, 356 So.2d at 316. The felony DUI statute is indistinguishable in this regard. Section 316.193(2)(b) of the Florida Statutes (Supp....

...[4] Our reading of the felony DUI statute is wholly consistent with all of the penalty provisions set by the legislature for DUI, including its intent to apply the penalty enhancement provisions of the habitual felony offender statute. The maximum incarceration for first-offense DUI is six months' incarceration. § 316.193(2)(a)(2)(a), Fla. Stat. (Supp. 1988). For second-offense DUI, the defendant may be sentenced to nine months' incarceration. § 316.193(2)(a)(2)(b), Fla. Stat. (Supp. 1988). Third-offense DUI is punishable by not more than twelve months' incarceration. § 316.193(2)(a)(2)(c), Fla. Stat. (Supp. 1988). A fourth or subsequent DUI violation is a third-degree felony punishable by a maximum five years' incarceration. See § 316.193(2)(b), Fla....

...See § 775.084(4)(a)(3), Fla. Stat. (Supp. 1988). [5] Under different facts, the substantive terms of the habitual felony offender statute may be applicable to felony DUI defendants who otherwise qualify for enhanced punishment under that statute. [6] § 316.1934(4), Fla....

...For the reasons stated below, we answer the certified question in the negative. PROCEEDINGS TO DATE Miles was involved in an automobile accident which resulted in the death of a passenger of another vehicle. Without Miles' consent, the law enforcement officers at the scene required him to submit to a blood draw pursuant to section 316.1933, Florida Statutes (1995)....

...The court denied the motion to suppress, but ruled that because of the statute's failure to provide for preservation and the deficiency of the rule in protecting the integrity of the process, the State would not be entitled to the presumption of impairment provided for pursuant to section 316.1934(2)(c), Florida Statutes (1995). [1] *952 The court recognized that section 316.1933(2)(b), Florida Statutes (1995), authorizes that the FDLE approve "satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to terminat...

...according to the dictates of Robertson, and thus certified the aforementioned question. See id. THE IMPLIED CONSENT LAW To address the problem of drunk driving on Florida roads, the Legislature enacted what is known as the implied consent law. See §§ 316.1932, 316.1933, 316.1934, Fla....

...l or a prohibited substance. See id. Furthermore, under the statutory scheme for driving under the influence, the State is entitled to certain presumptions of impairment upon the establishment of a given alcoholic blood content of the defendant. See § 316.1934(2), Fla. Stat. (1995). [2] The Legislature delegated to the FDLE the task of formulating and approving the process in which a person's blood is analyzed in determining its alcoholic content. Hence, section 316.1933(2)(b), Florida Statutes, provides: A chemical analysis of the person's blood to determine the alcoholic content *953 thereof must have been performed substantially in accordance with methods approved by the Department of Law Enforcem...

...Any insubstantial differences between approved methods or techniques and actual testing procedures, or any insubstantial defects concerning the permit issued by the department, in any individual case, shall not render the test or test results invalid. Id.; cf. § 316.1932(1)(b)(2), Fla....

...court admitted the test results. See id. at 787-88. The Fifth District affirmed and certified the following question: Can the state introduce into evidence test results of blood samples taken at the request of law enforcement if the requirements of section 316.1933 are not satisfied? If so, upon proof of qualification of the person taking blood or conducting the test, can the state nonetheless rely on the provisions of section 316.1933 to prove a violation of section 316.193[ [7] ] or must the state introduce competent proof wholly independent of the statute? Id....

...ntrolled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section are admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood or breath at the time alleged, as shown by chemical analysis of the person's blood, or by chemical or physical test of the person's breath, gives rise to the following presumptions: ....

...rious penalties associated therewith. [8] The Fifth District actually certified two questions. The other question, which the Court answered negatively, stated: May a chemical analysis performed in accordance with the approved methods contemplated by section 316.1933 be conducted under the supervision of a permittee by individuals not possessing [a Florida Department of Health and Rehabilitative Services ("HRS") ] permit? See Robertson, 604 So.2d at 786 (alteration in original)....

...278 , 66 L.Ed.2d 136 (1981). The Florida DUI Manslaughter statute provides in part that: (1) A person is guilty of the offense of driving under the physical control of a vehicle within this statute and; ... [t]he person has a blood alcohol level of 0.10 percent or higher. Section 316.193, Florida Statutes (Supp....

...than [they] would have been had [the misdemeanors] not been filed insofar as the time within which [the defendants] must be brought to trial on the felony charge[s] is concerned"). Notwithstanding, a conviction of the felony DUI charge in the instant case would be impossible to obtain. Under section 316.193(2)(b), Florida Statutes (1991), a felony DUI conviction is obtained by proving a misdemeanor DUI conviction on the present charge and proof of three or more prior misdemeanor DUI convictions....

...As the court stated in Spurlock, "[n]either expressly nor impliedly does this rule bar prosecution for greater degree crimes which might have been charged as a result of the same conduct or criminal episode." 584 So.2d at 1016. The only reason Woodruff prevails in this case is because of the unique requirement of section 316.193(2)(b) that there be a conviction of the current DUI misdemeanor in order to establish the crime of DUI after three previous DUI convictions....

...nt that misdemeanor DUI does not, felony DUI is a completely separate offense and not simply a penalty enhancement. Id. at 977; see also State v. Rodriguez, 575 So.2d 1262 (Fla.1991). However, I do not agree with the majority's ultimate holding that section 316.193(2)(b), Florida Statutes (1991), requires that there be "a conviction for the current DUI misdemeanor in order to establish the crime of DUI after three previous DUI convictions." Majority op. at 978. In so holding, the majority is in conflict with its earlier statements and ignores the plain language of the statute. The relevant portions of section 316.193, Florida Statutes (1991), provide: (1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle wi...

...felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; however, the fine imposed for such fourth or subsequent violation shall not be less than $1,000. As is clear from the statute, a felony DUI conviction under section 316.193(2)(b) only requires two elements: a current conviction for a violation of subsection (1); and three or more prior convictions of subsection (1). See also Rodriguez, 575 So.2d at 1265. In Rodriguez we precisely stated: Section 316.193(2)(b) of the Florida Statutes (Supp.1988) requires that "[a]ny person who is convicted of a fourth or subsequent [DUI violation] is guilty of a felony of the third degree, punishable as provided in s....

...It follows that because this fact is essential to the definition of the crime of felony DUI, it is *980 an essential element that must be noticed and proved beyond a reasonable doubt. Art. I, §§ 9, 16, Fla. Const. Rodriguez, 575 So.2d at 1265 (footnote omitted). Contrary to the majority opinion, section 316.193(2)(b), Florida Statutes (1991), does not require a conviction for the present DUI misdemeanor in order to establish the crime of DUI after three previous DUI convictions....

...Convictions for each of the first three DUI offenses, punishable as provided under subdivision (2)(a), would be misdemeanors. [5] However, when the State seeks a felony DUI conviction for a fourth or subsequent DUI offense under subdivision (2)(b), subdivision (2)(a) expressly states that it does not apply. See § 316.193(2)(a) ("Except as provided in paragraph (b) ..., any person who is convicted of a violation of subsection (1) shall be punished....")....

...Affording the statute its plain meaning and applying our holding in Rodriguez resolves this inconsistency. However, it requires that we quash the decision below and not approve it. OVERTON, J., concurs. NOTES [1] The only felony charged by information was DUI after three previous DUI convictions as proscribed by section 316.193(2)(b), Florida Statutes (1991). The ticket which charged Woodruff with DUI with serious injury which might have resulted in a felony charge of DUI with serious bodily injury under section 316.193(3)(c)2, Florida Statutes (1991), was apparently reduced to a misdemeanor charge of DUI with damage to the person....

...ard County Sheriff's Office arrested Mr. Kelly for his fourth DUI offense. Kelly consented to a breathalyzer test, which produced results of .092% and .090% breath-alcohol content; these results are consistent with legal intoxication in Florida. See § 316.193(1)(c), Fla....

...Kelly with misdemeanor DUI. The State, however, was not prepared for trial and eventually nolle prosequied the charge. The State later refiled the case on April 26, 2004, in circuit court as a felony DUI charge based on Kelly's three prior misdemeanor DUI convictions. See § 316.193(2)(b)(3), Fla....

...luding the completion of a substance-abuse course and a psychosocial evaluation; the impoundment and immobilization of all vehicles that Mr. Kelly owns for 90 days; and the permanent revocation of Kelly's driver's license or driving privilege. See §§ 316.193(2)(b)(3), 775.083(1)(c), 316.193(5), 316.193(6)(c), 322.28(2)(e), Fla....

...revoking their driver's licenses. In relevant part, section 322.28(2)(e), Florida Statutes (2003), provides: The court shall permanently revoke the driver's license or driving privilege of a person who has been convicted four times for violation of s. 316.193 or former s. 316.1931 or a combination of such sections. The court shall permanently revoke the driver's license or driving privilege of any person who has been convicted of DUI manslaughter in violation of s. 316.193....

...nvictions. This is the case because those prior uncounseled convictions constitute an element of the defendant's subsequent felony DUI. See, e.g., Finelli, 780 So.2d at 33 (defendant's prior misdemeanor DUI convictions are an element of felony DUI); § 316.193, Fla....

...ail time were in his best interest since, in the 1995 arrest, his blood alcohol level was 0.152 on the first test and 0.161 on the second test, and in the 1997 arrest, his blood-alcohol level was 0.179 on the first test and 0.182 on the second test. Section 316.193, Florida Statutes, sets the maximum limit at 0.08, so both times Kelly was over twice the legal limit....

...AW, IS THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT REQUIRED TO ADOPT RULES IN ACCORDANCE WITH THE FLORIDA ADMINISTRATIVE PROCEDURES [SIC] ACT GOVERNING THE COLLECTION, PRESERVATION, AND ANALYSIS OF URINE SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(1)(a), FLORIDA STATUTES. [1] Because we conclude that section 316.1932(1)(a)(1), Florida Statutes (2002), does not require that urine testing procedures be promulgated by rule in accordance with the Florida Administrative Procedure Act (APA), we answer the certified question in the negative. FACTS AND PROCEDURAL HISTORY This case arises out of charges that Bodden was driving under the influence in violation of section 316.193(1), Florida Statutes (2002)....

...Bodden filed two motions in limine requesting that the trial court suppress any reference to his urine test results because no regulatory criteria for testing had been promulgated in accordance with chapter 120, Florida Statutes (2002) (the APA). *683 Bodden argued that section 316.1932, part of the implied consent law pertaining to the operation of motor vehicles, [3] requires that any scientific test conducted pursuant to the implied consent law, including a urine test, be an approved test....

...in accordance with the APA, and granted Bodden's motions to suppress. The county judge also certified to the Second District Court of Appeal the same question the Second District subsequently certified to this Court in this case — that is, whether section 316.1932(1)(a)(1) requires that urine testing procedures be approved through formal rule promulgation in accordance with the APA. [5] The Second District answered the question in the affirmative. See Bodden, 872 So.2d at 917. According to the Second District, the sole question to be answered was whether the term "approved" in section 316.1932(1)(a)(1) refers to urine tests as well as breath and blood tests....

...Interpreting the same statute under similar factual circumstances, the Fifth District Court of Appeal in State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003), reached a decision contrary to that of the Second District in Bodden. In Pierre, the Fifth District concluded that section 316.1932, taken as a whole, "evinces an unambiguous intent that urine tests need not be approved." See id. at 233. The Fifth District in Pierre certified conflict with Bodden. See id. at 232. [6] ANALYSIS A. Certified Question The certified question presents the narrow issue of whether section 316.1932 *684 requires that procedures for the collection, preservation, and analysis of urine samples be promulgated and approved by rule in accordance with the APA....

...to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances.... (Emphasis supplied.) The key to the resolution of the narrow issue we confront is whether the word "approved" in section 316.1932(1)(a)(1) modifies "urine test." An "approved" test under this provision is one that is adopted through rule promulgation in accordance with the APA....

...Applying that principle of statutory construction, we conclude, contrary to the Second District, that the language of the implied consent law provides that the methods for conducting urine tests are not required to be "approved" through APA rule promulgation. We begin with the actual language used by the Legislature in section 316.1932(1)(a)(1)....

...Hubbard, 751 So.2d 552, 562 (Fla.1999) (relying on Bourquardez for this principle of statutory construction); Beach v. Great Western Bank, 692 So.2d 146, 152 (Fla.1997) (same), aff'd sub nom. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). The grammatical structure of the first sentence of section 316.1932(1)(a)(1) is such that the implied consent deemed to have been given by an operator of a motor vehicle applies equally to two independent, unrelated tests — the first an "approved chemical test" to determine blood- or breath-alcohol...

...The plain language of this section demonstrates that "approved" does not modify "urine test." [8] In the alternative, Bodden argues that the Legislature intended for "urine test" to fall within the subset of included approved chemical tests. However, the language of section 316.1932(1)(a)(1) in its entirety "makes a distinction between the two tests in numerous places ..., evincing that urine tests are not merely subsets of `chemical tests.'" Pierre, 854 So.2d at 233....

...The urine test shall be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved. § 316.1932(1)(a)(1)....

...cline to interpret this statute in a way which would render superfluous the separate references to urine tests throughout this section. Our interpretation that urine tests are distinct from chemical tests is borne out by a review of the remainder of section 316.1932. Although we are initially guided by the clear language of section 316.1932(1)(a)(1), we also look to the other provisions of the implied consent law to discern if there is any indication that the Legislature intended urine testing methods to be "approved." Indeed, in Mehl v....

....") (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)); T.R. v. State, 677 So.2d 270, 271 (Fla.1996) (all parts of a statute must be read together so that the statute is consistent in its entirety). Reading section 316.1932(1)(a)(1) in pari materia with the remainder of the implied consent law leads to a logical and harmonious construction in which "approved" does not modify "urine test." The implied consent law as a whole consistently treats tests relating to breath and blood distinctly from urine tests. For example, section 316.1932(1)(a)(2) confers on FDLE the responsibility for the regulation and approval of blood and breath testing. [9] Specifically, sections 316.1932(1)(a)(2)(n) and 316.1932(1)(b)(2) *688 grant FDLE the authority to approve blood and breath testing techniques and methods, respectively. [10] Section 316.1932(1)(a)(2)( l ) grants FDLE the authority to "[p]romulgate rules for the administration ... of [the] section, including definitions," and sections 316.1932(1)(a)(2)(f), (g), and (p) address FDLE's authority to "approve" operators, instruments, and repair facilities relating to breath and blood testing. Finally, sections 316.1933(2)(b) [11] and 316.1934(3) [12] both provide that chemical analysis of a person's blood and breath must be performed "substantially in accordance with methods approved by [FDLE]." Significantly, there is no mention of urine testing in any of these subsections of the implied consent law. [13] As noted by the Fourth District in Montello, "[n]owhere in Chapter 316 has the Legislature given FDLE the authority to promulgate rules for urine testing for non-commercial drivers." 872 So.2d at 615. To construe section 316.1932(1)(a)(1) in the manner urged by Bodden would require the Court to "ignore the remainder of the statute, which, taken in its entirety, clearly conveys a contrary intent." Pierre, 854 So.2d at 233; see also Jones v....

...ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) ("A basic tenet of statutory interpretation is that a statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts."). Accordingly, we hold that section 316.1932(1)(a), which requires that blood and breath tests be approved, does not similarly require that urine tests be approved through formal rule promulgation in accordance with the APA....

