Arrestable Offenses / Crimes under Fla. Stat. 316.193
S316.193 1 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 8513 - M: N
S316.193 1 - TRAFFIC OFFENSE - REVISED. SEE REC #6276 - M: S
S316.193 1 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 8825 - M: S
S316.193 1 - TRAFFIC OFFENSE - REVISED. SEE REC # 6276 - M: F
S316.193 1b - DUI-UNLAW BLD ALCH - DUI BLOOD ALCOHOL 0.08 OR MORE PER 100 ML - M: S
S316.193 1c - DUI-UNLAW BLD ALCH - DUI BREATH ALCOHOL 0.08 OR MORE PER 210 L - M: S
S316.193 2a - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 6276 - M: N
S316.193 2a - TRAFFIC OFFENSE - REVISED. SEE REC #6278 - M: S
S316.193 2a - TRAFFIC OFFENSE - REVISED. SEE REC # 6278 - M: F
S316.193 2b - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 8506 - F: T
S316.193 2b2 - DUI-UNLAW BLD ALCH - DUI ALCOHOL OR DRUG 3RD VIOL/CONV OUTSIDE 10YR - M: F
S316.193 3c1 - DUI-UNLAW BLD ALCH - DUI DAMAGE TO PROPERTY OR PERSON OF ANOTHER - M: F
S316.193 3c2 - DUI-UNLAW BLD ALCH - DUI AND SERIOUS BODILY INJURY TO ANOTHER - F: T
S316.193 3c3a - HOMICIDE-NEGLIG MANSL-VEH - DUI CAUSE DEATH TO HUMAN OR UNBORN CHILD - F: S
S316.193 3c3b - HOMICIDE-NEGLIG MANSL-VEH - DUI CAUSE DEATH FAIL TO GIVE INFO RENDER AID - F: F
S316.193 3c3c - HOMICIDE-NEGLIG MANSL-VEH - DUI CAUSE DEATH FAIL GIVE INFO/AID PREV CONV - F: F
S316.193 4 - DUI-UNLAW BLD ALCH - 0.15 OR HIGHER OR W PERSON UNDER 18 IN VEHICLE - M: S
S316.193 4 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 8507 - M: F
S316.193 13a - PUBLIC ORDER CRIMES - VEHICLE IMMOBILIZATION AGENCY VIOLATE REGS - M: F
S316.193 13a - PUBLIC ORDER CRIMES - RENUMBERED. SEE REC # 8508 - M: F
S316.193 13c - PUBLIC ORDER CRIMES - RENUMBERED. SEE REC # 8873 - M: F
CopyCited 173 times | Published | Court of Appeals for the Eleventh Circuit | 2004 U.S. App. LEXIS 15059, 2004 WL 1627027
...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....
CopyCited 155 times | Published | Court of Appeals for the Eleventh Circuit | 2007 U.S. App. LEXIS 5269, 2007 WL 677764
...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....
CopyCited 112 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 201
...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....
CopyCited 104 times | Published | Supreme Court of Florida
...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....
CopyCited 78 times | Published | Court of Appeals for the Eleventh Circuit | 2009 U.S. App. LEXIS 3014, 2009 WL 395237
...(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....
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...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...
CopyCited 66 times | Published | Supreme Court of Florida | 2003 WL 22860461
...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)....
CopyCited 65 times | Published | Supreme Court of Florida | 1996 WL 97457
...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....
CopyCited 52 times | Published | Supreme Court of Florida | 2000 WL 488455
...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...
CopyCited 48 times | Published | Court of Appeals for the Eleventh Circuit | 2014 U.S. App. LEXIS 18295, 2014 WL 4724692
...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....
CopyCited 48 times | Published | Supreme Court of Florida | 1988 WL 50191
...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)....
CopyCited 45 times | Published | Supreme Court of Florida | 1992 WL 163957
...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....
CopyCited 45 times | Published | Supreme Court of Florida | 1989 WL 3717
...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)....
CopyCited 41 times | Published | Supreme Court of Florida | 2000 WL 329427
...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)....
CopyCited 40 times | Published | Supreme Court of Florida
...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 DUIPRIOR 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....
CopyCited 40 times | Published | Supreme Court of Florida | 1993 WL 8980
...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....
CopyCited 38 times | Published | Florida 1st District Court of Appeal
...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....
CopyCited 38 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 67
...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)....
CopyCited 37 times | Published | Supreme Court of Florida | 1990 WL 20560
...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....
CopyCited 34 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 43, 2010 WL 45857
...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)....
CopyCited 34 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 232, 2009 Fla. LEXIS 313, 2009 WL 465938
...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 INFLUENCE316.193(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 INJURY316.193(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....
CopyCited 31 times | Published | Florida 4th District Court of Appeal | 1996 WL 252233
...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....
CopyCited 31 times | Published | Florida 3rd District Court of Appeal | 1998 WL 116170
...[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....
CopyCited 31 times | Published | Supreme Court of Florida
...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....
CopyCited 30 times | Published | Supreme Court of Florida | 1991 WL 36398
...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....
CopyCited 28 times | Published | Supreme Court of Florida | 2000 WL 1752199
...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)....
CopyCited 26 times | Published | Supreme Court of Florida | 1996 WL 254371
...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....
CopyCited 26 times | Published | Court of Appeals for the Eleventh Circuit | 1991 U.S. App. LEXIS 3248, 1991 WL 17247
...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....
CopyCited 25 times | Published | Supreme Court of Florida
...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)....
CopyCited 25 times | Published | Supreme Court of Florida | 1993 WL 241041
...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)....
CopyCited 25 times | Published | Supreme Court of Florida | 2008 WL 5396701
...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....
CopyCited 24 times | Published | Supreme Court of Florida | 1991 WL 77646
...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....
CopyCited 23 times | Published | Florida 2nd District Court of Appeal
...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)....
CopyCited 22 times | Published | Supreme Court of Florida | 1992 WL 49938
...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...
CopyCited 21 times | Published | Supreme Court of Florida | 2004 WL 792826
...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....
CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1042528
...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....
CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 2002 WL 384310
...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...
CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 1990 WL 80800
...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....
CopyCited 20 times | Published | Supreme Court of Florida | 1991 WL 165225
...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)....
CopyCited 20 times | Published | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 1014
...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)....
CopyCited 19 times | Published | Supreme Court of Florida | 1999 WL 1211589
...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....
CopyCited 19 times | Published | Supreme Court of Florida | 13 Fla. L. Weekly 283, 1988 Fla. LEXIS 678, 1988 WL 35623
...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....
CopyCited 18 times | Published | Supreme Court of Florida | 2008 WL 4240161
...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....
CopyCited 18 times | Published | Florida 5th District Court of Appeal | 2001 WL 227377
...int. However, the trial court reversibly erred in allowing the state, over objection, to argue that it met its burden in the felony driving under the influence prosecution by proving that the defendant's faculties were weakened rather than impaired. Section 316.193, Florida Statutes 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 control of a v...
...in some material respect. The argument was an erroneous statement of the law, the objection should have been sustained and a curative instruction given. The fact that the trial court ultimately instructed the jury in accordance with the language of section
316.193(1)(a), Florida Statutes, did not itself cure the error since the court, by overruling the objection indicated to the jury that weakened faculties were synonymous with impaired faculties. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. PETERSON and PALMER, JJ., concur. NOTES [1] §
322.341, Fla.Stat. [2] §
316.193, Fla.Stat....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 2661
...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....
CopyCited 18 times | Published | Florida 1st District Court of Appeal
...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....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1995 WL 566025
...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....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1997 WL 227497
...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)....
CopyCited 15 times | Published | Supreme Court of Florida | 2004 WL 351171
...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....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 1196
...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)....
CopyCited 14 times | Published | Supreme Court of Florida | 2004 WL 1119362
...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....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal
...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....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 26 Fla. L. Weekly Fed. D 2886
...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....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal | 1997 WL 30812
...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....
CopyCited 13 times | Published | Supreme Court of Florida
...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....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 1995 WL 119071
...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....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1988 WL 123804
...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 ......
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1995 WL 353512
...It is true that the head blows were not, in themselves, fatal, but, according to the associate medical examiner, they contributed to the victim's death along with the more lethal gunshot wounds. It is settled law that separate convictions and sentences under two homicide statutes [DUI manslaughter, § 316.193(3)(c)(3), Fla....
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1184
...Cf., Dooley v. State,
501 So.2d 18 (Fla. 5th DCA 1986). Section
901.15(1), Florida Statutes (1985), authorizes an officer to arrest a person who commits a misdemeanor in his presence. Driving a vehicle while under the influence of alcohol is a misdemeanor per section
316.193, Florida Statutes (1985)....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1914
...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....
CopyCited 11 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 553
...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)....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 1099
...Goldschmitt appeals the trial court's order placing him on probation and requiring as a special condition of probation that he affix to his personal vehicle a bumper sticker reading, "CONVICTED D.U.I. RESTRICTED LICENSE." [1] We first consider whether section 316.193(4)(a), Florida Statutes (1985), permits the imposition of this or any other special conditions of probation....
CopyCited 11 times | Published | Supreme Court of Florida
...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....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 2006 WL 778648
...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)....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2001 WL 649071
...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....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2006 WL 3751304
...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....
CopyCited 11 times | Published | Supreme Court of Florida | 2006 WL 3741064
...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...
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 5588, 2010 WL 1692535
...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....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 1999 WL 246471
...[2] The record reflects that the driver of the other car had a blood alcohol content of .15 percent at 6:07 p.m. and .14 percent at 7:21 p.m. Thus, at the time of the accident, approximately 5:00 p.m., the other driver was clearly intoxicated as a matter of law. See § 316.193(1)(b), Fla....
CopyCited 10 times | Published | Supreme Court of Florida | 1990 WL 130219
...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....
CopyCited 10 times | Published | District Court, S.D. Florida | 1989 U.S. Dist. LEXIS 16833, 1989 WL 184843
...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....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1992 WL 222132
...icle I, Sections 2, 9, 17, and 23 of the Florida Constitution? [sic] We have jurisdiction and answer the question "no", with the following explanation. The facts are not disputed. Lindsay was charged with driving under the influence of alcohol under section 316.193, Florida Statutes (1989), after he ran into the rear of an Indian River County Sheriff's patrol car....
...sed in a previous case. He said that this defendant was the first to have appealed this condition of probation. The judge has apparently imposed this condition on other probationers for the same offense but does so selectively rather than routinely. Section 316.193(2), Florida Statutes (1991), prescribes a penalty of a fine from $250 to $500 and imprisonment for up to 6 months for a first conviction of the DUI offense. Moreover, section 316.193(6)(a) provides, in addition to the fine and imprisonment, that: (a) For the first conviction thereof, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall orde...
...; those involving no injury or damage even greater still. The breadth of the problem is suggested by the fact that, in the same year in Broward, Palm Beach and Indian River Counties, 10,027 DUI offenders were referred for evaluation to the local DUI section 316.193(5) facilities....
...bligation to do penance for his past offenses. At least the Florida legislature did not think so. In section
948.03(5), Florida Statutes (1991), it specifically authorized trial judges to impose a period of incarceration as a condition of probation. Section
316.193(6)(a) further prescribes that the total period of probation and incarceration may not exceed 1 year....
...Finding no basis to disturb Lindsay's conditions of probation, we answer the certified question in the negative and affirm the sentence. CERTIFIED QUESTION ANSWERED AND SENTENCE AFFIRMED. HERSEY and GUNTHER, JJ., concur. NOTES [1] See Fla.R.App.P. 9.030(b)(4)(A) and 9.160. [2] See § 316.193(5), Fla....
CopyCited 10 times | Published | Supreme Court of Florida | 2007 WL 2002586
...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....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2001 WL 716760
...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)....
CopyCited 10 times | Published | Florida 5th District Court of Appeal
...hol and that the person has been operating a motor vehicle during the period of such impairment may, with the person's consent, give, or the person may demand, a pre-arrest breath test for the purpose of determining if said person is in violation of section 316.193(1), but the taking of such pre-arrest breath test shall not be deemed a compliance with the provisions of paragraph (a)....
CopyCited 10 times | Published | Supreme Court of Florida | 2005 WL 425409
...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....
CopyCited 10 times | Published | Court of Appeals for the Eleventh Circuit | 1988 U.S. App. LEXIS 17185
...Appeal from the United States District Court for the Middle District of Florida. Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge. PER CURIAM: 1 The issue in this case is whether an application of Florida's implied consent law, Sec. 316.1932, Fla.Stat....
...DUI) in the early morning hours of March 28, 1985. At the officer's request, Langelier performed various field sobriety tests at the scene. In the opinion of the officer, Langelier failed these tests. Arresting Langelier for DUI in violation of Sec. 316.193(1), Fla.Stat....
...eech. 6 Langelier's right to privacy argument is likewise devoid of support in federal law. 7 In short, he is asking us to create new constitutional rights. We decline the invitation. 12 Accordingly, the order of the district court is 13 AFFIRMED. 1 Section 316.193 states that: (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 within this state and: (a) the person is under the influence of alcoholic beverages ......
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2000 WL 1397471
...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 impairmenti.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 impairmenti.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 impairmentnot 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 causean 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 causefor 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....
CopyCited 9 times | Published | Supreme Court of Florida | 1992 WL 246494
...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....
CopyCited 9 times | Published | Court of Appeals for the Eleventh Circuit | 2013 WL 978199, 2013 U.S. App. LEXIS 5152
...Code § 16-23-410 and finding it a crime of
violence for sentencing purposes).
In light of Leocal, we ask whether the state law offense contains a mens rea
greater than negligent conduct.
543 U.S. at 9-11. Leocal reviewed a decision of this
Court holding that Fla. Stat. §
316.193(3)(c)(2), which criminalized driving under
the influence of alcohol and causing serious bodily injury, was a crime of violence
under 18 U.S.C....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1990 WL 98751
...his fourth. Hlad's brief argues that the case of Baldasar v. Illinois,
446 U.S. 222,
100 S.Ct. 1585,
64 L.Ed.2d 169 (1980) precludes the use of the uncounseled 1978 conviction to enhance the present offense from a misdemeanor to a felony pursuant to section
316.193(2)(b), Florida Statutes (1987)....
...As a collateral reason for our affirmance, we would point out that while Hlad could have been imprisoned for over one year pursuant to section
775.082 or section
775.084, the trial court only sentenced Hlad to five years probation, contingent on serving 364 days in jail. This was within the range of a third conviction under section
316.193(2)(a)2.c....
...COWART, J., dissents with opinion with which DANIEL, C.J., concurs. COWART, Judge, dissenting. (1) FACTS: In 1988 the defendant (Hlad) was charged with driving under the influence of alcohol (DUI) after having been three times previously convicted of DUI, a felony under section 316.193(2)(b), Florida Statutes....
...a presumption of innocence in favor of an accused in a criminal case as an aspect of the requirement that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. [6] Whether, in the DUI offenses in section 316.193(2)(a)1.b. (second convictions) and c. (third convictions) and in section 316.193(2)(a)2.b....
...(7)(b)(4) THE STATE CAUSED THE PREJUDICE ARISING FROM DESTRUCTION OF RECORDS. Contrary to the Caudle view the State, and not the defendant, created and caused the State's problem. The State did not destroy records in reliance on the defendant not later resisting a violation of his constitutional rights. By section 316.193, the State, acting through the legislature, has provided for the enhancement of punishment based on prior convictions, regardless of the age of the prior conviction....
...1068,
25 L.Ed.2d 368 (1970) cited in 9 Wigmore, Evidence § 2497a, page 416 note 1 (Chadbourn rev. 1981); Ashford and Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969). See cases in note 4. [7] Section
316.193, Florida Statutes, is written as if prior convictions were only punishment enhancing factors....
...[54] As Justice Terrell might have expressed it: the doctrine of laches has no more place in a criminal proceeding "than the vernacular of Uncle Remus has in Holy Writ." See Cochrane v. Florida East Coast Ry. Co.,
107 Fla. 431,
145 So. 217 (Fla. 1932). [55] An enhanced DUI charge under section
316.193, Florida Statutes, or an enhanced petit theft charge under section
812.014(2)(d), Florida Statutes....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2001 WL 803716
...unts, the state asked for a vacatur of the guilty verdict as to 3 of the six BUI manslaughter counts, 3 of the six UBAL manslaughter counts, the UBAL bodily injury count, and the UBAL property damage count. [3] Section
327.352(3) is a carbon copy of section
316.1933(4), applicable to motor vehicle operators....
...s use of firearm, even though verdict form not technically a special verdict form). [12] The prosecutor was undoubtedly prompted to do so by State v. Rolle,
560 So.2d 1154 (Fla.1990), in which the court made clear that there is but one offense under section
316.193(1), and that the state may prove that single offense by a showing of either DUI or UBAL. We ourselves have recognized this distinction. See Dejerez v. State,
580 So.2d 656 (Fla. 4th DCA 1991); Parrish v. State,
561 So.2d 685 (Fla. 4th DCA 1990). As section
327.35(1) is identical in structure and text to section
316.193(1), Rolle applies to it as well.
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1990 WL 783
...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)....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1998 WL 66571
...the damage counts, and 60 days concurrent for the license count. We affirm. Jordan's first point on appeal is that the standard jury instruction given in the case, [4] redefines the crime of DUI/manslaughter and lessens the state's burden of proof. Section 316.193 provides that a person commits this crime if he or she operates a vehicle while impaired and causes the death of any human being....
...). Jordan's last point on appeal is that the sentence of 21.1 years, which she received for DUI/manslaughter, exceeds the statutory maximum sentence for that crime. DUI/manslaughter is a second degree felony punishable by up to 15 years in prison. §§
316.193(3)(c)3 a;
775.082(3)(c), Fla....
...We have taken the view that if the sentencing range encompasses and includes the statutory maximum, thereby exceeding the statutory maximum at the upper range, the trial judge may sentence a defendant within the full range set forth in the guidelines. AFFIRMED. DAUKSCH and THOMPSON, JJ., concur. NOTES [1] § 316.193(1) and (3)(a), (b), and (c)3, Fla. Stat. (1995). [2] § 316.193(1) and (3)(a), (b), and (c)1, Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 104
...Jim Smith, Atty. Gen., and John W. Tiedemann, Tallahassee, for appellant. Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellee. BARFIELD, Judge. Danny Ray Weitz was charged with DUI, in violation of section 316.193, Florida Statutes (1985)....
...lcohol level. [2] State v. Palmore,
495 So.2d 1170 (Fla. 1986); State v. McPhadder,
452 So.2d 1017 (Fla. 1st DCA 1984); State v. Segura,
378 So.2d 1240 (Fla. 2nd DCA 1979). [3] Controlled substances under section
893.03, Florida Statutes (1985). [4] Section
316.1934(2), Florida Statutes (1985): "Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of, a vehicle while under the inf...
...coholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties, the results of any test administered in accordance with § 316.1932 or § 316.1933 and this section shall be admissible into evidence when otherwise admissible, ... ." [5] There is no issue raised in this appeal regarding the competency of the evidence. [6] Fla. Std. Jury Instr. (Crim.) F.S. 316.193. [7] Section 316.1934(2), Florida Statutes (1985), provides a statutory presumption of impairment upon evidence of a specific percent blood alcohol level....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1991 WL 268554
...icides. The convictions for DUI manslaughter are AFFIRMED; the convictions for culpable negligence manslaughter are REVERSED and this cause is REMANDED for proceedings consistent with this opinion. GOSHORN, C.J., and DIAMANTIS, J., concur. NOTES [1] § 316.193(1), Fla....
...(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in possession of a passenger and is not located in a locked glove compartment, locked trunk or other locked nonpassenger area of the vehicle. § 316.1936(2), -.1936(3), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1988 WL 36887
...Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee. DOWNEY, Judge. Appellant, Carlton Rolle, was charged and convicted of felony driving under the influence in violation of section 316.193, Florida Statutes (1985), for which he was sentenced to one year in the county jail. He presents two points for appellate consideration, only one of which we find constitutes reversible error. Section 316.1934(2)(c), Florida Statutes (1985), provides: (2) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle wh...
...coholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood or breath, shall give rise to the following presumptions: ......
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1995 WL 232676
...Since the trial court awarded the defense one additional peremptory challenge, the court's ruling on Mr. Csandli was harmless error. *129 Finally, we reject appellant's argument that appellant could not be convicted for each of the two homicides and the DUI with serious injuries under section 316.193, Florida Statutes (1991)....
...HARRIS, Chief Judge, concurring in part; dissenting in part: I concur with the majority in its resolution of the jury selection issues. I respectfully dissent, however, from the majority's analysis of Boutwell. Melbourne contends that she cannot be found guilty of more than one DUI offense under section
316.193, Florida Statutes (1993), arising out of a single accident because of the principle announced in Boutwell v. State,
631 So.2d 1094 (Fla. 1994). I agree *130 and would reverse but I would certify this issue to the supreme court. In Boutwell, the supreme court considered section
322.34 (driving with a suspended license), a statute structured similarly to section
316.193 involved in our case, and held: Under section
322.34(1), Florida Statutes (1991), a person who drives with a suspended license is guilty of a misdemeanor of the second degree....
...tes, either of which might well justify the prosecution for each death caused by the defendant in this case. The question before us is not whether each death is subject to prosecution, however; the issue is whether, by the manner in which it enacted section 316.193, the legislature intended that all of the deaths resulting from a single act of driving under the influence could be prosecuted under this particular statute....
...The state, however, attempted to prosecute both batteries under an enhancement statute and the court, pursuant to Troedel, refused. Because the court's consistency (predictability) is the stock in trade of those who practice law, we should minimize and justify disparate treatment of similar issues. Consider the provision of section 316.193, the statute involved in our case: (3) Any person [who violates section (1), Driving under the influence] (c) Who, by reason of such operation causes: 2....
...re serious elements are proved, the defendant may be subjected to a more serious consequence than had the additional elements not occurred. In section
322.34(3), death or great bodily injury are considered together to form only one new felony, while section
316.193(3) treats them separately and forms two new felonies....
...the careless or negligent operation of his vehicle causes death or serious bodily injury. [Emphasis added]. Boutwell,
631 So.2d at 1095. Justice Grimes, in a well reasoned dissent, acknowledges the similarity of the structure of sections
322.34 and
316.193 and the analytical inconsistency between Houser, if it is construed to permit multiple convictions under
316.193, and the result in Boutwell when he states: If multiple convictions are permitted for DUI manslaughter and DUI with serious bodily injury when multiple victims are involved, there is no reason why the same principle should not apply to drivin...
...iving under the influence. In Wright v. State,
592 So.2d 1123, 1126 (Fla. 3d DCA 1991), quashed on other grounds,
600 So.2d 457 (Fla. 1992), the court held that, although multiple convictions based on the number of victims would be appropriate under section
316.193(3)(c), such would not be appropriate under section
322.34(3) because the defendant's action of driving with a suspended license was "a single continuing offense and thus a single violation of section
322.34." That is, so long as you a...
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1991 WL 58523
...Mays v. State,
519 So.2d 618 (Fla. 1988); Jenkins v. State,
444 So.2d 947, 950 (Fla. 1984). AFFIRMED in part; REVERSED in part; and REMANDED for proceedings consistent herewith. POLEN and GARRETT, JJ., and JAMES H. WALDEN, Senior Judge, concur. NOTES [1] Section
316.193(3)(c)(3) defines DWI manslaughter: Any person: (a) Who is in violation of subsection (1) (that is, who is driving under the influence when affected to the extent that his normal faculties are impaired or any person who has a blood alc...
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1990 WL 41243
...Work was driving on Spanish Trail at approximately 20 miles per hour in excess of the posted speed limit when he struck the Naumowicz car; he was also killed instantly. Naumowicz was subsequently charged with DUI manslaughter of Juhacz and Work, contrary to Section 316.193(3)(a), (c)3, Florida Statutes (1987)....
...blood alcohol level was entirely circumstantial and insufficient to exclude her hypothesis of innocence, i.e. that, at the time of the accident, her normal faculties were not impaired and that her blood alcohol level was not 0.10 percent or higher. § 316.193(1)(a) and (b), Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1994 WL 524298
...In February, 1993, appellee was pulled over by a police officer and given a citation for failure to drive within a single lane. He was also arrested for DUI. Appellee pled guilty to the civil traffic infraction and paid the applicable fine. In March, 1993, he was charged by information with one count of DUI pursuant to section 316.193(1), Florida Statutes (1993)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 1992 WL 235340
...We also note on remand the judgment form which improperly states that the second count (DUI with serious injuries) is a second degree felony, should be corrected. AFFIRM in part; REVERSE in part; REMAND. GOSHORN, C.J., and HARRIS, J., concur. NOTES [1] §
316.193(3)(a), (b), (c)3, Fla. Stat. (1989). [2] §
316.193(3)(a), (b), (c)2, Fla. Stat. (1989). [3] §
322.34(3), Fla. Stat. (1989). [4] §
316.192, Fla. Stat. (1989). [5] §
316.193(3)(a), (b), (c)2, Fla. Stat. (1989). [6] DUI/Manslaughter is a felony of the second degree, §
316.193(3)(a), (b), (c)3....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2001 WL 1295209
...Davis, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee. PETERSON, J. Dennis Wayne Servis appeals his conviction for DUI manslaughter pursuant to section 316.193(3)(a)(b)(c)(3), Florida Statutes (1999). He was convicted after a trial in which instructions were given to the jury over his objection regarding statutory presumptions of impairment pursuant to section 316.1934(2), Florida Statutes (1999)....
...JUDGMENT AND SENTENCE VACATED; REMANDED. THOMPSON, C.J., and PLEUS, J., concur. NOTES [1] Rule 11D-8012 was subsequently revised on July 29, 2001 to prescribe specific procedures for the collection and preservation of the blood sample. [2] Fla. Stat. §§ 316.1932-316.1934 (1999).
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...On the same date, she submitted to a breathalyzer test, resulting in a .17 reading. On September 17, 1982, an information was filed, charging respondent with driving under the influence of alcoholic beverages and unlawful blood alcohol, contrary to section 316.193, Florida Statutes (Supp....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2003 WL 22316557
...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....
CopyCited 8 times | Published | Supreme Court of Florida | 2011 WL 2224791
...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....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1999 WL 312254
...McGoey complains that the trial court improperly excluded his evidence as to the victim's impairment at the time of the accident. We disagree. The victim's impairment is irrelevant to the issue of McGoey's guilt or innocence on the crime as charged. See § 316.193(3)(c)3 Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 2932, 2000 WL 282487
...review capacity. Perry, the respondent, had her driver's license suspension sustained by the Department after it found she refused to take a breathalyzer test following her arrest for driving under the influence of alcoholic beverages. See generally § 316.1932(1)(a), Fla....
...the law enforcement officer shall forward to the department, within 5 days after the date of arrest, a copy of the notice of suspension, the driver's license of the person arrested, and a report of the arrest, including an affidavit stating the officer's grounds for belief that the person arrested was in violation of section 316.193; the results of any breath or blood test or an affidavit stating that a breath, blood or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit.......
...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 the state while under the influence of alcoholic beverages or controlled substances. 2. Whether the person was placed under lawful arrest for a violation of section 316.193....
...Code R. 15A-6.013. Accordingly, we grant the writ and quash the circuit court's order. Petition for Writ of Certiorari GRANTED; Order QUASHED. DAUKSCH and COBB, JJ., concur. NOTES [1] See generally, §
322.2615(13), Fla. Stat. (1999). [2] See generally, §
316.1932(1)(a), Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1989 WL 23509
...Appellant was charged with two counts of driving under the influence of alcohol, both counts arising from a single episode wherein two separate persons suffered bodily injury. The occurrence of these injuries classifies the offense as a third degree felony. § 316.193(3)(c)(2), Fla....
...For example, petit theft, ordinarily a misdemeanor, becomes a felony "upon a third or subsequent conviction." §
812.014, Fla. Stat. (1987). Similarly, punishment for multiple D.U.I. convictions is based upon an escalating scale culminating in felony status for the fourth and subsequent convictions. §
316.193(2)(a) and (b), Fla....
...on. Affirmed. SCHEB, A.C.J., and RYDER, J., concur. NOTES [1] (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: 2. Serious bodily injury to another, as defined in s. 316.1933, is guilty of a felony of the third degree, punishable as provided in s....
CopyCited 8 times | Published | Supreme Court of Florida | 2001 WL 197053
...AL PUBLIC FROM DANGEROUS INSTRUMENTALITIES SUCH AS FIREARMS AND MOTOR VEHICLES IN THE HANDS OF DRUNK DRIVERS? State v. Finelli,
744 So.2d 1053, 1056 (Fla. 4th DCA 1999). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. In this case, pursuant to section
316.193(2)(b), Florida Statutes (1997) (the "DUI statute"), [1] the appellee (Finelli) was charged by information with felony driving while under the influence....
...dication. In so doing, the appellate court reasoned that, "[i]n the context of the DUI statute, a person charged with three prior DUI convictions can thereafter be charged with felony DUI," and, therefore, because "the function of a conviction under section 316.193(2)(b) is to enhance the charge," the convictions cannot be pending appeal in order to apply....
...Accordingly, for the reasons expressed above, we quash the decision of the lower appellate court with directions to remand this case to the trial court for further proceedings consistent with this opinion. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD and QUINCE, JJ., concur. PARIENTE, J., recused. NOTES [1] Section 316.193, Florida Statutes (1997), provides in pertinent 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 contr...
...(b) Any person who is convicted of a fourth or subsequent violation of this section is guilty of 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(1)-(2), Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2005 WL 1753319
...Defendant was not brought to trial and moved for discharge on November 30, 2004, which was the end of the fifteen day recapture period. The next day, on December 1, 2004, the state filed a felony DUI charge in circuit court based on the same incident and prior DUI convictions. See § 316.193(2)(b)1, Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2007 WL 4415262
...quirements of the law, we grant the *443 petition and quash the circuit court's order. I. FACTS AND PROCEDURAL HISTORY On May 29, 2007, a law enforcement officer issued Mr. Gould a uniform traffic citation for driving under the influence (DUI) under section 316.193, Florida Statutes (2006)....
...It notes on it that the accused submitted to a breathalyzer test; the results showed no trace of breath-alcohol (.000). It contains no observations of the officer. It does not state whether field sobriety tests were administered. It merely concludes and notes that a crime involving a violation of Section 316.193, Florida Statutes, was committed by [Mr....
...at (1) his or her normal faculties are impaired, (2) his or her blood-alcohol level *446 is 0.08 or more grams of alcohol per 100. milliliters of blood, or (3) his or her breathalcohol level is 0.08 or more grams of alcohol per 210 liters of breath. § 316.193(1), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 1991 WL 148352
...The trial court denied Durkee's motion to dismiss but granted the alternative relief of suppressing Durkee's post-arrest breath test results, finding a clear violation of Durkee's right to conduct discovery by obtaining an independent blood test as authorized by section 316.1932(1)(f)3 of the Florida Statutes (1989)....
...CIRCUIT COURT ANALYSIS: The circuit court held that dismissal, rather than suppression, is the appropriate remedy when the state unreasonably thwarts or interferes with an accused's due process right to obtain potentially exculpatory evidence in the form of an independent blood test as codified in section 316.1932(1)(f)3....
...lding that the state's refusal to afford a post-arrest blood test upon demand constituted a due process violation which mandated dismissal of the charge for DUI against Weier and (possibly) against Durkee. This determination involved construction of section 316.1932(1)(f)3 which states: The person tested may, at his own expense, have a physician, registered nurse, duly licensed clinical laboratory technologist or clinical laboratory technician, or other person of his own choosing administer a te...
...The state appealed the order granting suppression to the circuit court and came to regret that it did so. The state argued (erroneously) to the circuit court that it was not obligated to honor an arrestee's statutory right to an independent blood test and that the last sentence of section 316.1932(1)(f)3, emphasized in the above quotation, precluded the sanction of suppression....
...The circuit court reversed the trial court's suppression order and remanded the cause to the trial court, ostensibly to determine whether there was a due process violation sufficient to warrant dismissal. The state has petitioned for certiorari review. We hold now that the trial court was correct in its reading of section 316.1932(1)(f)3 in the Durkee case....
...We also grant certiorari in Weier and quash the circuit court order of affirmance with directions that the trial court's order of dismissal be reversed and the cause be remanded to the county court for further proceedings consistent with Youngblood, Trombetta, Louissaint, and a correct reading of section 316.1932(1)(f)3. It is so ordered. DAUKSCH, COBB and DIAMANTIS, JJ., concur. NOTES [1] § 316.193, Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2008 WL 3349064
...Kevin Kelly was convicted of the following third-degree felonies: (1) driving under the influence with serious bodily injury, (2) driving without a valid driver's license with serious bodily injury, and (3) leaving the scene of an accident with injury. See §§
316.193(3)(c)(2),
322.34(6),
316.027(1)(a), Fla....
...of the death." Id. at 295. Based on Lawrence, Kelly was properly convicted of both DUI with serious bodily injury and leaving the scene of an accident with injury. Only the DUI with serious bodily injury offense contains an element of causation. See § 316.193(3)(c)(2)....
...penalty imposed for causing the death of a single victim."
634 So.2d at 1074. Here, Kelly was punished twice for causing injury to a single victim. The parties do not dispute that DUI with serious bodily injury contains an element of causation. See §
316.193(3)(c)(2)....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1988 WL 91170
...of the circuit court denying her petition for a writ of prohibition. We affirm. On February 19, 1987, Granade was arrested by Officer Michael Coon, a Metro-Dade motorcycle police officer, and charged with driving under the influence in violation of section 316.193, Florida Statutes (1985)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1245921
...(1999) (showing victim injury as a consideration under the guidelines scoresheet). The trial court's final reason for departure, that the DUI did not involve property damage, is not a valid reason for departure because a DUI with property damage is a separate crime under section 316.193(3), Florida Statutes (1999)....
...Lisk,
523 So.2d 1260, 1260 (Fla. 2d DCA 1988) (holding that the trial court may not depart downward based on the quantity of money stolen in a theft case based on the reasoning in Atwaters ). Reversed. CASANUEVA and STRINGER, JJ., Concur. NOTES [1] §
316.193(2)(b), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1991 WL 200769
...On January 3, 1990, Charles Robert Hope was charged with DUI under a uniform traffic citation. It was soon discovered that he had been convicted of three previous DUI offenses in Minnesota. The state, upon learning of these previous offenses, moved to transfer the cause to the circuit court alleging jurisdiction pursuant to section 316.193(2)(b) and attached certified copies of the previous convictions to its motion. The county court ordered the transfer. The state then filed an information alleging: Felony Driving Under the Influence of Alcoholic Beverage or Controlled Substance, in Violation of F.S.316.193, a Third Degree Felony....
...ion under the statute is a sufficiently "definite statement of the essential facts constituting the offense charged." Thus it is adequate notice of the facts absent a timely objection or motion to dismiss. Phillips at 1137-38. It is urged that since section 316.193 defines three separate felonies (only *257 two of them third degree) and since the information did not designate the particular subsection it relied on (although the notice invoking circuit court jurisdiction filed in the county court did), the information did not charge a specific felony....
...that the circuit court cannot permit an amendment to cure the defect. In Layman v. State,
455 So.2d 607 (Fla. 5th DCA 1984), rev. denied,
459 So.2d 1040 (Fla. 1984) this court held that: A Florida Uniform Traffic Citation ... alleging a violation of section
316.193, without specification of either subsection (1)(a) or (1)(b), is sufficient to charge a violation of this statute in either of the two ways it can be violated....
...cify which subsection was being relied on. But in this case there is a single offense alleged third degree felony driving under the influence of alcoholic beverage which can be committed in either (or both) of two ways: the fourth DUI conviction [316.193(2)(b)] or operating a vehicle while under the influence causing serious bodily injury to another [316.193(3)(c)2]....
...In fact, just as the opinion states, the Shafer decision is based on the authority of State v. Rodriguez,
575 So.2d 1262 (Fla. 1991), which was decided on due process grounds. State v. Rodriguez , was a case where, like the Shafer case, the charging document alleged a violation of section
316.193(2)(b), Florida Statutes....
...The county court entered an order purporting to transfer the cause to the circuit court. The State then filed an information in circuit court, in substance, as follows: CHARGE: FELONY DRIVING UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGE OR CONTROLLED SUBSTANCE, in Violation of F.S. 316.193, a Third Degree Felony SPECIFICATIONS OF CHARGE: In that CHARLES ROBERT HOPE, on or about the 3d day of January, 1990, at or near Orange City within Volusia County, Florida, did then and there drive or be in actual physical control of a mo...
...he defendant was charged with a felony petit theft in violation of section
812.014(2)(c), Florida Statutes. *261 The information in the instant case states: "Felony Driving Under the Influence of Alcoholic Beverage or Controlled Substance" and cites section
316.193, [1] Florida Statutes, which does not exclusively define felony DUI....
...e. There are three types of felony DUI's and only one type of third degree felony petit theft. Thus, in a felony DUI information, the heading of "Felony Driving Under the Influence of Alcoholic Beverage or Controlled Substance" does not combine with section 316.193 to cure the problem of an ambiguous statutory cite. In the instant case, the information, in merely citing to section 316.193, without any additional clarification failed to inform the defendant of which felony DUI he was accused of committing....
...ng document. " (emphasis added). Rodriguez,
575 So.2d at 1266. It is the charging document, not some unauthorized and unsworn "notice" to the defendant, which must contain the essential elements of the substantive offense of felony DUI as defined by section
316.193(2)(b)....