...s a rational basis for doing so. In this regard, we note that the goals of the breath and blood tests are different from the goals of urine testing. Breath and blood tests detect alcohol content, whereas urine tests detect controlled substances. See § 316.1932(1)(a)(1). If an individual has a certain level of alcohol in his or her system, the State benefits from the presumption of impairment. See § 316.1934....

...ct's decision below. We remand this case for proceedings consistent with this opinion. It is so ordered. ANSTEAD, C.J., and WELLS, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. NOTES [1] We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. [2] Section 316.193(1), Florida Statutes (2002), provides in relevant part: (1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical con...

...tance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired.... Subsection (2)(a) provides the penalties which apply to a conviction under the section. See § 316.193(2)(a)....

...a Statutes (2002), and one count of possession of drug paraphernalia in violation of section 893.147, Florida Statutes (2002). Those charges are not at issue. [3] The implied consent law pertaining to operation of motor vehicles encompasses sections 316.1932-.1934, Florida Statutes (2002)....

...tandards or rules on the same subject; and the notice required by subparagraph 1. [8] We recognize that the Legislature drafted section 322.63, Florida Statutes (2002), which contains the implied consent law for commercial vehicles, differently than section 316.1932. However, section 322.63 is not at issue in this case, and we therefore express no opinion on whether urine tests conducted under that statute must be "approved." [9] Section 316.1932(1)(a)(2) provides: The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boatin...

...The specifications in this section are derived from the power and authority previously and currently possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of chapter 99-379, Laws of Florida. (Emphasis supplied.) [10] Section 316.1932(1)(b)(2) provides: An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department may approve satisfactory techniques or methods. (Emphasis supplied.) [11] Section 316.1933 addresses the right to use reasonable force when conducting blood tests for impairment or intoxication in case of death or serious bodily injury. [12] Section 316.1934 addresses testing methods that must be employed in order for the State to benefit from the statutory presumption of impairment. [13] We also note that the subsequent legislative history of section 316.1932(1)(a)(1) buttresses our conclusion that the Legislature did not intend for "approved" to modify "urine test." See Lowry v....

...an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law...."). During the 2003 legislative session, the Legislature amended section 316.1932 in order to clarify that "approved" was not intended to modify "urine testing." See Ch.2003-54, § 1, Laws of Fla....

...However, as I read Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the petitioners' responses should have been suppressed in the absence of prior Miranda warnings. NOTES [1] Allred was charged with a June 24, 1990 violation of section 316.193(1)(a), (b), Florida Statutes (1989). [2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [3] DiAndrea was charged with an April 7, 1990 violation of section 316.193(1)(a), (b), Florida Statutes (1989)....

...Gasset drove onto his residential property and into the garage which is attached to the house. The officers arrived immediately behind him. As Gasset exited his vehicle, the officers entered the garage and arrested him; Gasset was ultimately charged with driving while under the influence (section 316.193, Florida Statutes (1983))....

...In the instant case, the officers had abundant probable cause to arrest Gasset for reckless driving in violation of section 316.192, Florida Statutes (1983) (for a first conviction, punishable up to 90 days imprisonment and $500 fine), and fleeing or attempting to elude a police officer in violation of section 316.1935(1), Florida Statutes (1983) (punishable up to one year imprisonment and $1,000 fine)....

...At issue is whether the Fourth Amendment exclusionary rule should be applied to evidence obtained at the roadblock. This appears to be a case of first impression in this state. Petitioner was arrested for driving while under the influence of alcoholic beverages (DUI), a violation of section 316.193, Florida Statutes (1983)....

...Alliston performed poorly on field sobriety tests, he was arrested for driving under the influence of alcohol and transported to a breath-testing facility. Mr. Alliston's breath test results were .231 and .235. The arresting officer issued Mr. Alliston a DUI citation pursuant to section 316.193, Florida Statutes (2000), and suspended his driving privileges pursuant to section 322.2615(1)(a), Florida Statutes (2000)....

...In this case, the circuit court did not apply the correct law. Pursuant to section 322.2615(11), the formal review hearing for this type of license suspension may be conducted based upon a review of the reports of the arresting officer and the documents related to the administration of the breath test. Section 316.1934(5), Florida Statutes (2000), provides that an affidavit containing the results of any breath alcohol test authorized by section 316.1932, Florida Statutes (2000), is admissible in evidence without further authentication and is presumptive proof of the results obtained if the affidavit discloses certain required information....

...Instead, he argued that the questions he raised about specific procedures used in his case established that the test results were invalid because they were not substantially performed according to methods approved by the Florida Department of Law Enforcement. See § 316.1932(1)(b)(2). However, section 316.1932(1)(b)(2) also provides, "Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid." Although we can conceive of a scenario in which...

...and not instructing the jury pursuant to a special requested jury instruction containing a negligence element. [1] The First District agreed and reversed and remanded for a new trial. The court began its analysis by noting that the statute at issue, section 316.193, Florida Statutes (1995), was amended in 1986 and construed by this Court three years later in Magaw v....

...ourt has adopted standard jury instructions that do not contain a negligence element. This may well be because, despite the language in the Magaw opinion, the substantive statute for DUI manslaughter does not contain any reference to negligence. See § 316.193(3)(c)3, Fla....

...Thus, in that case we concluded that "[i]t was not necessary to allege culpable negligence of the defendant in the operation of the motor vehicle, as that is not a specific element of the offense defined by the particular statute." [6] Tootle, 100 Fla. at 1251, 130 So. at 913. [7] More recently, we construed section *556 316.193's precursor statute [8] in Baker v....

...[9] Ten years after issuing Baker, we again addressed the DUI manslaughter statute in Magaw v. State, 537 So.2d 564 (Fla. 1989). There, the issue presented was whether the holding in Armenia was still valid in light of the 1986 legislative amendments to section 316.193(3)(c)....

...he new language does have the word cause, and I think it's the intent of the drafters of the bill that causation be a factor in a DUI manslaughter conviction." Id. at 567. Upon consideration of those factors, we concluded that the 1986 amendments to section 316.193(3) introduced causation as an element of the crime of DUI manslaughter....

...399 (1932). While manslaughter was recognized as a common law crime in England as early as the 1600s, see Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.1 at 90 (1986), DUI manslaughter is strictly a creature of statute. See § 316.193(3)(c)3, Fla. Stat. (1995). Therefore, it is instructive to examine the plain language of the statute. Section 316.193 provides, in pertinent part: (1) A person is guilty of the offense of driving under the influence ......

...PARIENTE, J., concurs in part and dissents in part with an opinion. ANSTEAD, J., specially concurring. Although I agree with many of the concerns expressed by Justice Pariente, I join in the majority opinion. I write separately to note, however, that the standard jury instruction does deviate from the statute, section 316.193, in a most significant way. As quoted in the majority opinion, section 316.193(3) provides: (3) Any person: (a) Who is in violation of subsection (1); (b) Who operates a vehicle; and (c) Who, by reason of such operation, causes: ....

...death of any human being is caused by the operation of a motor vehicle by any person while so intoxicated, such person shall be deemed guilty of manslaughter and on conviction shall be punished as provided by existing law relating to manslaughter." § 316.1931, Fla....

...State, 537 So.2d 564, 566 (Fla.1989)) (emphasis supplied). As mentioned in Magaw, the 1986 changes added the language that a person is guilty of DUI manslaughter if the person "operates a vehicle" and "by reason of such operation, causes ... [t]he death of any human being." § 316.193(3), Fla....

...possession of his normal faculties, to drive or operate over the highways, streets, or thoroughfares of Florida any automobile, truck, motorcycle, or other vehicle. Any person convicted of a violation of this section shall be punished as provided in s. 316.193....

...tion according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder ... is manslaughter, a felony of the second degree.... [25] Of course, those are the statutory elements of DUI manslaughter. § 316.193(3), Fla....

...Baker, 377 So.2d at 20; Cannon; Tootle; Roddenberry. [29] We recognize that the Legislature accords disparate treatment to DUI and DUI manslaughter, for example. On the one hand, driving while drunk is a misdemeanor which requires at least three convictions to earn a year's imprisonment. § 316.193(2)(a)2.c., Fla. Stat. (1995). It will only become a thirddegree felony carrying a potential of five years' imprisonment upon a fourth or subsequent conviction. § 316.193(2)(b), Fla....

...DUI is a category I lesser included offense of DUI manslaughter. In re Std. Jury Instr. in Crim. Cases, 431 So.2d 599 (Fla. 1981) (addressing amendments to the schedule of lesser included offenses). All of the DUI elements fall within the greater offense of DUI manslaughter. § 316.193, Fla....

...TER WITH CULPABLE NEGLIGENCE ARISING OUT OF ONE DEATH IN LIGHT OF SECTION 775.021, FLORIDA STATUTES (SUPP. 1988). Affirmed in part, reversed in part, and remanded for proceedings consistent herewith. CAMPBELL, C.J., and DANAHY, J., concur. NOTES [1] § 316.193(3)(c)3, Fla. Stat. (Supp. 1988). [2] § 782.07, Fla. Stat. (Supp. 1988). [3] § 316.193, Fla....

...(February 19, 2009) Before HULL, WILSON and HILL, Circuit Judges. HULL, Circuit Judge: This appeal presents the question of whether a prior state conviction for violating subsection 2 of Florida’s willful fleeing statute, Fla. Stat. § 316.1935(2), is a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C....

...ncreased penalties for Harrison’s three prior convictions. The government filed a sentencing memorandum objecting. The memorandum identified the following three convictions, listed in the PSI, as relevant: (1) a 2003 conviction under Fla. Stat. § 316.1935(3) for fleeing or attempting to elude police at high speed; (2) a 2003 conviction for possession of a controlled substance with intent to sell, manufacture or deliver; and (3) a 2000 conviction under Fla. Stat. § 316.1935(2) for fleeing or attempting to elude police. The government attached copies of the judgments and sentences for all three convictions including the information, written plea agreement, and arrest report for the 2000 conviction under § 316.1935(2).2 Harrison’s response admitted that his two 2003 convictions qualified as violent felonies. But he argued that his 2000 conviction under § 316.1935(2) did 2 The indictment for the § 316.1935(2) conviction in 2000 stated that on December 9, 1999, Harrison “did unlawfully and willfully flee or attempt to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated, in violation of Section 316.1935(2), Florida Statutes.” Because Harrison committed the offense in 1999, we quote the 1999 version of the Florida Statute in footnote 16 infra. 3 not. Therefore, in his view, the district court was prohibited from looking beyond the statutory language of § 316.1935(2) to determine whether it was a conviction for a violent felony. The probation officer then revised an addendum to the PSI. The revised addendum noted that whether a § 316.1935(2) conviction qualified as a “violent felony” for purposes of the ACCA was an issue of first impression and stated that, should the district court sustain the government’s objection, Harrison’s offense level would be 30 after application of the “Armed Career Criminal” provision, U.S.S.G....

...mandatory minimum fifteen-year sentence. See U.S.S.G. § 5G1.1(c). For Count 2, the statutory maximum of ten years resulted in a 120-month recommended sentence. See id. § 5G1.1(a). 4 concluded that Harrison’s § 316.1935(2) conviction qualified under the ACCA. The court adopted the PSI’s revised addendum’s alternate calculation of Harrison’s total offense level of 30 (which applied U.S.S.G....

...In imposing the sentences, the district court emphasized Harrison’s criminal history and the need to protect the public from Harrison. On appeal, Harrison raises a single issue: whether the district court erred in concluding that a conviction under Fla. Stat. § 316.1935(2) is a “violent felony” for purposes of the ACCA.5 II....

...es the use of explosives.” See id. § 924(e)(2)(B)(ii). Therefore, the issue on appeal is whether Harrison’s conviction of violating Florida’s statute making it a felony to willfully flee or attempt to elude a police officer, see Fla. Stat. § 316.1935(2), is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C....

...facts of case to determine whether prior conviction qualified for 12-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(I) for drug trafficking offenses)); see also Shepard v. United States, 544 U.S. 13, 19-26, 125 S. Ct. 1254, 1259-63 (2005). In this case, there is no contention that § 316.1935(2) or the judgment of conviction are ambiguous....

...Florida’s Willful Fleeing Statute We start by examining the relevant state crime’s statutory elements to identify the correct “category” of crime. Begay, 128 S. Ct. at 1584. That is, we look to “how the law defines the offense.” Id. Here, Harrison pled guilty to violating Florida Statutes § 316.1935(2). We print the relevant part of Florida’s statute.16 16 Florida Statutes § 316.1935 (1999), entitled “Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding,” provides: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered...

...22  Although a number of states treat the crime of fleeing or eluding a police officer as one crime, Florida does not. Rather, Florida’s statutory scheme differentiates between different types of fleeing behavior. See Fla. Stat. § 316.1935(1)-(3). Florida’s statute distinguishes between willful failures to stop a vehicle or willful fleeing after being ordered to stop by an officer, § 316.1935(1), willful fleeing after a police vehicle has activated its lights and sirens, § 316.1935(2) (the provision at issue here), and such willful fleeing (after a police vehicle has activated its lights and sirens) with “high speed” or “wanton disregard for the safety of persons or property,” § 316.1935(3).17 The statute also classifies each type of conduct into a misdemeanor and various felony classes based on the degree of seriousness of the behavior. Compare Fla. Stat. § 316.1935(1) jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree ....

...activated, and during the course of the fleeing or attempted eluding drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property commits a felony of the second degree . . . . Fla. Stat. § 316.1935 (emphasis added). 17 Subsection 2 does not explicitly require that the offender be operating a motor vehicle. But subsection 1 applies to the “operator of any vehicle.” And subsections 2 and 3 then add elements and in...

...Further, the entire statute is housed in the “Motor Vehicles” title of Florida Statutes. Thus, it appears that subsection 2 requires, or at least contemplates, that the offender be operating a motor vehicle. At oral argument, both parties assumed that the crime in § 316.1935(2) is “ordinarily committed” by a person operating a motor vehicle. 23 (misdemeanor), with Fla. Stat. § 316.1935(2) (third-degree felony), and Fla. Stat. § 316.1935(3) (second-degree felony).18 The Florida legislature’s differentiation between types of fleeing is relevant under the categorical approach....

...itution and failure to report to a penal institution). And this is not the first time that we have addressed this Florida statute. See United States v. Orisnord, 483 F.3d 1169, 1182-83 (11th Cir. 2007). In Orisnord, we examined whether a § 316.1935(3) violation is a “crime of violence” under U.S.S.G. § 4B1.2(a)(2).19 Id. at 1182-83. The language of U.S.S.G. § 4B1.2(a)(2) 18 Although Florida subsequently modified its willfully fleeing and eluding statute, see Fla. Stat. § 316.1935 (2004), none of those modifications impacted subsection 2. As to subsections 1 and 3, the 2004 modifications made a violation of § 316.1935(1) a third-degree felony, not a misdemeanor, and a violation of § 316.1935(3) either a second-degree felony or a first-degree felony, depending on whether the offender “causes serious bodily injury or death to another person.” See Fla. Stat. § 316.1935(1)-(3) (2004). A violation of § 316.1935(2) remains a third-degree felony....

...§ 4B1.1(a). 24 is identical to the ACCA’s residual clause in all material respects.20 Both define a violent crime as one “that presents a serious potential risk of physical injury to another.” The question in Orisnord was whether a violation of Fla. Stat. § 316.1935(3)–which makes it illegal to willfully flee from an officer “at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property”–presented a “serious potential risk” of injury....

...Taylor, 489 F.3d 1112, 1113-14 (11th Cir. 2007). The Supreme Court has vacated Taylor for reconsideration in light of Chambers. See United States v. Taylor, – U.S. –, 129 S. Ct. 990 (2009). Today, we decide the residual clause issue only as to the willful fleeing violation in § 316.1935(2) and mention the escape cases only because Orisnord relied on them in part. 26 recognized that certain escape crimes—such as the willful failure of felons to report to their penal institutions—are not violent felonies. Chambers, 129 S. Ct. at 689. In any event, Orisnord involved only the separate and more serious crime in subsection 3 of § 316.1935–not subsection 2; Orisnord is helpful but not controlling. With James, Begay, Chambers, and Orisnord as guideposts, we turn to the question of whether a § 316.1935(2) offense presents a “serious potential risk of physical injury.” When assessing risk, we examine the crime as “generally committed,” see Chambers, 129 S....

...committed the offense “on a particular occasion.” Begay, 128 S. Ct. at 1584. But we do examine “[t]he nature of the behavior that likely underlies [the] statutory phrase” in question. Chambers, 129 S. Ct. at 690. A person violates § 316.1935(2) and commits a third-degree felony under Florida law where she “willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle . . . with siren and lights 27 activated.” Fla. Stat. § 316.1935(2); Arroyo v....

...State, 901 So. 2d 1014, 1015 (Fla. Dist. Ct. App. 2005); Sanford v. State, 872 So. 2d 406, 407-08 (Fla. Dist. Ct. App. 2004). Florida’s statutory elements drive our assessment of the “ordinary case” of the statutory violation in § 316.1935(2). The behavior ordinarily underlying the crime in § 316.1935(2) involves only this conduct: (1) a law enforcement vehicle, with its siren and lights activated, signals the motorist to stop and (2) the motorist willfully refuses or fails to stop the vehicle.22 Our “categorization” of the crime...

...2d at 1015 (“The fleeing and eluding statute has three relevant subsections. Subsection (1) is a misdemeanor. It prohibits the willful refusal to stop when ordered to do so by an authorized police officer in a marked police vehicle and after ‘having stopped,’ willfully fleeing to elude the officer. § 316.1935(1), Fla. Stat. (2002). Subsection (2) converts the offense to a third degree felony by adding the officer’s use of ‘lights and sirens’ as an element of the crime. § 316.1935(2), Fla. Stat. (2002). Subsection (3) converts aggravated fleeing and eluding to a second degree felony by adding the elements of ‘high speed’ or ‘wanton disregard’ as elements of the crime. § 316.1935(3), Fla. Stat. (2002).”). 28 property as elements of a § 316.1935(2) crime.23 Having determined how a § 316.1935(2) crime is ordinarily committed, we turn to the Supreme Court’s other discrete questions. First, is willfully failing to stop after a police officer signals one to do so, as proscribed by § 316.1935(2), “roughly similar” to § 924(e)(2)(B)(ii)’s enumerated offenses in “degree of risk posed”? See Begay, 128 S. Ct. at 1585. And second, is such conduct, as proscribed by § 316.193(2), “roughly similar ....

...crime–rather than some roving federal common law definition of willfully fleeing an officer, unmoored by a particular state’s statutory scheme. 29 police signal to do so. The dangerous conduct ordinarily underlying a violation of § 316.1935(3), for example, presents a serious potential risk of injury. But the nature of a § 316.1935(2) crime, as ordinarily committed, does not involve the same high level of risk. Neither high speed nor reckless driving is a statutory element of the Florida crime at issue here. And such elements are not ordinarily involved in a § 316.1935(2) crime....

...significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.’” Chambers, 129 S. Ct. at 692 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Rather, because Florida’s crime in § 316.1935(2), as ordinarily committed, does not contain the elements of high speed or reckless driving, it strikes us as less likely 30 that the offender will become violent and resist arrest....

...And, likewise, we reject the notion that all willful fleeing crimes should be treated equally, especially where the Florida statute differentiates between types of willful fleeing. It is also relevant to our analysis that the government bears the burden to show that a § 316.1935(2) violation poses a “serious potential risk of physical injury to another.”24 The Supreme Court has addressed the scope of the residual clause three times in the past two years, and each time, it has used statistical evidence to a...

...useful study would look at the number of physical injuries associated with such willful fleeing crimes as compared to the total number of such willful fleeing crimes. Even assuming a serious potential risk of physical injury exists in a § 316.1935(2) violation, Begay requires courts to further address whether the crime is similar “in kind” to burglary, arson, extortion, and the use of explosives. Begay, 128 S. Ct. at 1585. For § 316.1935(2) to be “similar in kind” to those enumerated offenses, the conduct underlying the crime must be “purposeful, violent, and aggressive.” Chambers, 129 S....

...A person who refuses to stop and drives on, without anything more, is, under Florida law, a felon. But that kind of person is not, in our mind, cut from the same cloth as burglars, arsonists, extortionists, or those that criminally detonate explosives. The fleeing crime in § 316.1935(2) seems more appropriately characterized as the crime of a fleeing coward—not an armed career criminal bent on inflicting physical injury. In any event, the government has the burden. And based on the limited record before us, it has not shown that someone who has violated § 316.1935(2) has a future propensity for violent conduct. Id. at 1586. Given that we look only to how this Florida crime is committed in the ordinary case, and that we have no empirical data to help us, it requires too much of a leap to conclude that one who violates § 316.1935(2) is the kind of person likely to commit a crime of violence. 34 We do not minimize the risks associated with an offender who has a § 316.1935(2) conviction. Rather, we hold only that, based on the record before us, the government has not shown that a violation of § 316.1935(2) is “roughly similar in kind” to the other “purposeful, violent, and aggressive” crimes of arson, burglary, extortion, or the criminal use of explosives enumerated in § 924(e)(2)(B)(ii). A § 316.1935(2) crime does not fall within the scope of the kind of crimes that the ACCA was intended to reach....

...Eden, Key West, Bennie Lazzara, Jr., Henry Lee Paul, Tampa, for appellee. Before SCHWARTZ, C.J., and HUBBART, and JORGENSON, JJ. JORGENSON, Judge. The appellee, Charles Hoch, was arrested for driving while under the influence of alcoholic beverages (DUI), in violation of section 316.193(1), Florida Statutes (1983)....

...118, 501 A.2d 1049 (Law Div. 1985). [4] III. Implied Consent Statutes Suspension of license for refusal to submit to test for impairment or intoxication. — (1) If any person refuses an officer's request to submit to any breath, urine, or blood test provided in s. 316.1932, the department ......

...Accordingly, the second question is also answered in the negative. For the foregoing reasons, we reverse the order of the trial court which suppressed the breathalyzer test results and remand for further proceedings. Reversed and remanded. NOTES [1] Section 316.193 provides in relevant part: Driving while under the influence of alcoholic beverages, chemical substances, or controlled substances or with an unlawful blood alcohol level; penalties....

...522, 779 P.2d 1261 (1989); State v. Ladwig, 434 N.W.2d 594 (S.D. 1989); State v. Rollins, 141 Vt. 105, 444 A.2d 884 (1982). While there is some theoretical logic in the rationale of these opinions, we prefer the majority view. In a case involving DUI by impairment, section 316.1934, Florida Statutes (1989), provides that 0.10 percent or more by weight of alcohol in the blood shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired....

...and it does so for no rationale I can discern other than simple expedience. Accordingly, I dissent in part and would remand this case to the trial court with instructions to vacate the DUBAL convictions and sentences. BARKETT, J., concurs. NOTES [1] Section 316.193(1), Florida Statutes (1989), provides: (1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicl...

...onviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine imposed for such fourth or subsequent violation may be not less than $1,000. § 316.193(2)(b)(3), Fla....

...tutional provision.") (citing Aaron v. State, 345 So.2d 641 (Fla. 1977); Aaron v. State, 284 So.2d 673 (Fla. 1973)). Thus, Johnson was entitled to a jury trial in the instant case because felony DUI is punishable by a fine of "not less than $1,000." § 316.193(2)(b)(3), Fla....

...However, such evidence may be contradicted or rebutted by other evidence. This presumption may be considered along with any other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence. § 316.193(12), Fla....

...By adopting Justice Shaw's view we may not be fully honoring the fundamental right to trial by jury as contemplated by Justice Scalia, but we will at least be limiting the damage done to its invocation in Neder. NOTES [1] It should be noted that Johnson has referred to section 316.193, Florida Statutes (2003), in his brief, which is not the applicable version of the felony DUI statute for purposes of this review. Johnson committed the alleged offense on August 4, 2004. Thus, the version of section 316.193 that is applicable here was effective from July 1, 2004, to September 30, 2005....

...The Sentencing Guidelines Commission has petitioned this Court for changes in the sentencing guidelines rules. The first change is purely procedural. Its purpose is to: Conform Florida Rules of Criminal Procedure 3.701(c) and 3.988(a) to previously enacted statutory revisions repealing § 316.1931, Florida Statutes (1985) and transferring the statutory authority for the offense of DUI Manslaughter to § 316.193(3)(c)3, Florida Statutes (Supp. 1986). The existing statutory reference in Florida Rules of Criminal Procedure 3.701(c) and 3.988(a) is to § 316.1931(2) and should be changed to § 316.193(3)(c)3....

...ry to achieve the purposes of the sentence. c. Offense Categories Offenses have been grouped into nine (9) offense categories encompassing the following statutes: Category 1: Murder, manslaughter: Chapter 782 [except subsection 782.04(1)(a)], and subsection 316.193(3)(c) 3, and section 327.351(2) Category 2: Sexual offenses: Chapters 794 and 800 and section 826.04 Category 3: Robbery: Section 812.13 Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.01 Category 5: Burglary...

...777. The form appearing at Florida Rule of Criminal Procedure 3.988(a) has been revised to incorporate a point value for inclusion in the prior record factor utilized in the determination of recommenced sentence by scoring each prior conviction under section 316.193, Florida Statutes (Supp. 1984), or section 316.1931, Florida Statutes (Supp. 1984), or section 327.351, Florida Statutes (Supp. 1984), at a value of thirty-two (32) points. This point value will be applied only where the offender is convicted for a violation of section 316.193(3)(c)3, Florida Statutes (Supp. 1986), or section 327.351, Florida Statutes (Supp. 1984), where the operation of a motor vehicle or vessel by the offender while intoxicated as defined in section 316.193(1), Florida Statutes (Supp....

...1984), results in the death of any human being and the scoresheet utilized in sentencing is the form appearing at Florida Rule of Criminal Procedure 3.988(a). For purposes of determining a prior conviction for a violation of the above enumerated statute, a prior conviction for violation of section 316.1931 or section 316.193 or former section 860.01 or former section 316.028, or a previous conviction for any substantially similar alcohol-related or drug-related traffic offense outside this state, shall also be considered a prior conviction....

...satisfy the- elements clause under the Supreme Court’s reasoning in Leocal v. Ashcroft, 543 U.S. 1 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004). The defendant in Leocal was convicted of DUI causing serious bodily injury in violation of Florida Statute § 316.193(3)(c)(2)....

...1st DCA 1983), the district court certified the following question: WHETHER THE RULES ADOPTED DECEMBER 16, 1982, BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES GOVERNING THE ADMINISTRATION OF CHEMICAL TESTS FOR BLOOD ALCOHOL CONTENT UNDER SECTION 316.1932, FLORIDA STATUTES, CAN BE APPLIED TO TESTS ADMINISTERED BEFORE THEIR ADOPTION, THEREBY ALLOWING THE TEST RESULTS INTO EVIDENCE AT A TRIAL SUBSEQUENT TO THE RULES' ADOPTION. *106 We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. The courts below addressed the issues of whether the 1982 amendments to subsection 316.1932(1)(f)1, Florida Statutes (Supp....

...verning the chemical tests used to determine blood alcohol content, and if so, whether the rules adopted by HRS in December 1982 could be applied retrospectively to arrests made prior to their adoption. Because we hold that the 1982 amendments to subsection 316.1932(1)(f)1 did not require that HRS immediately adopt new rules, we find it unnecessary to answer the district court's question of whether the rules later adopted by HRS could be applied retrospectively....

...Effective July 1, 1982 the legislature substantially revised the laws regarding driving under the influence of alcohol and implied consent to tests for impairment. Among numerous other revisions, subsection 322.261(2)(a), Florida Statutes (1981), was renumbered as subsection 316.1932(1)(f)1 and amended in the following manner: The tests test determining the weight of alcohol in the defendant's blood shall be administered at the direction of the arresting officer substantially in accordance with rules and regulati...

...The responsibility for adopting rules governing the administration of chemical tests had been shared by DHSMV with HRS through the authority granted to HRS under subsection 322.262(3), Florida Statutes (1981). [*] Thus, it is apparent that the 1982 amendments to section 316.1932 were intended to eliminate DHSMV's authority to adopt rules governing the chemical tests and rest that responsibility solely on HRS....

...es and regulations which had been in effect prior to July 1, 1982. On March 8, 1983 HRS formally adopted the same rules after a public hearing. The state charged these six petitioners with driving under the influence of alcohol (DUI) in violation of section 316.193 during the period between July 1, 1982 and December 16, 1982....

...on of impairment. They filed motions in limine to exclude the chemical test results from evidence on the ground that at the time of their tests no valid rules and regulations for the administration of the chemical tests were in effect as required by section 316.1932. *107 In March 1983 the Duval County Court granted the motions in limine on the grounds that the 1982 amendments of section 316.1932 required that HRS issue new rules, and, therefore, no rules were in effect at the time of the petitioners' arrests....

...ur decision on basic principles of statutory interpretation rather than the retrospective application of HRS rules adopted subsequent to the petitioners' arrests. Both the county and circuit court erroneously concluded that the 1982 amendments to subsection 316.1932(1)(f)1 required HRS to promulgate new rules....

...deferentially stated that the "instruments must be operated in accordance with the procedures of the Department of Health and Rehabilitative Services." Fla. Admin. Code Rule 15B-3.04(1). It is apparent that one of the reasons the legislature amended section 316.1932 was to consolidate rule-making authority in one agency and thereby eliminate a bureaucratic duplication of effort. Petitioners contend that the effect of the legislature's affirmation of HRS's rulemaking authority was to require that HRS adopt new rules. In support of this contention petitioners focus on the language of subsection 316.1932(1)(f)1 which states that "such rules shall have been adopted" by HRS....

...lication of those provisions to actions which arose before their re-adoption is not destroyed or interrupted. We therefore quash that portion of the district court opinion relating to the retrospective application of HRS rules adopted pursuant to subsection 316.1932(1)(f)1, Florida Statutes (Supp....

...He raises two issues on appeal: 1. Whether the trial court erred in admitting the blood test results because (a) the officer who directed that the blood sample be taken lacked probable cause to believe that appellant's normal faculties *918 were impaired by alcohol; (b) section 316.1933(1), Florida Statutes (1982 Supp.), violates the constitutional prohibition against unreasonable seizures since it fails to provide the degree of intoxication required before probable cause will be deemed to exist; and (c) the blood test was administered in violation of statutory and regulatory procedures....

...micide statute as "driving with willful or wanton disregard for the safety of other persons," which is the statutory definition of the separate offense of reckless driving in section 316.192, Florida Statutes (1982 Supp.). Regarding the first issue, section 316.1933(1), Florida Statutes (1982 Supp.), states in pertinent part: [I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by ......