...1984); Winburn v. State,
28 Fla. 339,
9 So. 694 (1891); McLean v. State,
23 Fla. 281,
2 So. 5 (1887); Brehm v. State,
427 So.2d 825 (Fla. 3d DCA 1983). In summary the information filed in the circuit court is adequate to allege only a misdemeanor DUI under section
316.193, Florida Statutes, and the circuit court does not have jurisdiction of a misdemeanor criminal offense....
...DUI. The substance of the information in this case is set out above; the substance of the information in the Shafer case is as follows: CHARGE: FELONY DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGE OR CONTROLLED SUBSTANCE, in Violation of F.S. 316.193(1)(a) & (b) & (2)(b) SPECIFICATIONS OF CHARGE: In that JOHN MICHAEL SHAFER, on or about the 23rd day of January, 1990, within Putnam County, Florida, did then and there drive or be in actual physical control of a motor vehicle while under...
...The main difference between the information, which the majority opinion upholds in this case, and the information which this court held insufficient in Shafer, is that in the charge, or caption, [4] in the reference to the DUI statute in this case, the statute is cited only as "F.S. 316.193" (which statute includes provisions for both felony and misdemeanor charges) while in Shafer, the reference to the DUI statute is cited as "F.S. 316.193(1)(a) & (b) & (2)(b)." Section 316.193(2)(b) is a specific reference to that part of the statute which provides that a conviction of a fourth or subsequent violation of subsection (1) (the basic misdemeanor DUI provision) is guilty of a felony of the third degree....
...o inform the defendant of the nature and cause of the accusation against him, [5] that is, he is being charged with having three prior DUI convictions, than the reference in the caption in the information in this case, which refers only generally to section 316.193, which in subsection (1) proscribes as a misdemeanor the exact conduct alleged in particular in the body of the information in this case....
...where there is no danger of a new prosecution for the same offense. [1] I concede that Rodriguez did, at least, file a motion to dismiss for lack of jurisdiction complaining about the failure to identify the prior DUI's; Shafer did not do this. [1] Section 316.193, Florida Statutes, provides in part: 316.193 Driving under the influence, penalties....
...; and (c) Who, by reason of such operation, causes: 1. Damage to the property or person of another is guilty of a misdemeanor of the first degree, punishable as provided in s.
775.082 or s.
775.083. 2. Serious bodily injury to another, as defined in s.
316.1933, is guilty of a felony of the third degree, punishable as provided in s....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 2493
...icants (DUI), a violation of section 316.028, Florida Statutes (1975). In 1977 Bender was again convicted for violating section 316.028. When, on September 24, 1984, he received his third DUI conviction, that offense had been renumbered to appear as section 316.193, Florida Statutes (1983). Notwithstanding this mere renumbering of the offense, the county court concluded that the September 24, 1984, conviction was only Bender's first conviction for violating section 316.193, Florida Statutes (1983)....
...Indeed, chapter 322 must be "liberally construed to the end that the greatest force and effect may be given to its provisions for the promotion of public safety." §
322.42, Fla. Stat. (1983). The offense of DUI is the same before and after section 316.028 was renumbered to section
316.193 of our statutes. Compare § 316.028, Fla. Stat. (Supp. 1974), with §
316.193, Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1990 WL 58566
...The trial judge overruled petitioner's objection and allowed the State to enter the test result [1] in evidence. Breathalyzer test results are admissible into evidence only upon compliance with the statutory provisions and the enacted administrative rules. State v. Bender,
382 So.2d 697 (Fla. 1980). Sections
316.1932(1)(b)1 and
316.1934(3), Florida Statutes (1987), provide that an analysis of a person's breath, in order to be considered valid, must be performed substantially in accordance with methods approved by HRS....
...No one testified about the maintenance of the machine nor whether the particular machine was registered with HRS and approved for calibration and performance. Such cannot be considered "insubstantial differences between approved techniques and actual testing procedures." § 316.1934(3), Fla....
...at 268, 459 P.2d at 876. Accordingly, we grant the petition for writ of certiorari, quash the decision under review, and remand for further proceedings consistent with this opinion. However, we certify the following question to be of great public importance: *651 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,...
...a moton to suppress. The motion contended the results should be excluded because the mandatory inspection and maintenance rule had been violated. The court found the violation de minimus and insubstantial and, thus, covered by the savings clause of section 316.1934(3), Florida Statutes (1985)....
...cohol in the person's blood [is] prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired" but a less than 0.10 percent reading does not give rise to the presumption. F.S. 316.1934(2)(b) and (c), Fla....
CopyCited 7 times | Published | Supreme Court of Florida | 2003 WL 21025826
...There are some occasions when it is not a wise expenditure of tax dollars to impose lengthy prison terms for this offense. *1053 . . . . If Mr. VanBebber had run this stop sign with no other car in the intersection, the police would have arrested him for simple DUI. His likely penalty would have been a $500 fine. See § 316.193(2)(a), Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2002 WL 857314
...nking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following: If you find from the evidence that the defendant had a blood alcohol level of.08 percent [sic] or more, that evidence would be sufficient by...
...The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued. Blood Test Validity Appellant raises several issues on appeal, most of which challenge the validity of the blood test, the central issue at trial, and the jury instruction made pursuant to section 316.1934....
...h the statutory procedures. See State v. Johnson,
814 So.2d 390 (Fla.2002). *895 Statutory Presumption of Impairment Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section
316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v....
...In Miles, this court affirmed a trial court's ruling that rule 11D 8.012 did not ensure that reliable scientific evidence would be obtained using the storage procedures outlined in the rule and that, as a result, the state was not entitled to a presumption of impairment under section 316.1934....
...t set forth the standard by which the jury determined whether the state had proved that appellant was driving under the influence of alcohol, the central issue contested at trial and an essential element of DUI manslaughter, the offense charged. See § 316.193(1) and (3)(c)3, Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1999 WL 270434
...Wheeler, Assistant Attorney General, West Palm Beach, for appellant. Fredrick R. Susaneck of Essen, Essen, Susaneck, Canet & Lipson, P.A., West Palm Beach, for appellee. POLEN, J. The state appeals the dismissal of an information charging Brian Swartz with felony driving under the influence pursuant to section 316.193(1) & (2)(b)....
...Thus, the trial court's reliance on our per curiam affirmance in Breen was misplaced. Contrary to the argument Swartz advanced below, this court has recently reiterated the well settled rule that "the existence of three or more prior DUI convictions" is an element of the charge of felony DUI under section 316.193(2)(b), Florida Statutes (1995)....
...DUI. This argument is properly before this court because an appellate court will affirm an order on appeal where it is sustainable on an alternate theory revealed by the record. Freeman v. State,
589 So.2d 368 (Fla. 1st DCA 1991). Based on the fact section
316.193(2)(b) is silent as to when or where the previous DUI convictions must have taken place, we conclude Swartz's prior convictions are not too remote to form the requisite three DUI convictions....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2003 WL 2002772
...In accordance with section
322.2615(7), which defines the scope of the formal hearing, the hearing officer concluded: 1) the arresting officer had probable cause to believe that Whitley was driving under the influence of alcohol; 2) Whitley was lawfully arrested and charged with a violation of section
316.193, Florida Statutes; and 3) Whitley had an unlawful alcohol level....
...ne his or her blood alcohol content. To allow the State to suspend a license when the test is administered prior to the individual's lawful arrest for DUI would, according to the circuit court's reasoning, be contrary to the requirements of sections
316.1932 and
322.2615....
...means that the circuit court failed to apply the correct law and that the failure resulted in a miscarriage of justice. Ivey. Having determined the appropriate standard of review, we proceed to address the issues. Probable Cause There is nothing in section 316.1932(1)(a)1....
...4th DCA1999) ("[A]ppellant's erratic driving behavior provided sufficient justification for her stop and arrest."); Smith. We must next decide whether administration of the test was incidental to a lawful arrest. Incidental To A Lawful Arrest The circuit court held, pursuant to section 316.1932(1)(a)1., that the administration of the breath test must be incidental to a lawful arrest for DUI and that a person's license may not be suspended unless the person is first arrested for DUI and, thereafter, administered the breath test....
...The circuit court held that because Whitley was not arrested for DUI until after the breath test was administered, his license should not be suspended. In order to determine whether the trial court correctly stated and applied the law, we logically start with an analysis of section 316.1932(1)(a)1., which provides in pertinent part: Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test ......
...The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. § 316.1932(1)(a)1., Fla....
...arrested for DUI before the breath test is administered, it does provide that the "test must be incidental to a lawful arrest." Id. In State v. Barrett,
508 So.2d 361, 362 (Fla. 5th DCA), review denied,
511 So.2d 299 (Fla.1987), this court, applying section
316.1932(1)(a)1., held that "the legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible." We note that the statute has not been substantially changed or amended since Barrett was decided, and we are, therefore, bound by that decision. [1] Thus, based on Barrett, "incidental to a lawful arrest" as that term is used in section
316.1932(1)(a)1....
...However, the statute does not specifically say that the arrest must be for DUI; rather, it only provides that the person be "lawfully arrested for any offense allegedly committed while the person was driving ... while under the influence of alcoholic beverages ...." § 316.1932(1)(a)1., Fla....
...nd attempting to elude which he committed while under the influence of alcohol. We therefore conclude that the breath test was incidental to a lawful arrest because it was administered well after Whitley was lawfully arrested. Hence, the dictates of section 316.1932(1)(a)1....
...The question arises why this principle should not be applied to a pre-arrest breath or chemical test. Because we have decided that the arrest in the instant case actually took place before the breath test was administered, we need not resolve this issue. [2] We note that section 316.1932(1)(a)1....
...Thus, when a "defendant was informed of his Miranda rights, handcuffed, and placed inside the patrol car, he was arrested." Poey v. State,
562 So.2d 449, 450 (Fla. 3d DCA 1990) (citation omitted); see also Kearse. However, because we have concluded that the requirements of section
316.1932(1)(a)1....
CopyCited 7 times | Published | Court of Appeals for the Eleventh Circuit | 1989 U.S. App. LEXIS 8490, 1989 WL 54714
...After stopping Garner, Officer Cutler became suspicious that Gamer had been drinking, and escorted him to the police station to administer an intoxilyzer test. The test results indicated that Garner was legally intoxicated. Gamer was prosecuted for first offense DUI under Fla.Stat. § 316.193 (Supp.1989) and the Federal Assi-milative Crimes Act, 18 U.S.C....
...§ 1 (3) (1986 Supp.) as “any misdemeanor, the penalty for which, as set forth in the provision defining the offense, does not exceed imprisonment for a period of six months or a fine of more than $5,000 ... or both_” 3 The punishment for a first offense DUI in Florida is defined by Fla.Stat. § 316.193....
...offender is required to attend a substance abuse program at his own expense, and must serve a term of probation not to exceed one year, a condition of which probation is that the offender must perform fifty hours of community service. See Fla.Stat. § 316.193(5) and (6)....
...tioned suspension of his license. While it is true that Gamer would have been entitled to a jury trial had this prosecution occurred m the state courts of Florida, see Heidrich v. State ex rel. Blair,
490 So.2d 1306 (Fla.Dist.Ct.App.1986); Fla.Stat. §
316.1934(4) (Supp.1988), this fact does not change the result we reach today....
...e is entitled under federal law to a jury trial because of the potential severity of punishment — i.e., the “seriousness” of the offense — as prescribed by state law. Sain,
795 F.2d at 891 . As we have already stated, first offense DUI under section
316.193 is not a “serious” offense as that term is understood by federal law....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 9868, 2001 WL 814953
...Mowry (Mowry) for six months based on her arrest for driving under the influence of alcohol (DUI). We grant the petition. After Mowry was arrested for DUI, she agreed to submit to a breath test which revealed .143 and .137 grams of alcohol per 210 liters of breath, well above the statutory minimum of .08. See § 316.193(1)(c), Fla.Stat....
...Mowry requested and was granted a formal review of her driver's license suspension *658 pursuant to section
322.2615(1)(b)3., Florida Statutes (1999). At such a hearing, if an individual's license is suspended for driving with an unlawful blood-alcohol level in violation of section
316.193, the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain the license suspension and the issues shall be limited to 1) whether the arresting officer had probable cause to believe that the individual was driving while under the influence of alcohol; 2) whether the person was lawfully arrested for violation of section
316.193; and 3) whether, pursuant to section
316.193, the person had an unlawful blood alcohol level....
...means that the circuit court failed to apply the correct law and that failure resulted in a miscarriage of justice. Ivey. We conclude that the circuit court departed from the essential requirements of law when it ruled, contrary to the provisions of section 316.1934(5), Florida Statutes, that the hearing officer should not have considered Mowry's breath test results....
...required by rule 11D-8.0035. However, the fatal error in the circuit court's decision is that under the circumstances, the Department had no such burden of proving compliance with rule 11D-8.0035. The breath test affidavit is admissible pursuant to section 316.1934(5) which provides as follows: An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s....
...the Department of Law Enforcement which was held by the person who performed the test; and (e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument. § 316.1934(5), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1896383
...The evidence also established that Cloyd, Hughes, and the crew arrived at the airport late because Hughes had overslept. Over defense objection, the State elicited testimony regarding the .08 blood alcohol limitation for operating a motor vehicle contained in section 316.193, Florida Statutes, even though the statute Cloyd and Hughes were charged with violating, section 360.13, contains no such limitation....
...JURY INSTRUCTIONS Inoperability Hughes argues that, because the aircraft was attached to a tug which controlled the movement of the aircraft, the trial court erred in rejecting his request for a jury instruction on inoperability. Inoperability is a defense to driving a motor vehicle under the influence, pursuant to section 316.193, Florida Statutes (2002). *193 Section 316.193, the driving under the influence statute, provides that, before a person may be found guilty of this offense, the State must prove the following two elements beyond a reasonable doubt: 1....
...its becoming disabled, and the vehicle's mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused. Jones v. State,
510 So.2d at 1149. Hughes, however, was not charged with violating section
316.193, the driving under the influence statute....
...n including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise). 14 C.F.R. § 1.1 (1997). As is readily obvious, section
860.13, the statute under which Hughes was charged and convicted, differs from section
316.193, the driving under the influence statute. The elements are not the same, nor is the proof which is required to sustain a conviction. While the driving under the influence statute, section
316.193, requires that the State prove that the accused was driving or in actual physical control of the vehicle while under the influence, the statute Hughes was charged with violating, section
860.13, requires operation of the aircraft while under the influence or in a careless or reckless manner....
...h can be committed in two separate ways, we examined other cases where this issue was addressed. In State v. Rolle,
560 So.2d 1154 (Fla.1990), the Florida Supreme Court, in conducting its examination of Florida's Driving Under the Influence statute, section
316.193, concluded that while the pre-1983 version of the statute created two separate offenses, the statute as amended in 1983, created one offense which could be proven in either of two ways....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1999 WL 49135
...[2] The trial judge ruled that the police officer who ordered the blood test (Trooper Campbell), lacked probable cause to believe Brown was under the influence of alcoholic beverages at the time of the fatal collision between Brown's car and a bicyclist and thus Brown's blood was not properly taken and tested pursuant to section 316.1933(1)....
...That, he felt, was not enough to show Brown was "under the influence" of alcohol. Further, the trial judge was concerned and troubled by Trooper Campbell's testimony that although he thought he had probable cause to order the blood draw pursuant to section 316.1933(1), he did not think he had probable cause to arrest Brown for DUI....
...Trooper Campbell also testified he was in doubt about arresting Brown at the accident scene and had telephoned the state attorney's office for advice. He was advised to follow "policy" and await the results of the blood test. He could then make an arrest for DUI. Section 316.1933(1) provides in pertinent part: [I]f 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 beverages ......
...a law enforcement officer, to a test of the person's blood for the purpose of determining the alcoholic content thereof.... 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....
...1st DCA 1984) that "under the influence" as used by this statute means the driver's normal faculties were "impaired," *444 not simply that the driver had consumed alcohol. Whether a person has consumed sufficient alcohol to be deemed "under the influence" or impaired to an appreciable degree pursuant to section 316.1933(1) is a judgment call made by a police officer....
...Trooper Campbell said the smell of alcohol was the decisive factor, but not the only one in ordering the test. In our view, based on these objective, uncontroverted facts and circumstances, we *445 think Trooper Campbell had probable cause to order the blood draw, pursuant to section 316.1933(1)....
...avior are the controlling criteria to look at in these cases. We think they were sufficient in this case to establish probable cause for the blood draw. We hold that the results of Brown's blood test is and should have been admissible at trial under section 316.1933(1). REVERSED. GOSHORN and PETERSON, JJ., concur. NOTES [1] Fla. R.App. P. 9.140(c)(1)(B). [2] §§ 316.193(1), 361.193(a), (b), (c)3, Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1991 WL 268080
...Gen., and Janet Reno, State Atty., and Richard Shiffrin, Asst. State Atty., for appellee. Before NESBITT, BASKIN and GERSTEN, JJ. NESBITT, Judge. Defendant seeks reversal of his conviction for four counts each of driving under the influence (DUI) resulting in serious bodily injury, § 316.193(3)(c), Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1990 WL 198373
...Appellant/Defendant/Baltrus ("Baltrus") appeals the circuit court's reversal of the trial court's order granting Baltrus' motion to dismiss the information charging Baltrus with driving under the influence of alcoholic beverages ("DUI") in violation of section 316.193, Florida Statutes (1987)....
...At about 12:17 a.m., Baltrus was found passed out slumped over the steering wheel in the front seat of his car which was parked in the parking lot of a restaurant. The keys to the car were in Baltrus' hands. Baltrus was arrested and charged with violating section 316.193, Florida Statutes, which provides that a person is guilty of driving under the influence if "such person is driving or in actual physical control of a vehicle within this state ..." When a district court reviews the appellate decision...
CopyCited 7 times | Published | Supreme Court of Florida | 2005 WL 3199703
...The charges against Judge Maloney stem from his actions during the early morning hours of January 10, 2003. On January 10, 2003, an officer of the Lakeland Police Department, (Lakeland Police), arrested Travis Braddy for driving under the influence of alcohol, in violation of section 316.193, Florida Statutes (2003)....
...of the Lakeland Police, that Braddy be released to the custody of his father. Florida law provides that persons arrested for driving under the influence of alcohol may not be immediately released from custody. [1] Notwithstanding the requirements of section 316.193(9), and based solely *787 upon Judge Maloney's demands, the Lakeland Police released Braddy to his father on the morning in question....
...Accordingly, we hereby command Judge Maloney to appear before this Court for administration of a public reprimand at a time to be established by the Clerk of this Court. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO and BELL, JJ., concur. NOTES [1] Section 316.193, which regulates driving under the influence, provides in pertinent part: (9) A person who is arrested for a violation of this section may not be released from custody: (a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s....
...877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired; (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. § 316.193(9), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1991 WL 151382
...IS FLORIDA ADMINISTRATIVE CODE RULE 10D-42.023 VOID FOR VAGUENESS, AND IF SO, DOES THIS PRECLUDE THE STATE'S USE OF BREATH TESTING INSTRUMENTS IN A CRIMINAL TRIAL? II. DO THE CURRENT METHODS OF HRS' MONTHLY AND YEARLY MAINTENANCE ACCURACY CHECK COMPLY WITH THE REQUIREMENTS OF SECTION
316.1932(1)(f)(1), FLORIDA STATUTES, AND/OR THE FLORIDA ADMINISTRATIVE PROCEDURES ACT, SECTION
120.50, et seq., FLORIDA STATUTES, AND, IF NOT, DOES THIS PRECLUDE THE STATE'S USE OF BREATH TESTING INSTRUMENTS IN A CRIMINAL TRIAL? III....
...[8] If a defendant objects to the admission of a test *144 result because the testing procedures required by the rule were not substantially followed, [9] the state must carry the burden of proving that the test was made substantially in conformity with the laws and the rules. [10] Section 316.1932(1)(f)1....
...the original form. However, the machine in this case was not tested using the original form. Both sides agreed the revised form was utilized here and that this form had never been promulgated as a formal rule, contrary to the express requirements of section 316.1932(1)(f)1....
...Further, the rule adopted for annual checks was unconstitutionally vague. Accordingly, we affirm the county court's ruling excluding admission of the blood alcohol test and we answer the certified questions as indicated above. AFFIRMED. COBB and PETERSON, JJ., concur. NOTES [1] Fla.R.App.P. 9.030(b)(4)(A). [2] § 316.193, Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1988 WL 86338
...Public Defenders, Tallahassee, for appellant. *987 Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee. ZEHMER, Judge. Johnny Lee Frazier appeals his conviction and sentence for DUI manslaughter, in violation of section 316.193(3)(a), (b), (c)3, Fla....
...nine, or ten beers." In Knight's opinion, appellant was under the influence of alcohol to the extent that his normal faculties were impaired. At the charge conference, appellant objected to the jury being instructed on the presumptions contained in § 316.1934, Fla....
...10 years in prison on the sexual battery charge, the latter sentence being credited with time already served. Appellant first contends that the trial court erred in instructing the jury as to the existence of a presumption of impairment pursuant to § 316.1934, Florida Statutes....
...In this second situation, the court's analysis should focus on whether the evidence of the presumed element ... rather than the more inclusive issue of guilt is overwhelming.
775 F.2d at 1576. The Fourth District, relying on Francis and Miller, recently held that the presumptions contained in section
316.1934(2)(c), Fla....
...We do not adhere to our prior decision in Hall because of the intervening decisions in Francis and Miller. Because this issue is one of great public importance, however, we certify to the supreme court the following question: WHETHER JURY INSTRUCTIONS BASED ON THE STATUTORY PRESUMPTIONS CONTAINED IN § 316.1934(2)(c) CONSTITUTE UNCONSTITUTIONAL MANDATORY REBUTTABLE PRESUMPTIONS....
...cohol in his 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. (R. 520-22) (emphasis supplied). This instruction tracks the language contained in § 316.1934(2).
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1993 WL 310660
...The two offenses are charged under completely different statutes manslaughter appears in the "Homicide" chapter of the Florida statutes under Section
782.07, Florida Statutes (1991), and DUI manslaughter is listed in the "State Uniform Traffic Control" chapter in Section
316.193(3), Florida Statutes (1991)....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1996 WL 460696
...The trooper then advised defendant that he was commencing a criminal investigation. The trooper did not, however, advise defendant of his Miranda [1] rights. In response to the trooper's questions, defendant admitted that he had been drinking. Defendant was charged with driving under the influence in violation of section 316.193, Florida Statutes ("DUI")....
...riminal trial may testify as to any statement made to the officer by the person involved in the accident if that person's privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and shall be admissible into evidence in accordance with the provisions of s. 316.1934(2)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2004 WL 2026790
...In State v. Harbaugh,
754 So.2d 691 (Fla.2000), the Florida Supreme Court outlined the bifurcated procedure to be followed in felony DUI trials. Under the DUI statute, felony DUI occurs if a person "is convicted of a third violation of this section [
316.193] for an offense that occurs within 10 years after a prior conviction for a violation of this section...." §
316.193(2)(b)1., Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...By petition for certiorari we are asked to review the appellate decision of the circuit court affirming, without opinion, the conviction of petitioner in the county court. We have exercised discretion [1] and have reviewed the issues presented. We hold that section 316.193(1), Florida Statutes (1983), as it exists after July 1, 1982, the effective date of Chapter 82-155, Laws of Florida, [2] describes but one offense which can be committed by either or both of two methods, i.e., the driving or being in the actual physical possession of a vehicle within this state by a person (a) who is under the influence of alcoholic beverages, chemical substances or control substances to the extent that normal faculties are impaired (§ 316.193(1)(a)), or (b) with a blood alcohol level of 0.10 percent or above (§ 316.193(1)(b)), or both driving under the influence (DUI) and with an unlawful blood alcohol level (DUBAL). A Florida Uniform Traffic Citation or Notice to Appear, alleging a violation of section 316.193, without specification of either subsection (1)(a) or (1)(b), is sufficient to charge a violation of this statute in either of the two ways it can be violated....
...The issues presented to the jury by verdict forms should not exceed the issues presented by the charging document. If a violation of both subsections is charged, then, in addition to the alternative of not guilty, the jury verdict may submit the issue of guilt as a violation of section 316.193(1) or, separately, as either a violation of section 316.193(1)(a) (DUI) or a violation of section 316.193(1)(b) (DUBAL)....
...COBB, Chief Judge, concurring in result: In the exercise of the discretion of this court, I would simply deny certiorari review of this matter on authority of Combs v. State,
436 So.2d 93 (Fla. 1983). NOTES [1] Combs v. State,
436 So.2d 93 (Fla. 1983). [2] We are not here concerned with the construction of section
316.193, Florida Statutes, as it existed before the amendment made by chapter 82-155, Laws of Florida, or the right to a jury trial involved in Whirley v....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1988 WL 89809
...[1] The officers pursued and stopped him. He was then arrested for driving under the influence and a search incidental to his arrest revealed cocaine. He was charged with possession of that drug and with fleeing or attempting to elude a police officer in violation of section 316.1935, Florida Statutes (1985), which provides as follows: (1) It is unlawful for the operator of any vehicle, having knowledge that he has been directed to stop such vehicle by a duly authorized police officer, willfully to refuse or fail...
...This court rejected as irrelevant the defendant's argument that the initial stop was unlawful because it was not based on any founded suspicion of criminal activity. We stated: [I]rrespective of the illegality of the initial stop by Wandell, the applicable statute, section 316.1935, Florida Statutes (1983), relating to the offense of fleeing and eluding a police officer, does not require lawfulness of the police action as an element of the offense....
...Green was pursued and apprehended several blocks away. Incident to the arrest at that time not at the point of the illegal checkpoint he was searched and cocaine was discovered on his person. His stop for fleeing a police officer pursuant to section 316.1935, Florida Statutes (1987), was valid....
...COWART, Judge, dissenting. The defendant refused or failed to stop the vehicle he was operating when police officers directed him to stop at a driver's license check. The officers pursued and stopped him. He was then arrested for driving under the influence (§
316.193(1), Fla. Stat. (1986)) [1] and a search incidental to his arrest revealed cocaine. He was charged with possession of that drug (§
893.13(1)(e), Fla. Stat.) and with fleeing or attempting to elude a police officer in violation of section
316.1935, Florida Statutes....
...l authority directs a citizen to stop his vehicle a citizen either does not have a constitutional right to not stop or does not have a constitutional right to assert his constitutional right to not stop. Under the majority view, by a statute such as section 316.1935, Florida Statutes, a state legislature can effectively vitiate, or render useless, a constitutional right by the simple device of criminalizing and penalizing the exercise or assertion of that right, such as when the citizen refuses...
...submit to a police violation of those rights and, specifically, the right to not stop his vehicle when the police directive to stop is illegal and violative of the citizen's constitutional rights. The dissent would simply hold that a statute such as section 316.1935, Florida Statutes, cannot be constitutionally applied to criminalize and penalize the exercise of a constitutional right....
...[1] For some reason the DUI charge was dismissed and the State does not seek to uphold the lawfulness of the arrest and search on the ground that the police officers had probable cause to arrest the defendant for the DUI offense committed in their presence. [2] § 316.1935, Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1996 WL 661738
...An erroneous revocation of a driver's license does not create an illegal sentence. Mr. McDaniel may seek reinstatement of his license pursuant to chapter 322 at a later date. *598 On October 3, 1994, Mr. McDaniel entered into an open plea of no contest to the charge of DUI manslaughter, a violation of section 316.193(3), Florida Statutes (1993)....
...McDaniel alleged that the trial court could not lawfully revoke his license on a permanent basis pursuant to section
322.28(2)(e) because he had only been convicted of one alcohol-related offense. The trial court denied the motion, finding that because Mr. McDaniel "was convicted of DUI manslaughter in violation of §
316.193, he met the requisite criteria for permanent revocation." It is obvious that the trial court construed section
322.28(2)(e) to require a mandatory permanent revocation of Mr....
...In 1993, section
322.28(2)(e) provided in pertinent part: The court shall permanently revoke the driver's license ... of a person who has been convicted ... of manslaughter resulting from the operation of a motor vehicle or vehicular homicide and who has been convicted of a violation of s.
316.193 or former s.
316.1931. (Emphasis added.) In comparison, section
322.28(5)(a), Florida Statutes (1993), provided: Upon a conviction for a violation of s.
316.193(3), a conviction of manslaughter resulting from the operation of a motor vehicle, or a conviction of vehicular homicide, the court shall revoke the driver's license of the person convicted for a minimum of 3 years. (Emphasis added.) Section
322.28 was not a model of clarity. Subsection 2(e) referred to section
316.193, but contained no separate reference to section
316.193(3), the DUI manslaughter statute. Subsection 5(a), authorizing a minimum three-year suspension, did expressly refer to section
316.193(3)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1988 WL 18687
...Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Amy L. Diem, Asst. Atty. Gen., West Palm Beach, for appellee. DELL, Judge. The state charged appellant with driving under the influence of alcohol in violation of section 316.193, Florida Statutes (1985)....
...Thereafter, appellant withdrew her previous plea of not guilty, entered a plea of no contest and reserved her right to appeal the denial of the motion to suppress. In an amended order denying appellant's motion to suppress, the trial court certified the following question as one of great public importance: DOES SECTION 316.1932(1)(c), FLORIDA STATUTES (1986) PROHIBIT A LAW ENFORCEMENT OFFICER FROM REQUESTING THE ADMINISTRATION OF A BLOOD TEST IF A DEFENDANT DOES NOT APPEAR AT A HOSPITAL, CLINIC OR OTHER MEDICAL FACILITY AS A RESULT OF HIS INVOLVEMENT AS A D...
...issued a summons for driving under the influence of alcohol. Appellant contends that notwithstanding her consent to submit to a blood alcohol test, the trial court erred when it failed to suppress the results of the test because the requirements of section 316.1932(1)(c), Florida Statutes (1986) had not been met. The state agrees that the record would not support a blood test taken pursuant to the implied consent provisions of section 316.1932(1)(c). However, the state contends that section 316.1932(1)(c) does not preclude the admission of blood alcohol test results where the driver has given actual consent to the blood test. The state further argues that the statutory requirements of section 316.1932(1)(c) apply only to cases where the driver's consent will be implied as a matter of law....
...meaning of the legislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions." (citations omitted). The plain language of the implied consent statute shows that when the circumstances described in sections 316.1932(1)(c) and 316.1933(1) are not present, the legislature provided for the use of a breath test to determine the alcoholic content of the operator's blood and for a urine test to determine the presence of chemical substances: Any person who accepts the privilege...
...877.111 or controlled substances, *332 if he 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, chemical substances, or controlled substances. Section 316.1932(1)(a), Florida Statutes (1985)....
...ages or controlled substance has caused death or serious bodily injury of a human being." [2] 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....
...4th DCA 1987); Mobley v. State,
335 So.2d 880 (Fla. 4th DCA 1976). Since appellant did not challenge the voluntariness of her consent, we affirm the order denying appellant's motion to suppress. AFFIRMED. DOWNEY and GLICKSTEIN, JJ., concur. NOTES [1] Section
316.1932(1)(c) provides: (c) Any person whose consent is implied as provided in this section shall be deemed to have consented to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the...
...al, clinic, or other medical facility as a result of his involvement as a driver in a motor vehicle accident and the administration of a breath or urine test is impractical or impossible. The blood test shall be performed in a reasonable manner. [2] Section 316.1933(1) provides: (1) Notwithstanding any recognized ability to refuse to submit to the test provided in s. 316.1932 or any recognized power to revoke the implied consent to such test, 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 b...
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2000 WL 293827
...een made. Under the applicable statute, the suspension will be upheld if (1) there was probable cause to believe that the person was driving under the influence of alcoholic beverages; (2) the person was placed under lawful arrest for a violation of section 316.193, Florida Statutes; and (3) the person had an unlawful blood alcohol level....
CopyCited 6 times | Published | Supreme Court of Florida | 1994 WL 245628
...tional. See, e.g., State v. Hamilton,
388 So.2d 561 (Fla. 1980); State v. Winters,
346 So.2d 991 (Fla. 1977). This does not mean, however, that simple negligence can never be used to enhance the penalty for a willful criminal act. For example, under section
316.193, Florida Statutes (1993), the act of driving under the influence (DUI), when combined with an act of simple negligence, is elevated to the crime of DUI manslaughter....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1991 WL 99924
...Gibson, Public Defender, and Michele A. Lucas, Asst. Public Defender, Daytona Beach, for appellees Burns, Marshall, and Gustafson. W. SHARP, Judge. The state appeals from a final order of the county court in and for the Seventh Judicial Circuit which held section 316.193(4) unconstitutional and which certified the following question as being one of great public importance: Does section 316.193(4) of the Florida Statutes create a constitutionally impermissible class in its application to those defendants similarly situated and thus violate the equal protection clause of the Fourth and Fourteenth Amendment of the United State...
...(McInnis, Burns, Marshall, and Gustafson) appeared before the county court for sentencing. Each had consented to take a breath test, to determine blood alcohol levels, and each had been found to have a blood alcohol level of.20 or more. Pursuant to section 316.193(4), these defendants should have been sentenced to enhanced penalties [2] which would have exceeded those penalties applicable to motorists convicted under section 316.193(1)(a) who had refused to take the breath test. [3] Accordingly, *1372 the court disregarded the enhanced penalties of section 316.193(4)(a) and sentenced these defendants as first-time DUI offenders pursuant to section 316.193(1)....
...uster. State v. Breed, 111 Idaho 497, 725 P.2d 202 (Idaho App. 1986). But the first task is to clearly identify the class under attack. In this case, there is no clear category of persons who receive disparate treatment. The more severe penalties of section 316.193 are provided for persons convicted of DUI who are given the option to refuse the test, but who agree to take it, and measure above the prohibited levels. [5] But the more severe penalties are also applicable to unconscious motorists, who have no option to refuse, [6] and who are later convicted of DUI. §§ 316.193, 316.1932(1)(c), Fla....
...not to take the blood test, under certain circumstances. [7] Pursuant to Florida's *1373 statutory scheme, a person suspected (with adequate cause) of driving under the influence, can be asked to take a blood alcohol test by the police, pursuant to section 316.1932(1)(c), [8] if he or she is conscious and if no death or great injury is involved in the accident....
...That is a circumstance entirely outside the statute. See Adamo v. State,
496 So.2d 252 (Fla. 4th DCA 1986). Accordingly, we answer the certified question in the negative; we vacate the sentences involved in these cases, and we remand for sentencing pursuant to section
316.193(4), Florida Statutes (1989). Sentences VACATED; REMANDED for resentencing. COBB, J., concurs. GOSHORN, J., concurs specially with opinion. GOSHORN, Judge, concurring specially. In my view the appellee in this case attempts to mix apples and oranges. Section *1375
316.1932(1)(e)1 specifies that by applying for, accepting and using a driver's license a person is deemed to have impliedly consented to the other provisions of section
316.1932 authorizing breath, urine or blood testing when that person is lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. A licensee has the privilege of withdrawing his implied consent by refusing to take the test, as long as he is not incapable of refusing to take the test or has not caused an accident involving death or serious bodily injury. §§
316.1932(1)(c) and
316.1933(1), Fla. Stat. (1989). The legislative "trade-off" for the consent withdrawal privilege is suspension of the licensee's driver's license and the admissibility of the refusal into evidence in a criminal proceeding. §
316.1932(1)(c), Fla. Stat. (1989). However, none of the foregoing addresses the punishments assessed by section
316.193. Those penalties may be imposed regardless of whether a licensee withdraws his implied consent if the state can prove the necessary statutory elements. In short, an equal protection attack on section
316.193 is unavailing because the statute does not create two categories of persons similarly situated who are nonetheless treated differently. NOTES [1] §
316.193(1), Fla. Stat. (1989). [2] Section
316.193(4), Florida Statutes (1989) provides: (4) Any person who is convicted of a violation of subsection (1) and who has a blood alcohol level of.20 or above shall be punished: (a) By a fine of: 1....
...Not more than 12 months for a second conviction. 3. Not more than 12 months for a third conviction. For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1) by a person who has a blood alcohol level of .20 or above. [3] Section 316.193(1)(a), (2)(a)2 and (2)(b), Florida Statutes (1989) provide: (1)(a) The person is under the influence of alcoholic beverages, ......
...c. not more than 12 months for a third conviction. (b) Any person who is convicted of a fourth or susequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. [4] §§
316.193,
316.1932, Fla. Stat. (1989). [5] §
316.193(2) & (4), Fla. Stat. (1989). [6] §
316.1932(1)(c), Fla. Stat. (1989); Filmon v. State,
336 So.2d 586 (Fla. 1976), cert. denied,
430 U.S. 980,
97 S.Ct. 1675,
52 L.Ed.2d 375 (1977). [7] Section
316.1932(1)(a), Florida Statutes (1989) provides: (1)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his c...
...ubmit to such a test or tests. The refusal to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding. [8] Section 316.1932(1)(c), Florida Statutes (1989) provides: Any person whose consent is implied as provided in this section shall be deemed to have consented to an approved blood test for the purpose of determining the alcoholic content of the blood... . Any person who is incapable of refusal by reason of unconsciousness ... shall be deemed not to have withdrawn his consent to such a test... . [9] Section 316.1933(1), Florida Statutes (1989) provides: (1) 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...