...an intoxicated person is necessarily under the influence of alcoholic beverages, a person does not have to be intoxicated or have his normal faculties impaired in order to be "under the influence of alcoholic beverages." Probable cause exists under section 316.1933(1) to order a blood test if the officer, based upon reasonably trustworthy information, has knowledge of facts and circumstances sufficient to cause a person of reasonable caution to believe that the suspect driver was under the infl...

...4th DCA 1976), the state has met its burden in this case by showing that Trooper Roberts smelled alcohol on appellant's breath, knew the circumstances causing the accident, and knew that appellant was the driver of the motor vehicle which caused a death. We likewise find no merit in appellant's argument that section 316.1933(1) is unconstitutional under the fourth and fourteenth amendments to the United States Constitution because it permits seizure of a person's blood without probable cause to believe that such person's normal faculties were impaired at the time of the accident. Appellant argues that since section 316.193, Florida Statutes (1982 Supp.), defining the offense of driving while under the influence of alcoholic beverages, requires that a person be under the influence to the extent that normal faculties are impaired before he can be guilty of the offense, section 316.1933, to be constitutionally acceptable, should contain the same standard for determining when a blood test can be taken....

...eal specifically with the question here presented. They do, however, support the proposition that the facts relied on by the officer must show probable cause to believe a criminal offense has been committed. The purpose of the blood test taken under section 316.1933(1) is to aid in determining whether the driver causing a serious automobile accident, when reasonably believed to be under the influence of alcoholic beverages, had his normal faculties impaired by alcohol....

...t, i.e., that the blood test was inadmissible because the state failed to show that the individual who analyzed the blood specimen, Mr. Peter Lardizabel, held the statutorily required permit from the Department of Health and Rehabilitative Services. § 316.1933(2)(b), Fla....

...on in Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983), rev. granted, S.Ct. Case No. 64,727 is DENIED. Drury relates solely to the use of blood test results in the absence of duly adopted HRS rules for testing blood alcohol content as required by section 316.1932, Florida Statutes (Supp. 1982). Appellant's argument that Drury is applicable to the present case is founded upon the assumption that the blood sample herein was taken under section 316.1932. As discussed in our opinion, the blood sample was properly taken pursuant to the authority of section 316.1933, Florida Statutes (Supp. 1982), and not pursuant to section 316.1932....

...Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [2] Appellant signed a consent form after he was informed by Trooper Roberts that a blood sample would be taken. The state, however, does not rely on appellant's voluntary consent to the sample under section 316.1932, Florida Statutes (1982 Supp.), as a basis for admitting the test results into evidence. [3] The presence of 0.10 percent or more by weight of alcohol in the person's blood is prima facie evidence that such person is under the influence to the extent his normal faculties are impaired. § 316.1934, Fla....

...he person's normal faculties are impaired; (b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath. § 316.193(1), Fla....

...1990), in which we upheld the presumption of impairment instruction against a constitutional challenge, [t]o the extent the challenged instruction allowed the jury to substitute proof of a blood-alcohol level of 0.10 percent or higher for proof of impairment it correctly stated the law. Essentially, section 316.193 allows proof of a blood-alcohol level of 0.10 percent or higher to be substituted for proof of impairment— not as an unconstitutional presumption, but as an alternate element of the offense....

...To either conclude that a defendant is guilty under the DUBAL alternative or apply the presumption of impairment, the jurors must first find beyond a reasonable doubt that the defendant operated a motor vehicle with a .08 blood-alcohol level. This fact independently establishes DUI via DUBAL under section 316.193(1)(b) without regard to the alternative of impairment under section 316.193(1)(a)....

...[4] A general verdict is one in which the jury determines guilt or innocence without making explicit findings. See Sullivan v. Louisiana, 508 U.S. 275, 283, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). [5] At the time of Cardenas's convictions, sections 316.193 and 327.35 each contained a single subsection that addressed both unlawful blood-and breath-alcohol content. Specifically, sections 316.193(1)(b) and 327.35(1)(b), Florida Statutes (1995), provided that a person was guilty of driving and boating under the influence if the person "had a blood or breath alcohol level of .08 percent" or above....

...r. Stoletz argues that section 316.655(2) is not applicable to her because there is a more specific statute, section 322.28(2)(a)(2), Florida Statutes (1999), that controls. The more specific statute provides: (2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply: (a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver's license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions: .... 2. Upon a second conviction within a period of 5 years from the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 5 years....

...ibited by chapter 316 or *576 any other law of this state regulating motor vehicles, including chapter 322. Section 322.28(2)(a)(2) specifically addresses periods of revocation or suspension of driving privileges resulting from DUI convictions under section 316.193, Florida Statutes (1999)....

...However, I disagree with the majority that a trial court could rely solely on section 322.28(2)(a)(2) to permanently revoke Stoletz's license. At the time of the offenses in this case, section 322.28, Florida Statutes (1999), provided, in pertinent part: (2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply: (a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver's license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions: 1. Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver's license or driving privilege shall be revoked for not less than 180 days or more than 1 year. 2. Upon a second conviction within a period of 5 years from the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 5 years. 3. Upon a third conviction within a period of 10 years from the date of conviction of the first of three or more convictions for the violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 10 years. .... (e) The court shall permanently revoke the driver's license or driving privilege of a person who has been convicted four times for violation of s. 316.193 or former s. 316.1931 or a combination of such sections....

...I do not believe the Legislature intended this result in authorizing commensurately longer revocations for repeat DUI offenders. NOTES [1] Section 322.28(2)(a)(1), Florida Statutes (1999), states: Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver's license or driving privilege shall be revoked for not less than 180 days or more than 1 year....

...to Favino's house from where the Florida Highway Patrol was summoned. Trooper John Bedenbaugh arrived at Favino's residence at approximately 1:35 a.m. Shortly thereafter, Favino was arrested for driving under the influence of alcohol in violation of section 316.193, Florida Statutes....

...Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances. 2. Whether the person was placed under lawful arrest for a violation of s. 316.193....

...lves someone else, that DMV has the wrong driver. Nor does he argue that any of the convictions listed are incorrect. [11] In this instance, the trier of fact was the judge sitting without a jury. Our decision would be the same with a jury. [12] See § 316.193(2)(b), Fla....

...Petitioner seeks a writ of certiorari to review the circuit court's affirmance of the county court's conviction and sentencing of petitioner for being in actual, physical control of a motor vehicle while under the influence of alcohol, a violation of section 316.193(1)(a), Florida Statutes (1982)....

...Petitioner does not take issue with the sufficiency of the evidence on the basis of which the jury found him to be under the influence of alcohol. The issues presented to us principally involve the definition of "in actual, physical control" under section 316.193(1)(a), whether petitioner was in actual, physical control of the car, and, if so, whether his license was properly revoked under section 322.28....

...Finally, we conclude that petitioner's sentence which in part revoked petitioner's driver's license for six months was correct. Section 322.28 provides that revocation of a driver's license is a penalty for the offense of driving a motor vehicle while under the influence of alcoholic beverages. Section 316.193 defines that offense as including being in the actual physical control of a motor vehicle while under the influence of alcoholic beverages when affected to the extent that one's normal faculties are impaired....

...The state appeals a nonfinal order granting a motion in limine in four consolidated county court DUI prosecutions. The order suppresses breath alcohol evidence provided by an Intoxilyzer 5000 breath test instrument and effectively requires the dismissal of all charges alleging a violation of section 316.193(1)(b), Florida Statutes (1995). The county court has certified several questions that require us to interpret the phrase, "breath alcohol level of 0.08 percent or higher" in section 316.193(1)(b)....

...THE DEFENDANTS'"BREATH ALCOHOL" THEORY The DUI statute proscribes the operation of a vehicle by a driver under two different, but interrelated, circumstances. First, it is illegal to operate a vehicle "under the influence of alcoholic beverages ... when affected to the extent that the person's normal faculties are impaired." § 316.193(1)(a), Fla.Stat. (1995). Second, it is illegal to operate a vehicle with "a blood or breath alcohol level of 0.08 percent or higher." § 316.193(1)(b), Fla.Stat....

...The defendants attempt to exclude evidence that would support a subsection (b) "percent" case. Because no blood tests were obtained from the defendants, the state must present proof of a "breath alcohol percent" to establish a subsection (b) violation. Prior to 1991, section 316.193(1)(b) only prohibited the operation of a vehicle by a person with "a blood alcohol level of 0.10 percent or higher." § 316.193(1)(b), Fla....

...w that added the *796 "breath alcohol percentage": "The percent of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood when analyzing blood, or upon grams of alcohol per 210 liters of breath when analyzing breath." § 316.1932(1)(b)1., Fla.Stat....

...d this complex machine in that period would have concluded that it measured breath alcohol as a "percent." The fact that this "percent" was actually a mathematical ratio based on grams of alcohol per 210 liters of breath, the same ratio contained in section 316.1932(1)(b), Florida Statutes (Supp.1992), would only have been obvious to an expert or to someone who took considerable time to learn about these machines....

...," it updated our statute. Ch. 96-330, § 3, at 1339 Fla. Session Law Serv. The statute no longer uses the word "percent," but continues to rely upon either grams of alcohol per 100 milliliters of blood or 1 gram of alcohol per 210 liters of breath. § 316.193(1), Fla.Stat....

...Markham, 148 F.2d 737, 739 (2d Cir.1945). In determining the "plain and obvious" meaning of an overall statute, it is not always sufficient to examine only the first definition of the individual statutory words in the dictionary. Beginning with the immediate text of section 316.193(1)(b), two things are clear....

...Second, the legislature has decided that the formula used to measure blood alcohol and breath alcohol reach equivalent percentages. Because we must look outside the text of the statute to define the formula for "percent," it is reasonable to examine the definition in section 316.1932(1)(b), the implied consent law, which is a statute in pari materia....

...It is a definition that does equate blood alcohol and breath alcohol percentages. Under these circumstances, use of the related definition appears far more reasonable than reliance upon an unworkable mathematical definition. This is particularly true where the 1996 amendment to section 316.193(1) did not change the legislature's intended policy, but clarified its decision to rely on a breath alcohol test measured in grams per 210 liters of breath....

...The motion is based upon three arguments, two of which were *799 argued at the hearing with the remaining argument to be made at another hearing if the motion is denied on the basis of these two. The first argument is that because the applicable statute (Section 316.193(1)(b), Florida Statutes (1993)) proscribes driving with a blood or breath alcohol level of 0.08% or higher and the Intoxilyzer 5000 renders its results in terms of weight per unit of volume (grams per 210 liters) rather than a percentage, the results are not relevant and are confusing and misleading....

...n with driving while having an unlawful breath alcohol level of 0.08 grams per 210 liters or above, and Aaron is charged by information with driving while having an unlawful blood or breath alcohol level of .08 percent or above, both in violation of Section 316.193, Florida Statutes (1993). Section *800 316.193(1)(b) makes unlawful driving a vehicle in Florida while having "a blood or breath alcohol level of 0.08 percent or higher." Defendant Aaron is therefore charged by information with violation of the statute....

...Gray, 435 So.2d 816 (Fla.1983). In either Wolfrom or Aaron the issue remains whether evidence that a suspect's breath alcohol level was greater than 0.08 grams of alcohol per 210 liters of breath, as provided by the Intoxilyzer 5000, is relevant to proving that person violated Section 316.193(1)(b)....

...s own expert witness' agreement with the defense that the two terms are not the same (since one term has meaning and one does not). The statute provides a crucial addition that must be taken into account when evaluating its meaning. This is found in Section 316.1932(1)(b)1.: (b)1....

...This would seem to indicate that some mathematical operation should be performed upon the results, rendered in terms of grams per 210 liters, in order to convert that result into a percentage of alcohol in the blood. If the legislature had chosen to use the phrase "expressed as" instead of "based upon," in Section 316.1932(1)(b) 1., this inquiry would be finished, since that definition, even if not acceptable in scientific circles, would suffice to foreclose any question of ambiguity or relevance....

...efense lawyer needs is an opportunity to argue reasonable doubt. It wasn't long before defense counsel began arguing the shortcomings of the blood to breath ratio assumption to juries, with predictable results. To counter this, the legislature added Section 316.1932(1)(b) 1., Florida Statutes (1991) and added the words "or breath" to Section 316.193(1)(b)....

...that courts are not at liberty to define the elements of a crime in terms different from those the legislature used. In State v. Perez, 531 So.2d 961 (Fla.1988), the supreme court was concerned with the meaning of another section of the DUI statute, Section 316.1933(1), Florida Statutes (1985)....

...However, they must not be construed so strictly as to emasculate the statute and defeat the obvious intention of the legislature." Martin v. State, 367 So.2d 1119 (Fla. 1st DCA 1979). One need not consult legislative analyses or trace the legislative history of Section 316.193 in order to know what the legislature intended....

...For years, none of us was "confused" until some bright soul figured out that "percent" was an improper scientific term to use in this context. It does not require an inappropriate degree of legal legerdemain to substitute the term "expressed as" for "based upon" in Section 316.1932(1)(b) 1., which would have the effect of defining "percent" in a new, but now consistent, way, especially when one considers that the results of granting defendants' motions, if upheld on appeal, would be to create chaos across the state and perhaps mandate an emergency session of the legislature....

...1st DCA 1992), and State v. Kepke, 596 So.2d 715 (Fla. 4th DCA 1992), and conclude that they are distinguishable. Using the legal definition of "percent" announced by the trial court, the defendant's breath tests cannot possibly be admitted to prove a violation of section 316.193(1)(b)....

...Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent. McDONALD, Justice. We review Donaldson v. State, 561 So.2d 648, 651 (Fla. 4th DCA 1990), in which the district court certified the following question to be of great public importance: In a section 316.193 prosecution, where the state seeks, over defense objection, to admit the results of a breathalyzer test into evidence, to what extent must the state lay a foundation to show compliance with statutory provisions, administrative rules,...

...Minor deviations in compliance with the HRS regulations, such as storage location or absolute timeliness of periodic inspection, will not prohibit the test results being presented, provided that there is evidence from which the fact finder can conclude that the machine itself remained accurate. [2] Accord § 316.1932(1)(b)(1), Fla. Stat. (1987) ("Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid."); § 316.1934(3), Fla....

...der. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense. *125 TABLE OF LESSER INCLUDED OFFENSES SECTION CHARGED CATEGORY 1 CATEGORY 2 OFFENSE 316.193(1) Driving under None Attempt the influence 316.193(2)(b) Felony DUI prior None Attempt convictions 316.193(3)(c) DUI with damage DUI - 316.193(1) None (1) to property or person 316.193(3)(c) DUI with serious DUI - 316.193(1) DUI- 316.193(3)(c)(1) (2) bodily injury 316.193(3)(c) DUI manslaughter DUI - 316.193(1) DUI serious bodily injury (3) - 316.193(3)(c)(2) DUI damage to person or property -316.193(3)(c) Vehicular homicide -782.071 550.361 Bookmaking on None Attempt grounds of permit holder (adapted from former 849.24) 782.04(1) First degree Second degree (depraved Second degree (premeditated) mind) murder (felony) murder -782.04(3) mur...

...Read only if Confinement of a child under the age of thirteen (13) is confinement against [his] [her] will if such confinement is without the is consent of [his] [her] parent or legal guardian. alleged and child is under 13 thirteen years of age. FELONY DUI—PRIOR CONVICTIONS F.S. 316.193(2)(b) Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt: Elements 1....

...F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1....

...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. FELONY DUI- SERIOUS BODILY INJURY F.S. 316.193(3)(c)(2) Before you can find the defendant guilty of DUI with Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt: Elements 1....

...cle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. F.S. 316.1933 "Serious bodily injury" means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: *146 (2)(a)1....

...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. DUI MANSLAUGHTER F.S. 316.193(3)(c)3 Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: Elements 1....

...( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1....

...A) and 9.160. We answer the certified question in the affirmative and reverse the order of contempt in which the question is certified. These proceedings began when the appellee (Vogt) was charged with driving under the influence (DUI) as defined in section 316.193, Florida Statutes (1983)....

...R.App.P. 9.030(b)(4), 9.160. Moreover, for the reasons which follow, we answer the certified question in the negative upon a holding that the withdrawal of such a blood sample (1) constitutes a violation of Florida's implied consent law under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and (2) cannot otherwise be justified on the basis of the defendant's voluntary consent; accordingly, we affirm the order under review suppressing as evidence the results of the subject blood test....

...The second officer took the defendant to the hospital where a qualified medical person at [the officer's] request withdrew a blood sample from the defendant." The defendant was charged with driving a motor vehicle while under the influence of an alcoholic beverage [§ 316.193, Fla....

...n the blood sample taken from him. The motion came on for an evidentiary hearing at which the above-stated facts were adduced. The defendant contended below that the police were only authorized to demand a blood sample from a motorist under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and that neither of these statutes were applicable to this case; accordingly, he argued that the blood sample was illegally obtained from the defendant and the results of the subsequent blood test performed on this sample should be suppressed at defendant's criminal traffic trial....

...implied consent statutes were observed in this case. *425 The trial court agreed with the defendant and suppressed the blood test results based on its conclusion that "blood may be withdrawn for a DUI prosecution only within the parameters of [§§] 316.1932(1)(c) and 316.1933(1)" which, without dispute, were not complied with by the police in this case....

...1989) (pen registers regulated under Article I, section 23 of the Florida Constitution) with Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (pen registers; Fourth Amendment). Indeed, it is the established law of this state that Florida's implied consent statutes [§§ 316.1932, 316.1933, 316.1934, Fla....

...the right of the state of Florida to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution [through the Fourth Amendment]. This it has done through the enactment of section 322.261, Florida Statues (1975) [now sections 316.1932, 316.1933, Florida Statutes (1991)]." As further stated by the Fifth District Court of Appeal in State v....

...A First, as to the limitation on police power to require a person to give breath, urine, and blood samples after a DUI arrest, the implied consent statutes impose certain well-defined restrictions which otherwise exceed Fourth Amendment standards. *426 1 Section 316.1932(1)(a), Florida Statutes (1991), provides that any person who accepts the privilege of driving a motor vehicle in this state and who is lawfully under arrest for DUI is "deemed to have given his consent" to the withdrawal of breath an...

...gh certain consequences are imposed for the refusal. Accordingly, the person must be advised that the failure to submit to a lawful test of his/her breath or urine "will result in the suspension of his [or her] privilege to operate a motor vehicle," § 316.1932(1)(a), Fla....

...(1991), for a certain period of time, which suspension becomes effective immediately upon such refusal, see § 322.2615, Fla. Stat. (1991); further, the refusal to take the breath or urine test "shall be admissible into evidence in any criminal proceeding." § 316.1932(1)(a), Fla....

...As the Florida Supreme Court has stated, "[u]nder this provision, a conscious person is given the right to refuse to take a chemical [breath or urine] test if he [or she] is willing to suffer a ... suspension of his [or her] driving privilege," and "[a]ny careful reading of section [316.1932(1)] leads to the inescapable conclusion that a person is given the right to refuse [breath or urine] testing." Sambrine v....

...cal testing purposes. Notwithstanding the above implied consent statutes, however, it is clear that a person who is arrested for DUI may volunteer or otherwise freely consent to give a sample of his/her breath or urine for chemical testing purposes. § 316.1932(1)(c), Fla....

...cumstances as well, quite apart from the implied consent statutes. See Robertson v. State, 604 So.2d 783, 790 (Fla. 1992) (following State v. Wallin, 195 N.W.2d 95, 98 (Iowa 1972)); compare Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988). 2 Sections 316.1932(1)(c) and 316.1933(1), Florida Statutes (1991) carve out two exceptions to the above statutory scheme under which a blood sample may be taken from a person lawfully arrested for DUI. An involuntary blood withdrawal arguably represents a greater intrusion into an arrestee's personal privacy than breath and urine withdrawals and, consequently, is not permitted if these two exceptions are inapplicable. Section 316.1932(1)(c) provides that a person who is lawfully arrested for DUI is "deemed to have consented" to the withdrawal of a blood sample "if such person appears for treatment at a hospital, clinic, or other medical facility and the administra...

...eding. Moreover, the person must be advised that the failure to submit to a blood withdrawal will result in the suspension of the person's driving privileges — the same advisement which must be given prior to obtaining a breath or urine withdrawal. Section 316.1933(1) provides that a law enforcement officer is authorized to demand a *427 blood withdrawal from any person who is lawfully arrested for DUI if there is probable cause to believe that the person "has caused the death or serious bodily...

...paired is: (1) before an arrest, the suspect may consent to or demand a breath test; and (2) after an arrest, the person is deemed to have implicitly consented to a breath test and a urine test. The first exception to this general scheme is given in section 316.1932(1)(c), whereby a `person whose consent is implied' i.e., is lawfully arrested, is taken for treatment to a medical facility and a breath or urine test is impossible or impractical to perform....

...Only then may a blood test be requested, subject to the person's refusal. The subsection further provides penalties for such a refusal but does not authorize the officer to proceed with the test regardless of the refusal. The other exception to the general scheme of breath and urine testing is found in section 316.1933(1), the statute in question....

...Similarly, the Fourth District Court of Appeal in Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988) has interpreted the above statutes as follows: "We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist....

...ied consent statutes to request or order the withdrawal of such sample in the first instance as discussed above. These detailed procedures are generally not required by the Fourth Amendment and, for this most part, exceed Fourth Amendment standards. Section 316.1933(2)(a), Florida Statutes (1991) authorizes "[o]nly a physician, certified paramedic, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician" [3] to withdraw blood from a DUI arrestee at the request of a law enforcement officer. Section 316.1933(2)(b), Florida Statutes (1991) further provides that a chemical analysis of such a blood sample "must have been performed substantially in accordance with methods approved by the Department of Health and Rehabilitative Services [4] and by an individual possessing a valid permit issued by the department for this purpose," but Section 316.1934(3), Florida Statutes (1991) provides that "[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case, shall not render the test or test results invalid." [5] Section 316.1932(1)(a), Florida Statutes (1991) also provides that a "urine test shall be ... administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests at the request of a law enforcement officer... ." Section 316.1932(1)(b), Florida Statutes (1991) also provides that an analysis of a breath sample "must have been performed substantially according to methods approved *429 by the Department of Health and Rehabilitative Services," [6] but "[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case does not render the test or test results invalid." § 316.1932(1)(b), Fla....

...lts and related testimony produced by an unlicensed expert, subject to two important provisos. First, the blood must have been drawn by a person authorized to do so by the implied consent statute. See [ State v. ] Gillman [390 So.2d 62 (Fla. 1980)]; § 316.1933(2)(a), Fla....

...Although it is assumed for purposes of this appeal that the police had probable cause to arrest the defendant for driving a motor vehicle while under the influence of an alcoholic beverage, there was utterly no showing below that "a breath or urine test [was] impractical or impossible," and so there was no basis under Section 316.1932(1)(c), Florida Statutes (1991), for the police to require the defendant to give a blood sample nor to advise the defendant that he would lose his driver's license if he failed to consent to such a blood withdrawal. Nor was there any showing below that the defendant was incapable of a refusal to consent to a blood withdrawal "by reason of unconsciousness or other mental or physical condition" which would have authorized such a blood withdrawal under Section 316.1932(1)(c), Florida Statutes (1991); to the contrary, the record shows that the defendant was fully conscious and alert at the time the blood sample was taken from him at the hospital....

...a misrepresentation. State v. Burnett, 536 So.2d 375 (Fla. 2d DCA 1988); see also State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992) (breath sample). Beyond that, there was utterly no basis for an involuntary blood withdrawal from the defendant under Section 316.1933(1), Florida Statutes (1991)....

...To the contrary, the record shows that the defendant was involved in a one-car traffic accident in which neither he nor any third party was seriously injured in any way. Because the blood sample taken from the defendant in this case was entirely unauthorized under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and was otherwise involuntarily given, it is plain that this blood sample and the results of the scientific test performed on this sample were inadmissible in evidence at the defendant's DUI trial below under the Sambrine-Perez line of cases....

...n involuntary blood withdrawal from a person lawfully arrested for DUI than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). Florida has done precisely that by enacting Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), which, without dispute, the police violated in this case....

...Second, the state argues that the blood sample was scientifically withdrawn from the defendant and subsequently tested in full compliance with the "core policies" of the implied consent statutes and therefore — notwithstanding the violation of Sections 316.1932(1)(c), 316.1933(1) — the blood test results were admissible under the exclusionary rule announced in Robertson v....

...dmissible in evidence. For the above-stated reasons, the county court order under review suppressing the results of a blood test performed on a blood sample involuntarily drawn from the defendant at the request of the police in violation of Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), is, in all respects, Affirmed....

...NOTES [1] It is assumed for purposes of this appeal that this arrest was based on probable cause. [2] State v. Perez, 531 So.2d 961 (Fla. 1988) (blood sample taken from a lawfully arrested DUI defendant without his consent after being involved in accident in which only he was injured held unauthorized under then-existing Section 316.1933(1), and thus results of scientific test performed on such sample were inadmissible in evidence); Sambrine v....

...e); State v. Burnett, 536 So.2d 375 (Fla. 2d DCA 1988) (blood sample taken from a defendant who was lawfully arrested for DUI not involving a traffic accident after he was injured in the county jail following his arrest held unauthorized by Sections 316.1932(1)(c), 316.1933(1), and thus results of scientific test performed on such sample were inadmissible in evidence); State v. Prues, 478 So.2d 1196 (Fla. 4th DCA 1985) (blood sample taken from a defendant arrested for DUI involved in one-car traffic accident in which only the defendant was seriously injured held unauthorized under then-existing Section 316.1933(1) and thus results of scientific test performed on such sample were inadmissible in evidence); McDonald v....

...statutes and thus results of scientific test performed on such sample were inadmissible in evidence); State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977) (same), cert. dismissed, 362 So.2d 1056 (Fla. 1978). [3] The current version of this statute, § 316.1933(1)(c), Fla. Stat. (1993), includes a "licensed practical nurse" among the acceptable blood-withdrawal personnel. [4] The current version of the statute, § 316.1933(2)(b), Fla. Stat. (1993), places responsibility for approval of chemical analysis methods on "the Department of Law Enforcement." [5] The current version of the statute, § 316.1934(3), Fla....

...Klawikofsky, Assistant Attorney General, Tampa, for Appellee. CAMPBELL, MONTEREY, (Senior) Judge. Stephen Tyner challenges his judgment and sentence for driving under the influence of alcohol/manslaughter (DUI manslaughter) and DUI causing property damage in violation of section 316.193, Florida Statutes (1995)....

...4th DCA June 20, 2001). The primary issue presented to us by Mr. Tyner is whether he was convicted of the DUI offense based upon the proof admitted at trial relative to his blood alcohol level and the improper application of the presumption of impairment created by section 316.1934, Florida Statutes (1995). The State concedes that it was not entitled to the use of the presumption of impairment created by section 316.1934 because Mr. Tyner's blood alcohol test and results were not obtained in accordance with the core policies of the implied consent law, sections 316.1932, 316.1933 and 316.1934, Florida Statutes (1995)....

...Tyner was properly convicted because the evidence of his blood alcohol test results were admitted after the establishment of the three-prong predicate set forth in Robertson. The jury was not instructed regarding the presumption of impairment created by section 316.1934, nor did the State argue the presumption to the jury....

...he impression that if appellant's blood/alcohol level was .08 or higher, his normal faculties were impaired." Dodge, 26 Fla. L. Weekly at D1552. Because we believe the Dodge court overlooked the alternative theories for DUI offenses as proscribed by section 316.193, we disagree with the conclusions reached by our respected colleagues in Dodge. As noted by our supreme court in Robertson: Florida law authorizes two alternative theories for DUI offenses: actual impairment, or a blood alcohol level of 0.10 or higher. § 316.193, Fla....

...The second of these is a strict-liability theory, since the fact of operating a motor vehicle with a blood-alcohol level of 0.10 or higher is an offense even if impairment cannot be proven. There is some redundancy in the statute, however, since impairment is presumed if the blood-alcohol content is 0.10 or higher. § 316.1934(2), Fla....

...In any event, the presumption of impairment created by this last statute is a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level. Here, the state met this burden. 604 So.2d at 792 n. 14. The DUI statute, section 316.193(1), Florida Statutes (1995), provides as follows: 316.193 Driving under the influence; penalties.— (1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle wit...

...ected to the extent that the person's normal faculties are impaired; or (b) The person has a blood or breath alcohol level of 0.08 percent or higher. Robertson recognizes three ways to prove the two alternative theories for DUI offenses set forth in section 316.193(1)....

...t the driver was impaired, i.e., under the influence of alcohol to the extent his normal faculties were impaired. These methods of proof were not used as evidence against Mr. Tyner. The second alternative theory, and the third way to prove DUI under section 316.193, is described in Robertson as the "strict liability theory." This theory is not related to either of the two ways to prove an "impairment" DUI case....

...State, 329 So.2d 296 (Fla.1976). However, in 1982 the statutory landscape changed dramatically. The legislature substantially reworded the statute, consolidating DUI and DUBAL and providing identical penalties for conviction. Ch. 82-155, § 2, Laws of Fla. (codified at § 316.193(1)(a)-(b), Fla....

...ion) and/or (2) strict liability for unlawful blood alcohol *867 (DUBAL). We observe that the legislature continues to specifically recognize the offense of driving with an unlawful blood alcohol level as an alternative to an impairment DUI offense. Section 316.1934(2)(c), Florida Statutes (2000), provides: If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired....

...State can have the blood test results admitted into evidence through expert testimony, which is the way this type of evidence was admitted for years, the jury will be instructed that a blood-alcohol level which exceeds 0.08 is an element of DUI. See § 316.193, Fla....

...possession of his normal faculties, to drive or operate over the highways, streets, or thoroughfares of Florida any automobile, truck, motorcycle, or other vehicle. Any person convicted of a violation of this section shall be punished as provided in s. 316.193....

...And it is said in defense of the DWI manslaughter statute that the defendant's conduct was culpably negligent when he got into an automobile while intoxicated and entered a public roadway. Of course, such conduct is more than negligent, it is criminal. § 860.01(1), Fla. Stat. (1977); Id. § 316.193(2)(a)....

...The crime of driving under the influence of an intoxicating substance to such an extent as to deprive a person of full possession of his normal faculties is punishable by six months in jail or a $500 fine, or both. § 860.01(1), Fla. Stat. (1977); Id, § 316.193(2)(a)....

...Farneth also performed poorly on field sobriety tests. Farneth was arrested and escorted to the county detention center, where he took a breath test using an Intoxilyzer 5000 machine. The results of this test *616 allegedly showed that Farneth was in violation of section 316.193(1)(c), Florida Statutes (2003), and Farneth was charged with driving under the influence and speeding....