...ubmit, upon the request of a law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof... . [10] State Department of Highway Safety and Motor Vehicles v. Bell,
505 So.2d 472 (Fla. 2d DCA 1987). [11] §
316.1932(1), Fla. Stat. (1989). [12] State v. Young,
483 So.2d 31 (Fla. 5th DCA 1985), rev. dismissed Craft v. State,
517 So.2d 691 (Fla. 1988). [13] State v. Bender,
382 So.2d 697 (Fla. 1980); §
316.1932, Fla. Stat. (1989). [14] This option, however, is not without consequences. Motorists automatically have their driver's licenses suspended for six months to one year (for a second refusal). See §§
316.1932, 322.261, Fla. Stat. (1989). If later convicted of DUI, the more severe sentences will not be applicable to them but their refusal to take the test may be used against them in the criminal trial. [15] §§
316.1932(1)(c),
316.1933, Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2008 WL 2356368
..."[I]s the source code for the Intoxilyzer 5000 `material' within the meaning of §
942.03?" A. The county court summarized the underlying facts of the case: 1. The State of Florida is prosecuting Mary Bastos and Ralph Vlad on a criminal charge of driving under the influence contrary to section
316.193, Florida Statutes. As part of the investigation of these cases, the defendants submitted to a breath test pursuant to Florida's implied consent laws. See §
316.1932, Fla....
...11D-8.003 (2005). 3. The Intoxilyzer 5000 machine registered that defendant Bastos had a breath alcohol level readings of .126 and .123. The report on Vlad was that he had a breath alcohol level reading of .066 and .071. The legal limit in Florida is .08. See § 316.193(1)(b), Fla....
...These reports, in the form breath cards, are admissible in evidence under a simplified procedure requiring the state attorney to prove only that the machines were operated and maintained in accordance with regulations promulgated by the FDLE. See §§ 316.1932(1) & 316.1934(2), Fla....
...The Florida prosecutor plans to introduce these reports at trial. Florida *41 law allows convictions for driving under the influence if either a person's breath alcohol content is above the legal limit or a person's normal faculties are impaired. See § 316.193(1)(a) & (c), Fla. Stat. (2005). As to the Bastos case, a breath alcohol level reading from the Intoxilyzer 5000 could be both evidence of an illegal breath alcohol level, and triggers a presumption that the person's normal faculties are impaired. See §§ 316.193(1)(c) & 316.1934(2)(c), Fla. Stat. (2005). As to the Vlad case, a breath alcohol level from the Intoxilyzer 5000 could be used as evidence that his normal faculties are impaired. See § 316.1934(2)(b), Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 11414, 2011 WL 2097694
...*645 The affidavit sought authority to take Geiss to the hospital "for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples...." It further alleged that "[s]aid property was used to commit the offense [of DUI] ... a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense." The affidavit described Geiss's prior history as follows: A computer check of Geiss's license status revealed four suspensions dating from 2006, including a 5-year revocation from 2008 for a DUI conviction with a BAC of [.]249....
...ersigned affiant states he has probable cause to believe that the blood samples being sought contain Alcohol or Controlled Substances and is property concealed in the body of the driver, Gregory G. Geiss, causing impairment, in violation of sections 316.193(1)(a) or 316.193(1)(b), Florida State Statutes, DUI 2nd." A county judge issued the search warrant, noting that police were requesting blood samples "for the purpose of obtaining property that has been used as a means to commit the crime of Driving Under the Influence." Based on the warrant, police obtained a blood sample from Geiss....
...th Amendment, [1] and therefore did not violate Geiss's right under article 1, section 23 of the Florida Constitution. Implied Consent Law The trial court also erred in finding that the search in this case violated Florida's implied consent statute, section 316.1932, Florida Statutes (2009). This is because the search in this case was conducted pursuant to a warrant, and the *647 implied consent law deals only with warrantless searches. Regarding blood draws, section 316.1932(1)(c) states that any person operating a motor vehicle in Florida is deemed to have given his or her consent to an approved blood draw for testing "if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages ... and the person appears for treatment at a hospital, clinic or other medical facility and the administration of a breath test is impractical or impossible." § 316.1932(1)(c), Fla....
...I agree with much of what my colleagues have said. Were I reviewing this case against a pristine precedential backdrop, I would probably concur. Nevertheless, I am constrained to dissent to that portion of the opinion that addresses the effect of the implied consent statute, section 316.1932, Florida Statutes, in light of our high court's precedent in Sambrine v....
...te omitted). Thus, obtaining blood based on probable cause appears to be constitutionally permissible even in misdemeanor DUI cases not involving an accident or serious injury. [2] The trial court also found that the blood draw was not authorized by section 316.1933(1)(a), which mandates that a police officer shall require a driver to submit to a blood test, by reasonable force if necessary, if the 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 beverages ......
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1990 WL 100750
...a misdemeanor charge. We exercised our discretionary review power and accepted jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(B). The defendant was charged with driving under the influence (DUI), a misdemeanor proscribed by section 316.193, Florida Statutes (1987)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1996 WL 46595
...Therefore, we affirm the granting of the judgment of acquittal as to the vehicular homicide charge. In contrast, DUI manslaughter only requires proof that the operation of a vehicle by a person under the influence caused the death of another. Magaw v. State,
537 So.2d 564 (Fla.1989); see §
316.193(3), Fla.Stat....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 17308, 1999 WL 1259989
...Further, this injury is within the zone of interest to be regulated by those statutes and rules. "To satisfy the sufficiently real and immediate injury in fact element the injury must not be based on pure speculation or conjecture." Ward,
651 So.2d at 1237. Section
316.193(1)(c), Florida Statutes (1997), provides that "[a] person is guilty of the offense of driving under the influence......
...The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.... § 316.1932(1)(a), Fla. Stat. (1997). Section 316.1932(1)(b)1. provides that "[t]he breath-alcohol level must be based upon grams of alcohol per 210 liters of breath." Section 316.1932(1)(b)2....
...ment. *98 For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid. Section 316.1932(1)(f)1....
...Such rules must specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and case of administration, and must provide an approved method of administration, which must be followed in all such tests given under this section.... Further, section 316.1934(2) provides that test results are "admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood or breath at the time alleged" gives rise to certain presumptions....
...ies were impaired" and "such 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." § 316.1934(2)(c), Fla....
...s provided in this subsection do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired." § 316.1934(2), Fla....
...icense and has been arrested and charged with DUI. He was administered a breath test and the results of that test are admissible into evidence at his upcoming trial. Should he be found guilty of DUI, he will be subject to the penalties prescribed in Section 316.193, Florida Statutes....
...of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test, " including a breath-alcohol test, if lawfully arrested for any offense committed while driving or in physical control of a motor vehicle. § 316.1932(1)(a), Fla. Stat. (1997) (emphasis added). In addition to being "approved," tests performed to determine breath-alcohol levels "must have been performed substantially according to methods approved by the Department of Law Enforcement." § 316.1932(1)(b)2....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1992 WL 191176
...tion taken from Naumowicz modified the standard DUI manslaughter instruction as it related to causation and, in addition, tended "to shift the burden to the defendant and violates ... his due process rights." Appellant was charged with violations of Section 316.193(3)(c)3., Florida Statutes (1989)....
...State,
564 So.2d 519 (Fla. 2d DCA 1990). See also United States v. Sasnett,
925 F.2d 392 (11th Cir.1991) (applying Florida law, pursuant to the Assimilative Crimes Act, 18 U.S.C. §§ 7, 13). Thus, the elements of the offense of DUI manslaughter pursuant to Section
316.193(3)(c)3., Florida Statutes (1989), would appear to be (1) that the defendant negligently operated a vehicle; (2) that the defendant's negligence was a cause of the death of another; and (3) that, while operating the vehicle, the defend...
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1998 WL 171294
...When he asked to see a driver's license, Harbaugh fumbled around before producing it. Casserly called Deputy Andrew Taylor of the sheriff's DUI task force to conduct a DUI investigation. Ultimately, the state charged Harbaugh with felony driving under the influence in violation of section 316.193(2)(b), Florida Statutes (1995); the information specified three prior DUI convictions from New Jersey....
...We address Harbaugh's final point because it may arise on retrial. He contends that he is entitled to have a jury decide the fact issue of whether he has three prior convictions of driving under the influence, which would make him guilty of a third degree felony under section 316.193(2)(b), Florida Statutes (1995)....
...at 2313; see id. at 522-23,
115 S.Ct. at 2319-20. Gaudin affirmed the circuit court's decision reversing the convictions and remanding for a new trial, because of the failure to submit the element of "materiality" to the jury. For a charge of felony DUI under section
316.193(2)(b), Florida Statutes (1995), it is clear that the existence of three or more prior DUI convictions is an element of the crime....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1999 WL 213010
...We affirm. The defendant was found guilty of DUI and a hearing was held to determine whether this conviction constituted a felony. In order to prove felony DUI, the State had to establish that the defendant had at least three prior DUI convictions. See § 316.193(2)(b), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2005 WL 2175462
...The facts underlying this cause began April 25, 2002, when Tynan was stopped by a police officer because she was driving erratically. She was transported to a DUI testing facility, and her breath tests resulted in .140 and .139 blood alcohol levels. Pursuant to section 316.193, Florida Statutes, Tynan's driver's license was suspended....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1994 WL 474926
...res the courts to weigh the wisdom or sufficiency of consideration. It also lacks a factual basis. Had appellant elected to go through the cost and rigors of trial, she risked conviction of a higher degree felony with the attendant consequences of a section 316.193 conviction....
...State,
621 So.2d 723 (Fla. 5th DCA), rev. denied,
629 So.2d 135 (Fla. 1993), State v. Spella,
567 So.2d 1051 (Fla. 5th DCA 1990); however, as in those cases, we elect to affirm with an opinion that addresses the basis for the claim in order to save judicial labor. [2] See §
316.193(3), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1996 WL 514577
...Farley,
633 So.2d 69 (Fla. 5th DCA 1994); State v. Reisner,
584 So.2d 141 (Fla. 5th DCA 1991). Insubstantial differences or variation from approved techniques and actual testing procedures in any individual case do not render the test nor test results invalid. §
316.1934(3), Fla.Stat....
...t based on the possible variation in range of chemical composition *1164 of the batches of stock solution and argue the test should be disregarded by the trier of fact if the breath test result is so close to one of presumptive levels established by section 316.1934(2) that a possible range in variation in the stock solution used to test the machine could have made a difference when added to the permitted range allowed for the machines pursuant to the rules....
...313, 836 P.2d 1110 (1992); State v. Straka, 116 Wash.2d 859, 810 P.2d 888 (1991). Based on the testimony in this record and the mathematics flowing therefrom, a defendant should not be subjected to the application of the statutory presumption of being impaired set by section 316.1934(2)(c) for persons testing at .08, if the breath test result is .082 or less....
...Ameziane, et al., Case No. 95-777; State v. Palazuelos, Case No. 95-926; State v. Peterson, Case No. 95-1202; State v. Rojas, Case No. 95-923; and State v. Perez, Case No. 95-1204. [2] Judge Carol E. Draper and Judge Frank N. Kaney, Acting County Judge. [3] § 316.193, Fla.Stat. (1993). [4] Fla.R.App.P. 9.160(b). [5] Fla.Admin.Code Rule 11D-8.001 through 8.006. [6] § 316.1932, Fla.Stat....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2003 WL 22339170
...NOTES [1] Section
322.341 provides: Any person whose driver's license or driving privilege has been permanently revoked... and who drives a motor vehicle upon the highways of this state is guilty of a felony of the third degree.... [2] Sorrell was convicted of other crimes at trial which are not at issue on this appeal. [3] Section
316.193(2)(b)1., Florida Statutes (2001) provides that: Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree.......
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 17549, 2008 WL 4891047
...st-suspension hearing authorized by section
322.2615, Florida Statutes (2006). I. BACKGROUND On January 7, 2007, Mr. McLaughlin refused to submit to a breath, urine, or blood test after he was arrested for driving under the influence, a violation of section
316.193, Florida Statutes (2006)....
...The hearing officer's written decision denied Mr. McLaughlin's motion without further explanation. Mr. McLaughlin challenged the hearing officer's written decision by petition for writ of certiorari in the circuit court. Mr. McLaughlin argued that section
322.2615 conflicted with section
316.1932, because the latter did not require that a driver submit to a breath, blood, or urine test unless he or she was first lawfully arrested....
...the lawfulness of the arrest in a postsuspension hearing. [1] The DHSMV contended that the plain language of the statute indicated that the legislature's intent was to make the lawfulness of the arrest a relevant factor in criminal proceedings under section
316.1932 but not in postsuspension administrative hearings authorized by section
322.2615....
...But the Fifth District has interpreted section
322.2615 to allow a hearing officer to consider the lawfulness of the arrest during a postsuspension hearing in Pelham,
979 So.2d 304. [2] The Pelham court reached this conclusion by construing section
322.2615 in pari materia with section
316.1932....
...However, the rules of construction "`are useful only in the case of doubt and should never be used to create doubt, but to remove it.'" Fajardo v. State,
805 So.2d 961, 964 (Fla. 2d DCA 2001) (quoting State v. Egan,
287 So.2d 1, 4 (Fla.1973)). Thus section
322.2615 cannot be read in pari materia with section
316.1932 to create an ambiguity that does not exist....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1990 WL 175789
...ounts II and IV, and consecutively to 4 years in prison followed by 3 years probation for count VI. Driving with an unlawful blood alcohol level causing serious bodily injury is a third degree felony punishable by a maximum term of 5 years. Sections
316.193(3)(a), (b), (c)(2) and
775.082(3)(d), Florida Statutes....
...Both parties further agree that the judgment must be corrected to reflect that Williamson pled guilty to counts II, IV, and VI (driving with unlawful blood alcohol level causing serious bodily injury), a third degree felony, rather than a second-degree felony. Section 316.193(3)(a), (b), (c)(2), Florida Statutes....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 15 Fla. L. Weekly Fed. D 1211
...684,
26 So.2d 821 (1946). Here, the state's evidence related almost solely to Carr's drinking prior to the accident. There was no evidence Carr had been speeding or driving recklessly. That is not enough under section
782.07, [6] although it might have been under section
316.193, Florida Statutes (1987) (driving under the influence). However, Carr was not charged under section
316.193....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1996 WL 262261
...Werhan chose to drink at least ten beers over the course of an evening, three, according to his own admission, while he was driving in his pickup truck. A blood sample, taken from Mr. Werhan approximately an hour and fifteen minutes after the accident, revealed a blood-alcohol level in excess of the *553 legal limit. See § 316.193, Fla.Stat....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2005 WL 544844
...e his driving privilege. We affirm. On January 18, 2003, Aultman's license was suspended for eighteen months because he refused to submit to a blood, breath, or urine test following his arrest for driving under the influence ("DUI"), in violation of section 316.193, Florida Statutes (2003)....
...Following a hearing, the trial court entered an order directing the Department to remove the ignition interlock device designation from Aultman's driving record and to immediately reinstate his driving privilege. The Department's appeal followed. Pursuant to section 316.193(2)(a)(3), Florida Statutes (2003), upon Aultman's second conviction for DUI, he became subject to "mandatory placement for a period of at least 1 year, ....
...leased or owned and routinely operated" by him. The Department argues that it has "shared authority" with the judiciary to impose the mandatory placement of the device, and therefore, when the sentencing judge fails to order the placement of the device as required by section 316.193(2)(a)(3), it has the authority to do so....
...istrative agency.); State ex rel. Greenberg v. Florida State Bd. of Dentistry,
297 So.2d 628, 636 (Fla. 1st DCA 1974)(administrative agencies are "creatures of the Legislature and what powers they have are limited to the statutes that create them"). Section
316.193 sets forth the criminal penalties for those found guilty of DUI....
...mprisonment of not more than nine months, and the mandatory placement of the device for a period of at least one year. The legislature has made it clear that the authority to impose this criminal penalty is vested solely in the courts. Specifically, section 316.1937 provides in part that "[t]he court . . . shall order placement of an ignition interlock device in those circumstances required by s. 316.193." This case is comparable to other cases in which the trial court failed to impose a minimum mandatory term that it was required to impose pursuant to statute....
...Therefore, the Department may not raise this argument on appeal. See Schultz v. Schickedanz,
884 So.2d 422 (Fla. 4th DCA 2004). We share in the frustrations of the Department. There is no doubt that the sentencing judge failed to impose the criminal penalty mandated by section
316.193(2)(a)(3) and that the State Attorney's office failed to take any action to have this error corrected....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 702
...ossession of his normal facilities, 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 Section 316.193....
...180,
76 L.Ed. 306 (1932). See also Borges v. State,
415 So.2d 1265 (Fla. 1982). "DAUKSCH, J., dissenting. "I respectfully dissent. "Appellant's conduct violated two primary criminal statutes. First, it violates section 860.01, Florida Statutes (1981) (now section
316.1931)....
...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....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1993 WL 186549
...State,
578 So.2d 410 (Fla. 4th DCA 1991). Here, as a result of Armstrong's death, appellant was convicted of the offenses of DUI manslaughter and driving while license suspended and carelessly or negligently causing the death of another human being. Section
316.193, Florida Statutes (1991), which pertains to driving under the influence, states, in pertinent part:
316.193 Driving under the influence; penalties....
...ING WHILE LICENSE SUSPENDED AND CARELESSLY OR NEGLIGENTLY CAUSING THE DEATH OF ANOTHER HUMAN BEING WHERE THERE IS ONLY A SINGLE DEATH. AFFIRMED in part, REVERSED in part and REMANDED. W. SHARP, J., and WHITE, A.B., Associate Judge, concur. NOTES [1] § 316.193(3)(c)3, Fla. Stat. (1991). [2] § 316.193(3)(c)2, Fla. Stat. (1991). [3] § 316.193(3)(c)1, Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2001 WL 649810
...Petitioners allege that the State failed to timely file a notice of appeal from a suppression order of the county court. We agree and grant prohibition. Petitioners were each charged in county court with driving under the influence of alcoholic beverages, causing property damage. See § 316.193, Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1993 WL 197482
...In 1991 Register was sentenced to state prison for driving under the influence of alcohol. The only colorable claim among several raised in Register's motion concerns the prior DUI convictions used to enhance the present offense to felony status. See § 316.193(2)(b), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 10022, 2010 WL 2696345
...Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. Lindsay Kezal challenges the sentences imposed on her following her no contest plea to the charges of DUI manslaughter, *254 section 316.193(3)(c)(3), Florida Statutes (2005), and DUI with serious bodily injury to another, section 316.193(3)(c)(2)....
CopyCited 5 times | Published | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 434, 2008 Fla. LEXIS 1221, 2008 WL 2608621
...d, the disqualification is not punishment even though it may bear harshly upon one affected."). 5. Criminal Behavior The fifth factor is whether the behavior to which the statutes apply is also a crime. See Hudson,
522 U.S. at 99-100,
118 S.Ct. 488. Section
316.193 specifies that a fourth conviction for DUI constitutes a third-degree felony....
...QUINCE, C.J., and ANSTEAD, J., concur in result only. NOTES [1] The statute provided in pertinent part as follows: (4) Notwithstanding the provisions of s.
322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted four times of violating s.
316.193 or former s.
316.1931 or because he or she has been convicted of DUI manslaughter in violation of s.
316.193 may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s.
316.193 or former s.
316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege....
...[4] Section
322.271(4), Florida Statutes (2005), reads as follows: (4) Notwithstanding the provisions of s.
322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted of DUI manslaughter in violation of s.
316.193 and has no prior convictions for DUI-related offenses may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s.
316.193 or former s.
316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1999 WL 2678
...importance: WHETHER RULE 3.800(a) PERMITS THE CORRECTION OF A DRIVER'S LICENSE SUSPENSION WHICH FAILS TO MEET THE MANDATORY STATUTORY REQUIREMENTS SET OUT IN F.S.
322.28 AS AN "ILLEGAL SENTENCE." The penalty for a first DUI conviction is provided by section
316.193, Florida Statutes (Supp.1994). The penalty is a fine of $250 to $500, see §
316.193(2)(a)1.a, imprisonment for not more than six months, see §
316.193(2)(a)2.a, probation not to exceed one year, with attendance at a substance abuse course and a public service requirement, see §
316.193(5) & (6)(a), and the impoundment or immobilization of a vehicle for ten days, see §
316.193(5) & (6)(d). There is no provision in section
316.193 for revocation of the defendant's driver's license. Rather that occurs by virtue of section
322.28(2)(a) 1, Florida Statutes (1993), which 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 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....
CopyCited 5 times | Published | United States Bankruptcy Court, S.D. Florida. | 1987 Bankr. LEXIS 85, 15 Bankr. Ct. Dec. (CRR) 460
...The Metpath toxicology report reflects that the debtor's blood alcohol level was 0.181 percent. In the State of Florida, a person is illegally under the influence of alcoholic beverages while driving a motor vehicle when the person's blood alcohol level is 0.10 percent or higher. FLA.STAT. § 316.193(1)(b)(1985)....
CopyCited 5 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 877, 2013 WL 6305393, 2013 Fla. LEXIS 2640
...” Lesser Included Offenses DEPRIVING AN OFFICER OF MEANS OF [PROTECTION] [COMMUNICATION]—843)025 CATEGORY ONE CATEGORY TWO FLA. INS. NO. STAT. None Attempt_777,04(1) 5.1 *749 Comment This instruction was adopted in 2013. 28.3 DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY § 316.193(3)(a)(b)(c)2, Fla....
...ime. Alcoholic beverages are considered to be substances of any kind and description which contain alcohol. (-) is a controlled substance under Florida law. Ch. 893, Fla. Stat. (_) is a chemical substance under Florida law. §
877.111(1), Fla. Stat. §
316.1933, Fla....
...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. When appropriate, give one or more of the following instructions on the presumptions of impairment established by § 316.193Jp(2)(a), (2)(b), and (2)(c), Fla....
...However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt. Lesser Included Offenses DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY _INJURY —
316.193(3)(a)(b)(c)2_ CATEGORY ONE •_CATEGORY TWO FLA. STAT._INS. NO. DÜÍ Driving under the
316.193(3)(a)(b)(c)l 28.1 28.1(a) influence causing injury_ Driving under the influence_
316.193(1)28.1 *751 Driving under the influ-
316.193(3)(a)(b)(c)l ence causing property damage 28.1(a) Attempt
777.04(1) 5.1 Comment This instruction was adopted in 1992 and amended in 1998 [
723 So.2d 123 ], and 2009 [
6 So.3d 574 ], and 2013....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2000 WL 390258
...Robert A. Butterworth, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, West Palm Beach, for appellee. POLEN, J. Robert Fecske appeals after a jury convicted him of unlawful blood alcohol (UBAL) manslaughter under section 316.193, Florida Statutes (1995)....
...While the court's special instruction accurately restated this law, Feckse 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....
...ol level of 0.08 percent or higher. * * * * (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: * * * * 3. The death of any human being commits DUI manslaughter.... § 316.193, Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...BOARDMAN, Acting Chief Judge. The state petitions for writ of certiorari to review the circuit court's affirmance of the county court's order imposing community service upon respondent Samuel Henry Muoio in lieu of the mandatory fine prescribed for second offenders under section 316.193(2), Florida Statutes (1982 Supp.)....
...[1] *162 The state contends the trial court was not authorized to substitute community service for the statutorily required fine. We agree and grant the writ of certiorari. After pleading guilty to driving under the influence of alcoholic beverages (DUI), in violation of section 316.193(1)(a), respondent, who previously had been convicted of DUI, was sentenced to work twenty-five days for the Polk County Alternative Community Services (PCACS)....
...paid with goods and services." Petitioner then filed the instant petition for certiorari, to which respondent was requested to and did file a response. At some point before the response was filed, respondent successfully completed his probation. [2] Section
316.193(2) provides that a person convicted of a violation of subsection (1) " shall be punished" as provided therein, and section 322.281, Florida Statutes (1982 Supp.), provides that "[n]otwithstanding the provisions of s.
948.01," which permits placement of a defendant on probation, " no court shall suspend, defer, or withhold ... imposition of sentence for any violation of s.
316.193" (emphasis supplied). It is clear that the legislature intended no deviation from the prescribed punishment for this offense. It is also clear that the legislature was cognizant at the time it passed the 1982 amendment to section
316.193 of the possibility of requiring a defendant to perform community service work as a part of his/her sentence, since it imposed such a requirement for first offenders under this section. §
316.193(4)(a)....
...2d DCA 1983) (holding illegal, inter alia, the placement of a violator of a city ordinance on probation where the city code authorized fines and jail terms but did not authorize placing a defendant on probation). All statutory references to community service work, such as those found in section
316.193(4)(a), section
775.091, Florida Statutes (1981), and section
948.031, Florida Statutes (1981), indicate that such service is to be considered either as an extra sanction or as an additional condition of probation and not as a substitute for some other type of punishment....
...d should have utilized and which respondent himself requested. That option was to allow respondent to make weekly or monthly payments until the fine was paid in full rather than to require immediate payment of the full amount of the fine. Nothing in section 316.193 precludes such an arrangement. Because other defendants may not have the ability to avail themselves of the option of paying their fines on the installment plan, we take this opportunity to urge the legislature to reconsider the sentencing provisions of section 316.193 with the objective of devising one or more alternatives to payment of the fine by indigents....
...nd [punishment] for nonpayment whereas other defendants must always suffer one or the other conviction."
399 U.S. at 244,
90 S.Ct. at 2024. Our holding that a trial judge may not substitute community service for the minimum mandatory fine imposed by section
316.193 creates a double jeopardy problem in the instant case....
...o pay the fine in question. Accordingly, we grant the writ of certiorari and quash the circuit court's opinion upholding the propriety of allowing an indigent to perform community service work in lieu of paying the minimum mandatory fine required by section 316.193, Florida Statutes (1982 Supp.). DANAHY and LEHAN, JJ., concur. NOTES [1] Section 316.193(2) provides as follows: Any person who is convicted of a violation of subsection (1) shall be punished: (a) By a fine of: ... . 2. Not less than $500 or more than $1,000 for a second conviction ... .; and (b) By imprisonment for: ... . 2. Not more than 9 months for a second conviction. Section 316.193(4) further provides: With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2): ......
CopyCited 4 times | Published | Supreme Court of Florida | 1988 WL 103829
...ND IS THE ONLY PERSON TO SUSTAIN BODILY INJURY, MAY A LAW ENFORCEMENT OFFICER WHO HAS PROBABLE CAUSE TO BELIEVE THAT THE DRIVER IS UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES REQUIRE THE DRIVER TO SUBMIT TO A BLOOD TEST UNDER SECTION 316.1933(1) EVEN THOUGH THE DRIVER OBJECTS THERETO? We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We conclude that section 316.1933(1), Florida Statutes (1985), applies only to a driver who has injured or killed another person in a motor vehicle accident; consequently, that section does not require a driver to submit to a blood test when the driver is the only party injured....
...breath test. The officer informed respondent that the blood would be drawn regardless. Subsequent analysis of the sample obtained revealed a blood-alcohol content of 0.161%. Perez was accordingly cited for driving under the influence in violation of section 316.193(1), Florida Statutes (1985). Perez moved to suppress the blood-test evidence at trial, claiming the sample was drawn illegally. The trial court stated that it believed the sample had been drawn lawfully pursuant to section 316.1933(1), which provides: 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...
...blood." To "submit" means something more in this context than merely being physically incapable of preventing the blood test. It is a mandate to yield to a test, and it supersedes "any recognized ability to refuse to submit to the tests provided in section 316.1932 or ......
...1980) (where possible, court will give full effect to all statutory provisions and construe related provisions in harmony with one another); State v. Rodriguez,
365 So.2d 157, 159 (Fla. 1978) (to determine legislative intent, court will view entire statute). Sections
316.193 through
316.1934, Florida Statutes (1985), address the offense of driving under the influence of alcohol, or chemical or controlled substances. Section
316.1932(1)(a) provides that motorists in this state will be deemed to have given their consent for a breath test and a urine test, pursuant to a lawful arrest, for an alleged offense committed while driving under the influence of "chemical substances set forth in s....
...[2] Thus, the general scheme for determining if a motorist is impaired 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....
...ious injury to a human being. In short, these sections together narrowly define the circumstances in which *964 testing for impairment is allowed absent express consent, and they carve out two narrow exceptions to the scheme which allow blood tests. Section
316.193 delineates the offenses committed when driving impaired. Subsection (1) defines "driving under the influence" of "any chemical substance set forth in s.
877.111" the same substances to be determined by the general breath/urine testing scheme described in section
316.1932. Subsection (2) lists the penalties incurred for driving under the influence. Section
316.1931(2) is an exception to that penalty scheme. Under this latter section, certain acts committed while driving impaired are considered more serious and carry more severe penalties than the offense discussed in section
316.193. Specifically, when an impaired driver damages the "property or person of another," he is guilty of a first degree misdemeanor. §
316.1931(2)(a), Fla....
...When an impaired driver causes "serious bodily injury to another," he is guilty of a third degree felony if at the time of the offense he: "1. [h]ad a suspended or revoked driver's license; 2. [w]as a habitual traffic offender as defined in s.
322.264; or 3. [h]ad been previously convicted of a violation of this subsection." §
316.1931(2)(b), Fla. Stat. (1985). It is significant that this last provision, section
316.1931(2)(b), refers to the section at issue, section
316.1933, for a definition of the term "serious bodily injury." There is no dispute that the instant statute authorizes a blood test when the suspect driver has caused such injury to another person. The deviation in that situation from the general breath/urine testing scheme parallels the deviation, by way of an enhanced penalty in section
316.1931(2), from the general DUI penalty scheme in section
316.193(1)(2)....
...It is at least syllogistically logical, therefore, that because there is no enhanced penalty where an impaired driver causes only his own serious injury, there should be no deviation in that situation from the general testing scheme. This same reasoning applies to section 316.1931(2)(c), which describes the more severe offense committed and penalty incurred by the impaired driver who causes "the death of any human being." In this context "human being" must refer to someone other than the driver; otherwise, he would be subject to the penalties of that section where he has caused his own death, and posthumous prosecution has never been a practice in this state. The most probable reading of section 316.1931(2)(b), (c), consequently, is that it encompasses all of the circumstances contemplated in section 316.1933 for which blood testing will be allowed: seriously injuring or killing someone other than the suspect driver. This does not mean, of course, that those who drive under the influence and injure only themselves will not be subject to testing and prosecution. They will still be subject to the breath and urine tests authorized by section 316.1932 and subject to a blood test where the former tests are impossible or impractical. Of course they will be subject to the penalties for driving while impaired as provided in section 316.193(2). In sum, we conclude that a law enforcement officer who has probable cause to believe a driver is under the influence of alcoholic beverages or controlled substances may require that driver to submit to a blood test under section 316.1933(1), Florida Statutes (1985), only when the driver has caused the death of or serious bodily injury to someone other than himself....
...[3] Accordingly, *965 we approve the decision of the district court below. It is so ordered. OVERTON, SHAW, BARKETT and KOGAN, JJ., concur. McDONALD, J., dissents with an opinion, in which GRIMES, J., concurs. McDONALD, Justice, dissenting. The statute under discussion, section 316.1933(1), Florida Statutes (1985), authorizes the involuntary drawing of blood from a suspected drunk driver when that driver's vehicle has caused the death or serious bodily injury of a human being....
...The statute does not say another human being or a third party human being. The driver is a human being and qualifies for the drawing of blood whether the driver or another person is injured. I suggest that the plain meaning rule for construing statutes requires the application of section 316.1933(1) to include the driver when he is seriously injured regardless of the absence of injury to another person....
...GRIMES, J., concurs. NOTES [1] The opinion of the district court of appeal erroneously concludes that Perez was the only one involved in the accident. [2] The provision relating to a driver consenting to or demanding a pre-arrest breath test, contained in section 316.1932(1)(b), Florida Statute (1985), has been repealed by the legislature, effective July 1, 1988....
...evisions to the statutory scheme regarding driving a motor vehicle while under the influence. Although the title of the bill declares that it is providing "clarifying language" with respect to certain provisions, it states that the act is "amending" section 316.1933....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1299449
...He is a religious man, who has repeatedly stated that he wishes that he could have been the person who died in this accident. If Mr. VanBebber had run this stop sign with no other car in the intersection, the police would have arrested him for simple DUI. His likely penalty would have been a $500 fine. See § 316.193(2)(a), Fla....
...The current system, *922 however, incarcerates people who are not always dangerous to society. I suspect that the tax dollars that we are spending on incarceration due to mandatory victim injury points could be used more effectively in other programs addressing the very serious and real problem of DUI. NOTES [1] § 316.193(c)(1)-(3), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1994 WL 559635
...Writ GRANTED and REMANDED with instructions. HARRIS, C.J., concurs. GRIFFIN, J., dissents without opinion. NOTES [1] Fla.R.App.P. 9.030(b)(2)(B); City of Deerfield Beach v. Vaillant,
419 So.2d 624 (Fla. 1982). [2] §
322.2615(13), Fla. Stat. (1991). [3] §
316.193, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1993 WL 383000
...The facts are not in dispute. On August 11, 1992, Knowles received a traffic citation for failure to drive in a single lane in violation of section
316.089, [4] Florida Statutes *90 (1989). He also was charged with driving under the influence pursuant to section
316.193....
...The term "noncriminal violation" shall not mean any conviction for any violation of any municipal or county ordinance... . Failure to stay within a single lane, section
316.089, does not provide for either fine or imprisonment; and it is not a misdemeanor. In contrast, section
316.193(1) provides for imprisonment and arrest as well as for a specific fine, for driving under the influence of alcoholic beverages, and it is a first degree *91 misdemeanor....
...The state argues it was not going to rely on Knowles' straying out of the single lane to prove the DUI. Perhaps it sought to prove the DUI offense through test results. The lower court found a double jeopardy violation existed because Knowles was in control of the vehicle for both offenses. However, section 316.193 is phrased in the disjunctive....
...We answer the question "no" and reverse and remand. REVERSE and REMAND. THOMPSON, J., concurs. DAUKSCH, J., concurs specially with opinion. DAUKSCH, Judge, concurring specially. I concur because I agree Dixon, cited in the majority opinion, applies. I cannot concur otherwise. NOTES [1] § 316.193, Fla....
...s of vehicles shall obey the directions of every such device. (4) Official traffic control devices may be installed prohibiting the changing of lanes on sections of roadway, and drivers of vehicles shall obey the directions of every such device. [5] Section 316.193, Florida Statutes (1991) provides: 316.193 Driving under the influence; penalties....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1993 WL 442273
...We grant the petition for writ of certiorari and quash the order of the circuit court and order the administrative suspension of Padilla's driving privilege reinstated. Section
322.2615(2), Florida Statutes (1991) requires "an affidavit stating the officer's grounds for belief that the person arrested was in violation of section
316.193." Below, Padilla challenged the competency of the evidence received proving the requirement in section
322.2615(7)(b)1, "[w]hether the arresting law enforcement officer had probable cause to believe that the person driving was driving...
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...motions to suppress evidence of her blood alcohol level.
Following the denials of her motions Appellant pleaded no
contest to the charge of driving under the influence of alcohol
third conviction within ten years, reserving her right to appeal
the denials. See § 316.193(2)(b)1, Fla....
...by rule
11D-8.012(1). Kleiber,
175 So. 3d at 320. The appellate court
reversed the trial court’s suppression of the test results under a
strict compliance standard and held that substantial compliance
was the correct standard. Id. at 321-322; see §
316.1932(1)(f),
4
Fla....
...In her second motion to suppress, Appellant asserted that
the blood samples were illegally obtained because she was not
offered a breath test or a urine test prior to the law enforcement
officer’s request that she consent to a blood draw. She relied on
section 316.1932(1)(c) for her position that without a prior offer of
these less-intrusive testing methods, her consent could not be
implied and her actual consent was involuntary....
...condition caused him to believe that Appellant was at risk of
falling on the way to the bathroom.
On appeal of this order, Appellant argues that the trial
court’s denial of her motion was unsupported by any evidence
that a urine test was impractical. Section 316.1932(1)(c)
establishes the conditions under which a driver is “deemed to
have given his or her consent to submit to an approved blood test
for the purpose of determining the alcoholic content of the blood.”
The statutory conditions ar...
...to the availability of
hospital personnel to assist, the trial court’s finding that a urine
test was “impractical” is an alternative statutory basis upon
which Appellant may be deemed to have consented to submit to
an approved blood test under section 316.1932(1)(c).
Appellant fails to establish that the trial court applied the
incorrect legal standard to the compliance of the blood draw
procedure with rule 11D-8.012, Florida Administrative Code.
Appellant also fails to show any deficiency in the evidence
supporting the trial court’s finding of fact that a urine test was
“impractical” for purposes of implied consent under section
316.1932(1)(c), Florida Statutes....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2002 WL 1058454
...We agree with the trial court's ruling. Furthermore, the fact that the officer initially requested and obtained, from the medical staff, the blood alcohol content of the blood drawn in the course of Thomas's treatment, instead of specifically requesting a blood draw pursuant to section 316.1933(1), does not warrant exclusion of the medical records subsequently obtained pursuant to the State's subpoena. On the facts of this case, we conclude that the officer would have been authorized to request a blood draw. And, pursuant to section 316.1933(2)(a), "the failure of a law enforcement officer to request the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical purposes." Moreover, even if we concluded that the officer did not have probable cause to request a blood test pursuant to section 316.1933(1), on this record, the officer's verbal request for the nurse to tell him the blood test results does not constitute the type of governmental misconduct that would warrant exclusion of the medical records subsequently obtained through the State's subpoena issued after proper notice to Thomas....
...pposed to DUI with personal injury, the offense charged in the information and selected by the jury on the verdict form. Affirmed and remanded for correction of a scrivener's error. NORTHCUTT, J., and DANAHY, PAUL W., Senior Judge, concur. NOTES [1] § 316.193(3)(c)(2), Fla. Stat. (1999). [2] § 316.193(3)(c)(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1994 WL 226573
...We therefore vacate Fleming's sentence for DUI and remand for resentencing. In all other respects, the judgment and the other sentence are affirmed. AFFIRMED in part; DUI sentence VACATED; REMANDED for resentencing. GOSHORN and DIAMANTIS, JJ., concur. NOTES [1] § 316.193, Fla. Stat. (1991). [2] § 316.193, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2002 WL 825944
...swer questions. (Citations to the record omitted). Section
322.2615, Florida Statutes Under section
322.2615, Florida Statutes (2000), a law enforcement officer is required to take the driver's license of a person who has been arrested for violating section
316.193 for driving with an unlawful breath alcohol level and to issue that person a 30 day temporary permit....
CopyCited 4 times | Published | Supreme Court of Florida | 1997 WL 251743
...Marie King, Assistant State Attorney, Clearwater, for Appellant. Robert E. Jagger, Public Defender and Anne M. Sylvester, Sixth Judicial Circuit, New Port Richey, for Appellee. GRIMES, Justice. The State appeals the decision in State v. Muller,
681 So.2d 725 (Fla. 2d DCA 1996), declaring section
316.193(6)(d), Florida Statutes (1993), to be unconstitutionally vague. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Section
316.193(6)(d), which is a subdivision of the driving under the influence (DUI) statute, reads in pertinent part: (d) In addition to the penalty imposed under paragraph (a), paragraph (b), or paragraph (c), the court shall also order the impou...
...The trial court declined to impose the additional penalty of vehicle impoundment, finding that the impoundment provision was unconstitutional. The State appealed the trial court's determination of the statute's unconstitutionality. The district court of appeal affirmed, reasoning that section
316.193(6)(d) was unconstitutionally vague because it provides no mechanism for enforcement and fails to define "immobilization." A statute is generally considered vague if it does not give people of ordinary intelligence fair notice of what constitutes forbidden conduct. Warren v. State,
572 So.2d 1376 (Fla.1991). In analyzing section
316.193(6)(d), the district court of appeal attempted to fit its holding into the traditional vagueness analysis by citing to Bouters v....
...State,
659 So.2d 235 (Fla.1995). However, the issue in Bouters was whether the statutory definition of "harasses" in the stalking statute provided defendants with adequate notice of what conduct was proscribed. In contrast to the statute challenged in Bouters, section
316.193(6)(d) does not delineate prohibited conduct. Section
316.193(6)(d) merely sets forth an additional penalty of vehicle impoundment....
...protection rights because it treats defendant-owners, defendant-borrowers, and defendant-lessees differently. The classifications created by the statute clearly bear a rational relationship to a legitimate State objective. Accordingly, we hold that section 316.193(6)(d) is not unconstitutionally vague and reverse the decision of the district court of appeal....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1991 WL 27507
...ceedings. CERTIFIED QUESTION ANSWERED; dismissal and suppression orders QUASHED; REMANDED. HARRIS, J., concurs. DAUKSCH, J., concurs in conclusion only without opinion. NOTES [1] §
316.192, Fla. Stat. (1989). [2] §
316.1925, Fla. Stat. (1989). [3] §
316.193, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2002 WL 464162
...We elect to consider this case en banc to determine whether we should apply the harmless error rule, given the overwhelming evidence of guilt. We conclude that the harmless error rule cannot be applied and accordingly remand for a new trial. *865 Bonine was charged with DUI/manslaughter, pursuant to section 316.193....
...) Bonine was driving while under the influence of alcoholic beverages to the extent that his faculties were impaired, or 2) he had a blood alcohol level of 0.08 or higher. The jury was also instructed as to the statutory presumption of impairment in section 316.1934....
...466,
116 L.Ed.2d 371 (1991), the court held that even if the evidence does not support the specific verdict, any error in charging the jury on that theory is harmless where the evidence supports a conviction for the general verdict. [2] The structure of the statute creating the offense of driving under the influence [section
316.193, Florida Statutes] itself shows that at best the presumption instruction authorized by section 316.9134(2), Florida Statutes, is redundant and at worst harmless....
...In such case, if the defendant denies impairment and if he is shown to have an unlawful blood alcohol level, then he would have to overcome the presumption of impairment. [3] See Dodge v. State,
805 So.2d 990 (Fla. 4th DCA, 2001): Thus, "the presumption of impairment created by [section
316.1934(2), Florida Statutes] 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." [4] The structure of this charged offense is similar to first de...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1996 WL 120420
...The state charged defendant with DUI manslaughter alleging that defendant was in control of a motor vehicle while under the influence of alcoholic beverages, chemicals or any substance controlled under Chapter 893, to the extent that his normal faculties were impaired or he had a blood alcohol level of.08% or higher. See § 316.193, Fla.Stat....
...on defendant's rate of absorption pre-accident and post-accident. A blood alcohol level of .08% or more is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. See § 316.1934(2)(c), Fla.Stat....
...[2] There are three material elements of a DUI charge: 1) that the defendant was driving or in actual physical control of the vehicle; 2) that the defendant was under the influence of an alcoholic beverage or a controlled substance and 3) that the defendant was affected to the extent that his normal faculties were impaired. § 316.193, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 9571, 2010 WL 2675302
...Edwards was charged with DUI manslaughter which requires the state to prove that a defendant operated a vehicle with a blood alcohol level in excess of the legal limit and by reason of such operation, "cause[d] or contribute[d]" to the death of another. § 316.193(3)(c)3., Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1995 WL 396318
...In April 1994, Lamoureux, who was driving while intoxicated, became involved in a head-on automobile collision, which seriously injured both occupants of the other vehicle. As a result, Lamoureux was charged with: two counts of DUI with serious bodily injury in violation of section
316.193, Florida Statutes (1993); and one count of driving with a suspended license in violation of section
322.34(3), which was later dismissed....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1989 WL 73858
...Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee. ROBINSON, STEVEN D., Associate Judge. The state appeals a determination by the trial judge that one of three prior convictions for Driving Under the Influence, section 316.193(2)(b), Florida Statutes (1987), could not be used to reclassify the defendant's criminal traffic offense to a third degree felony....
...The trial judge then weighed the evidence, finding in favor of the defendant on the issue. Finding this was his third conviction, the trial judge then enhanced Troehler's sentence to eight months, based only on the remaining two prior DUI convictions. For third offenders, section 316.193(2)(a)2.c., Florida Statutes (1987) authorizes a maximum jail sentence of twelve months....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1988 WL 75572
...Jennings of William K. Jennings, P.A., Destin, for appellant. *1273 Robert A. Butterworth, Atty. Gen. and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee. BARFIELD, Judge. Appellant seeks review of his conviction of felony DUI under subsections 316.193(1)(a) and (2)(b), Florida Statutes (Supp. 1986). [1] We affirm the convictions. Felony DUI was charged in the information by merely referring to section 316.193(2)(b); no mention was made as to any previous DUI convictions....
...ictions under a procedure similar to that employed under the habitual offender statute and State v. Harris,
356 So.2d 315 (Fla. 1978). We find this same type of procedure should be followed in charging and proving felony DUI. As to the second issue, section
316.193(2)(b) provides that upon a fourth conviction, a person is "punishable as provided in s....
...A general objection without disputing the veracity of the documents' contents was insufficient to preclude the trial court's reliance on the documents to find appellant guilty of felony DUI. Accordingly, the conviction is AFFIRMED. THOMPSON and NIMMONS, JJ., concur. NOTES [1] Under subsection 316.193(1) "[a] person is guilty of the offense of driving under the influence ... if such person is driving or in actual physical control of a vehicle within this state and: (a) [t]he person is under the influence of alcoholic beverages... ." Under subsection 316.193(2)(b), "[a]ny person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree......
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 215
...rom a sentence of probation imposed for the offense of aggravated assault with a firearm, in violation of section
775.087 Florida Statutes (1979), which requires a three-year prison sentence for certain felonies involving the use of guns. Similarly, section
316.193(4) Florida Statutes (1985) provides mandatory minimum jail sentences for repeat offenders....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2012 Fla. App. LEXIS 674, 2012 WL 162029
...issue until he filed reply brief). See also Sampson v. State,
903 So.2d 1055, 1058-59 (Fla. 2d DCA 2005) (Altenbernd, J., concurring). AFFIRMED. ORFINGER, C.J., GRIFFIN, SAWAYA, MONACO, TORPY, LAWSON, EVANDER, COHEN and JACOBUS, JJ., concur. . See. §
316.193(3)(c)3.a., Fla....
CopyCited 4 times | Published | District Court, S.D. Florida | 2006 U.S. Dist. LEXIS 4086, 2006 WL 164912
...Furthermore, Plaintiff argues that his detainment following the arrest was discriminatory and that he is entitled to compensatory damages as a result. First, the Court will point out that Plaintiff's detainment was not discriminatory. Under Fla. Stat. § 316.193(9), "A person who is arrested for a violation of this section [on DUI] may not be released from custody ....
...IV. Conclusion Based on the foregoing there is no genuine issue of material fact and Defendant is entitled to judgment as a matter of law for Counts I and III. Therefore, Defendant's Motion for Summary Judgment is GRANTED. NOTES [1] Under Fla. Stat. § 316.193(9), immediate release of a drunk driver is prohibited....
CopyCited 4 times | Published | Court of Appeals for the Eleventh Circuit | 1991 U.S. App. LEXIS 1688, 1991 WL 4777
...ime Laboratory testified that he performed tests on Santiago’s blood sample and determined that it contained a blood alcohol level of .16%. II. PROCEDURAL HISTORY On December 3, 1987, Santiago was charged by amended information with a violation of § 316.193(3), 1 Florida Statutes, 1987, for operating a motor vehicle on March 25, 1987, while under the influence of alcoholic beverages to the extent that his normal faculties were impaired or while he had a blood alcohol level of .10% or higher, and by reason of such operation, caused the death of Martha Widner....
...gust 8, 1989. The issue presented in the petition was whether Santiago had been deprived of his constitutional right to a fair trial because the trial court instructed the jury concerning an allegedly mandatory rebuttable presumption *803 created by § 316.1934(2)(c); Florida Statutes, 1987....
...of DUI manslaughter. Since a second objection was not necessary, we find there was no procedural bar. B. The Jury Instruction The district court held that the jury instruction given in Santiago’s trial, taken almost verbatim from Florida Statutes, § 316.1934(2)(c), created an unconstitutional mandatory rebuttable presumption which shifted the burden of proof to the accused and violated Sdndstrom v....
...YOU MAY STAY AROUND TO SEE WHAT VERDICT IS RENDERED OR YOU MAY GO ON ABOUT YOUR BUSINESS. IF YOU WANT TO KNOW WHAT THE VERDICT WAS AND YOU DON’T STAY TO FIND OUT, YOU MAY CALL MY OFFICE AND FIND OUT, AND I’M SURE MY SECRETARY WILL TELL YOU. 1 . 316.193....
...shable as provided in s.
775.082, s.
775.083, or s.
775.084. 2 . After the direct appeal became final, Santiago began serving his sentence and served it in full during the pendency of his petition for writ of habeas corpus in the district court. 3 .
316.1934....
...coholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was.deprived of full possession of his normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood 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, shall give rise to the following presumptions: ......
...tion of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. 4 .In Wilhelm , the Court held that a jury instruction based upon § 316.1934(2)(c), Florida Statutes (1986), created an unconstitutional mandatory rebuttable presumption because the words "prima facie” in a jury instruction would not be understood by the reasonable juror....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1989 WL 9155
...This is a petition for writ of certiorari from a determination of the circuit court, acting in its appellate capacity, which reversed a county court decision which granted the petitioner/defendant's motion to dismiss. Petitioner was the defendant in the county court, charged with violating section 316.193(1), Florida Statutes (1987), the criminal traffic offense of driving while under the influence of an alcoholic beverage....
...The officers observed the defendant sleeping or passed out while sitting in the driver's seat with his left hand on the steering wheel. Although the keys were in the ignition, the engine was not running and the vehicle's headlights were not on. The interpretation of "actual physical control," as used in section 316.193(1), Florida Statutes, has been considered in two prior Florida cases....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 264121
...The hearing officer found that the arresting officer had probable cause to believe that Ms. Patrick was driving or had actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances; that she was lawfully arrested and charged with a violation of section 316.193, Florida Statutes (2003); and that she had an "unlawful alcohol level of .08 or higher." He concluded, therefore, that Ms....
...e level of alcohol in their systems exceeds certain thresholds. Paragraph
322.2615(1)(a), Florida Statutes (2003), provides that a law enforcement or correctional officer shall suspend the license of any person who has been arrested for violation of section
316.193, Florida Statutes (2003), a statute that regulates driving with an unlawful blood-alcohol or breath-alcohol level. A person who is driving or is in actual physical control of a vehicle in Florida can violate section
316.193, as it relates specifically to blood or breath-alcohol levels, in essentially two ways. First, under paragraph
316.193(1)(b) a person violates the law if he or she has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood. Alternatively, a person violates paragraph
316.193(1)(c) if he or she has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath....
...Paragraph
322.2615(1)(b) is the problematic part of the statute. Sub-subparagraph (1)(b)1.b. provides for notice of the immediate driver's license suspension under paragraph (1)(a), and provides that the driver be informed of the following: b. The driver violated s.
316.193 by driving with an unlawful blood-alcohol level as provided in that section and his or her driving privilege is suspended.......
...There is no similar notice provision for breath-alcohol level suspensions, although quite clearly in the present case Ms. Patrick was given that notice. The next subsection, subsection
322.2615(2), requires the law enforcement officer to notify the DMV of the details of the suspension for violation of section
316.193, including the "results of any breath or blood test" that was administered....
...cal 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.... 3. Whether the person had an unlawful blood-alcohol level as provided in s. 316.193....
...It is evident from the internally conflicting subdivisions of section
322.2615, when read in pari materia with other sections of the statutes, that the formal review provision is ambiguous. The legislature made driving with either an excessive blood-alcohol or breath-alcohol level illegal in section
316.193; and gave law enforcement officers the power to suspend the driving privileges of drivers whose blood-alcohol or breath-alcohol exceeded the legislatively set limit in paragraph
322.2615(1)(a); and gave hearing officers the authority...
...eading the statute to include the omitted language, as we believe the legislature clearly intended. Thus, we read paragraph
322.2615(7)(a) to include formal review for suspensions based on breath-alcohol, as well as blood-alcohol level violations of section
316.193....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2001 WL 173285
...r her driving privilege is suspended for a period of one year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or b. the driver violated section 316.193 by driving with an unlawful blood-alcohol level as provided in that section and his or her driving privilege is suspended for a period of six months for a first offense or for a period of one year if his or her driving privilege has been previously suspended for a violation of section 316.193....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 1352, 2010 WL 445709
...In view of the principal's separate settlement with the appellees (and the resultant stipulated dismissal), that aspect of the sanctions ruling is also moot. [3] A blood alcohol level of .08% or higher subjects the vehicle operator to a criminal charge of driving under the influence; § 316.193, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2003 WL 23014396
...Charles J. Crist, Jr., Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent. PER CURIAM. Petitioner was arrested and charged with driving while intoxicated, an offense punishable by up to six months' imprisonment. See § 316.193(2)(a) 2.a., Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...Mathews, III, Asst. Public Defender, Jacksonville, for petitioners. Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for respondent. PER CURIAM. The defendants in this prosecution for driving while under the influence of alcohol (DUI), Section 316.193, Florida Statutes (Supp....
...Between July 1, 1982, and December 16, 1982, the petitioners were arrested and charged with driving while under the influence of alcohol. At the time of their arrest, the petitioners submitted to chemical tests for blood alcohol content pursuant to Section 316.1932, Florida Statutes (Supp. 1982). The county court granted the motions to suppress the test results on grounds that there were no rules lawfully in force, at the time the defendants were arrested, governing the testing procedures as required by Section 316.1932....
...effect on the proper administration of justice throughout the state: 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....
...83-12-AP; State of Florida v. Danny Paul Johnson, Case No. 83-13-AP; State of Florida v. Sandra P. Lemunyon, Case No. 83-14-AP; State of Florida v. John D. Thompson, Case No. 83-15-AP; and State of Florida v. Ripley C. Davis, Case No. 83-16-AP. [2] Section 316.1932(1)(f)1, Florida Statutes (Supp....
CopyCited 4 times | Published | Court of Appeals for the Eleventh Circuit | 1988 WL 127629
PER CURIAM: The issue in this case is whether an application of Florida’s implied consent law, § 316.1932, Fla.Stat....
...l (DUI) in the early morning hours of March 28, 1985. At the officer’s request, Langelier performed various field sobriety tests at the scene. In the opinion of the officer, Langelier failed these tests. Arresting Langelier for DUI in violation of § 316.193(1), Fla.Stat....
...f speech. 6 Langelier’s right to privacy argument is likewise devoid of support in federal law. 7 In short, he is asking us to create new constitutional rights. We decline the invitation. Accordingly, the order of the district court is AFFIRMED. . Section 316.193 states that: (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 within this state and: (a) the person is under the influence of alcoholic beverages ......
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1991 WL 265042
...Robert A. Butterworth, Atty. Gen., and Sara Baggett, Asst. Atty. Gen., for appellee. *1028 PER CURIAM. We affirm appellant's conviction and sentence for DUI manslaughter. In regard to the first three issues raised by appellant, case law has interpreted Section 316.193(3), Florida Statutes (1989), as requiring proof of only simple negligence to support a DUI manslaughter conviction....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1990 WL 111958
...da Rules of Appellate Procedure 9.030(b)(4) and 9.160. *1254 The question arose out of a criminal proceeding in the county court wherein appellant was charged with driving under the influence and causing injury to persons or property in violation of section 316.193(3)(a)(1), Florida Statutes....
...Sentence was stayed pending review by this court by certified question, which question states: WHETHER A POLICE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT AN ACCIDENT VICTIM IS SUFFERING FROM SERIOUS BODILY INJURIES WITHIN THE MEANING OF FLORIDA STATUTE 316.1933(1) WHERE HE IS INFORMED BY PARAMEDICS THAT THE ACCIDENT VICTIM IS UNCONSCIOUS AND POSSIBLY SUFFERING FROM NECK AND/OR OTHER UNSPECIFIED INTERNAL INJURIES....
...We have considered the record, the briefs of the parties, and the certified question and answer the latter in the affirmative. Furthermore, we affirm the judgment of conviction and sentence imposed by the trial court. LETTS, J., and McNULTY, JOSEPH P., Associate Judge, concur. NOTES [1] Section 316.1933(1), Florida Statutes (1987), provides: 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 physical control of a person under the influence of alcoholic beverag...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2001 WL 871476
...[2] This case arose out of an automobile accident on April 18, 1999, in which Hembree was involved as a driver. One person was killed and two others were injured. We reverse for a new trial. Over defense objection, the trial court instructed the jury on the statutory presumptions of impairment in section 316.1934(2), the implied consent law. See §§ 316.1932-316.1934, Fla....
...The error in this case, giving the instructions based on the implied consent law presumptions and arguing their impact to the jury was clearly prejudicial, and it was clearly preserved. REVERSED and REMANDED for new trial PLEUS and ORFINGER, R.B., JJ., concur. NOTES [1] § 316.193(3)(a)(b)(c)(3), Fla. Stat. [2] § 316.193(1) and (2)(a), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12211, 2010 WL 3270967
...A small child who was in the minivan sustained a deep laceration to his forehead. Based on the investigation into the circumstances of the crash, the State charged Mr. Walton with two offenses: count one, DUI with serious bodily injury, a violation of section
316.193(3)(c)(2), Florida Statutes (2006), and count two, driving while license suspended or revoked, a violation of section
322.34(2)(a), Florida Statutes (2006)....
...The Escort ran a red light and was struck by a minivan, causing a significant injury to a child in the minivan. Under these facts, the exact identity of the driver of the Escort was not necessary to establish that a DUI with serious bodily injury had occurred. See § 316.193(3)(c)(2)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1988 WL 33692
...rain ethyl alcohol per 100 millimeters of blood. On August 1, 1986, after receiving the results of appellant's blood alcohol test, a warrant was issued and she was arrested and charged by information with manslaughter by intoxication in violation of section 316.1931, Florida Statutes (1985)....
...State,
497 So.2d 638 (Fla. 1986). 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. State,
377 So.2d 17 (Fla. 1979). In Baker the court held that DWI/manslaughter was a strict liability offense. However, we note that section
316.1931, Florida Statutes has been repealed and replaced by section
316.193(3)(c), Florida Statute (Supp....
...[1] We agree with appellant that the placement of the word "causes" in the new text appears to require proof of a causal connection between the operation of a vehicle while under the influence and the death of a human being, before one may be convicted of manslaughter under the statute. We further note that section 316.193(3)(c), Florida Statutes (Supp....
...d with similar, subsequent *764 appeals. Since we deem this issue to be of great public importance, we certify the following question to the Florida Supreme Court: 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. 1986)? Affirmed. ERVIN and BARFIELD, JJ., concur. NOTES [1] Section
316.1931, Florida Statutes (1983) now repealed, provided in pertinent part:
316.1931 Driving automobile while intoxicated; punishment....
...drive, be in actual physical control of, or operate over the highways, streets, or thoroughfares of this state 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....
...if the 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. (emphasis supplied). Section 316.193, Florida Statutes (Supp. 1986) provides in pertinent part: 316.193 Driving under the influence; penalties....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 5165, 2010 WL 1477567
...Such an argument is fundamentally flawed and similar claims have been continually dismissed when raised to challenge the application of other statutes that treat repeat occurrences of bad behavior differently than a single occurrence. See e.g., Fla. Stat. § 316.193(2)(b) (2008) (any person who commits DUI and has previously been convicted two or more times for the same offense, commits a felony of the third degree); Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2001 WL 907869
...Cochran's performance was poor, so the officer arrested him for driving under the influence, read the implied consent warnings and administered breath tests. Cochran's alcohol levels registered .220, .206 and .227. The officer issued Cochran a citation for violating section 316.193, Florida Statutes (1999), pursuant to which Cochran's driving privileges were suspended....
...Dep't of Highway Safety & Motor Vehicles, No. 99-13 (18th Cir. April 6, 2000). In that opinion, the court held that the breath test result affidavit, which was the only evidence in that case of the driver's blood alcohol level, failed to comply with section 316.1934(5), Florida Statutes (1999), because the affidavit did not contain the date of the performance of the most recent maintenance of the breath testing instrument....
...ation of a breath test...." See §
322.2615(11), Fla. Stat. (1999). The circuit court in this case focused solely on the affidavit of the breath test result submitted by the police officer, finding it fatally defective because it did not comply with section
316.1934(5)....
...The circuit court should have addressed the issue of whether or not there was substantial evidence in the record to support the hearing officer's findings. Here the additional document which clarified that the inspection included maintenance should have sufficed, even if the requirements of section 316.1934(5) apply to such hearings....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1998 WL 716703
...2d DCA 1994), the trial court relied upon a 1989 felony DUI conviction and a 1983 conviction of dealing in stolen property as the predicate for imposition of habitual offender sentencing on Brown's 1990 conviction for felony DUI. The applicable DUI penalty provision, section 316.193(2)(b), provides: (b) Any person who is convicted of a fourth or subsequent violation of this section is guilty of a felony of the third degree, punishable as provided in s....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2008 WL 4998757
...bolite Delta 9 Carboxy THC and 139 nanograms of Alprazolam, the generic form of Xanax. *616 The state charged Estrich with DUI manslaughter, leaving the scene of a crash involving a death, [1] and possession of less than 20 grams of marijuana. Under section 316.193(3), Florida Statutes (2007), the gist of the DUI manslaughter charge, as it applied in this case, is that the defendant operated a vehicle while under the influence of a controlled substance to the extent that his normal faculties wer...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 1036294
...Dunlevy, Assistant Attorney General, Tampa, for Appellant. Clinton A. Curtis and Kristen M. Buzzanca of Peterson & Myers, P.A., Winter Haven, for Appellee. PER CURIAM. Dean A. Townsend was charged by information with DUI manslaughter in violation of section
316.193(3)(c)3, Florida Statutes (1995); vehicular homicide in violation of section
782.071, Florida Statutes (1995); and two counts of DUI with serious bodily injury in violation of section
316.193(3)(c)2....
...In his motion in limine, Townsend alleged that rule 11D-8.012, Florida Administrative Code, failed to sufficiently provide for the proper collection, storage and transportation of blood samples taken pursuant to the implied consent law in sections 316.1932-.1934....
...State,
604 So.2d 783 (Fla.1992) (requiring proof that test was reliable, performed by qualified operator with proper equipment, and expert testimony as to test's meaning). The trial court further held that the State would not be entitled to have the jury instructed on the presumptions of impairment set forth in section
316.1934(2)....
...Second, assuming the 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....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1990 WL 67299
...ted; when it instructed the jury on driving with a restricted license; and when it instructed on driving on a sidewalk. The trial court gave two instructions on driving under the influence of alcoholic beverages. One of the instructions was based on section 316.193 and the other on section 322.262(2)(c), Florida Statutes (1981)....
...d, it 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 supplied). In State v. Rolle,
560 So.2d 1154 (Fla. 1990), the supreme court held that section
316.1934(2)(c) [2] creates a permissive inference, not an unconstitutional presumption of intoxication as we held in Rolle v....
...shed as a public highway or not. The dedication shall vest all right, title, easement, and appurtenances in and to the road ... whether there is a record of a conveyance, dedication, or appropriation to the public use or not. (footnote omitted). [2] Section 316.1934(2)(c), Florida Statutes (1985), contains substantially the same language as that found in section 322.262(2)(c), Florida Statutes (1981).
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 3350, 2010 WL 935476
...*626 Ashley Smith Herndon of Dewrell & Herndon, Shalimar, for Appellant. Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee. BENTON, J. Nicholas Alexander Chesser appeals convictions under section 316.193(3), Florida Statutes (2006), on two counts of driving under the influence manslaughter....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1995 WL 96797
...ence. See State v. De Jerinett,
283 So.2d 126 (Fla. 2d DCA), cert. denied,
287 So.2d 689 (Fla. 1973). We, therefore, reverse the trial court's order and remand for further proceedings. Reversed and remanded. DANAHY and PARKER, JJ., concur. NOTES [1] §
316.193(3), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1991 WL 92372
...June 4, 1991. *336 Richard Hersch, Miami, for appellant. Robert A. Butterworth, Atty. Gen., and Angelica D. Zayas, Asst. Atty. Gen., for appellee. Before LEVY, GERSTEN and GODERICH, JJ. LEVY, Judge. Abel Toledo, the defendant, was found guilty of violating Section 316.193, Florida Statutes (1989), for Driving Under the Influence of Alcoholic Beverages ["DUI"] in the County Court after jury trial. The defendant had previously been convicted of three DUI violations and moved the County Court to dismiss the charges for lack of jurisdiction under Section 316.193(2)(b), Florida Statutes (1989). The County Court denied the motions and the defendant sought certification of the following question: When a defendant charged with a violation of Fla. Stat. § 316.193 has three prior convictions of this same section or its predecessor, do the provisions of Fla. Stat. § 316.193(2)(b) require that the cause be tried by a circuit court....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1999 WL 420478
...DUI by causing serious bodily injury to another. The linchpin to the state's argument is the sufficiency of the traffic citation issued on July 1, 1997, to charge a misdemeanor DUI offense. The citation was indeed poorly drafted. It appears to cite section 316.193(B), as the statute violated, yet no such subsection exists. Boxes were checked "damage to other property," "injury to another," and "serious bodily injury to another." Review of section 316.193 shows that misdemeanor DUI may be charged under subsection (1) for simply driving with a blood alcohol level of over.08, or under subsection (3)(c)(1) for driving with a blood alcohol level of over .08 and causing damage to the property or person of another....
...Felony DUI may be charged under subsection (3)(c)(2) when serious bodily injury to another is caused. Thus, it is unclear exactly what was charged in the traffic citation. At the minimum, we agree that a strong argument can be made that "[t]his is another case that results from an accusatorial pleading of a DUI charge under section
316.193, Florida Statutes, so vague, indistinct and indefinite as to leave, after conviction, a substantial question as to the level or degree of the offense for which the defendant can be sentenced." Leone v. State,
590 So.2d 29, 30 (Fla. 5th DCA 1991) (footnote omitted). *586 Despite its ambiguity, the traffic citation contains all the elements necessary to charge misdemeanor DUI under either subsection
316.193(1) or (3)(c)(1), because it alleges a blood alcohol level of .14 and injury to both the property and person of another, and it cites section
316.193....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 1540
...Gen., for appellant. Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellee. Before BARKDULL, NESBITT, and DANIEL S. PEARSON, JJ. NESBITT, Judge. Howard was charged with driving while under the influence, pursuant to section 316.193, Florida Statutes (1985), for riding a bicycle while he was allegedly intoxicated. He moved to dismiss the charge, contending that section 316.193 does not apply to bicycle riders. The county court, in and for Monroe County, granted Howard's motion to dismiss and certified the following question to us as one of great public importance: DOES FLORIDA'S DRIVING UNDER THE INFLUENCE (DUI) STATUTE, § 316.193, APPLY TO BICYCLISTS? We accept jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A), answer the certified question in the affirmative, and reverse the trial court's order dismissing the charge against Howard. Section 316.193 provides in pertinent 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 such person is driving or in actual physical control of a vehicle within th...
...od alcohol level of 0.10 percent or higher. (emphasis added) This section contemplates applicability to all "vehicles" since it is not limited to "motor vehicles," as are many of the other statutes dealing with driving while under the influence. See § 316.1932-.1934, 322.261, *613 261, .28, Fla....
...on, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks. Under the Florida Statutes, a bicycle is defined as a vehicle. §
316.003(2). [1] Therefore, section
316.193, which applies to a person operating or controlling any vehicle, is applicable to a person operating a bicycle while under the influence. Had the legislature intended to exclude bicyclists, it could have made section
316.193 applicable only to a "motor vehicle," as the statutory definition of a motor vehicle excludes bicycles, §
316.003(21), Fla. Stat. (1985). [2] Since the words used in the statute are clear, we must presume that the legislature meant what it said and purposely chose to make section
316.193 apply to all vehicles, rather than just "motor vehicles." Cf....
...3d DCA 1979) ("where words used and grammatical construction employed in a statute are clear and they convey a definite meaning, the legislature is presumed to have meant what it said and therefore, it is unnecessary to resort to the rules of statutory construction"), appeal dismissed,
383 So.2d 1197 (Fla. 1980). [3] Since section
316.193 applies to all persons driving, or in actual physical control of, any "vehicle," and since a bicycle is a "vehicle" as defined in section
316.003(64), we find that section
316.193 applies to bicyclists....
...003(64), by removing the specific exclusion of bicycles, thereby including them in the definition. See Ch. 83-68, § 1, Laws of Fla. Since that amendment, the legislature has passed four amendments to the DUI statute in question in the present case, section 316.193, see § 316.193, Fla....
...85-337, § 2, Ch. 86-296, § 1), without changing its applicability to all vehicles. We must assume that the legislature's inaction in the face of its recent amendment to the definition of the term "vehicle" reflects an intention on its part to have section 316.193 apply to bicyclists....
...all of the duties applicable to the driver of any other vehicle under this chapter, except as to special regulations in this chapter, and except as to provisions of this chapter which by their nature can have no application. (emphasis added). Since section
316.193 does not fall within the limited exceptions listed in section
316.2065, it is the legislature's expressed intention that bicyclists be bound thereby.
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2008 WL 2228680
...*1261 Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee. BENTON, J. Robert Robinson appeals his conviction for causing serious bodily injury while driving under the influence of alcohol, in violation of section 316.193(3), Florida Statutes (2003)....
...jury's verdict. Reversed and remanded. LEWIS and ROBERTS, JJ., concur. NOTES [1] Mr. Robinson did not provide a breath sample and the law enforcement officers who arrested him failed to obtain blood test results, notwithstanding the duty imposed by section 316.1933(1)(a), Florida Statutes (2003), when there is probable cause to believe someone driving under the influence of alcohol has caused serious bodily injury or death to a human being....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2003 WL 21347199
...In this case, we reverse the trial court's denial of a remittitur and new trial, remanding for further proceedings. GUNTHER and STONE, JJ., concur. NOTES [1] The only pertinent change in the statutory law relied on by the Ingram court is that now the offending level of blood alcohol has been lowered to .08. § 316.193(1)(b), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...a Schedule I
drug, Congress expressly found that the drug has no acceptable
medical uses”). Fourth, even if smoking marijuana were legal
altogether, the officers would have had probable cause based on
the fact that Johnson was operating a car. See § 316.193(1)(a), Fla.
Stat....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1996 WL 373121
...In Cooley, the only officer who had sufficient knowledge of facts supporting probable cause did not order the search. In the instant case, in contrast, an officer who had the necessary probable cause, ordered the search. ORDER VACATED; REMANDED. DAUKSCH and ANTOON, JJ., concur. NOTES [1] § 316.193(3)(c)3, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 126691
...July 11, 1991. *763 John F. Daniel, of Daniel & Komarek, Panama City, for appellant. Robert A. Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty., for appellee. ERVIN, Judge. Appellant, Larry Doyle Register, was convicted of DUI manslaughter under Section 316.193, Florida Statutes (1989). The following instruction, which was taken almost verbatim from Section 316.1934(2)(c), Florida Statutes (1989), was given to the jury: If you find from the evidence that the defendant had a .10 or more by weight of alcohol in his 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....
...It does not, therefore, create an unconstitutional presumption, but merely provides an alternative element of the offense. Rolle,
560 So.2d at 1156. Consequently, we hold that the instruction given here created merely a permissive inference. AFFIRMED. ZEHMER and MINER, JJ., concur. NOTES [1] See §
316.193(1), Fla. Stat. (1989). [2] Wilhelm was convicted of DWI manslaughter under Section
316.1931, Florida Statutes (1985).
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 595, 2011 WL 248549
...Colon was driving erratically at a high rate of speed on Goldenrod Road when he lost control of the car and collided with another car. His two best friends, who were passengers in his car, were killed in the collision and *378 the driver of the other vehicle was severely injured along with two other passengers. . Under section
316.193(3)(c)3.b., the penalty is enhanced to a first-degree felony if at the time of the crash the person knew the crash occurred and failed to give information and render aid as required by section
316.062.
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2001 WL 20773
...e jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160(d). We answer the first question in the negative and in so doing, we render the second question moot. On September 3, 1999, Tur was arrested and charged with D.U.I. in violation of section 316.193 (1999)....
...Tur then pled nolo contendere to the charge after a plea colloquy with the court pursuant to Florida Rule of Criminal Procedure 3.172(c). The court then accepted Tur's plea, adjudicated him guilty and sentenced him to the minimum mandatory sentence for a first D.U.I. charge, which included six months of probation. See § 316.193(2)(a)1 & (6)(a), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...This is a petition for common law certiorari seeking to review and overturn a decision of the Circuit Court sitting in its appellate capacity. The order in question affirmed the County Court's conviction of the petitioner on a charge of driving while intoxicated (F.S. § 316.193) after a jury trial....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 873, 2005 WL 236084
...tion for review of an order of the Department of Highway Safety and Motor Vehicles that refused his request for driver's license reinstatement. Hill's license was permanently revoked as a result of his conviction for DUI manslaughter in violation of section 316.193(3)(c)3., Florida Statutes....
...As Hill's application was made in April 2004, the law in effect at that time was section
322.271(4), Florida Statutes (2003), which provides: [A] person whose driving privilege has been permanently revoked because he or she has been convicted of DUI manslaughter in violation of s.
316.193 and has no prior convictions for DUI-related offenses may, upon expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s.
316.193 or former s.
316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...dent involving death or personal injuries, in violation of Section
316.027, Florida Statutes (1979), and by failing to leave his name and address as required by Section
316.062, Florida Statutes (1979); (2) by driving while impaired, in violation of Section
316.193, Florida Statutes (1979); and (3) by driving a motor vehicle while his license was suspended, in violation of Section
322.34, Florida Statutes (1979)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2004 WL 306037
...In determining whether the lower court violated an established principle of law, the district court may consider, among other things, recent controlling case law, rules of court, statutes, and constitutional law. See Allstate Ins. Co. v. Kaklamanos,
843 So.2d 885, 890 (Fla. 2003). This case is controlled by section
316.1932, Florida Statutes (2001), which provides that anyone who accepts the privilege of operating a motor vehicle under Florida law thereby consents to submit to a breath test for the purpose of determining the alcohol content of his or he...
...Probable cause for a DUI arrest must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system. *741 State v. Kliphouse,
771 So.2d 16, 22 (Fla. 4th DCA 2000); see also §
316.193(1)(a), Fla....
...Petition for writ of certiorari granted. NOTES [1] The statute provides, in pertinent part: "A law enforcement officer ... shall, on behalf of the department, suspend the driving privilege of ... a person who has refused to submit to a breath ... test authorized by s.
316.1932." §
322.2615(1)(a), Fla....
...state while under the influence of alcoholic beverages.... The person shall be told that his or her failure to submit to any lawful test of his or her breath ... will result in the suspension of the person's privilege to operate a motor vehicle.... § 316.1932(1)(a)1., Fla....