...er. He made no specific finding that appellant had driven the car prior to it stalling, only that she was in sole control after her sister-in-law departed. We are cognizant of the enormous and terrible injuries inflicted by drunken drivers; however, § 316.193 is a penal statute and as such must be strictly construed....

...outside agency, we cannot say that she had actual physical control of a vehicle as defined by § 316.003, Fla. Stat. (1985). We therefore reverse appellant's conviction and direct her discharge. REVERSED. ZEHMER and BARFIELD, JJ., concur. NOTES [1] Section 316.193, Fla....

...In light of our reversal on this ground, the State's other arguments on appeal will not be addressed. Background Appellee was charged with driving under the influence after having been convicted of DUI on three or more prior occasions, pursuant to section 316.193(2)(b)3, Florida Statutes (2005), and driving while license permanently revoked, pursuant to section 322.341, Florida Statutes (2005)....

...Palm Beach, for appellee. PER CURIAM. We affirm the trial court's permanent revocation of appellant's driving privileges. Appellant was convicted of one count of driving under the influence of drugs or alcohol and causing serious bodily injury under section 316.193(3)(c)2., Florida Statutes (2008). Pursuant to section 322.28(4)(a), the trial court shall revoke the driving privileges of a person convicted under section 316.193(3)(c)2....

...r when multiple deaths occur in a single DUI incident. The defendant argued that he could not be charged with multiple counts of DUI manslaughter because the statute stated that one who causes "the death of any human being commits DUI manslaughter." § 316.193(3)(c)(3), Fla....

...2d DCA 1982), is before us as conflicting with Powers v. State, 370 So.2d 854 (Fla. 3d DCA), review denied, 379 So.2d 209 (Fla. 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Petitioner was arrested on December 30, 1980, and charged with a violation of section 316.193(1), Florida Statutes (1979), and section 39-2(b), Tampa City Code, for driving under the influence of alcoholic beverages, narcotic drugs, barbiturates, or other stimulants. The citation subsequently was amended to charge a violation of section 316.193(3), Florida Statutes (1979), [1] driving with an unlawful blood alcohol level. The charge of violating section 316.193(1) was dropped....

...with a violation of both a city ordinance and a state statute, one is entitled to a jury trial only if the penalty that could be imposed exceeds six months in jail and a $500 fine. Whirley, 421 So.2d at 556. The penalty for a firsttime violation of section 316.193(3), Florida Statutes (1979), is imprisonment for not more than ninety days or a fine of not more than $250 or both....

...While it is true that jury trials were provided for prior to the enactment of Florida's decriminalization law, the right was a statutory one only; it has never been, and is not now, a constitutionally required right. Webb, 335 So.2d at 828. We find the Webb rationale applicable to those violations of section 316.193 which do not carry a possible penalty of more than six months' imprisonment....

...not confer the right to a jury trial. We reject *839 this reasoning and adopt the analysis in Thompson v. Office of Public Defender, 387 So.2d 541 (Fla. 5th DCA 1980). In Thompson the Fifth District Court of Appeal considered whether a violation of section 316.193(1), Florida Statutes (1979), was a crime in the context of determining whether a public defender had the duty to represent an indigent charged with violation of the statute....

...of the provisions of this chapter, except criminal offenses enumerated in section (4), shall be deemed an infraction, as defined in § 318.13(3). (4) Any person convicted of a violation of s. 316.027, s. 316.061, s. 316.067, s. 316.072, s. 316.192, s. 316.193, or s. 316.1935 shall be punished as specifically provided in such sections. Thompson, 387 So.2d at 543. The court concluded that these latter subsections make it clear that a violation of section 316.193 is a "criminal offense." We agree that a violation of section 316.193 is a criminal offense, and therefore we consider the applicability of article I, section 16 of the Florida Constitution to the charge under consideration....

...Its primary purpose is to prevent circumvention of a right to a jury trial for a state criminal offense by the device of charging an equivalent municipal or county ordinance violation. In 1979 the legislature chose to give one charged with violating section 316.193(1), Florida Statutes (1979), the right to a jury trial by enacting section 322.262(4), Florida Statutes (1979): (4) Any person charged with driving a motor vehicle while under the influence of intoxicating beverages to the extent that...

...436, 98 N.W.2d 813 (1959); Artis v. Rowland, 64 Wash.2d 576, 392 P.2d 815 (1964). I would therefore quash the district court's decision with directions to reverse appellant's conviction on the ground that she was denied her state constitutional right to a trial by jury. NOTES [1] Section 316.193(3) provides: (3) It is unlawful and punishable as provided in subsection (4) for any person with a blood alcohol level of 0.10 percent, or above, to drive or be in actual physical control of any vehicle within this state....

...or writ of certiorari. Fla. R.App. P. 9.040(c). Because the State met its burden in order to obtain an investigative subpoena for the records, we grant the petition. Rivers was charged with driving under the influence, causing serious bodily injury. § 316.193(3)(c)2, Fla....

...State, 389 So.2d at 295, and R.C.G. v. State, 362 So.2d at 166, although the question of admissibility was not discussed. Defendant makes a related argument that the trial court erred by instructing the jury on the statutory presumptions for blood alcohol levels. See § 316.1934(2), Fla.Stat. (1993). By virtue of the instruction, the jury was aware that for the .03 and .05 levels, it was presumed that the defendant was not impaired. See id. § 316.1934(2)(a)....

...775.082, the sentence recommended under the guidelines must be imposed absent a departure." Id. § 921.0014(1). When increased by 25 percent, the defendant's recommended sentence was 7.7 years, which exceeds the 5year legal maximum. The trial court was entitled to impose the sentence that it did. Rehearing denied. NOTES [1] § 316.193(3)(c)3, Fla.Stat....

...We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Hlad was convicted of driving under the influence of alcohol (DUI) after having been three times previously convicted of DUI, a crime which was enhanced to a felony because of the three prior convictions pursuant to section 316.193(2)(b), Florida Statutes (1987)....

...Gen., Tampa, for respondent. EHRLICH, Justice. We have for review Wilhelm v. State, 544 So.2d 1144, 1146 (Fla.2d DCA 1989), which certified the following as a question of great public importance: DOES THE JURY INSTRUCTION BASED ON THE STATUTORY PRESUMPTION CONTAINED IN SECTION 316.1934(2)(c), FLORIDA STATUTES (1986), CREATE AN UNCONSTITUTIONAL MANDATORY REBUTTABLE PRESUMPTION? We have jurisdiction....

...[2] A chemist testified that Wilhelm would have had to have ingested sixteen ounces of Nyquil to produce a blood-alcohol content of .20 percent. Wilhelm was acquitted of the vehicular homicide and manslaughter charges, but was convicted of DWI manslaughter under section 316.1931, Florida Statutes (1985)....

...lhelm had the requisite blood-alcohol level. Intoxication, that is being under the influence of alcoholic beverages to the extent the normal faculties are impaired, is certainly an essential element of the offense of DWI manslaughter as set forth in section 316.1931....

...Therefore, due process requires that the state bear the burden of proof beyond a reasonable doubt, alternatively called the burden of persuasion, that Wilhelm was intoxicated. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The language of this instruction is taken almost verbatim from section 316.1934(2)(c), Florida Statutes (1985), which states: (c) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired... . (Emphasis added.) In State v. Rolle, 560 So.2d 1154 (Fla. 1990), we recently held that *3 section 316.1934(2)(c) creates a permissive inference, not an unconstitutional presumption....

...[2] Wilhelm also testified that his foot had been injured in the accident and he therefore could not stand for a long time on one leg, that he could not walk a straight line because the gravel road was slippery and muddy, and that he sang the alphabet song because he regularly sang it to his daughter. [3] Section 316.1931, Florida Statutes (1985), provides in pertinent part: (1) It is unlawful for any person, while in an intoxicated condition or under the influence of alcoholic beverages ......

...on shall be punished as provided by existing law relating to manslaughter. [4] In this context we note an important distinction between this case and State v. Rolle, 560 So.2d 1154 (Fla. 1990), in that the defendant in Rolle, was charged pursuant to section 316.193, Florida Statutes (1985), with both driving under the influence (DUI) and driving with an unlawful blood-alcohol level (DUBAL). Under DUBAL, proof of .10 percent or higher blood-alcohol level is itself an element of the offense which may be proved instead of impairment. Wilhelm, however, was charged with DWI manslaughter under section 316.1931, Florida Statutes (1985), which had no provision comparable to DUBAL....

...page 5. Parenthetically, the Court observes that Florida has addressed the problem of drunk driving in the context of motorboats by passing a statute for "vessels" that tracks the language of the statute covering other "vehicles." Compare Fla.Stat. § 316.193(1)(a) ("vehicles"), with Fla.Stat....

...necessary to achieve the purposes of the sentence. (c.) Offense Categories. Offenses have been grouped into 9 offense categories encompassing the following statutes: Category 1: Murder, manslaughter: Chapter 782 (except subsection 782.04(1)(a)), subsection 316.193(3)(c)3, and subsection 327.351(2)....

...chapter 777. The form appearing at Florida Rule of Criminal Procedure 3.988(a) has been revised to incorporate a point value for inclusion in the prior record factor utilized in the determination of recommended sentence by scoring each prior conviction under section 316.193, Florida Statutes (Supp. 1984), or section 316.1931, Florida Statutes (Supp. 1984), or section 327.351, Florida Statutes (Supp. 1984), at a value of thirty-two (32) points. This point value will be applied only whereif the offender is convicted for a violation of section 316.193(3)(c)3, Florida Statutes (Supp. 1986), or section 327.351, Florida Statutes (Supp. 1984), whereif the operation of a motor vehicle or vessel by the offender while intoxicated as defined in section 316.193(1), Florida Statutes (Supp....

...1984), results in the death of any human being and the scoresheet utilized in sentencing is the form appearing at Florida Rule of Criminal Procedure 3.988(a). For purposes of determining a prior conviction for a violation of the above enumerated statute, a prior conviction for violation of section 316.1931 or section 316.193 or former section 860.01 or former section 316.028, or a previous conviction for any substantially similar alcohol-related or drug-related traffic offense outside this state, shall also be considered a prior conviction....

...Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ. *604 DANIEL S. PEARSON, Judge. Daniel Fieselman was charged in the county court with being in actual physical control of a vehicle while under the influence of alcoholic beverages, in violation of Section 316.193(1)(a), Florida Statutes (1985)....

...Observing the defendant's condition and taking into account the above-described circumstances (but discounting the lack of any direct evidence that the defendant had driven the car in his intoxicated state), the officer placed the defendant under arrest for violating Section 316.193(1), Florida Statutes (1985), which provides that a person who is under the influence of, inter alia, alcoholic beverages is guilty of driving under the influence "if such person is ......

...For the reasons expressed below, we approve the decision of the district court of appeal. Petitioner, Kendra Sue Macias, was charged with driving under the influence of alcohol to the extent of impairment of her faculties and driving with an unlawful blood alcohol level in violation of section 316.193(1) and (3), Florida Statutes (1981)....

...on an officer who was engaged in the lawful performance of a legal duty. This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 1994 [636 So.2d 502], and 2005 [911 So.2d 1220] and 2006. 7.8 DUI MANSLAUGHTER § 316.193(3)(c)3, Fla....

...(Specific substance alleged) is a chemical substance under Florida law. Chapter 893, Fla. Stat. (Specific substance alleged) is a controlled substance under Florida law. In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by § § 316.1934(2)(a), (2)(b), and (2)_(c), Fla....

...e, 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 ----------------------------------------------------------------------------- DUI MANSLAUGHTER—316.193(3)(c)(3) ----------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------ DUI 316.193 28.1 ------------------------------------------------------------------------------- DUI serious bodily 316.193(3)(c)2 28.3 injury ------------------------------------------------------------------------------- DUI damage to or 316.193(3)(c) person or property -------------------------------------------------------------------------------- Vehicular homicide 782.071 7.9 --------------------------------------------------------------------------------- Comment This instructio...

...I've already instructed the jury that they are to follow the law. Didn't I do that? ... As I instruct them and not what you say or what Mr. Diaz [prosecutor] says. I don't feel I have to repeat the instruction every five minutes." [4] Contrary to the prosecutor's statement, under section 316.193, Florida Statutes, to be guilty of driving with an unlawful blood alcohol level, Servis must have had a blood alcohol level of .08 while driving or in physical control of the car, see Rodriguez v....

...ervis a fair trial, the judgment is reversed and the cause is remanded for a new trial. [5] In light of this reversal, we do not address the other issues on appeal. REVERSED and REMANDED for new trial. SHARP, W., and ORFINGER, JJ., concur. NOTES [1] § 316.193(3)(c)(3), Fla. Stat. [2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [3] The jury instructions provided that pursuant to section 316.193, Florida Statutes, to find Servis guilty, the state had to prove beyond a reasonable doubt that: 1....

...5th DCA 2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. See per curiam op. at 1076 ("[W]e conclude that the DHSMV cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest."); Justice Quince's concurring-in-result-only op....

...fusal was incident to a lawful arrest in the proceedings before the hearing officer who is reviewing the legality of the suspension. See per curiam op. at 17 ("Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest....

...2.2615(7), Florida Statutes (2007). The First District, relying on the reasoning of the Fifth District in Pelham, concluded that section 322.2615(7)(b), Florida Statutes, governing proceedings to review license suspensions must be read together with section 316.1932(1)(a)1.a., Florida Statutes (2007), Florida's implied consent law, because under the "statutory scheme, the lawfulness of the suspension is central to any determination that there is `sufficient cause' to `sustain'" the suspension....

...sal is not incident to a lawful arrest. Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006), [4] commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's "implied consent law")....

...coholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages." § 316.1932(1)(a)1.a., Fla....

...test of his or her breath and his or her driving privilege has been previously *1076 suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. § 316.1932(1)(a)1.a., Fla....

...Despite using the adjective "lawful" in section 322.2615, nowhere in that section does the Legislature define or provide notice as to what constitutes a lawful breath-alcohol test. The only location in the Florida Statutes where the definition can be found is section 316.1932(1)(a), which provides that a driver is only required to submit to an breath-alcohol test if the driver is (1) operating a motor vehicle within this state and (2) subject to a lawful arrest for (3) an offense allegedly committed while...

...Nowhere else does the Legislature mandate the circumstances under which an individual must submit to a breath-alcohol test or else face suspension of his or her driver's license under section 322.2615, Florida Statutes, in this context. [6] The only definition of a lawful breath test under section 322.2615 is found in section 316.1932(1)(a). For that reason, the statutes must be read in pari materia. In other words, section 316.1932 is the only statute that defines the parameters of a lawful breath-alcohol test in section 322.2615....

...citizens are required to submit to the test or else face suspension of their driver's licenses. Accordingly, we hold that a "lawful test" under section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as specified in section 316.1932, Florida Statutes. For this reason, we conclude that the DHSMV cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest....

...This second question is related to the first question and concerns the method *1077 of challenging a suspension for refusal to submit to a breath test. After an individual's driver's license is suspended under section 322.2615 for refusing to submit to a breath test under section 316.1932, that section entitles the driver to request a formal or informal review of the validity of the suspension....

...or a period of 18 months. § 322.2615(7), Fla. Stat. In the prior version of the statute, the hearing officer's scope of review included consideration of the additional issue of "[w]hether the person was placed under lawful arrest for a violation of s. 316.193." § 322.2615(7)(b)(2), Fla....