...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....
...influence ... if the person is driving or in actual physical control of a vehicle within this state and: (a) The person is under the influence of alcoholic beverages ... when affected to the extent that the person's normal faculties are impaired[.]" § 316.193(1)(a), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1998 WL 889257
...Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee. GROSS, J. Dennis Gerlitz appeals his conviction for driving under the influence and causing injury to person or property, contrary to section 316.193(3)(c)1, Florida Statutes (1997)....
...on a motion to suppress. There was a hearing in this case. The trial court did not abuse its discretion in holding the hearing after the trial commenced. As to the second point on appeal, we affirm the trial court's denial of the motion to suppress. Section 316.1933(1), Florida Statutes (1997), permits blood to be drawn when a law enforcement officer has probable cause to believe that a person has sustained serious bodily injury in an accident caused by a person driving a motor vehicle while under the influence of alcoholic beverages....
...The accident involved a pick-up truck hitting a bicyclist. When the investigating officer arrived on the scene, the bicyclist was being transported to the hospital. The trial court's express findings of fact support a finding of probable cause under section 316.1933(1): I find that [the investigating officer] had that probable cause from all the factors that he testified to during his testimony and that he came on the scene where a truck had struck a cyclist, the cyclist had been thrown to the ground and had to be removed from the scene for medical care....
...ay properly rely on information provided at the accident scene by other law enforcement agents or emergency personnel. See Carbone v. State,
564 So.2d 1253 (Fla. 4th DCA 1990). Appellant next contends that the trial court erred in its jury charge on section
316.193(3)(c)2, when it instructed the jury that the state was required to prove that appellant "caused or contributed to the cause of the serious bodily injury." The trial court similarly instructed the jury on the lesser included offense of DUI causing damage to person or property, under section
316.193(3)(c)1, Florida Statutes (1997)....
...ate to prove that the defendant "caused serious bodily injury to (victim)." Fla. Std. Jury Instr. (Crim.) p. 362. Appellant argues that the addition of the words "or contributed to the cause" to the standard instruction constitutes reversible error. Section 316.193(3) proscribes DUI manslaughter, as well as the lesser offenses of DUI causing serious bodily injury and DUI causing damage to person or property of another....
...State,
537 So.2d 564, 567 (Fla.1989), the supreme court addressed a 1986 amendment to the statute governing DUI manslaughter. Prior to 1986, DUI manslaughter was a strict liability crime. See Melvin v. State,
677 So.2d 1317, 1318 (Fla. 4th DCA 1996). In Magaw, the supreme court determined that the 1986 amendment to section
316.193(3) added the element of causation to the crimes proscribed by that section....
...d or contributed to the cause of" the death of the victim by reason of the defendant's operation of a vehicle. See Melvin,
677 So.2d at 1318; Fla. Std. Jury Instr. (Crim.) p. 103. However, the standard jury instructions for the lesser offenses under section
316.193(3) were not similarly amended to provide that the defendant could be found guilty if he "contributed to the cause of" the injury or damage....
...The reasoning of Magaw leads to the conclusion that the trial court correctly charged the jury on the lesser offenses. While the holding in Magaw concerned DUI manslaughter, the court clearly stated that its "construction of the current statute necessarily encompasses the proof required to convict of the lesser crimes under section
316.193(3)." Magaw,
537 So.2d at 567 n. 2. As the statute is written, the same causation element contained in section
316.193(3)(c) applies to DUI/manslaughter, DUI/serious bodily injury, and DUI/damage to person or property....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1989 WL 153664
...PER CURIAM. The state timely seeks a writ of certiorari to review the Palm Beach circuit court's reversal of the county court's conviction of respondent for driving or being in physical control of an automobile while intoxicated (DUI), contrary to section 316.193, Florida Statutes (1987)....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 9 Fla. L. Weekly Fed. B 281, 1995 Bankr. LEXIS 2097
...Paulsen,
886 F.2d 602 (3rd Cir.1989). Both compensatory and punitive damages are subject to nondischargeability. Moraes v. Adams,
761 F.2d 1422 (9th Cir.1985). The applicable law of Florida addressing the unlawful operation of a motor vehicle while intoxicated is found in §
316.193, Fla....
...al faculties are impaired; (b) Until his blood alcohol level is less than 0.05 percent; or (c) Until 8 hours have elapsed from the time he was arrested. The applicable law of Florida regarding the presumption of driving while intoxicated is found in § 316.1934(2)(c), Fla.Stat....
...In addition, based on the testimony of the witnesses addressing the Debtor's conduct while in police custody, abnormal driving, and voice during the 911 call, this Court finds that the Debtor was affected by his drinking to such *1023 an extent that his normal faculties were impaired pursuant to § 316.1934(2)(c), Fla.Stat....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1988 WL 126191
...Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee. DAUKSCH, Judge. This is an appeal from a conviction and sentence for felony driving while under the influence of alcohol (DUI) in violation of section 316.193(2)(b), Florida Statutes (1985)....
CopyCited 3 times | Published | District Court, S.D. Florida | 2003 U.S. Dist. LEXIS 13585, 2003 WL 21800064
...ly revoked their airmen and medical certificates. Thereafter, on July 22, 2002, the State filed a two-count Information criminally charging Hughes and Cloyd with operating an aircraft while under the influence of alcohol in violation of Fla. Stat. §§
316.193(1)(c) [1] and
860.13(1)(a)....
...the actions described in State of Florida v. Christopher Scott Hughes and Thomas Porter Cloyd, Case No. F02-019207B; (5) The effect of this Order is stayed for thirty (30) days to permit any appeal; and (6) This case is CLOSED. NOTES [1] Fla. Stat. § 316.193(1)(c) 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 the person is driving or in actual physical control of a vehicle within this state and: ... (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. Fla. Stat. § 316.193(1)(c)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1995 WL 509286
...Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for appellee. FARMER, Judge. We have before us an order from the county court of Broward County certified to be of great public importance, holding the vehicle impoundment provision in section 316.193(6)(d), Florida Statutes (1993), unconstitutional....
...Defendant was charged with driving under the influence in a vehicle that she owned, to which she pleaded no contest. The court adjudicated her guilty, placed her on probation for six months, and suspended her driver's license for six months. More pertinent to this opinion, relying on section 316.193(6)(d), [1] he ordered that the vehicle *1119 she was driving at the time of the offense be impounded for a period of 10 days following the completion of her probation....
...Of course, in that instance the state sought a permanent deprivation of property that it claimed had been used or acquired as part of a criminal enterprise. But the holdings in Real Property and Lamar apply whether the property owner was involved in the crime or merely an innocent owner of the property so used. In section 316.193(6)(d), the vehicles are not permanently taken; rather they are only temporarily taken, or impounded, after a conviction for drunk driving....
...This lack of standing to assert the constitutional interests of third parties actually disposes of all of defendant's remaining arguments. Her equal protection challenge is largely identical to the due process arguments. REVERSED. GUNTHER, C.J., and STONE, J., concur. NOTES [1] Section 316.193(6)(d) reads as follows: "(6) With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2), subsection (3), or subsection (4): * * * * * * (d) In addition to the pe...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1992 WL 206421
...estion "no"; the second question "no"; and decline to answer the third question. These issues arose in connection with the state's prosecution of the appellees for DUI and/or driving with a blood alcohol concentration higher than .10 in violation of section 316.193, Florida Statutes (1991)....
...racy" of breath testing instruments, these standards are to be tested in accordance with procedures outlined in form 1514 which fails to list the procedure to be used for monthly maintenance or the standard for accuracy. Appellees urged that because section 316.1932(1)(f)1....
...The county court found that rules 10D-42.023 and 10D-42.024 failed to provide standards or directions with regard to which the annual and monthly tests are to be performed concerning accuracy and reproducibility. Thus, the court held that the tests performed did not comply with section 316.1932 and were, therefore, inadmissible in evidence....
...Turning to the second certified question, we determine that HRS' failure to promulgate a rule to provide a test for reliability at the monthly and annual inspections does not preclude the state's use of breath testing results in a criminal trial. The statutory language of section 316.1932(1)(f)1., Florida Statutes (1991), very clearly requires that the rules and regulations precisely specify the test or tests and that they be adopted after public hearing....
CopyCited 3 times | Published | Supreme Court of Florida | 2000 WL 350556
...For the reasons expressed below, we approve Parr and Bell, disapprove State v. Perez,
400 So.2d 91 (Fla. 3d DCA 1981), and quash the Third District's decision in State v. Olivo. Respondent Jorge Olivo (Olivo) was arrested on October 13, 1995, for driving under the influence with serious bodily injury in violation of section
316.193(3)(c)(2), Florida Statutes (1995)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...While the arresting officer testified that the police department required the
detention of all DUI arrestees for at least eight hours after they were arrested, we
need not determine for the purpose of deciding this case whether such a policy
is contrary to Florida law. See § 316.193(9)(b), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1998 WL 204689
...contention. Under the applicable DUI statute, there are two alternative ways to prove that a defendant is driving under the influence of alcohol: *124 (1) By showing that "[t]he person has a blood or breath alcohol level of 0.08 percent or higher." § 316.193(1)(b), Fla. Stat. (Supp.1994). (2) By showing that "[t]he person is under the influence of alcoholic beverages... when affected to the extent that his normal faculties are impaired...." Id. § 316.193(1)(a)....
..."[N]ormal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life." § 316.1934(1), Fla....
...It only need be "established to [the jury's] satisfaction that the driver was `under the influence.'" Id. We agree. Affirmed. NOTES [1] State v. Neil,
457 So.2d 481 (Fla.1984). [2] Melbourne v. State,
679 So.2d 759 (Fla.1996). [3] The applicable portions of the statute state:
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...
...or breath alcohol level of 0.08 percent or higher. .... (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: .... 2. Serious bodily injury to another, as defined in s.
316.1933, is guilty of a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. 3. The death of any human being is guilty of DUI manslaughter, a felony of the second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. Id. §
316.193(1),(3)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1993 Fla. App. LEXIS 4516, 1993 WL 125163
...Such reports, which shall be in the record for consideration by the hearing officer, may include but are not limited to: (a) the uniform traffic citation issued to the driver; (b) an affidavit stating the officer's grounds for belief that the person arrested was in violation of section 316.193; (c) an affidavit of any breath, urine or blood test refusal, HSMV form 72054, ......
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1991 WL 55413
...As a result of the accident the state filed a five-count information against Collins. Count I alleged manslaughter with unlawful blood alcohol level in that he operated a vehicle while having a blood alcohol level of .10 or higher, and by reason of such operation caused Nichols's death, violating section 316.193(1)(a), (b), and section 316.193(3)(a), (b), and (c)(3)....
...ame statutes. Count IV alleged serious bodily injury with unlawful blood alcohol level in that Collins operated the vehicle with a blood alcohol level of .10 or higher and by reason of such operation caused serious injury to Isabel Fugatt, violating section 316.193(1)(a), (b) and section 316.193(3)(a), (b), and (c)(2)....
...Count V alleged DUI with serious bodily injury in that Collins operated the vehicle while under the influence of alcohol to the extent his normal faculties were impaired, and by reason of such operation caused serious injury to Fugatt, in violation of section 316.193(1)(a), (b) and section 316.193(3)(a), (b), and (c)(2)....
...This latter count also arose in the context of Fugatt's injury. This court has held that convicting for both driving under the influence and driving with unlawful blood alcohol level arising out of the same incident is reversible error. Parrish v. State,
561 So.2d 685 (Fla. 4th DCA 1990). Section
316.193 creates only one DUI offense; the offense may be proven either by showing unlawful blood alcohol level (.10 or higher) or by showing impairment due to influence....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1998 WL 171396
...was provided or the right to counsel was validly waived. See Beach,
592 So.2d at 239. Appellant claims, in his sworn motion, that his third DUI conviction was uncounseled and also correctly asserts that it was punishable by up to a year in jail. See §
316.193(2)(a)2c, Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1993 WL 114782
...We find no merit in any of the appellant's other contentions and, accordingly, affirm the remaining convictions without further discussion. The state, in count III of the information, charged the appellant with DUI/serious bodily injury to the person of Kimberly Easter in violation of sections 316.193(1) and 316.193(3), Florida Statutes (1989)....
...given regardless of the degree of proof supporting the conviction for the greater offense. State v. Wimberly,
498 So.2d 929 (Fla. 1986). A necessary lesser included offense is always included in the major offense. Wimberly. Simple DUI, as defined in section
316.193(1), is actually an element of the offense of DUI/serious bodily injury in section
316.193(3)(c)2, which requires a violation of subsection (1)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 13661, 2014 WL 4327954
...1 In passing, we note that the legislature has expressly provided that the
records of the Department of Highway Safety and Motor Vehicles can be used to
show that a defendant has been previously convicted of the offense of driving
under the influence. § 316.193(12), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...V, section 4(b)(3), Florida Constitution (1972). A Tampa police officer arrested Whirley on December 30, 1980, and charged her with driving under the influence of alcoholic beverages, narcotic drugs, barbiturates, or other stimulants in violation of section 316.193(1), Florida Statutes (1979), and Tampa City Code, section 39-2(b). On February 12, 1981, her attorney filed a motion for jury trial and on February 23, the assistant state attorney dropped the original charge and charged her with driving with an unlawful blood alcohol level in violation of section 316.193(3), Florida Statutes (1979)....
...y jury only if the penalty imposed removes the offense from the category of petty offenses defined in Baldwin v. New York,
399 U.S. 66,
90 S.Ct. 1886,
26 L.Ed.2d 437 (1970). Because the maximum sentence that could be imposed on Whirley for violating section
316.193(3) does not exceed six months in jail and a $500 fine, she is not entitled to a trial by jury....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2001 WL 1093048
...e must be supplied. VI. For the reasons stated, we quash the circuit court order and reinstate the county court's ruling. We certify direct conflict with Rutherford, Klossett, and Johnson. Certiorari granted; direct conflict certified. NOTES [1] See § 316.193(3)(c), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1990 WL 133803
...We believe appellee's driving is the additional objective and reasonably specific element which justified Witt's entry into the vehicle and his seizure of the straw. The officer saw what he believed was evidence of other criminal activity: driving under the influence [2] in violation of section 316.193, Florida Statutes (1987)....
...Alleged contraband found subsequent to the illegal search must be suppressed consistent with the derivative evidence Rule." [2] "[O]f alcoholic beverages, and chemical substance set forth in §
877.111, or any substance controlled under chapter 893, ... ." §
316.193(1)(a), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...1st DCA 1960), making relief by writ of common law certiorari appropriate. Administrative Proceedings In accordance with section
322.28(2)(a)3., Florida Statutes (1991), William Wayne Davis' driver's license was revoked upon his third conviction for driving under the influence in violation of section
316.193, Florida Statutes....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2467048
...ce and such evidence need not be uncontradicted or overwhelming, the State must at least show the existence of each element of the crime. Burks v. State,
613 So.2d 441 (Fla.1993). Esler was charged with DUI with serious bodily injury in violation of section
316.193(1), (3), Florida Statutes (2003)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2007 WL 3033536
...BENTON, J. By petition for writ of certiorari, the State asks us to quash the circuit court's decision reversing Bruce R. Clements' conviction for driving while under the influence of alcohol to the extent that his "normal faculties [we]re impaired," § 316.193(1)(a), Fla....
...Clements acknowledged drinking four or five beers, attempted a series of field sobriety exercises, performed poorly, and was arrested. At the jail, he was informed of Florida's Implied Consent Law and the consequences of refusing blood and breath tests, see § 316.1932, Fla. Stat. (2006), but declined to take either test. He was eventually charged with violating section 316.193(1)(a), Florida Statutes (2006) (prohibiting driving while "under the influence of alcoholic beverages ....
...BROWNING, C.J., and BARFIELD, J., concur. NOTES [1] If Clements had taken a blood or breath test that revealed a blood-alcohol level of 0.08 grams per 100 milliliters or greater or a breath-alcohol level of 0.08 grams per 210 liters or greater, he could have been charged under section 316.193(1)(b) or (c), and the State would not have had to prove impairment by any other means. See § 316.193(1)(b) and (c), Fla. Stat. (2006). See also § 316.1934(2), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2000 WL 1532839
...On the remaining issues, we agree with the state that the imposition of the $1,000 fine was valid, even though the court did not orally impose the fine at the sentencing hearing. The fine is mandatory for a fourth or subsequent DUI conviction. See § 316.193(2)(b), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1993 WL 452227
...Coupal then took and failed a field sobriety test; she refused to perform an intoxilyzer test. The Largo police officer who stopped Coupal for speeding then arrested her and issued her a uniform traffic citation charging her with the criminal traffic offense of driving under the influence (DUI). § 316.193, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Larry Morris of Emmanuel, Sheppard & Condon, Pensacola, for appellant. Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee. MILLS, Judge. In this appeal, we are asked to determine whether the statutory presumption of impairment contained in Section 316.1934, Florida Statutes (Supp....
...facts of this case, a violation of the rule in Miranda v. Arizona,
384 U.S. 436,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966), has occurred. We find no error and affirm Hall's conviction for driving under the influence of alcoholic beverages in violation of Section
316.193, Florida Statutes (Supp....
...4%) and the ultimate fact presumed (that Hall was under the influence of alcoholic beverages to the extent that his normal faculties were impaired). Moreover, it is clear that Hall was not denied an opportunity to rebut the State's prima facie case. Section 316.1934(2)(c), Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 23 Fla. L. Weekly Fed. D 2543
...ined that the sentence failed as a downward departure. We were thus in error in specifying that limitation on resentencing. We turn once again to the sentencing statutes to determine if they actually preclude mitigation by a downward departure. *854 Section 316.193(2)(b), Florida Statutes (1997), provides that: "Any person who is convicted of a fourth or subsequent violation of this section is guilty of a felony of the third degree, punishable as provided in s....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 1416976
...lege the essential facts constituting the offense charged. In addition, each count shall recite the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated."). [3] See § 316.193, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 WL 4862629
...1988, and was later sentenced to time served. The defendant affirmed that counsel was not appointed to him and was never waived by him. A clerk's certificate attached to the defendant's motion indicated that the defendant was charged with DUI under section 316.193, Florida Statutes (1987), with an issue date of November 30, 1988 and a disposition date of October 26, 1990. It reflects that the defendant pled no contest to a violation of Fla. Stat. § 316.193 (no accident), was found guilty, and was sentenced to a fine of $1042.50, with no jail time....
...sentence that exceeded six months in jail. The trial court concluded that because "the State has been unable to show he was counseled for such plea or waived counsel, that 1988 case cannot be used as a predicate offense in the instant charge." Under section 316.193(2)(b)1., Florida Statutes (2007), a defendant is subject to felony sanctions for a third DUI offense if one of the prior DUI offenses occurred within ten years of the new offense....
...ed 1988 DUI conviction. Moreover, as we discuss more fully later, the defendant's conviction did not actually result in a term of imprisonment. In 1988, a first conviction for DUI was generally punishable by no more than six months imprisonment. See § 316.193(2)(a)2.a., Fla. Stat. (1987). A greater sentence could be imposed only where the defendant was involved in a collision as the result of his DUI. See § 316.193(3)(c)., Fla....
...NOTES [1] The state points out that under the current statute, a DUI suspect must be held in custody until he is no longer under the influence, his blood or breath alcohol level has dropped to less than 0.05, or eight hours have elapsed since his arrest. See § 316.193, Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1989 WL 52158
...The Florida legislature has proscribed "the killing of a human being by the ... culpable negligence of another" as a second-degree felony. §
782.07, Fla. Stat. (1987). A person who commits the offense of DUI and causes "damage to the property or person of another" is guilty of a first-degree misdemeanor. §
316.193(3)(c)(1), Fla. Stat. (1987). In contrast, one who inflicts "serious bodily injury to another" while committing the offense of DUI is guilty of a third-degree felony. §
316.193(3)(c)(2), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee. HOBSON, Acting Chief Judge. Russell Caverly was charged with driving a motor vehicle while under the influence of alcoholic beverages in violation of section 316.193(1)(a), Florida Statutes (1982). As charged, he was entitled to a jury trial under section 316.1934(4), Florida Statutes (1982)....
...The state further suggests that in granting appellant Russell G. Caverly a jury trial, our decision conflicts with our holding in State v. Whirley,
421 So.2d 555 (Fla. 2d DCA 1982). As noted in our opinion, appellant was charged with driving under the influence of alcoholic beverages in violation of section
316.193(1)(a), Florida Statutes (Supp....
...Therefore, we treated his appeal as one from the circuit court's denial of Caverly's petition for relief and disposed of the matter on its merits. As to whether our opinion conflicts with Whirley: First, we point out that Caverly was charged under section 316.193(1)(a), Florida Statutes (Supp. 1982). In State v. Whirley , Whirley was charged with violation of section 316.193(3), Florida Statutes (1979). In Whirley the defendant was not extended a right to a jury trial by the charging statute, section 316.193(3)....
...We held that defendant did not have a constitutional right to a trial by jury since she was charged with a petit offense as defined in Baldwin v. New York,
399 U.S. 66,
90 S.Ct. 1886,
26 L.Ed.2d 437 (1970). In the case at bench, the defendant Caverly was charged with a violation of section
316.193(1)(a), Florida Statutes (Supp....
...1982). Just as in Whirley, Caverly does not have a constitutional right to a jury trial since this charge also constitutes a petit offense. See Baldwin. However, unlike Whirley, the legislature has now provided that any person who is charged under section 316.193(1)(a) with driving a motor vehicle while under the influence of alcoholic beverages or controlled substances to the extent that his normal faculties were impaired, whether in a municipality or not, shall be entitled to a trial by jury according to the Florida Rules of Criminal Procedure. See § 316.1934(4), Fla. Stat. (Supp. 1982). We recognize the state's concern that now a defendant is entitled to a jury trial on the charge of driving while under the influence of alcoholic beverages, section 316.193(1)(a), but not on the charges of driving with an unlawful blood level, now section 316.193(1)(b), nor driving while intoxicated, section 316.1931, Florida Statutes (Supp....
...1982) (formerly section 860.01), although all three offenses carry the same penalties. Obviously, this incongruency merits legislative attention, but we do not think it any basis to deny a defendant a right accorded by the legislature. We ordered Caverly a jury trial based on section 316.1934(4), Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2008 WL 783278
...any human, rather than for DUI manslaughter. It is clear that Murphy was charged with, entered a plea to, and was sentenced for two counts of DUI manslaughter. In fact, with respect to both counts the judgment cites to the DUI manslaughter statute, section 316.193(3)(c)(3)(A), Florida Statutes (2004)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2000 WL 282339
...Stat.; Fla.App. R. Proc. 9.140(b)(2)(B)(ii) and (iv). Third, Trombley contends the trial court erred in suspending his driver's license for five years pursuant to section
322.28. That statute provides in 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: * * * 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....
...f criminal procedure, which deprived him of due process. The record fails to show any violations by the trial court or the state attorney which warrant reversal of his convictions and sentences. AFFIRMED. PETERSON and GRIFFIN, JJ., concur. NOTES [1] § 316.193(3)(a),(b) and (c)2, Fla. Stat. (1997) [2] § 316.193(3)(a),(b) and (c)1, Fla....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 1989 U.S. App. LEXIS 3198, 1989 WL 16122
...vel of .21; under Florida law, Armenia was legally intoxicated. PROCEDURAL HISTORY The state of Florida charged Armenia with causing the death of Overstreet by operation of a motor vehicle while under the influence of alcoholic beverages. Fla. Stat. 316.1931(2) (driving while intoxicated manslaughter) [hereinafter the DWI-manslaughter statute]....
...fundamental. See Patterson at 201-02 ,
97 S.Ct. at 2322-23 ; Speiser v. Randall,
357 U.S. 513, 523 ,
78 S.Ct. 1332, 1340 ,
2 L.Ed.2d 1460 (1985). In reviewing the issues raised by Armenia on appeal, we find that one is dispositive: Whether Fla.Stat. §
316.1931, the DWI-manslaughter statute, through the Florida Supreme Court’s interpretation and the state’s application, unconstitutionally denied Armenia due process of law because it did not require the state to prove causation....
...ade that element of the offense an irre-buttable and conclusive presumption contrary to the due process principle that the state is required to prove every element of the crime charged beyond a reasonable doubt. Armenia asserts that under Fla. Stat. § 316.1931 , the state must prove: (1) the intoxicated person (2) operated a motor vehicle (3) and by the operation of the vehicle, caused the death of a human being....
...A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief. Carrizales v. Wainwright,
699 F.2d 1053, 1054-55 (11th Cir.1983). Accordingly, we affirm the district court’s denial of habeas corpus relief. AFFIRMED. 1 . Fla.Stat. §
316.1931 (1983) has been repealed and replaced by section
316.193 (Supp.1988). Section
316.1931 provided in pertinent part: Florida Statute
316.1931....
...to drive, be in actual physical control of, or operate within this state any automobile, truck, motorcycle, or other vehicle. Except as provided in subsection (2), any person convicted of a violation of this section shall be punished as provided in s. 316.193....
...(2)(c) If the 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. Fla.Stat. § 316.193 (Supp.1988) provides in pertinent part: 316.193....
...The court affirmed Magaw’s conviction of DWI-manslaughter, however, because "[t]he amendment to the statute did not become effective until October 1, 1986, almost three months after the date of Magaw’s accident.” Although the Florida Supreme Court has now interpreted Fla.Stat. § 316.193(3) to require causation, Armenia is unaffected, as his accident occurred on December 2, 1983....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1999 Fla. App. LEXIS 2543, 1999 WL 123538
...After an automobile accident in the Florida Keys, defendant was detained at the accident scene. He was initially handcuffed, then released. He was asked to perform roadside sobriety tests, which he failed. He was charged with felony driving under the influence (“DUI”) in violation of section 316.193, Florida Statutes (1997), and other offenses....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 WL 2309008
...N.J.G., a seventeen-year-old child ["Appellant"], through counsel, seeks review of a decision of the circuit court denying his petition for writ of prohibition, seeking to preclude the county court of Orange County from exercising jurisdiction over his prosecution for violation of section 316.193 Florida Statutes (2006)....
...Nevertheless, for the reasons explained by the circuit court and from our own review of the pertinent legislation and its history, we reject petitioner's argument that, in enacting section 985.201, the legislature intended that jurisdiction over offenses in chapter 316, such as 316.193, be moved to the juvenile division of the circuit court....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1999 WL 410316
...Hill, Jr., Assistant Attorney General; James W. Rogers, Assistant Attorney General, Bureau ChiefCriminal Appeals, Tallahassee, for Appellee. BENTON, J. Kenneth J. Ackerman appeals his conviction for "DUI Manslaughter-Leaving the Scene" in violation of section 316.193(3)(c)3.b., Florida Statutes (1997)....
...ch the jury could conclude that his blood alcohol level at the time of the accident exceeded .08 percent and that he was then under the influence of alcohol to the extent that his normal faculties were impaired within the meaning of the statute. See § 316.1934(2)(c), Fla....
...1.0012(3), Fla. Stat. (1997). We conclude, however, that the statutory scheme requires scoring sentencing points on account of the victim's death, even though the death of the victim is an element of DUI Manslaughter-Leaving the Scene, proscribed by section 316.193(3)(c)3 b, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2005 WL 1383342
...s. We grant the petition and quash the circuit court's order. Although the court that imposed sentence upon Petitioner for his second conviction for driving under the influence erred by failing to require the ignition interlocking device pursuant to section 316.193(2)(a)3., Florida Statutes (2002), the state attorney did not appeal petitioner's sentence....
...is driving privileges were reinstated, the Department informed petitioner by letter that he would either have to install the device on his vehicles or face revocation of his driver license. Despite the Department's arguments to the contrary, neither section
316.193 nor section
322.16, Florida Statutes (2002), grants the Department authority to require the imposition of the device in the absence of a court order. [1] The *318 unambiguous language of section
316.193 clearly establishes that Florida's trial courts, not the Department, are responsible for ordering the installation of the device upon qualified offenders....
...NOTES [1] We note that the legislature recently enacted section
322.2715(4), to take effect July 1, 2005, which provides that [i]f the court fails to order the mandatory placement of the ignition interlock device or fails to order for the applicable period the mandatory placement of an ignition interlock device under s.
316.193 or s.
316.1937 at the time of imposing sentence or within 30 days thereafter, the department shall immediately require that the ignition interlock device be installed as provided in this section ....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21536699
...MILES,
775 So.2d 950 (Fla.2000)? Daigle next argues that the trial court erred in denying his motion for judgment of acquittal. Daigle correctly argues that the State was required to prove that the manner in which he operated his vehicle caused or contributed to the cause of the crash. See §
316.193(3)(c), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 10143, 2003 WL 21511354
...The hearing officer found that the arresting law enforcement officer had probable cause to believe that Marshall was driving while under the influence of alcoholic beverages or controlled substances. The hearing officer also found that Marshall was lawfully arrested and charged with a violation of section 316.193, Florida Statutes (2001)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 11431, 2008 WL 2851514
LAWSON, J. Steven Morris appeals from his convictions and sentences for driving under the influence of alcohol (“DUI”), within ten years after a prior DUI conviction in violation of section
316.193(2)(b)l., Florida Statutes (2006), and driving while license suspended or revoked (“DWLS”), in violation of section
322.34(2)(a), Florida Statutes (2006)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...On September 18, 1981, Carter, while operating his automobile, was involved in an accident which resulted in the death of Iris McDaniel Parish. He was ticketed at the scene (citation # 971-592Z) for driving under the influence of alcoholic beverages and for unlawful blood alcohol level, both in violation of section 316.193, Florida Statutes....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 WL 2774445
...But, simply crediting Comeaux with the day she spent in jail prior to her plea, against an imposed probationary sentence, did not transform a day of her probationary sentence into an incarcerative sentence. AFFIRMED. PLEUS and COHEN, JJ., concur. NOTES [1] See § 316.193(1), (2), Fla....
...The Nichols court, however, left the states free to guarantee a right to counsel for indigent defendants charged with misdemeanors where there is no prison term imposed, but imprisonment is a possibilityand the issue is currently pending again in the Florida Supreme Court. As for this case, Comeaux' 1989 conviction under section 316.193, Florida Statutes (1989), only subjected her to a potential jail sentence of six months.
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1896381
...The evidence also established that Cloyd, Hughes, and the crew arrived at the airport late because Hughes had overslept. Over defense objection, the State elicited testimony regarding the .08 blood alcohol limitation for operating a motor vehicle contained in section 316.193, Florida Statutes, even though the statute Cloyd and Hughes were charged with violating, section 360.13, contains no such limitation....
...JURY INSTRUCTIONS Inoperability Cloyd argues that, because the aircraft was attached to a tug which controlled the movement of the aircraft, the trial court erred in rejecting his request for a jury instruction on inoperability. Inoperability is a defense to driving a motor vehicle under the influence, pursuant to section 316.193, Florida Statutes (2002). Section 316.193, the driving under the influence statute, provides that, before a person may be found guilty of this offense, the State must prove the following two elements beyond a reasonable doubt: 1....
...o its becoming disabled, and the vehicle's mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused. Jones v. State,
510 So.2d at 1149. Cloyd, however, was not charged with violating section
316.193, the driving under the influence statute....
...on including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise). 14 C.F.R. § 1.1 (1997). As is readily obvious, section
860.13, the statute under which Cloyd was charged and convicted, differs from section
316.193, the driving under the influence statute. The elements are not the same, nor is the proof which is required to sustain a conviction. While the driving under the influence statute, section
316.193, requires that the State prove that the accused was driving or in actual physical control of the vehicle while under the influence, the statute Cloyd was charged with violating, section
860.13, requires operation of the aircraft while under the influence or in a careless or reckless manner....
...h can be committed in two separate ways, we examined other cases where this issue was addressed. In State v. Rolle,
560 So.2d 1154 (Fla.1990), the Florida Supreme Court, in conducting its examination of Florida's Driving Under the Influence statute, section
316.193, concluded that while the pre-1983 version of the statute created two separate offenses, the statute as amended in 1983, created one offense which could be proven in either of two ways....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2005 WL 176423
...riving privilege and that the Department must consider him for reinstatement. Gaskins' driving record reflects convictions for DUI on July 30, 1982, and May 27, 1987, and a conviction for DUI manslaughter on January 14, 1991, all being violations of section 316.193, Florida Statutes....
...Thus, as of July 1, 2003, section
322.271(4) specifically provided as follows: (4) Notwithstanding the provisions of s.
322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted of DUI manslaughter in violation of s.
316.193 and has no prior convictions for DUI-related offenses may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s.
316.193 or former s.
316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2007 WL 188415
...Gonse was sentenced to sixty months in prison on both counts with his sentence on the DWLR count to run consecutively to the sentence on the DUI count. On the DUI count, a fine totaling $7500 was imposed. The record reflects that the $7500 fine consisted of a $2500 fine under section
316.193, Florida Statutes (2004), as well as a $5000 fine under section
775.083, Florida Statutes (2004)....
...motion. We therefore affirm Gonse's consecutive sentences. Gonse next argues that the trial court erred in imposing the fine totaling $7500. Gonse contends that the trial judge improperly imposed two separate fines on the DUI count, one pursuant to section
316.193 and one pursuant to section
775.083. The State responds that the trial court imposed a mandatory fine for DUI consistent with section
316.193. Section
316.193(2)(b)(3) provides: Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s....
...im twenty-five hundred, mandatory" because the most it could give "on a third is twenty-five hundred." It was error for the trial court to impose a fine exceeding $5000. The only authority for a fine for a fourth or subsequent DUI offense comes from section
316.193(2)(b)(3), which refers to the imposition of fines under section
775.083. There is no authority authorizing an additional fine for a fourth or subsequent DUI offense. The trial court relied on section
316.193(2)(b)(2), which addresses the fine for a person convicted of a third DUI: "Any person who is convicted of a third violation of this section ....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1995 WL 18537
...This offense is generally based on a blood alcohol level of .10% or greater. Mr. McAdam argues that his Florida conviction should be sentenced as a first conviction because his prior offense in Colorado was the lesser of that state's alcohol-related offenses. In September 1992, section *1245 316.193(6), Florida Statutes (1991), provided, in part: For the purposes of this section, ......
...fenses as prior offenses. We agree with both the trial court and the circuit court that a Colorado conviction for driving while impaired, even if it is based on a blood alcohol level greater than .05% and less than .10%, is sufficiently similar to a section 316.193 conviction to allow its use as a prior conviction....
...necessary to show that the appellant was acting under the effect of alcohol, I would not be able to agree that certiorari should be denied. Although the results of a blood or breath test may by itself establish a prima facie case of DUI in Florida, § 316.193(1)(a), Fla....
...In both Florida and Colorado, if it is established that 0.05 percent or less by weight of alcohol is in a person's blood or breath, it is presumed that the person is not under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934(2)(a), Fla....
...have been in error by doing so. In this case, however, the appellant does not contend that he was not properly convicted of DWAI in the state of Colorado. He takes the position that the offense of DWAI is not a similar alcohol related offense under section 316.193(6), and therefore, his conviction of that offense may not be used as a predicate for an enhanced sentence....
...of a vehicle. Colo. Rev. Stat. *1246 § 42-4-1202(1)(g). It is this offense that we are dealing with in this matter, and I agree that it qualifies as a similar alcohol related offense for the purpose of enhancing the appellant's sentence pursuant to section 316.193(6)....
...nce, and that the existence of a more serious offense under Colorado law did not alter its analysis. I would reach the same conclusion in this case, and therefore, I agree that a DWAI conviction in Colorado is a similar alcohol related offense under section 316.193(6) and that the appellant's sentence was properly enhanced.
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1990 WL 3233
...It may be that the felony provision in Florida's Racketeer Influenced and Corrupt Organization Act makes section 796.01 unnecessary. §§
895.02(1)(a)15, .04(1), Fla. Stat. (1987). We note that the legislature has previously enacted statutes which subject persons to felony penalties for repeat misdemeanors. §
316.193(2)(b), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2001 Fla. App. LEXIS 269, 2001 WL 37683
...neral public should contain an exclusion for indirect injuries occurring when the insured is "drunk." A person is "drunk" when operating a motor vehicle if he or she has a blood alcohol level of .08 gram per alcohol per 100 milliliters of blood. See § 316.193, Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1989 WL 2031
...The state challenges the circuit court's order prohibiting resumption of trial proceedings in the county court on double jeopardy grounds. We reverse. According to the petition for writ of prohibition filed in the circuit court, defendant Sipe was arrested and charged with driving under the influence in violation of section 316.193, Florida Statutes (1986)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1995 WL 73497
...Butterworth, Atty. Gen., Tallahassee, and Patricia E. Davenport, Asst. Atty. Gen., Tampa, for appellant. Donald P. Day of Berry and Day, P.A., Naples, for appellee. THREADGILL, Judge. The state appeals an order of the Collier County Court that declares section 316.193(6)(d), Florida Statutes (Supp....
...Because the appellee did not have standing to challenge that portion of the statute upon which his constitutional argument was based, we reverse. The appellee's challenge to the statute was based strictly on the due process rights of innocent owners or lienholders in challenging the impoundment of a vehicle under section 316.193(6)(d)....