...18, 2007) (order denying petition for writ of certiorari) (stating that the Legislature had created an "unnerving quagmire"). We agree with the First and Fifth District Courts of Appeal that section 322.2615 cannot be read in isolation but must be read in concert with section 316.1932, which defines the scope of the driver's obligation to submit to a breath test. As the Fifth District cogently explained: Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest....

...We conclude, as did the First and Fifth Districts, that reading the two statutes together leads to the conclusion that there must be a means for challenging the legality of the suspension when the request for a breath test was not incident to a lawful arrest. Once section 322.2615 and section 316.1932 are read together, it becomes clear that under the statutory scheme, "sufficient cause" to sustain the suspension under section 322.2615(7) and "whether the person whose license was suspended refused to submit to any such test" require that the hearing officer make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes. Accordingly, we answer the second rephrased certified question in the affirmative. Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest....

...However, the dissent overlooks the fact that a driver is on notice that he or she must consent to a breath test or else face suspension of his or her *1080 driver's license only if the test is administered incident to a lawful arrest. That is what the Legislature has expressly provided for in section 316.1932....

...The other statutory provisions relied upon by the plurality were adopted by the Legislature prior to the adoption of chapter 2006-290, section 45, Laws of Florida, which removed from the hearing officer's scope of review the issue of whether the license holder "was placed under lawful arrest for a violation of s. 316.193." "[W]hen two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent." McKendry v....

...The plurality transgresses the limits set forth in the text by reading back into section 322.2615(7) the provision repealed by the Legislature in 2006 which permitted the hearing officer to consider whether the suspension was incident to a "lawful arrest for a violation of s. 316.193." A more direct abrogation of legislative intent is hard to imagine....

...he adoption of chapter 2006-290, section 45, Laws of Florida, the Legislature clearly provided that an administrative suspension may not be invalidated on the ground that the license holder had not been "placed under lawful arrest for a violation of s. 316.193." Contrary to the plurality's reasoning, the legislative limitation of the grounds for challenging an administrative suspension does not result in authorizing the Department "to suspend a driver's license without reasonable notice and no p...

...ture. They are therefore on notice of the limited grounds for challenging an administrative suspension and that the lawfulness of a suspension will be upheld without regard to whether the suspension was incident to a lawful arrest for a violation of section 316.193....

...Neither the respondents, the plurality, nor Justice Quince have provided any basis for concluding that it is unconstitutional for the Legislature to authorize administrative suspension of a license when the license holder has not been subjected to a lawful arrest for a violation of section 316.193....

...[2] The Florida Association of Criminal Defense Lawyers filed an amicus brief in support of Respondent McLaughlin in Case No. SC08-2394. [3] These cases were consolidated for oral argument, and we now consolidate the cases for disposition. [4] The current 2010 version of section 316.1932, Florida Statutes, remains unchanged from the 2006 version....

...The trial court passed upon the constitutionality of a state statute. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. The appellant was charged with the crimes of driving while intoxicated and driving with unlawful blood alcohol level in violation of section 316.193, subsections (1) and (3) respectively, Florida Statutes (1977). The judgment from which this appeal is brought was rendered upon a plea of nolo contendere. Prior to his change of plea from not guilty to nolo contendere, the appellant moved: (1) to dismiss the information on the ground that section 316.193 is unconstitutional and on the ground that one of the offenses charged is a lesser included offense of the other; (2) to suppress evidence; and (3) for discharge under the speedy trial rule....

...s became moot. The court also denied the motion to suppress and for discharge. The appellant pled nolo contendere to the unlawful blood alcohol level charge, was adjudicated guilty and sentenced. The appellant presents three issues. He contends that section 316.193, Florida Statutes (1977), violates article III, section 6 of the Florida Constitution....

...Therefore, we will only consider the issue of the statute's constitutionality under article III, section 6. Article III, section 6 provides in pertinent part: "Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title." The appellant contends that section 316.193 embraces more than one subject and therefore violates the single-subject requirement for laws. In support of this contention, he asserts that it is improper for section 316.193(1) and (3) to create two separate and distinct offenses....

...The legislature is free to use whatever classification system it chooses. Article III, section 6 does not require sections of the Florida Statutes to conform to the single-subject requirement. The requirement applies to "laws" in the sense of acts of the legislature. The offense proscribed by section 316.193(1), Florida Statutes (1977), was established by chapter 71-135, Laws of Florida. This act of the legislature is called the Florida Uniform Traffic Control Law. It regulates the use of the public roads of the state. It embraces only that subject and matters properly connected therewith. The offense proscribed by section 316.193(3) was created by chapter 74-384, Laws of Florida....

...ased on the misadvice of counsel. The trial court erroneously revoked appellant's driving privileges pursuant to section 316.655, Florida Statutes (1999). Rather, it was bound by section 322.28, Florida Statutes (1999). Appellant was convicted under section 316.193(3)(c)2, a third degree felony, for DUI with serious bodily injury and had only one prior DUI conviction. The pertinent provisions of section 322.28 provide: (2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply....

...ense or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions: 1. Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver's license or driving privilege shall be revoked for not less than 180 days or more than 1 year. 2. Upon a second conviction within a period of 5 years from the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 5 years. 3. Upon a third conviction within a period of 10 years from the date of conviction of the first of three or more convictions for the violation of the provision of s. 316.193 or former 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 10 years. * * * * (e) The court shall permanently revoke the driver's license or driving privilege of a person who has been convicted four *1136 times for violation of s. 316.193 or former s. 316.1931 or a combination of such sections. (4)(a) Upon a conviction for a violation of s. 316.193(3)(c)2., involving serious bodily injury, ... the court shall revoke the driver's license of the person convicted for a minimum period of 3 years. If a conviction under s. 316.193(3)(c)2., involving serious bodily injury, is also a subsequent conviction as described under paragraph (2)(a), the court shall revoke the driver's license or driving privilege of the person convicted for the period applicable as provided in paragraph (2)(a) or paragraph (2)(e). (emphasis supplied). Subsection 322.28(4)(a) specifically provides that where a conviction under section 316.193(3)(c)2, involving serious bodily injury, is also a subsequent conviction, the court shall revoke the person's driving privilege for the period applicable as provided in paragraph (2)(a)....

...Where the language of the statute is plain and unambiguous, there is no need for judicial interpretation. See id. The language of section 322.28 is facially clear and unambiguous. The statute specifically mandates the suspension of driving privileges for violations of section 316.193. Unlike section 322.28, section 316.655, a permissive catch-all statute, does not address periods of suspension or revocation of driving privileges stemming from a DUI conviction under section 316.193....

...It is the duty of the courts and the department to follow the provisions of Chapter 322. See id. at 952. *1137 In this case, section 322.28(2)(a)2 specifically provides that upon a second conviction within a period of 5 years from the date of a prior conviction under section 316.193, the driver's license shall be revoked for not less than five years. Subsection 332.28(4)(a) provides that if a conviction under section 316.193(3)(c)2 involving serious bodily injury is also a subsequent conviction as described in paragraph (2)(a), the court shall revoke the driver's license of the person convicted for the period applicable as provided in paragraph (2)(a) or paragraph (2)(e)....

...r the victim's death] accurately restated this law, Fecske argues that the instruction constituted an improper comment on the evidence by the court. We agree. As the state conceded at oral argument, causation is an element of UBAL manslaughter under section 316.193....

...st the appellees, Nicholas Patrick Powers, Warren A. Stevens, and Linda J. Schoeppl and, accordingly, reverse. The appellees were arrested by the Pinellas County Sheriff's Department and charged with driving under the influence (DUI) in violation of section 316.193, Florida Statutes (1987)....

...lood alcohol level. Appellee was still unconscious at the time. The results of the blood draw showed a blood alcohol content of .09 percent. Appellee was later charged by information with driving under the influence, in violation of Florida Statutes section 316.193(1) (1997)....

...for reasonable cause to believe that appellee was under the influence of alcohol. The state appealed the suppression order and the county court certified two questions of great public importance, which we rephrase as follows: WHETHER FLORIDA STATUTE SECTION 316.1932(1)(c), WHICH AUTHORIZES A POLICE OFFICER TO ORDER BLOOD TESTING OF A PERSON WHO APPEARS FOR TREATMENT AT A HOSPITAL OR OTHER MEDICAL FACILITY AND IS UNCONSCIOUS AND INCAPABLE OF REFUSING SUCH TESTING, REQUIRES THAT THE OFFICER HAVE R...

...DOES THE MERE ODOR OF ALCOHOL ON THE BREATH OF AN UNCONSCIOUS DRIVER, WHO WAS INVOLVED IN AN ACCIDENT NOT IN ANY WAY ATTRIBUTABLE TO SAID DRIVER, WITHOUT OTHER INDICIA OF IMPAIRMENT, GIVE AN OFFICER REASONABLE CAUSE TO BELIEVE THAT THE DRIVER WAS UNDER THE INFLUENCE OF ALCOHOL, WITHIN THE MEANING OF FLORIDA STATUTE SECTION 316.1932(1)(c)? The legislature has narrowly defined the circumstances in which a blood draw may be performed in place of a breath or urine test without the driver's express consent. One circumstance allowing for forcible extraction of a blood sample is set forth in Florida Statutes section 316.1933(1) (1997)....

...This section authorizes a blood test where an officer has probable cause to believe a driver under the influence of alcoholic beverages has caused death or serious injury to a human being, including himself. The situation presented in this case does not fall within section 316.1933(1), because, as the parties stipulated, the police officer did not reasonably believe that appellee caused the injuries resulting from the accident. The other circumstance in which a police officer may obtain an involuntary blood sample is described in section 316.1932(1)(c)....

...inic or medical facility, and (3) the administration of a breath or urine test is impractical or impossible or the person is incapable of refusal due to unconsciousness or other mental or physical condition. The trial judge correctly determined that section 316.1932(1)(c) applies to the facts in this case....

...lcohol on appellee's breath did not provide the officer with reasonable cause to believe that he was under the influence of alcohol. It simply showed that he had consumed alcohol to an unknown extent. In Brown, the defendant's blood was tested under section 316.1933(1), because the officer believed that the defendant caused fatal injuries to a bicyclist while the defendant was driving under the influence of alcohol. Similar to section 316.1932(1)(c), this section requires the officer to have probable cause to believe that the driver was "under the influence of alcoholic beverages." The fifth district noted that: The statute does not define what is meant by `under the influence of alcoholic beverages,' nor does it go on and say, as does section 316.193 to the extent that the person's `normal faculties are impaired.' We agree with the trial judge in this case that `under the influence' means something more than just having consumed an alcoholic beverage....

...indicated impairment—i.e., the defendant's blood shot eyes, erratic driving pattern, and behavior after the accident. We first address the question whether the term "under the influence of alcohol" means "impaired" by alcohol under Florida Statute section 316.1932(1)(c)....

...lated provisions in harmony with one another. See Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla.1992); State v. Rodriquez, 365 So.2d 157, 159 (Fla.1978). Section 316.193, Florida Statutes, prohibits a person from driving or being in physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances (DUI)....

...A person is deemed to be under the influence of alcoholic beverages when (1) affected to the extent that the person's normal faculties are impaired or (2) when the person has a blood-alcohol level of 0.08 percent or higher. [2] The Implied Consent Laws (sections 316.1932 through 316.1934) provide procedures for gathering and testing physical evidence for DUI investigations and prosecutions....

...of `relevance and likely success of a test of petitioner's blood for alcohol' ... The officers in the instant case had sufficient `clear indication' that a blood test was called for. Id. at 622. It follows, then, that forcible blood extraction under section 316.1932(1)(c) requires a "clear indication" or probable cause that a DUI crime has been committed....

...also suggested the required relevance and likely success of [i.e., probable cause for] a test of... blood for alcohol." 384 U.S. at 770, 86 S.Ct. 1826. In Brown, the fifth district reasoned that the probable cause necessary for a search (blood withdrawal) under section 316.1933(1) involves the same findings for probable cause for a DUI arrest. Probable cause for a DUI arrest under section 316.193 is based upon a belief that the driver is under the influence of alcoholic beverages to the extent that his normal faculties are impaired. For that reason, the fifth district interpreted the phrase "under the influence of alcoholic beverages" in section 316.1933(1) as equivalent to "impairment" and not the mere consumption of alcohol. Cf. Jackson v. State, 456 So.2d 916 (Fla. 1st DCA 1984). In Jackson, the First District Court of Appeal reached a different conclusion. It acknowledged that probable cause for a DUI arrest is required under section 316.1933(1) but determined that the phrase "under the influence of alcoholic beverages" is not equivalent to the term "intoxicated" or "impaired." The court stated: The purpose of the blood test taken under section 316.1933(1) is to aid in determining whether the driver causing a serious automobile accident, when reasonably believed to be under the influence of alcoholic beverages, had his normal faculties impaired by alcohol....

...In Cesaretti we reversed the suppression of blood alcohol test results upon determining that the smell of alcohol on the driver's breath, along with evidence that the driver had caused serious bodily injury, gave the officer sufficient probable cause to request a blood test under section 316.1933(1). We point out, however, that the blood sample in this case was ordered under a different statute. Unlike section 316.1933(1), the section applicable to the blood draw herein, section 316.1932(1)(c), does not require that the driver cause death or serious bodily injury to someone....

...f medical treatment, and unable to take a breath or urine test. There is no "accident" factor that can provide a reliable indicator of impairment—i.e, dangerous or erratic driving. Without the additional *22 "causing serious injury" factor found in section 316.1933(1), this statute does not contain sufficient requirements for probable cause to believe a crime has been committed, unless driving "under the influence of alcoholic beverages" is interpreted to include the phrase "to the extent that...

...impaired by alcohol or has an unlawful amount of alcohol in his system. Once established, probable cause can then provide the means for measuring degrees of impairment or blood alcohol concentration through breath or blood testing. We conclude that section 316.1932(1)(c) requires a police officer to have "reasonably trustworthy information" sufficient to cause a person of reasonable caution to believe that the driver is under the influence of alcoholic beverages to the extent that the driver's normal faculties are impaired or the driver's blood or breath alcohol level is .08 or higher. Although section 316.1932(1)(c) contains no express language corresponding to the statutory elements of DUI, we find that such additional language is necessarily implicit in the reasonable cause requirement of this section in order for compulsory blood withdrawals to comport with Fourth Amendment principles. [4] Furthermore, construing the two subsections, (a) and (c) of section 316.1932, in pari materia to ascertain legislative intent, we think it is clear that the legislature intended that reasonable or probable cause for a DUI arrest exist prior to administering compulsory blood tests under this statute....

...trial court's ruling that the sole evidence of an odor of alcohol on appellee's breath was insufficient reasonable cause for the officer to believe that appellee was "under the influence" of alcoholic beverages and subject him to a blood draw under section 316.1932(1)(c), Florida Statutes....

..., he ordered the physician at the hospital to draw blood from him and report on the blood-alcohol level. The report showed a blood-alcohol level of .09. The officer ordering the blood test acted under one of Florida's implied consent statutes. See §§ 316.1932 and 316.1933, Fla. Stat. (1999). Section 316.1932(1)(c) is the statute used in this case, and it requires three elements for a valid utilization of its consent to a blood test: 1....

...spital, thus making a *25 breath or urine test impractical or impossible. That leaves only the first element, whether the facts show reasonable cause to believe the driver was under the influence of alcohol. Defendant was charged with a violation of section 316.193(1)....

...ysical control of a vehicle, while under the influence of alcoholic beverages ... and was affected to the extent that [his] normal faculties were impaired; or while having a blood or breath alcohol level of .08 or higher, contrary to Florida Statute 316.193(1)." [e.s.] As phrased, the charge was clearly in the alternative, charging both impairment and an unlawful blood-alcohol level. Under this charge, the state has the burden of proving either impairment under section 316.193(1)(a), or an unlawful blood-alcohol level under section 316.193(1)(b). See Dejerez v. State, 580 So.2d 656 (Fla. 4th DCA 1991) (driving under the influence and driving with an unlawful blood alcohol constitute alternative bases of the same statutory offense). Section 316.193 is entitled "Driving under the influence; penalties." Because the entire statute addresses driving under the influence, section 316.193 encompasses more than the simple misdemeanor DUI violation contained in subsection (1). Subsection (3) punishes more serious felony violations involving death or serious bodily injury. [10] It is therefore apparent that the title of section 316.193 has been used in a comprehensive sense, thereby indicating that the subject of the entire statute is the criminalization and punishment for consuming alcohol and then driving....

...It is true that in subsection (1)(a), the legislature has also used the term "under the influence," this time, however, only in a specific, restricted sense to define a single alternative form of the crime. The three methods of showing a driving under the influence violation under section 316.193(1) are joined with the disjunctive or and are genuine alternatives. Of the three alternatives for showing a violation under subsection (1) of section 316.193, only the text of subsection (1)(a) requires a showing that alcohol has demonstrably affected the "normal faculties," i.e., a showing of actual "impairment." The alternative crimes in subsections (1)(b) and (1)(c) lack any textual req...

...Subsections (1)(b) and (c) punish the mere presence of a certain concentration of alcohol in the bodily chemistry of drivers without regard to whether the driver's "normal faculties" have been visibly impaired. See State v. Rolle, 560 So.2d 1154, 1156 (Fla.1990) ("section 316.193 allows proof of a blood-alcohol level ... to be *26 substituted for proof of impairment—not as an unconstitutional presumption, but as an alternate element of the offense."). [11] Therefore based on the alternative charge in this Information, the state was entitled to prove the section 316.193(1) DUI charge by showing only an unlawful blood-alcohol level under subsection (1)(b), without any evidence of impairment. I think the legislature could logically entitle all three alternatives in section 316.193(1) as constituting the single offense of driving under the influence even though only one of the three alternatives requires proof that the driver's normal faculties were demonstrably impaired....

...nce. That is, after all, the basis for criminalizing the mere presence of alcohol in the blood at a specified level, as well as the basis for the consent for blood tests. Properly understood, the legislature's use of the term "under the influence in section 316.1932(1)(c) does not disclose any purpose to require a showing of impairment in all prosecutions under section 316.193(1)....

...Thus when it uses instead reasonable cause, I take the meaning to be different than full-fledged probable cause—an intentional lessening of the burden of showing the statutory trigger to the consent to the blood test. [12] I think the drafters of the statute fully intended to adopt a reasonable cause standard in section 316.1932(1)(c)—not a standard of probable cause—for believing that a driver may be under the influence of alcohol....

...one may very well be under the influence of alcohol and consequently impaired. The proposition that the legislature was aware of the distinction between probable and reasonable is evident from a comparison of the two implied consent statutes— viz., section 316.1932(1)(c) and section 316.1933(1). Section 316.1933(1) is the statute involved in State v. Brown, 725 So.2d 441 (Fla. 5th DCA 1999), prominently relied upon by the majority. Section 316.1933(1) is restricted to cases of death or serious injury and provides that an officer may require the driver to submit to a blood test if the officer has probable cause to believe that the driver was under the influence of alcoholic beverages. Section 316.1932(1)(c), the implied consent applicable in this case, does not use the term probable cause. For these crimes not involving death or injury punishable under section 316.193(1), the implied consent turns on reasonable cause....

...being treated at a hospital, I believe that the legislature could make the implementation of a consent from even a driver ultimately shown to be innocent turn on this qualitatively less stringent showing than probable cause. We must not forget that section 316.193(1) creates a "strict liability" crime....

...ious bodily injury to have strict liability consequences); and cf. Magaw v. State, 537 So.2d 564, 567 (Fla.1989) (prior to 1986 amendment, even felony DUI statute involving death or serious bodily injury was strict liability crime). *28 Essentially, section 316.193(1) punishes the act of driving when drinking, without regard to the state of mind of the driver or whether the driving has resulted in any traffic accident or injury. Section 316.193(1) does not require any showing of criminal intent or causal relationship....

...Moreover, as we have seen, subsections (1)(b) and (c) do not even require any showing of visible signs of impairment. Thus it is apparent that subsections (1)(b) and (c) have an additional strict liability consequence not shared by subsection (1)(a). [15] Because section 316.193(1) punishes the mere act of driving after consuming alcohol even when impairment is not shown, nothing in section 316.1932(1)(c) requires anything beyond the mere presence of some alcohol having been consumed to trigger reasonable cause. Section 316.1932(1)(c) was deliberately drafted as a consent to the test, not as brute authority for the state to take the blood....

...undation to indicate that one may well be impaired in one's driving ability. In fact he does not even dispute the proposition that just a small amount of alcohol in the system might affect the driving ability of some people. Lacking such challenges, section 316.1932(1)(c) surely cannot be said to be arbitrary....

...test the blood of the accused driver? [19] Neither of the two majority opinions addresses this question. State v. Mitchell, 245 So.2d 618 (Fla. 1971), also supports my analysis. The essential issue in Mitchell was whether the predecessor statute to section 316.1932 required the defendant to be under arrest before blood could be taken under the consent provision....

...This is especially true with regard to a subject that so directly and pervasively affects public health and safety as the prevention and punishment of operating motor vehicles while under the influence of alcohol. [21] The addition of probable cause to arrest would mean that all blood authorizations under section 316.1932(1)(c) will necessarily require this extra showing of impairment....

...use to believe that the driver may simply have driven after consuming alcohol. It amounts to a significant weakening of the domain of the DUI and implied consent statutes' structure and purpose. The strict liability nature of the crime created under section 316.193(1) will be severely compromised by this judicial weakening of the implied consent statute, substantially weakening the heart of the DUI statutory scheme, contrary to its obvious purpose....

...1826, 16 L.Ed.2d 908 (1966). The timing of this legislation suggests that it is connected to Schmerber. Schmerber was decided in 1966, and the statute involved in this case was adopted in 1967. Ch. 67-308, § 1, Laws of Fla. When the statute was adopted, section 316.1932(1)(c) [22] , at issue in this case, did not contain the requirement of reasonable cause although there was a reasonable cause requirement in section 316.1932(1)(a) [23] ....

...5th DCA 1986), the defendant challenged subsection 1(c) as violating the Fourth Amendment's protection against unreasonable search. In order to uphold the constitutionality of subsection 1(c), the fifth district held that there was a reasonable cause requirement in subsection 1(c) "implied from reading section 316.1932(1)(c) together with section 316.1932(1)(a)." Id....

...Judge Taylor and I share Judge Farmer's concerns about the problem of drunk driving. The fact remains, however, that the Fourth Amendment requires probable cause for a search and seizure and there was no probable cause in this case. NOTES [1] In 1996, the legislature amended subsection (c) of Florida Statutes section 316.1932(1) and inserted the requirement for "reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages..." [2] DUI may be established in two ways: by...

...lcohol level. See Dejerez v. State, 580 So.2d 656 (Fla. 4th DCA 1991); see also State v. Rolle, 560 So.2d 1154 (Fla.1990). [3] The blood sample obtained in Mitchell was authorized under Florida Statutes section 322.261(1)(b) (1989), a predecessor to section 316.1932(1)(c). See also Kenson v. State, 577 So.2d 694 (Fla. 3d DCA 1991)(under section 316.1932 an arrest is not a prerequisite for a blood test request)....

...icle which caused a death). [7] See Mendez v. State, 678 So.2d 388 (Fla. 4th DCA 1996)(upon completion of field sobriety tests, officer developed probable cause to arrest defendant for DUI and search his vehicle incident to a lawful arrest). [8] See § 316.1932(1)(c), Fla....

...if there is reasonable cause to believe the person was driving... while under the influence of alcoholic beverages ... and the person appears for treatment at a hospital ... and the administration of a breath or urine test is impractical or impossible." [e.s.] [9] See § 316.193(1), Fla....

...lood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath." [10] I have not overlooked the fact that even simple DUI under section 316.193(1) can become a felony for a fourth or subsequent conviction. See § 316.193(2)(b), Fla. Stat. (1999). Even still, without death or serious injury I think that the blood test consent statute in section 316.1932(1) would very likely still apply to the officer's investigation leading to a fourth successive charge and conviction....

...I believe the legislature may have been impressed by some studies showing a strong association or correlation between the consumption of even small amounts of alcohol and a lessening of motor functions and reaction abilities in humans. [15] See also § 316.1934(2)(c) ("[A] person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.")....

...Auld, 450 So.2d 217 (Fla.1984). Courts will not ascribe to the Legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950). No one suggests that section 316.1932(1)(c) is ambiguous....

from a misdemeanor to a felony pursuant to section 316.193(2)(b), Florida Statutes (1987). He contends

influence of alcohol is a misdemeanor per section 316.193, Florida Statutes (1985). Even in the absence

driving under the influence of alcohol under section 316.193, Florida Statutes (1989), after he ran into

determining if said person is in violation of section 316.193(1), but the taking of such pre-arrest breath

manslaughter of Juhacz and Work, contrary to Section 316.193(3)(a), (c)3, Florida Statutes (1987). That

the influence of alcohol, in violation of section 316.193, Florida Statutes (2003). Judge Maloney's son

AFFIRMED. 1 Section 316.193 states that: (1) A person is guilty

RESTRICTED LICENSE."[1] We first consider whether section 316.193(4)(a), Florida Statutes (1985), permits the

was clearly intoxicated as a matter of law. See § 316.193(1)(b), Fla. Stat. (1995). [3] This also moots

offense contains an element of causation. See § 316.193(3)(c)(2). The leaving the scene of the accident

Weitz was charged with DUI, in violation of section 316.193, Florida Statutes (1985).[1] The State appeals

for operating a motor vehicle contained in section 316.193, Florida Statutes, even though the statute

of an element that the other does not. Compare § 316.193(3)(c)(3), Fla. Stat. (Supp.1998), with § 316.027(1)(b)

of DUI manslaughter, the offense charged. See § 316.193(1) and (3)(c)3, Fla. Stat. (1997). The erroneous

prosecuted for first offense DUI under Fla.Stat. § 316.193 (Supp.1989) and the Federal Assi-milative Crimes

C.J., and DIAMANTIS, J., concur. NOTES [1] § 316.193(1), Fla. Stat. (1989). [2] § 782.07, Fla. Stat

driving under the influence in violation of section 316.193, Florida Statutes (1985), for which he was

guilt or innocence on the crime as charged. See § 316.193(3)(c)3 Fla. Stat. (1995); Grata v. State, 414

that the person arrested was in violation of section 316.193; the results of any breath or blood test or

3(b)(4), Fla. Const. In this case, pursuant to section 316.193(2)(b), Florida Statutes (1997) (the "DUI statute")

felony driving under the influence pursuant to section 316.193(1) & (2)(b). We reverse and remand for reinstatement

speculation or conjecture." Ward, 651 So.2d at 1237. Section 316.193(1)(c), Florida Statutes (1997), provides that

concur. NOTES [1] § 316.193(3)(a), (b), (c)3, Fla. Stat. (1989). [2] § 316.193(3)(a), (b), (c)2, Fla

COBB and DIAMANTIS, JJ., concur. NOTES [1] § 316.193, Fla. Stat. (1989).

a willful criminal act. For example, under section 316.193, Florida Statutes (1993), the act of driving

UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY § 316.193(3)(a)(b)(c)2, Fla. Stat. To prove the crime of

faculties were weakened rather than impaired. Section 316.193, Florida Statutes provides in relevant part:

likely penalty would have been a $500 fine. See § 316.193(2)(a), Fla. Stat. (2000). He was not so fortunate

influence (DUI) resulting in serious bodily injury, § 316.193(3)(c), Fla. Stat. (1989), and driving with a suspended

NOTES [1] Fla.R.App.P. 9.030(b)(4)(A). [2] § 316.193, Fla. Stat. (1989). [3] Form 1514 (1982). [4]

driving under the influence in violation of section 316.193, Florida Statutes ("DUI"). At trial, the county

information with one count of DUI pursuant to section 316.193(1), Florida Statutes (1993). Appellee moved

DUI/manslaughter and lessens the state's burden of proof. Section 316.193 provides that a person commits this crime if

WALDEN, Senior Judge, concur. NOTES [1] Section 316.193(3)(c)(3) defines DWI manslaughter: Any person:

driving under the influence in violation of section 316.193, Florida Statutes (1985). On March 27, Granade

commit the offense [of DUI] ... a violation of section 316.193(l)(a), Florida State Statutes, Driving Under

"is convicted of a third violation of this section [316.193] for an offense that occurs within 10 years

under the influence of alcohol in violation of section 316.193, Florida Statutes (1985). The trial court denied

of driving under the influence contrary to section 316.193, Florida Statutes. As part of the investigation

" Appellant was charged with violations of Section 316.193(3)(c)3., Florida Statutes (1989). That version

driving under the influence in violation of section 316.193(2)(b), Florida Statutes (1995); the information

Judge Frank N. Kaney, Acting County Judge. [3] § 316.193, Fla.Stat. (1993). [4] Fla.R.App.P. 9.160(b)

lawfully arrested and charged with a violation of section 316.193, Florida Statutes; and 3) Whitley had an unlawful

classifies the offense as a third degree felony. § 316.193(3)(c)(2), Fla. Stat. (1987).[1] Appellant entered

same incident and prior DUI convictions. See § 316.193(2)(b)1, Fla. Stat. (2004). The county court in

for driving under the influence (DUI) under section 316.193, Florida Statutes (2006). The traffic citation

had at least three prior DUI convictions. See § 316.193(2)(b), Fla. Stat. (1997). At the hearing, the

plea to the charges of DUI manslaughter, *254 section 316.193(3)(c)(3), Florida Statutes (2005), and DUI

homicides and the DUI with serious injuries under section 316.193, Florida Statutes (1991). Appellant's reliance

level in excess of the *553 legal limit. See § 316.193, Fla.Stat. (1993). The jury was free to conclude

property damage is a separate crime under section 316.193(3), Florida Statutes (1999). Cf. Atwaters v

that offense had been renumbered to appear as section 316.193, Florida Statutes (1983). Notwithstanding this

be of great public importance: *651 In a section 316.193 prosecution, where the state seeks, over defense

well above the statutory minimum of .08. See § 316.193(1)(c), Fla.Stat. (1999). Accordingly, she was

beverages," nor does it go on and say, as does section 316.193 to the extent that the person's "normal faculties

sentence for DUI manslaughter, in violation of section 316.193(3)(a), (b), (c)3, Fla. Stat. (1986 Supp.).

charge of DUI manslaughter, a violation of section 316.193(3), Florida Statutes (1993). On November 10

for the Seventh Judicial Circuit which held section 316.193(4) unconstitutional and which certified the

this section shall be punished as provided in Section 316.193. (2) If, however, damage to property or person