...1979) (one may not challenge portions of enactment which do not adversely affect his personal or property rights). Thus, the appellee was without standing to challenge the portion of the statute that applies to innocent owners or lienholders. We therefore reverse the order declaring section 316.193(6)(d), Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 3014909
...Petitioner, State of Florida, Department of Highway Safety and Motor Vehicles, seeks certiorari review of an order of the circuit court quashing the suspension of Jefferson McClane's driver's license following his arrest for driving with an unlawful blood alcohol level in violation of section 316.193, Florida Statutes (2002)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...The Department of Highway Safety and Motor Vehicles appeals from an order of the county court which required the Department to revoke Deborah Brandenburg's driver's license, effective nunc pro tunc, to a date different than that of her conviction for DUI, pursuant to section 316.193....
...The arresting officer suspended her license for 180 days, pursuant to section
322.2615(1)(a). The statute provides: A law enforcement officer or correctional officer shall, on behalf of the Department, suspend the driving privilege of a person who has been arrested by a law enforcement officer for a violation of s.
316.193, relating to unlawful blood-alcohol level or breath-alcohol level, ......
...for a first offense.... In turn, subsection (2)(a) provides maximum and minimum times for which a license must be revoked for first convictions, second convictions, and third convictions. That section states: (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...
...not violate double jeopardy. [12] That concept applies to double or multiple criminal punishments. [13] *1075 The two statutes discussed above, sections
322.28 and
322.2616, are not criminal statutes and they do not impose criminal punishments. [14] Section
316.193, entitled "Driving under the influence, penalties," is the criminal statute which provides criminal penalties for this DUI offense, including fines....
...THOMPSON and ORFINGER, JJ., concur. NOTES [1] See Chaachou v. Chaachou,
135 So.2d 206 (Fla.1961); McKinzie v. State,
845 So.2d 316 (Fla. 1st DCA 2003); State v. Schell,
211 So.2d 581 (Fla. 2d DCA 1968); Weisman v. Weisman,
141 So.2d 622 (Fla. 3d DCA 1962)(deemed waived). [2] §
316.193, Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1999 WL 1082477
..."A necessarily included offense is one in which `the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence.'" Overway v. State,
718 So.2d 308, 310 (Fla. 5th DCA 1998) (quoting Brown v. State,
206 So.2d 377, 382 (Fla.1968)). Review of section
316.193 of the Florida Statutes, which defines the offense of DUI manslaughter, and section
782.071 of the Florida Statutes, which defines the offense of vehicular homicide, reveals that the trial court properly determined that vehicular homi...
...(1997). Mr. Wilson was improperly sentenced to a term of 364 days imprisonment. Accordingly, we remand this matter to the trial court for purposes of resentencing. AFFIRMED in part; REVERSED in part; REMANDED. COBB and PETERSON, JJ., concur. NOTES [1] §
316.193(3)(c)3, Fla. Stat. (1997). [2] §
316.192(1), Fla. Stat. (1997). [3] §§
322.34(1);
316.193(3)(c)2, Fla. Stat. (1997). [4] §
782.071, Fla. Stat. (1997). [5] Mr. Wilson's remaining issues on appeal are without merit and do not warrant discussion. [6] §
316.193, Fla....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 1999 U.S. App. LEXIS 31929
...Le subject to deportation
because he was convicted of an aggravated felony. Mr. Le appealed to the Board of Immigration Appeals
("Board") on September 23, 1997. On October 21, 1998, the Board affirmed the immigration judge's removal
order and dismissed the appeal.
1
Fla. Stat. Ann. § 316.193(3)(1996).
2
Fla....
...involves a substantial risk that physical force against the person or property of another may be used
in the course of committing the offense."
2
18 U.S.C. § 16. Mr. Le was convicted under Fla. Stat. Ann. § 316.193(3)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 2514
...The new officer testified at the hearing on the motion to suppress that appellee did not appear to be intoxicated. On her cross-examination, the following colloquy occurred: Q Did you have probable cause to arrest him? A No. At the scene, no, I did not. Appellee's blood alcohol reading was .11. Section 316.193(1), Florida Statutes (1983) provides: (1) It is unlawful and punishable as provided in subsection (2) for: (a) Any person who is under the influence of alcoholic beverages, any chemical substance set forth in s....
...Trooper Roberts testified that he had no opinion regarding whether appellant's normal faculties were impaired at the time of the accident or when the blood sample was ordered. The results of the blood test showed .17 percent by weight of alcohol in appellant's blood. (Emphasis added.) Id. at 917 (footnote omitted). Section 316.1933(1) Florida Statutes (1983) provides: 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...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 20619, 2008 WL 5352101
...of Mr. Ibarrondo. The issue to be resolved is whether the trial court erred in admitting a certified copy of the appellant's driving record as proof that he had three prior DUI convictions. This issue necessarily implicates the constitutionality of section 316.193(12), Florida Statutes (2007). We hold that the statute is constitutional, but certify a question to the Florida Supreme Court for consideration. Mr. Ibarrondo was charged with a violation of section 316.193, Florida Statutes (2004), driving under the influence....
...Ordinarily the State proves the required prior convictions by introducing certified copies of the prior judgments of conviction, together with fingerprint or other evidence associating the defendant with the prior convictions. In this case, however, the State took advantage of section 316.193(12), Florida Statutes (2007), which authorizes the admission of the records of the Department of Highway Safety and Motor Vehicles to show that a defendant has been previously convicted of the offense of driving under the influence....
...Thus, we have previously determined that convictions listed in the driving records of the sort in question are sufficiently tied to the defendant to constitute prima facie evidence of the prior conviction element. Accordingly, the rational connection test is satisfied by this statute and, as applied to Mr. Ibarrondo, section 316.193(12) is constitutional....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 20018, 2009 WL 4927906
...The defendant filed a Notice of Expiration of Speedy Trial Time on November 15, 2004. The State filed a "No Information" on November 19, 2004. On December 1, 2004, the State filed a felony DUI charge in Circuit Court based upon the same misdemeanor DUI together with the requisite two alleged prior DUI convictions. See § 316.193(2)(b), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1989 WL 154853
...She contends, inter alia, that the trial court erred in granting the state's requested instruction on causation, in denying her requested instruction on causation, and in refusing to vacate her conviction for DUI. We agree and reverse. An information was filed charging Satterfield in Count I with DUI manslaughter, § 316.193(3)(c)3, Fla. Stat. (1987), and in Count II with driving under the influence (DUI), § 316.193, Fla....
...toxicated and the death of the victim, in order for Satterfield to be found guilty of DUI manslaughter. She further contends the court erred in refusing to give her requested instruction that it was necessary to prove a causal relationship. Although § 316.193(3)(c), Fla....
...d death of the victim was unnecessary in order to convict the defendant of DUI manslaughter, it did certify the following question to the Supreme Court of Florida: 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....
...State,
537 So.2d 564 (Fla. 1989) ( Magaw II ). In that decision the supreme court answered the certified question in the negative and held that the prior decisions holding a showing of no causal relationship necessary were no longer valid in light of amended §
316.193(3)(c), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2001 WL 871745
...Petitioner, State of Florida, Department of Highway Safety and Motor Vehicles (Department), seeks certiorari review of a circuit court order quashing the Department's suspension of Suzanne Russell's driver's license following her arrest for driving under the influence (DUI) in violation of section 316.193, Fla....
...ions used during the monthly inspections of the breath test machine were prepared by the Florida Department of Law Enforcement (FDLE) or were from a source approved by FDLE and (2) the breath test result affidavit admitted into evidence, pursuant to section 316.1934(5), Florida Statutes (2000), failed to substantially comply with the statute....
...solution used to test the machine was actually the substance required by the administrative rules. We disagree. Betham's testimony demonstrates substantial compliance with the inspection and testing procedures required by the statutes and rules. See § 316.1932(1)(b)(2), Fla....
...the testing procedures used on this breath testing machine, she did not. Next, the Department asserts that the circuit court erroneously concluded that the breath test result affidavit admitted into evidence failed to comply with the requirements of section 316.1934(5), Fla....
...ion of the machine, did not disclose the date of the most recent maintenance of the instrument. Russell argues that maintenance information is specifically required by statute if the affidavit is to be self-authenticating and admissible in evidence. Section 316.1934(5), Florida Statutes, provides: *1076 An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2011 WL 3685842, 2011 Fla. App. LEXIS 13336
...Jamie Allen Hyden seeks review of his judgment and sentence for felony DUI as a fourth-time offender. He argues that the trial court erred in denying his motion to dismiss because he did not have the three qualifying misdemeanor convictions necessary for the felony offense. We agree and reverse. Section 316.193(2)(b)(3), Florida Statutes (2008), provides that a fourth conviction for a DUI misdemeanor constitutes a third-degree felony....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1992 WL 200360
...ving, [5] and one count of leaving the scene of an accident. [6] Defendant filed a series of pretrial suppression motions, including a motion to suppress/motion in limine in which he sought suppression of his blood alcohol test results, arguing that section 316.1932(1)(f), Florida Statutes, applies to all blood testing conducted in Florida and that the Department of Health and Rehabilitative Services ("HRS") failed to comply with the requirements of this statute by not adopting rules for use, maintenance, calibration, testing, upkeep, or repair of the gas chromatograph....
..., because HRS had failed to promulgate rules and regulations establishing standards for use, maintenance, testing, and upkeep of the gas chromatograph, there was no procedure that assured accuracy of blood tests done on such equipment as required by section 316.1932(1)(f)1....
...s constitutional rights of due process and equal protection. In State v. Burke,
599 So.2d 1339 (Fla. 1st DCA 1992), the First District Court of Appeal recently held that HRS has substantially complied with the mandate set forth by the legislature in section
316.1932(1)(f) by adopting the blood alcohol testing rules contained in rule 10D-42.028.030 of the Florida Administrative Code; therefore, the results of blood tests administered pursuant to these rules are admissible evidence. [13] *1386 We agree with the First District that the rules adopted by HRS for blood alcohol testing meet the requirements of section
316.1932(1)(f)1, Florida Statutes; [14] but we also question whether, in the present case, section
316.192(1)(f)1 is the statute that must be complied with. The legislature has enacted two statutes that authorize the withdrawal of blood for the purpose of determining the alcohol content of the blood. Section
316.1932 provides that "any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state" shall be deemed to have consented to an approved blood test for the purpose of determining the alc...
...lood if such person (1) appears for treatment at a hospital, clinic, or other medical facility as a result of his involvement as a driver in a motor vehicle accident, and (2) the administration of a breath or urine test is impractical or impossible. Section 316.1933 provides that 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 beverages has caused the death or serious bodily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof. The latter statute applies to the present case. Section 316.1933 does not have language paralleling the key language of paragraph (1)(f) of section 316.1932 relied on by defendant; instead, paragraph (2)(b) of section 316.1933 requires that the chemical analysis of the person's blood: must have been performed substantially in accordance with methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose....
...The Department of Health and Rehabilitative Services may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analysis, and issue permits which will be subject to termination or revocation at the discretion of the department. § 316.1933, Fla. Stat. (1989). Sections 316.1932 and 316.1933 have similar, but clearly independent functions and the language of the two statutes is different. Section 316.1933 does not reference or incorporate the testing provision of section 316.1932(1)(f). The legislature has maintained this same dichotomy in the subsequent legislation concerning operation of a watercraft while intoxicated. The "driving privilege" statute incorporates 316.1932(1)(f), but the probable cause statute does not. The probable cause statute incorporates section 316.1933(2)....
...implied" by statute as a condition of obtaining a driver's license and the procedure deemed appropriate where law enforcement has probable cause to believe the driver had caused death or serious injury through driving under the influence of alcohol. Section 316.1934 provides: [T]he results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible *1387 into evidence when otherwise admissible... . (emphasis added). We can find no basis to conclude that section 316.1932 controls availability of the section 316.1934 presumption in the case where a blood sample is taken pursuant to section 316.1933. Because it appears that section 316.1932 does not control in this case, we must consider whether the procedure utilized by HRS complies with the terms of sections 316.1933(2)(b) and 316.1934. Sections 316.1933(2)(b) and 316.1934(3) require that a chemical analysis of a person's blood be performed substantially in accordance with methods approved [not "adopted"] by HRS and by a person possessing a valid permit issued by HRS for this purpose....
...This is exactly the procedure that was followed in these cases. HRS had approved the specific method proposed by the FDLE toxicologist in his application and had issued a permit to him to conduct blood analysis using that specific method. Unlike the problem we encountered with breath analysis pursuant to section
316.1932 in State v. Reisner,
584 So.2d 141, rev. denied,
591 So.2d 184 (Fla. 1991), the HRS procedure for testing blood under section
316.1933 has been formally adopted in rules....
...ique has ever produced any inaccurate test result. [15] Nor is there any evidentiary basis to conclude that a single, uniform test method is necessary or practical. The state met its burden at the hearing. Where HRS has promulgated rules required by 316.1933 and the state has followed the rules in conducting the test of defendants' blood, the presumption applies....
...See also, Miller v. State,
597 So.2d 767 (Fla. 1991). Because the question presented by this appeal is one of great public importance, we certify to the Florida Supreme Court the following questions: CAN THE STATE INTRODUCE INTO EVIDENCE PURSUANT TO SECTION
316.1934 BLOOD SAMPLE TESTS RESULTS EVEN THOUGH HRS HAS NOT ADOPTED RULES GOVERNING TESTING AND MAINTENANCE OF EQUIPMENT APPROVED FOR USE IN THE TESTING OF BLOOD SAMPLES? CAN THE STATE INTRODUCE INTO EVIDENCE PURSUANT TO SECTION
316.1934 BLOOD SAMPLE TEST RESULTS CONDUCTED IN ACCORDANCE WITH THE HRS RULES PROMULGATED AS 10D-42.028, ET SEQ....
...esults of appellee's blood alcohol test and in the questions certified to the Florida Supreme Court. However, I cannot subscribe to any suggestion that the legislature intended different requirements regarding the administration of blood tests under section 316.1932(1)(f) and sections 316.1933(2)(b) and 316.1934(3) of the Florida Statutes (1989), depending on whether the method of blood testing is required to be "adopted" or "approved". There is no rational basis to draw a distinction between blood tests in a section 316.1932 DUI case and a section 316.1933 case of driving a motor vehicle while under the influence causing death or serious bodily injury. If the language in sections 316.1933(2)(b) and 316.1934(3) of "approved methods" is to be construed to require less stringent criteria for assuring reliable blood test results, then we are faced with the question of whether such a distinction is reasonable because the effect of such a construction is to require greater reliability for the lesser offense encompassed by section 316.1932. In order to avoid such a construction and because the provisions of section 316.1933 augment the provisions of section 316.1932, I conclude that the provisions of these two sections as well as the applicable provisions of section 316.1934(2) and (3) were intended to be read in pari materia....
...dure, performed the blood test on appellant. There is no indication that the operator deviated from the approved method or that the utilized method would not provide accurate results. Thus, appellee's blood test results are admissible under sections 316.1932(1)(f), 316.1933(2)(b) and 316.1934(2) and (3) of the Florida Statutes (1989) and rules 10D-42.028 through 10D-42.030 of the Florida Administrative Code....
...This evidence would also be admissible if the state is able to satisfy the traditional predicates for admissibility as stated in the majority opinion. NOTES [1] Review of this order is proper pursuant to the ruling in State v. Saufley,
574 So.2d 1207 (Fla. 5th DCA 1991). [2] Whether the blood was drawn pursuant to section
316.1933, Florida Statutes (1989) has not been made an issue in this case. Defendant's first Motion to Suppress, in fact, challenges the sufficiency of the requesting officer's probable cause to believe there was serious bodily injury. [3] §
316.193, Fla. Stat. (1989). [4] §
843.15(1)(a), Fla. Stat. (1991). [5] §
316.192, Fla. Stat. (1989). [6] §
316.061(1), Fla. Stat. (1989). [7] The "due process" claim is based on the lack of adequate standards as required by section
316.1932(1)(f)1....
...that the proficiency testing be "regular," and in light of the evidence in this record that the proficiency testing is done at least every three months by HRS, there is no basis to conclude such a method of testing is inherently defective. Moreover, section 316.1934 expressly provides that insubstantial differences between approved techniques and actual testing procedures in any given case do not invalidate the test results for purposes of the presumption. [12] Fla. Admin. Code Rule 10D-42.031. [13] Section 316.1932(1)(f) provides: [T]he tests determining the weight of alcohol in the defendant's blood shall be administered at the request of a law enforcement officer substantially in accordance with rules and regulations which shall be adopted by the Department of Health and Rehabilitative Services....
...ment of Health and Rehabilitative Services for reliability of result and facility of administration, and shall provide an approved method of administration which shall be followed in all such tests given under this section. [14] Defendant urges that section 316.1932(1)(f) requires HRS adopt rules that include the testing and maintenance of blood testing equipment similar to the requirements for breath testing equipment....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1993509
...accumulated the specified number of convictions for offenses described in subsection (1) . . . within a 5-year period: (1) Three or more convictions of any one or more of the following offenses arising out of separate acts: .... (b) Any violation of s.
316.193, former s.
316.1931, or former s. 860.01; .... (d) Driving a motor vehicle while his or her license is suspended or revoked .... Section
316.193 and the other earlier statutory provisions referred to in subsection (1)(b) of section
322.264 relate to driving under the influence....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 WL 3539510
...hiness doctrine" for the corpus delicti rule almost fifty years ago. See Carwise v. State,
821 So.2d 308, 309 (Fla. 5th DCA 2002) (Harris, J., concurring) (citing Opper v. United States,
348 U.S. 84,
75 S.Ct. 158,
99 L.Ed. 101 (1954)). NOTES [1] See §
316.193, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2012 WL 3101520, 2012 Fla. App. LEXIS 12519
...The trial court denied the motion, concluding that the sentence was neither illegal nor ambiguous. We affirm. In his motion, appellant sought to clarify the authority for the permanent revocation of his driver’s license that occurred with his 1995 plea to felony driving under the influence, in violation of section 316.193(2)(b), Florida Statutes....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2007 WL 1202261
...Based on this testimony, the trial judge denied the motion to suppress and permitted the blood-alcohol test results to be admitted as evidence. Under Florida's Implied Consent Law, certain evidence of DUBAL creates a presumption that the driver was impaired. § 316.1934(2)(c), Fla. Stat. (2006) (results of any test administered in compliance with §§ 316.1932 and 316.1933 give rise to the presumption that driver was impaired). To give rise to the presumption of impairment, the tests must comply with regulations promulgated by the Florida Department of Law Enforcement. § 316.1933(2)(b), Fla. Stat. (2006). The blood-alcohol evidence admitted in this case complied with section 316.1933(2)(b)....
...pert testimony explains the science behind the test and the outcome.
382 So.2d at 699. In Robertson v. State,
604 So.2d 783 (Fla.1992), the court held that the statutory presumption of impairment is not available when the State has not complied with section
316.1933(2)(b)....
...Hence the general jury verdict on both the impairment alternative and the DUBAL alternative is not reversible because the jury was instructed on the presumption of impairment. Both DUI alternatives were supported by proper evidence. Affirmed. SHAHOOD and MAY, JJ., concur. NOTES [1] See § 316.193(1)(a) and (b), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1993 WL 125103
...Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee. DANAHY, Acting Chief Judge. For an accident with injury and property damage occurring on February 20, 1991, Barron Thomas Thompson, Jr., appeals his DUI convictions and sentences for violations of section 316.193(3)(c)(2), Florida Statutes (1989), a third degree felony, and of section 316.193(3)(c)(1), a first degree misdemeanor....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 WL 906169
...nths and imposed 12 months probation. No other conditions or punishment were imposed or mentioned by the sentencing judge. In particular, the trial court did not impose the ignition interlock device as a part of his sentence, as required by statute. § 316.193(2)(a)3, Fla....
...ng such a provision. The trial court denied his motion for a temporary injunction against the suspension of his license. DMV suspended his license because he failed to install the devices on his vehicles. He now appeals the denial of the injunction. Section 316.1937(1) provides that the "court ... shall order placement of an ignition interlock device in those circumstances required by s. 316.193." Fla. Stat. (2004). Section 316.193(2)(a)3 specifies that the ignition interlock device is imposed as punishment for a second DUI conviction, not as an administrative decision by an agency empowered to do so when it finds facts so warranting....
...uble Jeopardy Clause by resentencing the defendant to an increased sentence."). As the Aultman court said: "We share in the frustrations of the Department. There is no doubt that the sentencing judge failed to impose the criminal penalty mandated by section 316.193(2)(a)(3) [sic] and that the State Attorney's office failed to take any action to have this error corrected....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 WL 859706
...Sabree did not object to either instruction. On the verdict form, the jury did not specify whether it found Sabree guilty for having an unlawful BAL or for having cocaine in his system; or for both. In order to be guilty of driving under the influence pursuant to section 316.193(1)(a)-(c), Florida Statutes (2004), a person must be either (a) "affected to the extent that [his] normal faculties are impaired" by alcohol or a controlled substance, which includes cocaine, (b) have a "blood-alcohol level of 0.08 or...
...rested on alternative grounds. One of the grounds is legally proper; having a BAL over 0.08. However, the other, having a "controlled substance to-wit: cocaine" is not because simply having cocaine in one's system does not establish impairment under section 316.193(1)(a)-(c)....
...r se impaired. As to substances other than alcohol, the statute does not establish any per se amount. Instead, a person who is "affected to the extent that the person's normal faculties are impaired" is considered under the influence. See Fla. Stat. 316.193 (2004).
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 13181, 2015 WL 5164909
...Appellee testified he pled guilty to the charged offenses because his attorney told him doing so would pave the way to seek a non-state prison downward departure sentence. But'the trial court could not have entered such a lenient sentence without the State’s waiver because, under section
316.193(3), Florida Statutes (2009), “A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment of 4 years.” See State v. Schumacher,
99 So.3d 632, 633 (Fla. 1st DCA 2012) (holding sentence of two years’ community control followed by eight years’ probation for DUI manslaughter was an illegal sentence in light of four-year mandatory minimum under section
316.193(3)); see also State v....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2003 WL 22047760
...Initially, Byrd contends the trial court erred in sentencing him to 280 days imprisonment, followed by one year probation on count I, driving under the influence. The state agrees that the sentence violates the legal maximum sentence of 180 days pursuant to section 316.193, Florida Statutes, but that the trial court's oral pronouncement would not....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 5225190, 2013 Fla. App. LEXIS 14811
WALLACE, Judge. Christopher Brooks challenges the judgment and sentence imposed following a jury verdict finding him guilty of felony driving under the influence (DUI) under sections 316.193(1) and 316.193(2)(b)(l), Florida Statutes (2010)....
...Brooks’ performance on a field sobriety test, and the results of a breathalyzer test confirmed that Mr. Brooks was intoxicated. Because this was his third DUI within a ten-year period, the State charged Mr. Brooks with felony DUI, a third-degree felony. See § 316.193(2)(b)(l)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 14663, 2007 WL 2609387
...ctions. See Fender v. State,
2007 WL 1755617 (Fla. 4th DCA June 20, 2007). The State was required to prove that Fender had three prior DUI convictions to reclassify her current DUI conviction as a felony. The State alleges that this court overlooked section
316.193(12), Florida Statutes (2004) in making this determination....
...nts and a report from the fingerprint analyst matching Fender to two of her prior bookings along with a certified copy of her driving record were not enough to prove the existence of Fender's prior DUI convictions. However, based on the amendment of section 316.193(12), Florida Statutes (2004), the holding in these cases is no longer valid. Section 316.193(12) provides: If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence....
...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....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 18801, 2012 WL 5350149
...The trial court conducted a sentencing hearing on April 25, 2011. The court adjudicated appellee guilty and sentenced him to two years of community control, followed by eight years of probation that included a number of special conditions. The State timely appealed. Section 316.193(3), Florida Statutes (2009), states, “A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment for 4 years.” *633 The legislative language is unambiguous....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1995 WL 627454
...COBB, Judge, concurring in part, dissenting in part. I concur in the affirmance of the judgments and sentences of the trial court. I see no reason to certify a question that is answered by the unambiguous language of a statute, in this case, section
775.084(1)(c), Florida Statutes. NOTES [1] §
316.193(3)(c)3, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 16072, 2011 WL 2031302
...upreme court's more recent opinion in Bautista v. State,
863 So.2d 1180 (Fla.2003). In Bautista, the court considered whether the occurrence of multiple deaths in a single DUI-related crash allowed for multiple convictions for DUI manslaughter under section
316.193(3)(c)3., Florida Statutes (2002). Id. at 1181. Under that statute, a person commits DUI manslaughter if the person, by reason of driving under the influence, "causes or contributes to causing... the death of any human being." §
316.193(3)(c)3., Fla. Stat. (2002) (emphasis added). The court held that Grappin's "a/any" test did not preclude multiple convictions under section
316.193(3)(c)3....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1990 WL 170567
...er belief that the driver was intoxicated. At trial, appellant objected to the admission of the results of the blood alcohol tests on the ground that the person who performed the test, Dr. Wayne Duer, was not certified by HRS as required by statute. Section 316.1933(1), Florida Statutes (1987), provides: (1) 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...
...death or serious bodily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof... . (emphasis added) Subsection (2)(b) of section 316.1933, Florida Statutes (1987) contains the restriction relied upon by appellant: A chemical analysis of the person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approv...
...ining on homicide cases. On this record, we agree with the trial court and adopt its recommendation. Nevertheless, we recognize that criminal statutes are to be construed in favor of accused persons and that whether the certification requirements of 316.1933 can be satisfied through supervision is a close question....
...revailing FDLE procedures, we conclude this issue should be certified as a matter of *863 great public importance to our supreme court. There is an alternative basis for our affirmance. At least one other court has concluded that the requirements of section 316.1933, Florida Statutes, need not be met at all so long as the state has probable cause to extract and test a driver's blood....
...In State v. Quartararo,
522 So.2d 42 (Fla. 2d DCA), rev. denied,
531 So.2d 1354 (Fla. 1988), the Second District Court of Appeal read State v. Strong,
504 So.2d 758 (Fla. 1987), to hold test results admissible without regard to the requirements of section
316.1933, Florida Statutes, provided the state could satisfy the traditional predicates for admissibility, including test reliability, the technician's qualifications, and the test results' meaning. Based on Strong and Quartararo, it appears that section
316.1933 either merely creates a convenient shorthand evidentiary device for admission of testing done in compliance with the statute, or it establishes minimal standards for admissibility of testing in DUI cases where there is probable cause...
...did not communicate this intent very clearly. Also, there is language in Strong implying that the failure to comply with the "protection of drivers whom the government requires to give blood samples under the implied consent law," including sections
316.1932, -.1933 and -.1934, Florida Statutes (1987), may render inadmissible test results taken in violation of the statute. Strong,
504 So.2d at 759; see also State v. Walther,
519 So.2d 731 (Fla. 1st DCA 1988). We are frankly unsure whether this extra-statutory track for proof of violation of section
316.193, Florida Statutes, exists in a fact situation like Quartararo and the present case where blood was taken under compulsion for investigatory purposes rather than for medical treatment, as in Strong....
...ly what its evidentiary alternatives (and burdens) are in such cases, we certify to the supreme court as a matter of great public importance the following: (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 AN 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 SECTIONS 316.1933 TO PROVE A VIOLATION OF SECTION 316.193 OR MUST THE STATE INTRODUCE COMPETENT PROOF *864 WHOLLY INDEPENDENT OF THE STATUTE? AFFIRMED....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 6451, 2011 WL 1707210
...9.140(c)(l)(N). It argues that the trial court’s reasoning is invalid or not supported by competent, substantial evidence. We agree, in part, and remand for further consideration. Mr. Torres pleaded no contest to two counts of DUI manslaughter. See § 316.193(3)(c)(3)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2013 WL 2359106, 2013 Fla. App. LEXIS 8591
...1st DCA 2012), the State appealed a sentence imposed on the defendant after his conviction for DUI manslaughter, arguing that the sentence was illegal because it did not include a four-year mandatory minimum prison sentence. The First District agreed: Section 316.193(3), Florida Statutes (2009), states, “A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment for 4 years.” The legislative language is unambiguous....
...2d DCA 2004). Accordingly, the defendant’s sentence is reversed, and this matter is remanded for re-sentencing to include the statutory four-year mandatory minimum term of imprisonment. REVERSED and REMANDED. ORFINGER, C.J. and BERGER, J„ concur. . §§ 316.193(1); 316.13(3)(c)3.a„ Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 7815, 2008 WL 2219518
...ed with a misdemeanor offense for his refusal. Lamore was also charged with DUI and DWLR. Significantly, Florida’s DUI and DWLR statutes not only apply to a person “driving,” but also to persons in “actual physical control” of a vehicle. §§
316.193(1),
322.01(15) &
322.341, Fla....
...calm and dispassionate consideration of the evidence and the merits by the jury.”) (quoting Silva v. Nightingale,
619 So.2d 4, 5 (Fla. 5th DCA 1993)). Accordingly, we affirm Lamore’s convictions and sentences. GRIFFIN and MONACO, JJ., concur. . §
316.193(2)(b)3....
CopyCited 1 times | Published | District Court of Appeal of Florida
death of another human being in violation of section
316.193, Florida Statutes, for driving under the influence
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Petitioner does not assert any challenge to the process he was afforded. Because the circuit court applied the correct law, we deny the writ. The pertinent facts are not in dispute. Petitioner was arrested on two separate occasions for driving under the influence, in violation of section 316.193, Florida Statutes....
...At each opportunity for review, Petitioner challenged the duration of the revocation contending that section
322.28(2)(a) 2. *662 did not apply to the sequence of events in his case. It provides:
322.28 Period of suspension or revocation.- * * * (2) In a prosecution for a violation of s.
316.193......
...ll prescribe the period of such revocation in accordance with the following provisions: * * * 2. Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for a violation of the provisions of s. 316.193......
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 7206, 2011 WL 1879427
...the time. A police officer found Fitzgerald sitting, intoxicated, in the driver's seat of a parked car. She readily produced the car keys upon the officer's request. She was charged with driving under the influence, a third-degree felony pursuant to section 316.193(2)(b)(1), Florida Statutes (2008), because she allegedly has two prior DUI convictions....
...He observed that her speech *77 was slurred and that she smelled of alcohol. He conducted a DUI investigation and ultimately arrested Fitzgerald. Her breath tests revealed alcohol levels of .201 and .218, which exceeded the .08 threshold established by section 316.193(1)(c). Section 316.193(1) makes it a crime for a person to be "driving or in actual physical control of a vehicle within this state" while under the influence of alcohol or drugs....
CopyCited 1 times | Published | Supreme Court of Florida | 2016 WL 2757011
...ce of the
State Courts Administrator, Tallahassee, Florida,
for Petitioner
-5-
APPENDIX
28.1 DRIVING UNDER THE INFLUENCE
§ 316.193(1), Fla....
...extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 316.193(4), Fla....
...Give as applicable.
§
316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§
316.1934(1), Fla....
...893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. §
316.1934(2)(a),
and (2)(b), and (2)(c), Fla....
...demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
... operable at the time of the alleged offense, then you should find the defendant
guilty, if all the other elements of the charge have been proved beyond a
reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE — 316.193(1)
CATEGORY ONE CATEGORY TWO FLA....
...That instruction was
amended in 1995 and 1998; both instructions were merged into a revised
instruction in 2000, which was amended in 2009 [
6 So. 3d 574] and 2016.
28.1(a) DRIVING UNDER THE INFLUENCE CAUSING
PROPERTY DAMAGE OR INJURY
§
316.193(3)(a)(b)(c)1, Fla....
...liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to causing [damage to the property of (victim)]
[injury to the person of (victim)].
Give if applicable. § 316.193(4), Fla....
...Give as applicable.
§
316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§
316.1934(1), Fla....
...893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. §
316.1934(2)(a),
and (2)(b), and (2)(c), Fla....
...demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...alleged offense, then you should find the defendant guilty, if all the other
elements of the charge have been proved beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING PROPERTY
DAMAGE OR INJURY — -
316.193(3)(a)(b)(c)1.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
DUI
316.193(1) 28.1
Attempt
777.04(1) 5.1
- 12 -
Comment
This instruction was adopted in 2009, In re Standard Jury Instructions in
Criminal Cases-Report No. 2008-08, [
6 So. 3d 574] (Fla. 2009), and amended in
2009 [
18 So. 3d 523], and 2016.
28.2 FELONY DRIVING UNDER THE INFLUENCE
§
316.193(2)(b)1 or §
316.193(2)(b)3, Fla....
...extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 316.193(4), Fla....
...Give as applicable.
§
316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§
316.1934(1), Fla....
...893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. §
316.1934(2)(a),
and (2)(b), and (2)(c), Fla....
...demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...guilty, if 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....
...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....
...Driving under the Influence conviction.
- 16 -
Lesser Included Offenses
FELONY DRIVING UNDER THE INFLUENCE – [THIRD OFFENSE
WITHIN 10 YEARS OF A PRIOR CONVICTION] [FOURTH
OFFENSE] —
316.193(2)(b)1. or
316.193(2)(b)3.
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Driving under
316.193(1) 28.1
the influence
Attempt
777.04(1) 5.1
Driving under
316.193(3)(a)(b)(c)1 28.1(a)
the influence
causing property
damage or injury
Comments
This instruction should be used for Felony Driving under the Influence based
on prior convictions....
...See State v.
Harbaugh,
754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2009 [
6 So. 3d 574] and amended in 2016.
28.3 DRIVING UNDER THE INFLUENCE CAUSING
SERIOUS BODILY INJURY
§
316.193(3)(a)(b)(c)2., Fla....
...grams of alcohol per [100 milliliters of blood] [210
liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to causing serious bodily injury to (victim).
Give if applicable. § 316.193(4), Fla....
...Give as applicable.
§
316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§
316.1934(1), Fla....
...Stat.
Alcoholic beverages are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
§
316.1933, Fla....
...substantial risk of death, serious personal disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (2)(b), and (2)(c), Fla....
...demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...the charge have been proved beyond a reasonable doubt.
- 20 -
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY
INJURY—316.193(3)(a)(b)(c)2.
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
Driving under the 316.193(3)(a)(b)(c)1. 28.1
influence causing injury 28.1(a)
Driving under the 316.193(1) 28.1
influence
Driving under 316.193(3)(a)(b)(c)1....
...Stat., contains an
explicit willfulness requirement.
This instruction was adopted in 2016.
28.8(b) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Serious Bodily Injury or Death)
§
316.1935(4)(b) and §
316.027, Fla....
...Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Injury or Death and then Causing Serious
Injury Bodily Injury or Death) —
316.1935(4)(b) and
316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA.STAT....
...NO.
Leaving Scene of a
316.027(2)(c) 28.4
Crash Involving
Death*
Leaving the Scene of
316.027(2)(b) 28.4
a Crash Involving
Serious Bodily
Injury*
Aggravated Fleeing
316.1935(4)(a) 28.84
Fleeing to Elude LEO
316.1935(1) 28.6
Leaving Scene of a
316.027(1)(b) 28.4
Crash Involving
Death
Leaving Scene of a
316.027(1)(a)(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO
316.1935(1) 28.6
Fleeing to Elude LEO
316.1935(3)(b) 28.81
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
- 29 -
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to
Police or Fire
316.072(3) 28.18
Department Officials
Comments
* §
316.1935(4), Fla....
...2d 1081] and amended in
2011 [
73 So. 3d 136], and 2015 [
166 So. 3d 161], and 2016.
28.8(c) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Injury or Death)
§
316.1935(4)(b) and §
316.061, Fla....
...- 31 -
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Injury or Death) —
316.1935(4)(b) and
316.061
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Aggravated Fleeing
316.1935(4)(a) 28.85
Fleeing to Elude LEO
316.1935(1) 28.6
Leaving the Scene of a
316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
Fleeing to Elude LEO
316.1935(3)(b) 28.81
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police
316.072(3) 28.18
or Fire Department
Officials
Comments
* §
316.1935(4), Fla....
...3d 136], and 2015 [
166 So. 3d 161], and 2016.
28.8(d) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Injury or Property Damage to Another)
§
316.1935(4)(a) and §
316.027 Fla....
... Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Injury or Death and then Causing Injury or
Property Damage to Another) —
316.1935(4)(a) and §
316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA.STAT....
...NO.
Leaving Scene of a
316.027(2)(c) 28.4
Crash Involving
Death*
Leaving Scene of
316.027(2)(b) 28.4
Crash Involving
Serious Bodily
Injury*
Fleeing to Elude LEO
316.1935(1) 28.6
Leaving Scene of a
316.027(1)(b) 28.4
Crash Involving
Death
Leaving Scene of a
316.027(1)(a)(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO
316.1935(1) 28.6
Fleeing to Elude LEO
316.1935(3)(b) 28.81
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to
Police or Fire
316.072(3) 28.18
Department Officials
Comments
* §
316.1935(4), Fla....
...2d 1081] and amended in
2011 [
73 So. 3d 136], 2015 [
166 So. 3d 161], and 2016.
28.8(e) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another)
§
316.1935(4)(a) and §
316.061, Fla....
...devices used exclusively upon stationary rails or tracks.
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving A Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another) —
316.1935(4)(a) and
316.061
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Fleeing to Elude LEO
316.1935(1) 28.6
Leaving the Scene of a
316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
- 38 -
Fleeing to Elude LEO
316.1935(3)(b) 28.81
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police
316.072(3) 28.18
or Fire Department
Officials
Comments
* §
316.1935(4), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2003 WL 22240267
...Real Property,
588 So.2d 957 (Fla.1991), and Lamar v. Universal Supply Co. Inc.,
479 So.2d 109 (Fla.1985). In finding no constitutional defect in the failure to give a pre-seizure notice apart from the arrest and its notice of the criminal violation, we said: "In section
316.193(6)(d), the vehicles are not permanently taken; rather they are only temporarily taken, or impounded, after a conviction for drunk driving....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1989 WL 29020
...Public Defender, Bartow, for appellee. PER CURIAM. Appellee Wayne Griffith entered pleas of guilty to two counts of driving under the influence of alcohol. Because of Griffith's extensive prior record for this same offense, both charges were prosecuted as felonies. § 316.193(2)(b), Fla....
...tate prison sanction." The trial court also withheld adjudication of guilt. The state argues, and Griffith concedes, that section
316.656, Florida Statutes (1985), precludes the trial court from withholding adjudication of guilt for any violation of section
316.193....
...The sentencing requirements of this section are mandatory and cannot be circumvented. State v. Muoio,
438 So.2d 160 (Fla. 2d DCA 1983). The state also contends that the trial court was required to assess a fine of no *917 less than $1,000.00. They rely upon section
316.193(2)(a)3, Florida Statutes (1985), which established fines of no less than $1,000.00 and no more than $2,500.00 "for a third or subsequent conviction." However, that statute was amended by Chapter 86-296, sections 1 and 29, Laws of Florida, and the revised statute was in effect at the time of Griffith's offenses....
...t between a third D.U.I. conviction and a fourth or subsequent conviction, the statute now provides an escalating schedule of mandatory fines and maximum jail sentences depending upon whether the conviction is the offender's first, second, or third. § 316.193(2)(a), Fla. Stat. (1987). Fourth and subsequent convictions, however, are dealt with in a separate subsection, 316.193(2)(b), which specifies only that the offense is a felony of the third degree and makes no reference to fines....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2007 WL 858626
...ejudice its forfeiture action regarding Johnnie Lee Rife's motor vehicle. Determining that the trial court incorrectly applied the Florida Contraband Forfeiture Act, we reverse. Rife was arrested for driving under the influence (DUI) in violation of section 316.193 of the Florida Statutes. Because Rife had twice previously, within ten years, been convicted of DUI, his third violation was deemed a felony pursuant to section 316.193(2)(b)1....
...If either section is applicable, forfeiture is allowed. Under the alleged facts of this case, section
932.701(2)(a)5. of the Florida Statutes was applicable and, accordingly, the dismissal of the forfeiture action was error. REVERSED and REMANDED. MONACO and TORPY, JJ., concur. NOTES [1] Section
316.193(2)(b)1. of the Florida Statutes provides as follows:
316.193....
...775.082, s.
775.083, or s.
775.084. In addition, the court shall order the mandatory placement for a period of not less than 2 years, at the convicted person's sole expense, of an ignition interlock device approved by the department in accordance with s.
316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July, 2003. §
316.193(2)(b)1., Fla....
...(2005)(emphasis added). [2] Section
322.34(9)(a) of the Florida Statutes provides:
322.34. Driving while license suspended, revoked, canceled, or disqualified * * * (9)(a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s.
316.193 is subject to seizure and forfeiture under ss....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 3350, 2012 WL 669844
...On July 30, 1982, O'Brien pled no contest to, and was adjudicated guilty of driving with an unlawful blood alcohol level (DUBAL). At the time, this offense was separate from driving while under the influence (DUI) and required proof of a blood alcohol level of .10 percent or greater. § 316.193(3), Fla....
...Such a claim is more appropriate through direct appeal or arguably, within the two (2) year timeframe for filing a 3.850 motion to withdraw plea. While this Court is aware that conviction of a nonexistent crime is fundamental error, DUBAL was an existing crime in 1982 pursuant to section 316.193, Florida Statutes (1982)[sic]....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 8188, 2010 WL 2292123
...As the state concedes, imposition of the mandatory minimum sentence was error. Appellant's sentence was controlled by the law in effect at the time of his offense. See Larkins v. State,
739 So.2d 90, 96 n. 5 (Fla.1999). At the time appellant was sentenced in 2008, the statute required a four-year mandatory minimum. See §
316.193(3)(c)3., Fla. Stat. (2008). However, in February 2007, the time of the offense in this case, the statute did not impose a mandatory minimum. See §
316.193(3)(c)3., Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...DUI manslaughter may be proven by
either establishing that the defendant was driving or in actual physical control of a
vehicle: (1) while “under the influence of alcoholic beverages . . . to the extent that
the person’s normal faculties are impaired,” § 316.193(1)(a), Fla. Stat.; or (2) while
having “a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters
of blood,” § 316.193(1)(b).
The evidence in this case reflects that the State did not need to rely on the
blood alcohol results to convict Bertonatti of DUI manslaughter failing to render
aid....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2008 WL 2465566
...ttrell was the result of a consensual encounter. As we did in Marshall and Dean, we conclude that the circuit court misapplied the law by reweighing the evidence. WRIT GRANTED, Decision QUASHED and REMANDED. SAWAYA and, COHEN, JJ., concur. NOTES [1] § 316.193, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2005 WL 1420858
...ant. Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. This is an appeal from two convictions of manslaughter while driving under the influence of alcohol (DUI) in violation of section 316.193(3)(c)3, Florida Statutes (2001)....
...ense, the state must prove, among other things, that the "(defendant) caused or contributed to the death of (victim)." Appellant argues that the charge as given broadens the information by including a theory not authorized in the underlying statute, section 316.193(3)(c)3....
...ffect, a strict-liability statute, and that the legislature had for the first time added to it a causation element. In particular, the court observed: We conclude that the 1986 amendment introduced causation as an element of the crimes proscribed by section 316.193(3)....
...Appellant's friends collected him between 5:30 and 6:00 a.m., two to three hours following the draw. At the hearing on the motion to suppress, appellant's father testified that had appellant been allowed uninterrupted telephone access with him, he would have advised his son of his right, provided by section 316.1932(1)(f)3, Florida Statutes (2001), to obtain an independent blood test....
...ood test. While he was attempting to ask his father his legal options, his phone was taken from him. It is reasonably clear that at such time appellant was under custodial arrest. In fact, as the majority noted, a blood draw cannot be demanded under section 316.1933(1)(a), Florida Statutes (2001), unless the investigating officer has probable cause to believe the defendant operated his vehicle while under the influence, resulting in the death or serious bodily injury of another person....
...al, alluded to in the court's order, appears a problematic remedy in that, as the record discloses, law enforcement impeded appellant's opportunity to be made aware of such right. Although Smallridge lacked the right to refuse the test authorized by section 316.1933(1)(a), he retained the choice under the statute of seeking an independent test; that option, however, was effectively denied him by the officers' active interference with his right to confer with an attorney....
...ependent test once probable cause was established to believe that he had operated a vehicle while under the influence of alcoholic beverages, resulting in the death of another human being. Such interpretation is clearly at variance with the terms of section 316.1932(1)(f)3, authorizing the administering of an independent test, in addition to that administered at the direction of a law-enforcement official pursuant to section 316.1933(1)(a)....
...775.082, the sentence required by the code must be imposed." [1] Unruh was arrested only for driving under the influence of alcohol, and therefore had the right, unlike Smallridge, not to consent to a test, a consequence that could result in a suspension of his driving privileges. § 316.1932(1)(a)1, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1996 WL 332336
...The defendant timely filed a motion in arrest of judgment contending that the trial court erred by instructing the jury on vehicular homicide because the elements of that crime were not charged in the information. DUI manslaughter is defined, in pertinent part, by section 316.193, Florida Statutes (1993): (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 within this...
...under the influence of intoxicating liquor or a substance controlled by Florida Statutes, Chapter 893, and was affected to the extent that his normal faculties were impaired or had a blood alcohol level of .08 percent or higher; contrary to Chapter 316.193, Florida Statutes, and against the peace and dignity of the State of Florida....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...fied perpetrator made this
comment during crime, thus, testimony tended to prove identity).
The time when Appellant ingested the methamphetamine was
relevant to proving that he was impaired when the accident
occurred, an element of DUI manslaughter. § 316.193(3), Fla.
Stat....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1989 WL 84058
...According to the evidence presented to the trial court in connection with the defendant's motion to dismiss, the defendant operated a motor vehicle while drunk and caused damage to four separate vehicles. [1] In each of the subject counts, the defendant was charged under Section 316.193(3)(c)1., Florida Statutes (1987). Section 316.193 provides, in pertinent 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 such person is driving or in actual physical control of a vehicle within t...
...These counts do not merely charge the offense of DUI, but DUI with the additional element of causing damage to the property of another. The logical extension of the appellant's argument would mean that a drunk driver who causes multiple deaths could be prosecuted for only one count of DUI manslaughter under Section 316.193(3)(c)3. [2] Damage to the property of another by a drunk driver is proscribed (Section 316.193(3)(c)1.) by the legislature just as the injury or killing of another by a drunk driver is proscribed (Section 316.193(3)(c)1., 2. and 3.). It is abundantly clear from Section 316.193 that the legislature contemplated separate offenses where different victims are injured or killed, or where the driver causes damage to different victims' property....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1021644
...Psomas's attorney filed a notice of appearance, a demand for discovery, and a request for a copy of the information in the county court. On May 26, 1999, the State filed an amendment to the traffic citation in county court, allegedly amending the charge from misdemeanor DUI under section 316.193(2)(a), Florida Statutes (1999), to felony DUI under section 316.193(2)(b), Florida Statues (1999). That same day, the State also filed a felony information in circuit court charging Psomas with felony DUI under section 316.193(2)(b) based on the April 9 citation....
...Since the speedy trial period had in fact expired, discharge was required. Following this ruling, Psomas filed a motion to dismiss the felony DUI charge in the circuit court on the basis of Woodruff. The trial court reluctantly granted this motion. This appeal followed. Section 316.193, Florida Statutes (1999) provides in 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 control of a veh...
...DUI case when the underlying misdemeanor DUI charge had been dismissed. See Woodruff,
676 So.2d at 977. However, the majority also held: 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....
...impossible to prove the current misdemeanor DUI conviction. Without the current misdemeanor DUI conviction, the charge of felony DUI could not be proven. . . . . 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. Id. at 978 (emphasis added). In dissent, Justice Wells contended that the statute did not require a conviction on *1087 the current misdemeanor charge. Rather, to prove a felony DUI charge under section 316.193(2)(b), the State must simply prove each of the elements listed in subsection (1) and the defendant's convictions on three or more prior misdemeanor DUI charges....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1999 WL 445691
...Since Pea cannot show that his trial strategy would have changed if the prior convictions were also alleged in Count I, the state argues, the sentencing by the trial court should be affirmed. In State v. Rodriguez,
575 So.2d 1262 (Fla.1991), the defendant was charged with third degree felony DUI pursuant to section
316.193(2)(b), Florida Statutes....
CopyCited 1 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 511, 2012 WL 2849211, 2012 Fla. LEXIS 1363
...ion of the defendant's driver’s license for a period of not less than 180 days or more than one year. See §
322.28(2)(a)1., Fla. Stat. (2011). In addition, the trial court must: fine the defendant not less than $500.00 or more than $1,000.00, see §
316.193(2)(a)1.a., Fla. Stat. (2011), place the defendant on probation for a period not to exceed one year, see §
316.193(6)(a), Fla. Stat. (2011), require the defendant to complete a substance abuse course, see §
316.193(5), Fla. Stat. (2011), order the defendant to participate in public service or community work project for a minimum of fifty hours, see §
316.193(6)(a), Fla....
...(2011), and order the impoundment or immobilization of the vehicle that was "operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name” for ten days, see id. The defendant also faces up to six months in jail. See § 316.193(2)(a)2.a., Fla. Stat. (2011). Penalties are increased if the defendant "causes or contributes to causing: [djamage to the property or person of another,” or "[sjerious bodily injury” or death of another. See § 316.193(3)(c)1.2.3„ Fla. Stat. (2011). The penalties are also enhanced if the defendant has a blood-alcohol level or breath-alcohol level of 0.15 or higher, or if the defendant is "accompanied in the vehicle by a person under the age of 18 years.” See § 316.193(4), Fla....
CopyCited 1 times | Florida 2nd District Court of Appeal
...the
statutorily required substance abuse course conducted by a licensed DUI
program, we are compelled to reverse for resentencing. We affirm his
judgment without comment.
Garrett was charged with and convicted of misdemeanor DUI in
violation of section
316.193(1), Florida Statutes (2023). Under section
316.193(2)(b)2, the trial court was permitted to sentence Garrett to "a
fine of not less than $2,000 or more than $5,000 and by imprisonment
for not more than 12 months." However, section
316.193(5) provides:
"The court shall place all offenders convicted of violating this section on
monthly reporting probation and shall require completion of a substance
abuse course conducted by a DUI program licensed by the [D]epartment
[of Highway Safety and Motor Vehicles ("DHSMV")] under s.
322.292."
Section
316.193(5) also requires that the course "include a psychosocial
evaluation of the offender" and, if necessary, substance abuse treatment.
At sentencing, the State asked the court to impose a sentence of 363
days in jail with one day of probation. Defense counsel argued, in
relevant part, that the probationary period must be long enough to
enable Garrett to complete the requirements of section
316.193(5). As
indicated previously, the trial court's sentence included twelve months'
probation conditioned on 364 days in jail, with credit for one day of time
served, plus completion of the statutory requirements contained in
section
316.193(5).
On appeal, Garrett argues that his sentence is illegal because the
jail portion of his sentence does not provide him with enough time to
complete the statutorily mandated substance abuse course. The State
2
argues that Garrett's sentence is not illegal because he has already
completed two substance abuse courses prior to the imposition of his
sentence.
Under section
316.193, a defendant's sentence "must 'include a
probationary period that, at a minimum, is of sufficient length to permit
[the defendant] to complete a substance abuse course pursuant to
section
316.193(5).' " Archer v....
...Thus, we affirm Garrett's judgment but reverse his
sentence and remand for the trial court to conduct a de novo sentencing
hearing and to impose a probationary period of a sufficient length to
allow Garrett to complete the substance abuse course requirement of
3
section
316.193(5). See Archer,
332 So. 3d at 26; Coullias v. State,
417
So. 3d 515, 518 (Fla. 1st DCA 2025) (concluding that a sentence under
section
316.193 "must include a term of probation that allows for a
defendant to complete a substance abuse course"); Bell v. State,
329 So.
3d 157, 159 (Fla. 4th DCA 2021) (recognizing that the total sentence
under section
316.193 may not exceed the statutory maximum and
"must include a probationary period of sufficient length to allow for
completion of a substance abuse course").
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and VILLANTI,...
CopyCited 1 times | Published | District Court of Appeal of Florida
with felony driving under the influence. See §
316.193(2)(b)(1), Fla. Stat. (2016). Contending
CopyCited 1 times | Florida 3rd District Court of Appeal
...Attorney General, for appellee.
Before FERNANDEZ, MILLER, and GOODEN, JJ.
MILLER, J.
A jury convicted appellant, Oscar David Osorio, of a single count of
driving under the influence (“DUI”) causing property damage, in violation of
section 316.193, Florida Statutes (2024)....
...2d 1197, 1200 (Fla. 1998). The State is thus
4
ordinarily precluded from arguing that the defendant has assumed a duty to
refute any element of the crime. See Jackson,
575 So. 2d at 188.
Codified in section
316.1932, Florida Statutes (2023), Florida’s implied
consent law provides, in pertinent part:
A person who accepts the privilege extended by the laws of this
state of operating a motor vehicle within this state is, by operatin...
...r 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....
...The refusal to submit to a chemical or physical
breath test upon the request of a law enforcement officer as
17
provided in this section is admissible into evidence in any
criminal proceeding.
§ 316.1932(1)(a)1.a, Fla....
CopyCited 1 times | Published | Supreme Court of Florida
...s,
Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
-4-
APPENDIX
7.8 DRIVING UNDER THE INFLUENCE MANSLAUGHTER
§§ 316.193(3)(a), (3)(b), and (3)(c)3., Fla....
...alcohol per [100 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
child].
Give if §§ 316.193(3)(a), (3)(b), and (3)(c)3.b., Fla....
...e crash, after
trying to fulfill the requirements listed above as much as possible, shall
immediately report the crash to the nearest office of a duly authorized police
authority and supply the information specified above.
Give if applicable. § 316.193(4), Fla....
...Give as applicable.
§
316.003(95), Fla. Stat.
“Vehicle” is every device in, upon, or by which any person or property
is or may be transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§
316.1934(1), Fla....
...as
pregnant or that the defendant intended to cause the death of the unborn
child.
-7-
When appropriate, give one or more of the following instructions on the
presumptions of impairment established by §§ 316.1934(2)(a), (2)(b), and (2)(c),
Fla. Stat.Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....
...that the
defendant was not under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...However, if you are
convinced that the vehicle was operable at the time of the alleged offense, then
you should find the defendant guilty, if all the other elements of the charge
have been proved beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE MANSLAUGHTER — 316.193(3)(A),
(3)(B), AND (3)(C)3.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Driving under the 316.193(1) 28.1
Influence
Driving under the 316.193(3)(a), 28.3
influence causing (3)(b), and
serious bodily injury (3)(c)2.
Driving under the 316.193(3)(a), 28.1(a)
influence causing (3)(b), and
damage to person or (3)(c)1.
property
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 Fla. App. LEXIS 2957, 2013 WL 645830
...We affirm Woodbury’s conviction but write to explain why his arguments fail on appeal. On December 29, 2010, Woodbury was arrested for DUI. On March 1, 2011, an information was filed charging Woodbury with felony DUI based on two prior DUI convictions. See § 316.193(2)(b)(l), Fla....
...e circuit court of jurisdiction to proceed through trial on the surviving misdemeanor petit theft.”
463 So.2d 351, 361 (Fla. 1st DCA 1985). The First District extended this holding, finding it “equally applicable to felony DUI prosecutions under section
316.193(2)(b).” Madison v....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 555409, 2012 Fla. App. LEXIS 2660
...Highway Patrol,
429 So.2d 1322, 1324 (Fla. 5th DCA 1983) (jury issue was presented regarding whether troopers caused an increased risk to an intoxicated person by allowing him to stand between cars during a traffic stop without warning him of any danger). The estate also argues that section
316.193(9), Florida Statutes (2007), applies to this case. We disagree. Section
316.193(9) provides that the police may not release a person whom they arrest for driving under the influence until: (a) the person was no longer under the influence; (b) the person’s blood-alcohol level or breath-alcohol level was less than 0.05; or (c) until eight hours elapsed from the time of the arrest. §
316.193(9), Fla....
CopyCited 1 times | Florida 3rd District Court of Appeal
...James Uthmeier, Attorney General and Lourdes B. Fernandez,
Assistant Attorney General, for appellee.
Before LINDSEY, LOBREE, and GOODEN, JJ.
LINDSEY, J.
William Joseph Delgado appeals his conviction and sentence for
violating section 316.193(1), Florida Statutes (2025), or Driving Under the
Influence of alcohol or drugs by driving a golf cart....
...1 Because the trial court
committed no reversible error, we affirm.
BACKGROUND
In October of 2023, Key West Police arrested and cited Delgado for
Driving Under the Influence and Causing Damage to Property in violation of
section 316.193(3)(a), (b), and (c)(1), Fla....
...9.140(b)(1)(A).
2
Richardson v. State,
246 So. 2d 771 (Fla. 1971).
2
struck Morrison’s testimony and ordered Delgado be “charged [and tried for]
Driving under the influence, contrary to Florida Statute
316.193(1) thus
reducing the charge by eliminating the property damage component of the
original charge.”3
At trial, the State introduced testimony of individuals who saw Delgado
enter his golf cart in an inebriated state....
...n or about October 16,
2023” because all witnesses testified that the event occurred on October 15,
2023. Delgado also argued that no jury could reasonably conclude that
Delgado operated a vehicle under the influence of alcohol in violation of
section 316.193(1), Fla....
...objections. The trial court also gave curative instructions to the jury every
time an improper statement was made.
Delgado then gave his closing argument. The jury deliberated and
found Delgado guilty of Driving Under the Influence pursuant to section
316.193(1)....
...tate.’” Id. (quoting Knight v.
State,
186 So. 3d 1005, 1012 (Fla. 2016)). And generally, an appellate court
will not reverse a conviction supported by competent, substantial evidence.
See Troy v. State,
948 So. 3d 635, 646 (Fla. 2006).
Section
316.193(1)(a), Florida Statutes (2025), or Driving Under the
Influence....
...lcoholic
beverages, any chemical substance 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 . . . .
§
316.193(1)(a), Fla....
...(emphasis added).
“Such normal faculties include, but are not limited to, the ability to see,
hear, walk, talk, judge distances, drive an automobile, make judgments, act
in emergencies, and, in general, normally perform the many mental and
physical acts of daily life.” § 316.1934(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1999 WL 68678
...Butterworth, Attorney General, Tallahassee and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant. Donald P. Day of Berry, Day & McFee, P.A., Naples, for Appellee. CAMPBELL, Acting Chief Judge. The State challenges the trial court order finding that section 316.193(6)(d), Florida Statutes (1997), violated the due process clause and was accordingly unconstitutional....
...mate state objective." *382 Following a hearing, the court agreed with appellee and found the statute unconstitutional on due process grounds. The trial court order also certified to us the following as a question of great public importance: Whether section 316.193(6)(d), Florida Statutes, affords third party owners adequate due process of law when they have not been notified or given an opportunity to be heard in a meaningful hearing prior to the issuance of an order taking their personal property and impounding it for the statutorily required period. We observe first that the issue of the constitutionality of the statute was not properly presented to the trial court for consideration. Annco did not follow the proper procedure for attacking the impoundment of its vehicle. Under section 316.193(6)(d), a third party owner or lienholder may challenge the impoundment by filing a civil complaint in county court....
...statute, we must reverse the court's determination that the statute is unconstitutional. However, if the issue had been properly presented to the trial court, we would be compelled to reverse on appeal because the Fourth District has concluded that section 316.193(6)(d) does not violate due process....
...ner was promptly given notice and an opportunity for an immediate hearing after the seizure. [T]he holdings in Real Property and Lamar apply whether the property owner was involved in the crime or merely an innocent owner of the property so used. In section 316.193(6)(d), the vehicles are not permanently taken; rather they are only temporarily taken, or impounded, after a conviction for drunk driving....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2004 WL 2923049
...The statute, however, lists "manslaughter" as a qualifying offense, but does not specifically say that "DUI manslaughter" qualifies. Our task, accordingly, is to determine if the manslaughter designation is generic and covers DUI manslaughter within its definitional ambit. DUI Manslaughter is defined in Section 316.193(3)(c)3, Florida Statutes (2002)....
...Briefly, section
775.084(1)(b)(1), Florida Statutes (1989), indicated that before an HFO sentence could be imposed, a defendant had to have been previously convicted of one or more of a number of felonies, including "manslaughter." The defendant in White had been convicted under the predecessor statute to section
316.193(3)(c)3, because while driving under the influence of alcohol, he struck and killed a bicyclist....
...r is a variety of manslaughter, and that the legislature intended to include it within the ambit of the PRR Act. Accordingly, we affirm the judgment and sentence rendered by the trial court. AFFIRMED. SAWAYA, CJ., and PETERSON, J., concur. NOTES [1] § 316.193(3)(c)3, Florida Statutes (2002)....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit | 2009 U.S. App. LEXIS 27524, 2009 WL 4827505
...ng his
supervised release. We disagree and AFFIRM his sentence.
I. BACKGROUND
In March 2004, English pled guilty to a felony DUI at the Naval Air Station
in Pensacola, Florida, in violation of Florida Statute §
316.193(2)(b) and 18 U.S.C.
§§ 7 and 13. This was English’s seventh DUI offense. Florida law prescribes that
a conviction for a fourth or subsequent DUI is a felony in the third degree, subject
to a maximum five-year term of imprisonment. See Fla. Stat. Ann. §§
316.193(2)(b)3 and
775.083(3)(d) (2002)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1999 WL 1191480
...dismissal of lesser charges instead of a plea disposition. In Woodruff, the defendant was charged with felony driving under the influence (DUI) because, in addition to his current DUI offenses, he had two prior DUI convictions. He was charged under section
316.193, which has a statutory scheme similar to section
322.34 (DWLS), whereby the offense is graded in degrees by the number of prior violations....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 7794, 1991 WL 150408
...cott's license. We grant certiorari, quash the circuit court's order and direct it to consider the case on its merits. On October 5, 1990, Scott, a resident of New Hampshire, was arrested in Lee County for driving under the influence, a violation of section 316.193, Florida Statutes (1989)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2003 WL 21990260
...le a motion to withdraw his plea. Accordingly, we affirm without prejudice to Bogan's right to seek collateral relief in the trial court. See Byrd v. State,
419 So.2d 725 (Fla. 5th DCA 1982). AFFIRMED. SHARP, W. and PLEUS, JJ., concur. NOTES [1] See §
316.193;
316.193(3)(a), (b), (c), 2.;
316.193(3)(a), (b), (c), 1., Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1999 WL 618163
...Beach,
592 So.2d 237 (Fla.1992), we reverse with directions that his conviction be reduced from a felony to a misdemeanor. We also certify a question concerning Beach 's continued viability after the decision in Nichols v. United States,
511 U.S. 738,
114 S.Ct. 1921,
128 L.Ed.2d 745 (1994). Repeated violations of section
316.193(1), Florida Statutes (1997) ("Driving under the influence; penalties"), are punishable with increasing severity. First, second, and third violationseach a misdemeanor may be punished by progressively greater fines and progressively longer jail terms. §
316.193(2)(a), Fla. Stat. (1997). A fourth conviction is a felony of the third degree and still harsher sanctions are authorized. §
316.193(2)(b), Fla....
...As contemplated by Beach, he filed a motion accompanied by an affidavit he had executed, averring that a 1982 misdemeanor conviction on which the state relied for the present felony conviction 1) "was punishable under Florida law in effect at that time by more than six months' imprisonment. An excerpt from Section 316.193, Florida Statutes, is attached"; 2) that he was indigent at the time; 3) that counsel was not appointed; and 4) that he did not waive the right to counsel....
...s a result of the uncounseled conviction,"
585 So.2d at 930can be distinguished because the offense with which Mr. Kirby was charged in 1982, his second for driving under the influence of alcohol, could have resulted in nine months' incarceration. §
316.193(2)(b)2., Fla....
...SING UNCOUNSELED CONVICTIONS AS PREDICATES FOR A FELONY CONVICTION EVEN THOUGH THE UNCOUNSELED CONVICTIONS DID NOT RESULT IN INCARCERATION AT THE TIME? We reverse and remand with directions that Mr. Kirby be adjudicated guilty of a misdemeanor under section 316.193, Florida Statutes (1997), and resentenced accordingly....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2001 WL 420518
...eedy trial period and moved for a discharge of the misdemeanor. Prior to the county court's order of discharge, the State filed an information on February 3, 2000 in circuit court, charging the defendant with his fourth misdemeanor DUI offense under section 316.193, Florida Statutes (1999). The State also charged the appellee with a felony DUI under section 316.193(2)(b), Florida Statutes (1999)("[a]ny person who is convicted of a fourth or subsequent violation of this section is guilty of a felony of the third degree")....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1997 WL 199180
...Paramedics who had responded to the accident, actually did the blood draw at the accident scene. Johnson's blood alcohol level was .09. Defense counsel moved to suppress the results of the blood test on the ground that there was no probable cause justifying the officer's request. Section 316.1934(2) provides that the results of blood tests performed pursuant to section 316.1933 are admissible in any civil or criminal trial and a test result of .08 or greater, is prima facie evidence that the person was under the influence of alcoholic beverages. Section 316.1933 prescribes the methods and procedures which must be followed in conducting a blood test in order to make it admissible and to establish it as a basis for the statutory presumption. They are not at issue in this case. Probable cause for the officer's request for a blood test is contested. Subsection (1) of section 316.1933 provides a law enforcement officer may order or compel a blood test if he or she: [H]as probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, ......
...Johnson was the driver of the car. We hold that both trial judges erred in suppressing the blood test evidence in this case. Accordingly we reverse and remand for further proceedings. REVERSED and REMANDED. HARRIS and GRIFFIN, JJ., concur. NOTES [1] § 316.193, Fla.Stat....
...riminal trial may testify as to any statement made to the officer by the person involved in the accident if that person's privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and shall be admissible into evidence in accordance with the provisions of s. 316.1934(2)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1041992
...y Safety and Motor Vehicles (DHSMV) has administrative authority "to place restrictions on driver['s] licenses which would include the placement of ignition interlock devices," although such restrictions were not part of Karz's sentence. We reverse. Section 316.193(2)(b)(1), Florida Statutes (2003), requires that after a third conviction of driving under the influence (DUI), "the court shall order the mandatory placement ......
CopyPublished | Florida 2nd District Court of Appeal
...ant.
Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-
Knox, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Elliott David Daniels appeals a final judgment and sentences
for a misdemeanor count of DUI pursuant to section 316.193,
Florida Statutes (2019), and a misdemeanor count of refusal to
submit to testing pursuant to section 316.1939(1)....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 12536, 2001 WL 1013589
ALLEN, C.J. The appellant in this direct criminal appeal challenges her conviction pursuant to section 316.193(3)(c)2, Florida Statutes....
...ing serious bodily injury where only the defendant driver has been injured, we reverse the appellant’s conviction and remand this case for entry of judgment and imposition of sentence for the lesser included offense of driving under the influence. Section 316.193(3)(c)2, which has remained materially unchanged since 1987, makes it a third degree felony to operate a vehicle while under the influence and cause, as the result of such operation, “[sjerious bodily injury to another, as defined in s. 316.1933.” (Emphasis added). Section 316.1933(1), in turn, provides that if a law enforcement officer has probable cause to believe that a motor vehicle driven by ......
...The driver of a vehicle was not encompassed within the definition of serious bodily injury until the statute was amended in 1988. Ch. 88-5, § 4, at 195, Laws of Fla. This amendment was apparently a legislative response to appellate decisions interpreting section
316.1933(1) as authorizing a blood test only where a person other than the driver had been killed or seriously injured. See, e.g., State v. Perez,
531 So.2d 961 (Fla.1988). It appears, however, that the legislature failed to contemplate the impact of this amendment upon a section
316.193(3)(c)2 prosecution. Because of the amendment, section
316.193(3)(c)2 is now internally inconsistent....
...Although it specifically requires an injury “to another,” it includes a term that is defined as including “the driver.” In accordance with the rule of construction set forth in section
775.021(1), Florida Statutes, we resolve this obvious ambiguity in the appellant’s favor and conclude that section
316.193(3)(c)2 does not authorize a conviction of DUI causing serious bodily injury where only the driver has been injured....
CopyPublished | Florida 4th District Court of Appeal | 9 Fla. L. Weekly 1898, 1984 Fla. App. LEXIS 14807
under the influence of alcohol in violation of section
316.193, Florida Statutes (1981), and filed a motion
CopyPublished | Florida 3rd District Court of Appeal
...3d DCA
2021) (citations omitted).
BACKGROUND
In early 2019, Hodges was charged by information with several
alcohol-related crimes, including driving under the influence (“DUI”) with
serious bodily injury and damage to property or person. See § 316.193(1),
(3), Fla....
...See §
907.041(4)(c)4., Fla. Stat. (“[C]onditions that
would support a finding . . . that the defendant poses a threat of harm to the
community include, but are not limited to, any of the following: a. The
defendant has previously been convicted of any crime under s.
316.193, or
of any crime in any other state or territory of the United States that is
substantially similar to any crime under s.
316.193.”)....
CopyPublished | Supreme Court of Florida | 2017 WL 4296307
...person “driving or in actual physical control of a vehicle” while impaired by alcohol or other substances, including individuals who drive without ever having obtained a license and those who drive without having an exemption to' licensure. See § 316.193, Fla....
...ion (2) within a 5-year period: (1) Three or more convictions of any one or more of the following offenses arising out of separate acts: (a) Voluntary or involuntary manslaughter resulting from tire operation of a motor vehicle; (b) Any violation of s. 316.193, former s. 316.1931, or formers....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 12292, 1998 WL 658264
...We reverse because the majority of courts that have considered the issue have concluded that simple negligence is an element of the crime of DUI manslaughter in Florida. We farther find that the prior bad acts evidence was improperly admitted. The pertinent portion of the manslaughter by intoxication statute provides: 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 ás provided in subsection (2) if such person is driving or in actual physical control of a vehicle w...
...State, the Florida Supreme Court opined that this statute, as amended in 1986, contained an explicit requirement of .causation: 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)....
...The standard instruction clearly requires causation, but does not mention negligence or deviation from a reasonable standard of care. Very recently the Supreme Court has adopted a revised DUI manslaughter instruction, again citing Magaw as authority for the causation element: 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: *291 Elements 1....
...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....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2230, 1988 Fla. App. LEXIS 4301, 1988 WL 98589
DOWNEY, Judge. Pursuant to Florida Rule of Appellate Procedure 9.160(e), the County Court of Indian River County has certified to this court as a question of great public importance the following question: Does Fla.Stat. 316.193(6)(c), as amended, require the imposition of a 30 day minimum mandatory period of jail incarceration when the second conviction is within five (5) years of the third conviction but the first conviction is not within five years of the third? W...
...On July 29, 1987, appellant was sentenced in the County Court of Indian River County to pay a fine of $1,000 plus court costs, as well as incarceration in the county jail for a period of forty-five days with a thirty-day mandatory minimum for a conviction of driving under the influence in violation of section 316.193, Florida Statutes (1987)....
...It is appellant’s contention that the mandatory minimum provision of section 316.-193(6)(c) may be invoked only if all three of the requisite convictions occur within a period of five years of each other. The trial judge rejected that interpretation and we believe rightly so. Section 316.193(6) provides: (a) For the first conviction thereof, the court shall place the defendant on probation for a period not to exceed 1 year.......
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2258, 1985 Fla. App. LEXIS 16035
...The state has filed a petition for a writ of certiorari from the order of the circuit court which reversed a county court order denying a motion to suppress a blood alcohol test. Defendant was charged by traffic citation with driving with an unlawful blood alcohol level contrary to section 316.193, Florida Statutes (1983)....
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 14102, 2004 WL 2112708
...severity level have merit. We remand for resentencing with a corrected scoresheet to a guidelines sentence. Gill was convicted of offenses including first-degree felony DUI manslaughter with failure to give information and render aid in violation of section 316.193(3)(c)(3)(b), Florida Statutes (Supp.1996)....
...evel 8 offense. Gill contends that level 7 was the proper offense severity level, while the State asserts that level 9 was the appropriate level. We are thus confronted with three different theories of how the offense severity level for violation of section 316.193(3)(c)(3)(b) should be determined. The resolution of this question turns on the effect of the provision of section 921.0012(3)(i), Florida Statutes (Supp.1996), establishing the offense severity level for violations of section 316.193(3)(c)(3)(b). The different theories concerning the resolution of this question stem from the circumstance that Gill’s offense was committed and section 316.193(3)(c)(3)(b) and the pertinent provision of section 921.0012(3)© were enacted and became effective during the period between the October 1, 1995, effective date of the 1995 sentencing guidelines and the May 24, 1997, effective date of the legislature’s readoption of the 1995 guidelines following Heggs. See Trapp v. State, 760 So .2d 924, 928 (Fla.2000). Before section 316.193(3)(c)(3)(b) establishing the first-degree felony offense for DUI manslaughter with failure to give information and render aid became effective, there was no first-degree felony offense for DUI manslaughter. See § 316.193(3)(c)(3), Fla....
...(Supp.1996); ch. 96-388, § 51, at 2351, Laws of Fla. The trial court concluded that the 1996 amendment to section 921.0012(3)© was invalidated by the subsequent invalidation of the 1995 guidelines in Heggs. The trial court also concluded that the adoption of section 316.193(3)(c)(3)(b) “validly created a new degree of DUI/manslaughter.” The trial court reasoned that the offense severity ranking for Gill’s offense should be determined under the 1994 guidelines provision ranking DUI manslaughter....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 9429, 1991 WL 188011
...Petitioner, Homer Leo Wills, Jr., seeks a writ of prohibition to stop any further proceedings in a driving under the influence case. We grant the writ and discharge petitioner. Petitioner, was arrested on November 18, 1990, and charged with a misdemeanor count of driving under the influence. § 316.193(3)(c)(l), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 2299, 1987 Fla. App. LEXIS 10297, 1987 WL 3915
PER CURIAM. The state appeals a county court order dismissing an information against appellee and declaring section
316.1934, Florida Statutes (1985), unconstitutional. This court has jurisdiction pursuant to section
26.012, Florida Statutes (1985). Appellee was charged with driving under the influence of alcohol pursuant to section
316.193(1), Florida Statutes (1985). He thereafter filed a motion to declare a portion of another statute, section
316.1934, invalid. He asserted that because section
316.1934(2)(c) provides that a blood alcohol level of 0.10 or more is prima facie evidence of impairment, it unconstitutionally shifts the burden of proof of one of the essential elements of section
316.193(l)(a) (the element of impairment) to the defendant. The county court granted the motion and dismissed the information. The court found that the state intended to offer ap-pellee’s blood alcohol reading at trial as proof of impairment, pursuant to section
316.1934. To do so, the court held, would create an unconstitutional mandatory re-buttable presumption. On appeal, the state contends that appel-lee prematurely raised the constitutionality of section
316.1934 in a pretrial motion, because prior to actual application of the alleged burden-shifting statute at trial, there can be no constitutional violation....
CopyPublished | Florida 1st District Court of Appeal
...On Appellant’s
motion, the trial court authorized Appellant to perform community
service at a rate of $10 per hour in lieu of paying fines and court
costs. As to the fines, this alternative is only permissible with
respect to the DUI count (for which Appellant was fined $3,000 *).
See § 316.193(6)(m), Fla....
...Former
section 27.3455, Florida Statutes, which authorized trial courts to
allow a defendant to perform community service in lieu of paying
* This fine was authorized pursuant to the jury finding that
Appellant had a breath-alcohol level of 0.15 or higher. See §
316.193(4)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal
...d
drugs, and that her vehicle contained alcohol bottles, hydrocodone
containers, and other items indicative of impaired driving. The
victim’s blood-alcohol content was 0.17, twice the legal limit for
which a presumption of impairment applies under section
316.1934(2)(c), Florida Statutes (2018)....
...However, the witness
1 “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.”
§ 316.1934(2)(c), Fla....
...All
relevant evidence is admissible, and relevant evidence is that
which tends to prove or disprove a material fact. §§
90.401-.402,
Fla. Stat. (2018).
The third element of DUI manslaughter requires that a
defendant “cause or contribute to causing” the death of a victim
while operating a vehicle while impaired. §
316.193(3)(c)3., Fla.
Stat....
...2d at 567; Clark,
315 So. 3d at 780. Because
Appellant presented evidence that he caused or contributed to the
accident, there is no reasonable possibility that the error of
excluding the evidence of the victim’s intoxication contributed to
the verdict. See §
316.193(3)(c)3., Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2001 Fla. App. LEXIS 13314, 2001 WL 1104509
...In counts two through five, the caption at the top of the information listed the offense of driving under the influence for each of the four counts and listed the degree of -each offense as a third-degree felony. In each instance, however, the body 'of the information cited to section 316.193(3)(c)l, Florida Statutes (1997), 1 and alleged that Scharf, while driving under the influence, caused injury to another person....
...On remand, if the trial court again denies Scharfs claim without an evidentiary hearing, it shall attach those portions of the record that conclusively refute the claim. Reversed and remanded for further proceedings. PARKER, A.C.J., and WHATLEY, J., Concur. . Section 316.193(3)(c)l, Florida Statutes (1997), states that any person who, by reason of operating a vehicle while driving under the influence as defined by section 316.193(1), causes damage to the properly or person of another commits a first-degree misdemeanor....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 2037, 1984 Fla. App. LEXIS 15053
...Appellant, the State of Florida, seeks review of the sentence withholding adjudication of guilt in count I of the information against Bruce Stankovitch, appellee. We reverse. Appellant contends that section 316.-656(1), Florida Statutes (1983), expressly prohibits a court from withholding adjudication for violation of section
316.193(1), Florida Statutes (1983). On April 27, 1983, appellee was charged by information with manslaughter in count I, pursuant to section
782.07 and section
316.193(1)....
...47 (1982) (effective July 1, 1982, ch. 82-155, Laws of Florida). That section provides: Notwithstanding the provisions of section
948.01, no court shall suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of section
316.193 or section
316.1931. Here, appellant was charged with violation of section
316.193(1)....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 9769, 1996 WL 531699
...tMs ground. However, because Singer did not receive the proper credit under Tripp v. State,
622 So.2d 941 (Fla.1993), we reverse the demal on tMs claim. Singer was convicted of driving under the influence in case 92-7018, a third-degree felony under section
316.193(2)(b), Florida Statutes (1991), and he received a probationary split sentence....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 9770, 1995 WL 548346
...1st DCA 1960), making relief by writ of common law certiorari appropriate. Administrative Proceedings In accordance with section
322.28(2)(a)3., Florida Statutes (1991), William Wayne Davis’ driver’s license was revoked upon his third conviction for driving under the influence in violation of section
316.193, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 9414, 1993 WL 356914
...Therefore, simple negligence cannot be used to bootstrap a misdemeanor into a felony. We affirm the trial court based on Winters and Joyce . HALL, A.C.J., and THREADGILL, J., concur. . In 1986, the legislature amended the DUI manslaughter statute. § 316.193(3)(c), Fla.Stat....
CopyAgo (Fla. Att'y Gen. 1991).
Published | Florida Attorney General Reports
Stephen A. Melnick Legal Advisor Boca Raton Police Department QUESTION: Does s. 316.193 (9), F.S., as created by s. 18, Ch. 91-255, Laws of Florida, apply to juveniles who are taken into custody for driving under the influence? SUMMARY: Section 316.193 (9), F.S., as created by s....
...39.038(4), F.S. (1990 Supp.), may be given effect without altering the requirements in s.
316.635 , F.S. During the 1991 session, the Legislature created general guidelines for the release of individuals who are arrested for driving under the influence (DUI). Section
316.193 , F.S., as amended by s....
...a facility. 12 Accordingly, it is my opinion that s.
316.635 , F.S., containing specific provisions for the custody of a juvenile taken in for a criminal traffic violation such as driving under the influence, controls over the general provisions in s.
316.193 , F.S....
...Butterworth Attorney General RAB/tls 1 See , Sparkman v. McClure,
498 So.2d 892 (Fla. 1986) (use of "or" in statute or rule is generally construed as disjunctive and normally indicates that alternatives were intended). 2 Black's Law Dictionary 347 (5th ed. 1979). 3 Section
316.193 (2), F.S., as amended by s. 18, Ch. 91-255, Laws of Florida, prescribes the penalties for driving under the influence. Subsection
316.193 (2)(b), F.S., as amended, provides that any person who is convicted of a fourth or subsequent violation of driving under the influence is guilty of a felony of the third degree; s.
316.193 (3)(c)2., F.S., as amended, makes it a felony of the third degree to cause serious bodily harm as a result of DUI; and s.
316.193 (3)(c)3., F.S., as amended, makes it a felony of the second degree to cause the death of any human being as a result of DUI....
...M.,
394 So.2d 1017 , 1018 (Fla. 1981) (Legislature has absolute discretion to determine whether an individual charged with a particular crime is entitled to the benefit of the juvenile justice system). 7 See , s.
316.655 (4), F.S., making violation of s.
316.193 , F.S., driving under the influence, a criminal offense. 8 See , s.
316.193 (3)(c)2....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Page: 36 of 200
Fla. Stat. §
142.01(1) (establishing the “fine and forfeiture fund” for use “in
performing court-related functions”); id. §
775.083(1) (directing that criminal fines
be deposited in the fine and forfeiture fund); id. §
316.193(2)(a) (directing the clerk
to remit portions of fines for driving under the influence “to the Department of
Revenue for deposit into the General Revenue Fund”)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Page: 36 of 200
Fla. Stat. §
142.01(1) (establishing the “fine and forfeiture fund” for use “in
performing court-related functions”); id. §
775.083(1) (directing that criminal fines
be deposited in the fine and forfeiture fund); id. §
316.193(2)(a) (directing the clerk
to remit portions of fines for driving under the influence “to the Department of
Revenue for deposit into the General Revenue Fund”)....
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 13445, 2004 WL 2008293
COVINGTON, Judge. Joshua David Sloan appeals the final judgment adjudicating him guilty of DUI manslaughter pursuant to section 316.193(3), Florida Statutes (2002)....
...ication for DUI under section
316.656(1), Florida Statutes (2002), which provides: (1) Notwithstanding the provisions of s.
948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s. *379
316.193, for manslaughter resulting from the operation of a motor vehicle, or for vehicular homicide....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 17137
WALKER, GRISSIM H., Associate Judge. Appellant County Judge upon finding a defendant charged with a violation of section
316.193, Florida Statutes (1979), (driving while under the influence of alcoholic beverages) to be insolvent, appointed the Public Defender of the circuit to represent him. The Public Defender moved the court to allow his office to withdraw on the ground that violations of section
316.193, are neither felonies nor misdemeanors by the express terms of section
775.08(2), Florida Statutes (1979), and that therefore, under section
27.51, Florida Statutes (1979), which defines the authority of the Public Defender, there was no authority for the Public Defender to represent the insolvent defendant....
...ffice of the Public Defender. These classes cover insolvent persons who are charged with (1) a felony, (2) a misdemeanor, (3) a violation of municipal or county ordinances, and (4) those alleged to be delinquent children in any juvenile proceedings. Section 316.193, Florida Statutes, reads in part as follows: (1) It is unlawful and punishable as provided in subsection (2) for any person who is under the influence of alcoholic beverages, model glue, or any substance controlled under Chapter 893,...
...Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance. (4) The term ‘crime’ shall mean a felony or misdemeanor. It is readily seen that the offense of driving under the influence described in section
316.193, Florida Statutes (1979) squarely fits the definition of a misdemean- or under subsection
775.08(2) above, except for the last sentence of
775.08(2), and this is where the public defender seeks to hang his hat....
...the provisions of this chapter, except criminal offenses enumerated in subsection (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. Thus, these sections read together state that a violation of section
316.193 is a “criminal offense.” We do not believe it can be seriously questioned that a “criminal offense” is a crime....
...(Chapter 318 is the statute which decriminalized most traffic offenses). Section
318.13(3) reads:
318.13(3) ‘Infraction’ means a noncriminal violation which is not punishable by incarceration and for which there is no right to trial by jury or a right to court appointed counsel. Thus, the offense described in section
316.193 is not an infraction or noncriminal violation, for a violation of section
316.193 is punishable by incarceration. But as pointed out above, it is a “criminal offense” and therefore, a crime, and based on the punishment it is a misdemeanor. The Public Defender in this case does not question the right to counsel of an indigent defendant charged under section
316.193 but insists the trial court must appoint special public defenders for such persons....
...apter 316 which is punishable by imprisonment. (emphasis added) Therefore, it is clear that since the enactment of this amendment (which became law in July of 1980), it is the duty of the Public Defender to represent those charged with violations of section 316.193....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 15143, 2010 WL 3927242
...i review of a circuit court order quashing the decision of an administrative hearing officer that sustained the driver’s license suspension of Respondent, Gary Berne, after he was arrested for driving under the influence of alcohol in violation of section 316.193, Florida Statutes (2005)....
...The arresting law enforcement officer did have probable cause to be *781 lieve that you were driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances. 2. You were lawfully arrested and charged with a violation of section 316.193, Florida Statutes....
...stered to determine the blood-alcohol level was performed substantially according to the pertinent statutes and the methods approved by the Florida Department of Law Enforcement (“FDLE”), which are promulgated in the Florida Administrative Code. § 316.1932(1)(b)2., Fla....
...st Affidavit containing the results of Berne’s breath test administered on the Intoxilyzer 8000, an Agency Inspection Report, and a Department Inspection Report. These documents contained all of the statutorily required information necessary under section 316.1934(5), Florida Statutes (2005), to admit the affidavit con *783 taining the breath test results into evidence and to establish that the Intoxilyzer 8000 used for Berne’s test was properly inspected and maintained, that it performed appropriately, and that it produced accurate and reliable test results....
...in substantial compliance with the applicable statutes and rules.”). Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath....” § 816.1934(5), Fla. Stat. (2005); see also § 316.1934(2)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 14632, 2004 WL 2251861
...His probation was reinstated and extended four years from the original termination date. Appellant’s total sentence of 11.5 years in prison followed by six years probation exceeds the statutory maximum for DUI manslaughter, a second degree felony. § 316.193(3)(c)3, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 14277, 2002 WL 31202131
FULMER, Judge. The State appeals from an order granting Burdette’s motion to declare the impoundment provision of section 316.193(6)(a), Florida Statutes (2000), unconstitutional as applied. 1 We reverse because under our interpretation of section 316.193(6)(a), the statute did not apply and no impoundment could be ordered in Bur-dette’s case....
...Therefore, the trial court should not have considered the constitutionality of the statute. Burdette pleaded' no contest to the charge of driving under the influence (DUI). At sentencing, as a condition of probation the trial court ordered a ten-day impoundment of the vehicle driven by Bur-dette, pursuant to section 316.193(6)(a)....
...riving at the time of the DUI offense was owned by Toyota Motor Credit and had been “a company vehicle.” The- lease on the vehicle had since expired, and Bur-dette did not own or possess any vehicles. The trial court granted Burdette’s motion. Section 316.193(6)(a), which pertains to the penalties for a first DUI, provides, in part: The court must also, as a condition of probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual control of the d...
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 10862, 1991 WL 219462
PER CURIAM. We affirm. However, we modify appellant’s order of probation to reflect that appellant’s conviction for driving under the influence (DUI) is a misdemeanor, not a felony. See § 316.193(2)(a), Fla.Stat. (1989). Compare § 316.193(2)(b), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 15659, 2002 WL 31421575
...The State appeals the order in limine of the county court that barred the State from using as evidence, in the trial of a driving under the influence (DUI) case, the results of Anthony T. Bodden’s urine test, which was administered pursuant to the implied consent law. See § 316.1932(l)(a), Fla....
...IN ADMINISTERING FLORIDA’S IMPLIED CONSENT LAW, IS THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT REQUIRED TO ADOPT RULES IN ACCORDANCE WITH THE FLORIDA ADMINISTRATIVE PROCEDURES ACT GOVERNING THE COLLECTION, PRESERVATION, AND ANALYSIS OF URINE SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(l)(a), FLORIDA STATUTES? We answer the question in the affirmative. On August 7, 2000, pursuant to section 316.193, Florida Statutes (2000), police issued Mr. Bodden a traffic citation for driving under the influence. Pursuant to section 316.1932(l)(a), Mr....
...He further testified that, as far as he is aware, his laboratory procedures are different from the procedures used by other laboratories and that he believes his procedures produce superior results. The sole issue in this appeal is the interpretation of section 316.1932(l)(a)(l), which states: Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so • operating such vehicle, deemed to have given his or her consent to submit to...
...When a criminal statute is ambiguous and capable of different constructions, it should be construed in favor of an accused. See §
775.021(1), Fla. Stat. (2000); Cabal v. State,
678 So.2d 315 (Fla.1996). With this in mind, we hold that the phrase “approved chemical test or physical test including, but not limited to” in section
316.1932(l)(a)(l) applies to “a urine test for the purpose of detecting the presence of chemical substances ... or controlled substances.” The State refers to section
316.1932(l)(b)(2), Florida Statutes (2000), which provides that for an analysis of a person’s breath to be considered valid under section
316.1932, it “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.” The State notes that there is no such language in section
316.1932 regarding the validity of a urine test. Section
316.1932(l)(f)(l) states that the FDLE shall adopt rules specifying the methodology to be used in administering breath or blood tests to determine the alcohol content of the blood. Section
316.1932 does not require that the FDLE adopt rules in regard to the administering of urine tests....
...2d DCA 2001), we noted “that a ‘statutory phrase should also be viewed not only in its internal context within the section, but in harmony with interlocking statutes.’ ”
774 So.2d at 916 (quoting WFTV, Inc. v. Wilken,
675 So.2d 674, 679 (Fla. 4th DCA 1996)). Thus, in this instance, in reading section
316.1932(l)(a)(l) in conjunction with sections
316.1932(l)(b)(2) and
316.1932(l)(f)(l), we conclude that an “approved” urine test is one in which the method of administration and the analysis of the test are “performed substantially according to methods approved by” the FDLE....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 10879, 1991 WL 224554
...He argues on appeal that the court should have granted his motion for a judgment of acquittal on the DUI manslaughter charge because the state failed to present evidence of either impairment or of a blood/alcohol level (BAL) of .10 percent as required by section 316.193, Florida Statutes (1989)....
...irment so as to uphold the conviction. Appellant also argues that his conviction for reckless driving should be reversed solely on double jeopardy grounds. Since we reverse appellant’s conviction for DUI manslaughter, we do not address this point. Section 316.193, Florida Statutes (1989), provides that in order to find a person guilty of DUI manslaughter, that person must be either: (1) Under the influence of alcohol to the extent that his normal faculties are impaired; or (2) have a BAL of .10 percent or higher....
...However, it is self-evident that the presence of excessive speed alone, in the absence of any other factors, does not show that alcohol impaired the driver’s faculties. Although a BAL of between .05 and .10 may be used to show impairment if there is other competent evidence of impairment (§ 316.1934(2)(b), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 1999 Fla. App. LEXIS 14232, 1999 WL 974153
...The trial court included the language when reading what the state charged, but deleted “actual physical control” when instructing on the element of the offense. This language is a correct statement of law and thus does not constitute error. See § 316.193(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2012 Fla. App. LEXIS 18760, 2012 WL 5272927
...ming in the dark before he began his left turn in front of it. Thus, he argues, the fact that he was driving under the influence of alcohol did not cause or contribute to the death of the decedent and he could not be guilty of DUI manslaughter under section 316.193(3)(c)8., Florida Statutes (2007)....
...nce of alcohol to the extent that his normal faculties were impaired or with an unlawful blood alcohol level, and that as a result of such operation, the individual “eause[d] or eontrib-ute[d] to causing ... [t]he death of any human being .... ” § 316.193(3)(c)3., Fla....
...Certainly there was sufficient evidence that Pennington was intoxicated and drove his vehicle and the proper conviction is for driving under the influence of alcohol. What there was not, however, is evidence that his intoxicated driving caused or contributed to the motorcyclist’s death as required by section 316.193....
CopyPublished | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 16295, 2008 WL 4643860
...Because the circuit court applied the correct law in concluding that petitioner’s two prior convictions in New York for driving while ability impaired (DWAI) qualified as prior offenses for purposes of imposing the enhanced penalties for a third alcohol-related driving offense under section 316.193(6), Florida Statutes (2003), we deny the petition....
...DUI) in Broward County, Florida. He pleaded no contest to the charge in county court, reserving the right to appeal the trial court’s finding that petitioner’s two prior DWAI convictions in New York qual *881 ified as prior DUI convictions under section 316.193(6)(c). 1 Section 316.193(6) provides for increasingly severe mandatory penalties when a defendant has prior alcohol-related driving offenses....
...Petitioner argues that the circuit court applied the incorrect law when it relied on McAdam v. State,
648 So.2d 1244 (Fla. 2d DCA 1995), in determining that the prior New York convictions qualified as prior convictions for the purpose of enhancing petitioner’s sentence under section
316.193(6)....
...o operate such motor vehicle is impaired by the consumption of alcohol.” N.Y. Veh. & Traf. Law Art. 31, § 1192(1) (2006). The New York DWAI offense qualifies as “any other alcohol-related traffic offense” similar to the offenses listed in section 316.193(6); the listed offenses all involve operating a motor vehicle while impaired *882 by alcohol to some degree....
...fenses for enhancement purposes. The Broward county and circuit courts properly relied on McAdam in determining that the New York DWAI offenses were sufficiently similar such that they could be used as prior convictions for enhanced sentencing under section 316.193(6)....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 668, 1992 Fla. LEXIS 1825, 1992 WL 301685
...The reason for the change was to bring Subsectionsubdivision (a) into conformity with the statutory language in Ssection
322.282, Florida Statutes, which states “substance abuse education course” rather than a “DWI Counter Attack School.” SubsectionSubdivision (d) is new and was designed to allow compliance with Ssection
316.193(5), Florida Statutes, wherewhen the person did not reside in the State of Florida,-and was in Florida for only a short, temporary stay, thatand attendance at a substance abuse course in Florida would constitute a hardship. Section
316.193(5) requires only that the substance abuse course be “specified by the court.” 1990 Amendment:....
...The Ccommittee felt that this should be mandatory and not discretionary. RULE 6.180. SENTENCING REPEAT OFFENDERS IN-DUI CASES (a) Defendant’s Rights. A defendant alleged to have a prior conviction for a criminal traffic offense within the meaning-of Section 316.193, — Florida Statutes, shall have a right to remain silentsilenee concerning any prior conviction at the time of plea or sentence....
...or any substance controlled by Cchapter 893, Florida Statutes. Committee CommentsNotes 1988 Amendment:. ParagraphSubdivision (b) was eliminated by the Ccommittee as there is no “lesser offense” for a DUI. Moreover, the enhanced penalty under RSrSection 316.193(4), Florida Statutes, for a blood alcohol level of .20 or above has inherently changed the entire previous meaning of the eliminated subsectionsubdi-vision....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2343, 1988 Fla. App. LEXIS 4639, 1988 WL 107908
...The legislative judgment responding to Baker [v. State,
377 So.2d 17 (Fla.1979) (DUI manslaughter is a strict liability offense)] should be carried through in the sentencing perogative [sic] in the interest of fairness and decency.” The change referred to by the trial court was the repeal of section
316.1931, Florida Statutes (1985) and its replacement, effective October 1, 1986, by section
316.193, Florida Statutes (Supp.1986). 1 In adopting the new statute the legislature provided: The repeal of section
316.1931, Florida Statutes, by this act shall not be construed to preclude or otherwise affect the imposition of any penalty ......
...cated, and the cause is remanded for sentencing in accordance with the guidelines. Order VACATED and REMANDED for resentencing. DAUKSCH and DANIEL, JJ., concur. . On the date the offense was committed, September 14, 1986, the applicable DUI statute, section 316.1931(c), Florida Statutes (1985) provided: If the 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. Section 316.1931, Florida Statutes (1985) was repealed effective October 1, 1986, Chapter 86-296, § 27, Laws of Florida, and was replaced with section 316.193, Florida Statutes (Supp. 1986). Section 316.193(3) provides: Any person: ****** (b) Who operates a vehicle; and (c) Who, by reason of such operation, causes: ****** 3....
CopyPublished | Supreme Court of Florida | 18 Fla. L. Weekly Supp. 543, 1993 Fla. LEXIS 1666
...ly 9:40 P.M. After the Florida Highway Patrol Trooper completed his investigation, he charged Judge Gloeckner with misdemeanor Driving While Under the Influence of Alcoholic Beverages to the extent her normal faculties were impaired, in violation of Section 316.193, F.S., and cited her with Careless Driving for being at fault in the accident....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 15280, 2003 WL 22327076
...See State v. Friedrich,
681 So.2d 1157, 1163 (Fla. 5th DCA 1996). In order to qualify for the statutory presumption of impairment based on a breathalyser result, FDLE is required to inspect and maintain each breath testing machine to ensure its accuracy. See §
316.1932(l)(f)l., Florida Statutes (1999) (requiring FDLE to establish rules for the “reliability of result and ease of administration”)....
...Currently, each breath testing machine is checked using “alcohol reference solutions” (ARS) produced in different levels of alcohol concentration such as .05, .08, or .20 to mimic acceptable or unacceptable levels of alcohol as set forth in sections 316.193 through 316.1934, Florida Statutes (1999)....
...ATION OF CHAPTER 120? There are a plethora of cases dealing with blood, breath, and urine testing for alcohol content and the necessity for FDLE to adopt rules. The overwhelming majority of these cases challenge the presumption of intoxication under section 316.1934, Florida Statutes, because the agency failed to provide for sufficient procedures to insure the reliability of breath, urine, or blood tests as required under section 316.1932....
...We reject this argument and distinguish Miles legally and factually. First, Miles II stands for the proposition that the State is not entitled to the presumption of impairment where there is violation of the implied consent law found in sections 816.1932-316.1934, Florida Statutes....
...The appellate court answered the question in the negative: The certified question posed to us essentially asks whether every step, aspect or *1228 procedure employed in the simulation tests used to inspect breath test instruments ... must be expressly prescribed by rule or regulation required by section 316.1932(l)(f)l and adopted pursuant to chapter 120, The Florida Administrative Procedures Act....
...2d DCA 1992), in regard to this issue: [W]e determine that HRS’ failure to promulgate a rule to provide a test for *1230 reliability at the monthly and annual inspections does not preclude the state’s use of breath testing results in a criminal trial. The statutory language of section 316.1932(l)(f)l., Florida Statutes (1991), very clearly requires that the rules and regulations precisely specify the test or tests and that they be adopted after public hearing....
...cuit court sitting in its appellate capacity affirming a denial of a Motion to Suppress and the subsequent Judgment and Sentence; James Howard's case is before us on questions certified by the county court as being ones of great public importance. . Section 316.193(l)(a) and (c), Florida Statutes, states that for determining guilt under the DUI statute, a person is "under the influence of alcoholic beverages” if he or she has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath....
...A proposed or existing rule is an invalid exercise of delegated legislative authority if ... [t]he agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter...." . We are not holding that section
316.1932, as it existed at the time of this challenge, required the promulgation of the COA form as a rule. Our holding is based on the requirements of chapter 120. See Wissel v. State,
691 So.2d 507 (Fla. 2d DCA 1997). We note that section
316.1932 was amended by chapter 2000-226, Laws of Florida, to explicitly require FLDE’s Alcohol Testing Program to promulgate rules for testing and inspecting the breath machines. . Even if Miles II did apply, the supreme court reaffirmed the ruling of Robertson v. State,
604 So.2d 783 (Fla.1992), that when there is no assurance of compliance with sections
316.1932-
316.1934, the State must revert back to the common law approach for admitting the blood alcohol test results....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 14379, 2001 WL 1219489
...g witnesses, to impeach any witness and to rebut any evidence presented against the driver. Section
322.2615(14), Florida Statutes, provides: [T]he decision of the department under this section shall not be considered in any trial for a violation of s.
316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial....
...Further, the Department claims the testimony could not be used against Hinman at a subsequent criminal trial because his testimony is part of the hearing officer’s decision. Section
322.2615(14) provides “the decision of the department under this section shall- not be considered in any trial for a violation of s.
316.193....” Like the defendant in McDonough , Hin-man was faced with an administrative hearing prior to the disposition of a criminal proceeding, involving the same incident or arrest....
...It also follows that any voluntary statements made by the person at the license suspension hearing have no Fifth Amendment protection. Their only protection stems from the provisions of the statute referenced above. Petition for Writ of Certiorari DENIED. PETERSON and SAWAYA, JJ., concur. . § 316.193(l)(a), Fla....
CopyPublished | District Court, S.D. Florida | 1990 U.S. Dist. LEXIS 17725, 1990 WL 154639
...§
322.2615. Such statute provides for immediate suspension of a person’s driver’s license upon that driver’s refusal to take a blood alcohol level test or if upon taking such test, it reveals a blood alcohol level of .10% or above in violation of F.S. §
316.193....
CopyPublished | District Court of Appeal of Florida
an element of the crime of DUI Manslaughter. §
316.193(1)(a), Fla. Stat. (2019). Accordingly, the inclusion
CopyPublished | Court of Appeals for the Eleventh Circuit | 2014 U.S. App. LEXIS 18777
...aggravated felony is defined as “a crime of violence (as defined in section 16 of
Title 18 . . .) for which the term of imprisonment [is] at least one year.” 8 U.S.C. §
1101(a)(43)(F). On appeal, Dixon contends that his Florida state conviction for
aggravated fleeing, Fla. Stat. § 316.1935(4)(a), was not an aggravated felony....
...pt to elude such
officer and, as a result of such fleeing or eluding:
(a) Causes injury to another person or causes damage to any property
belonging to another person, commits aggravated fleeing or
eluding . . . .
Fla. Stat. § 316.1935(4)(a)....
...In that opinion, the Supreme Court
applied § 16 to a violation of Florida’s driving under the influence (DUI) statute,
6
Case: 13-11492 Date Filed: 10/01/2014 Page: 7 of 12
Fla. Stat. § 316.193(3)(c)(2)....
...The Florida DUI
statute “makes it a third-degree felony for a person to operate a vehicle while under
the influence and, ‘by reason of such operation, cause serious bodily injury to
another.’” Id. at 7,
125 S. Ct. at 381 (quoting Fla. Stat. §
316.193(3)(c)(2))....
...say that a person actively employs
physical force against another person by accident.”). Thus, § 16(a)’s requirement
that physical force be used cannot embrace an offense that prohibits negligent or
accidental application of physical force. Section 316.193(3)(c)(2) therefore did not
7
Case: 13-11492 Date Filed: 10/01/2014 Page: 8 of 12
qualify as a crime of violence under § 16(a) because even negligent or accidental
c...
...on of the risk that
the offender will actively employ physical force against a third party or the third
party’s property in committing the offense.
B.
The issue to resolve with respect to section 316.1935(4)(a), then, is whether
it is an “offense[] that naturally involve[s] a person acting in disregard of the risk
that physical force might be used against another in committing an offense.” See
id....
CopyPublished | Florida 3rd District Court of Appeal
...d Christina L. Dominguez,
Assistant Attorney General, for appellee.
Before LINDSEY, MILLER, and LOBREE, JJ.
MILLER, J.
Appellant, Joseph Horna, appeals from his conviction for one count of
driving under the influence, in violation of section 316.193(1), Florida
Statutes (2022)....
CopyPublished | Florida 2nd District Court of Appeal | 2013 Fla. App. LEXIS 17597, 2013 WL 5927244
...Carrizosa an opportunity to challenge the legality of the traffic stop, we are compelled to grant his petition. In April 2011, a sheriffs deputy saw Mr. Carrizosa driving erratically. The deputy stopped Mr. Carrizosa, concluded he was impaired, and arrested him for driving under the influence. See § 316.193(l)(a), Fla. Stat. (2010). Mr. Carrizosa consented to submit to a breath test under section 316.1932(l)(a). That section provides, in pertinent part, as follows: 316.1932....
...n this state while under the influence of alcoholic beverages or chemical or controlled substances. 2. Whether the person whose license was suspended had an unlawful blood- *1020 alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193....
...ings in accordance with this opinion. ALTENBERND and SILBERMAN, JJ., Concur. . Three justices agreed that a hearing officer’s scope of review includes whether the suspension was incident to a lawful arrest because (1) probable cause reviewed under section
316.1932(7)(b)(l) is "often inextricably intertwined with the lawfulness of the detention,” (2) whether the driver "refused to submit to any such test” reviewed under section
316.1932(7)(b)(2) refers to the "lawful" test required by section
322.2615(l)(b)(l)(a)," and *1022 (3) " 'sufficient cause' to sustain the suspension under section
322.2615(7) "require[s] that the hearing officer make the determination ■ of whether the test was administered incident to a lawful arrest.” Hernandez,
74 So.3d at 1078, 1079 (citation omitted). The language of sections
316.1932 and
322.2615, Florida Statutes (2007), applied in Hernandez is the same as the 2010 version applied here for purposes of this decision.
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 12254, 1997 WL 683134
...The state charged Miller with three counts of DUI with damage to a person and two counts of DUI involving damage to the property of another. Miller filed a motion to dismiss claiming that, for “one driving episode,” double-jeopardy protections and section 316.193, Florida Statutes (1995) (DUI provision), prevented the state from charging him with more than one count of DUI damage to a person and more than one count of DUI damage to property....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 16447, 2015 WL 6735289
...The felony here was always a felony: the officer
who wrote the citation had already concluded that Meyers had committed DUI and had
already checked Meyers' prior convictions to know that the offense was Meyers' fourth
DUI, a third-degree felony. See § 316.193(2)(b)(3), Fla....
CopyPublished | Supreme Court of Florida | 19 Fla. L. Weekly Supp. 561, 1994 Fla. LEXIS 1575, 1994 WL 597597
...lation of section
877.03, Florida Statutes (1985). The Board also found that when F.O.L. was arrested in 1991 for DUI and possession of marijuana, he was in fact operating a motor vehicle with a breath alcohol level of 0.10 or higher in violation of section
316.193, Florida Statutes (1991), and was in possession of marijuana....
CopyPublished | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 17852, 2008 WL 4998943
...We affirm, without prejudice to appellant raising, in a proper rule 3.850 motion containing the contents required by rule 3.850(c), his ineffective assistance of counsel claims and any claim that, when he waived his jail credit, he did not waive also his “residential treatment” credit pursuant to section 316.193(6)(k), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 15201, 2000 WL 1726983
STONE, J. We affirm, in part, an order granting Lainez’s motion to dismiss for lack of jurisdiction. Lainez was charged with felony DUI, pursuant to section 316.193, Florida Statutes, based on five prior DUI convictions. It is undisputed that his conviction of four counts of DUI serious bodily injury and one count of DUI arose from a single driving episode involving a single traffic accident. Section 316.193(2)(b), Florida Statutes, provides that “[a]ny person who is convicted of a fourth or subsequent [DUI conviction] is guilty of a felony of the third degree.......
...Nevertheless, Jackson parallels the instant case. In both, multiple counts or convictions arising from a single incident are added to a separate count or conviction to arrive at a harsher penalty under the applicable statute. Also, the statutes share a similar structure. Both section
316.193 and section
322.28 list penalties for first, second, and third convictions and prescribe a harsher result for the fourth and subsequent convictions. Further, although section
316.193 and section
322.28 address different subject matter, both set forth a penalty for being convicted of DUI, in violation of section
316.193, for the fourth time. Thus, the analysis employed in Jackson is fairly applied to section
316.193....
CopyPublished | District Court of Appeal of Florida | 1985 Fla. App. LEXIS 16714, 10 Fla. L. Weekly 2531
...The county court certified the issue to this court as one of great public importance under Florida Rule of Appellate Procedure 9.160 (1985), and we accepted jurisdiction. Defendant was charged with driving under the influence of alcohol to the extent that his normal faculties were impaired, in violation of section 316.193, Florida Statutes (1983)....
CopyPublished | Florida 4th District Court of Appeal
...Ashley Moody, Tallahassee, and Paul Patti III, Assistant Attorney
General, West Palm Beach, for appellee.
LEVINE, J.
Appellant appeals his sentences for DUI manslaughter and two counts
of DUI with property damage, arguing that his sentences fail to comply
with section 316.193(5), Florida Statutes (2019), and Powers v....
...The trial court summarily
denied the motion.
The denial of a motion to correct a sentencing error is reviewed de novo.
Powers,
316 So. 3d at 354.
DUI manslaughter is a second-degree felony punishable by a maximum
of fifteen years of imprisonment. §§
316.193(3)(c)(3)(a),
775.082(3)(d), Fla.
Stat. (2019). DUI with damage to property is a first-degree misdemeanor
punishable by a maximum of one year of imprisonment. §§
316.193(3)(c)(1),
775.082(4)(a), Fla. Stat. (2019). Additionally, relevant to
the issue on appeal, when a defendant is convicted of any offense under
section
316.193, “[t]he court shall place all offenders convicted of violating
this section on monthly reporting probation and shall require completion
of a substance abuse course . . . .” §
316.193(5), Fla. Stat. (2019). As
previously explained by this court, “[s]ubsection (5) requires probation
. . . on any violation of section
316.193.” McGhee v....
...State,
847 So. 2d 498,
501 (Fla. 4th DCA 2003) (emphasis omitted). Thus, “everyone convicted of
DUI, in whatever form, must complete a substance abuse course.” Id. at
502.
In the instant case, appellant was convicted of three offenses under
section
316.193: one count of DUI manslaughter and two counts of DUI
with property damage....
...substance abuse course.
The parties agree that Powers is controlling. In Powers, the trial court
sentenced the defendant to fifteen years in prison with a four-year
mandatory minimum sentence for DUI manslaughter.
316 So. 3d at 353-
54. After construing sections
316.193 and
775.082, this court reversed
and remanded for a de novo resentencing, stating that “[t]he total sentence
may not exceed fifteen years, and shall include a probationary period that,
at a minimum, is of sufficient length to permit Appellant to complete a
substance abuse course pursuant to section
316.193(5).” Id. at 356.
In accordance with Powers and section
316.193(5), we reverse and
remand for a de novo resentencing....
...record from the previous sentencing hearing and need not recall witnesses
and take additional testimony. Powers, 316 So. 2d at 358.
Because this issue is likely to recur, we certify the following question of
great public importance to the Florida Supreme Court:
DOES SECTION
316.193(5)’S REQUIREMENTS OF
“MONTHLY REPORTING PROBATION” AND COMPLETION OF
A SUBSTANCE ABUSE COURSE VITIATE A TRIAL COURT’S
DISCRETION TO IMPOSE THE MAXIMUM PRISON
SENTENCE PROVIDED IN SECTION
775.082, FL...
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 18296, 2006 WL 3077793
...were impeached, as they were more probative of negligence than the issues involved in DUI manslaughter. DUI manslaughter requires that the defendant, with a blood alcohol level in excess of .08, cause or contribute to an accident involving a death. § 316.193(3), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 15850, 2002 WL 31431880
...The appellant appeals the summary denial of his rule 3.850 motion for postconviction relief upon remand by this Court. See Riggins v. State,
789 So.2d 509 (Fla. 1st DCA 2001). The appellant pled guilty to, and was convicted of, felony DUI, which requires proof of three previous DUI convictions. See §
316.193(2)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal | 1995 WL 637552
...Appellant challenges his multiple convictions arising out of the same drunk driving episode [1] and argues that separate convictions for the injuries to three separate persons and damage to two separate property owners is contrary to the intent of section 316.193, Florida Statutes (1993), violates double jeopardy and may not stand....
...We find no reason to distinguish DUI from DUS for determining whether separate convictions are permissible in instances where multiple injuries arise from the same traffic accident. We hold that, like DUS with injury proscribed under section
322.34(3), the commission of DUI with serious bodily injury under section
316.193(3)(c)2 or DUI with property damage or injury under section
316.193(3)(c)1 which arises out of a single driving episode should each be considered single offenses regardless of the number of persons injured or items of property damaged....
...The court stated that "the additional element of the death of a victim raises DWI manslaughter beyond mere enhancement and places it squarely within the scope of this state's regulation of homicide." Id. at 1196. [2] Unlike DUI manslaughter, it is clear that section 316.193(3)(B)1 and 2 are enhancements to the basic offense....
...In all other respects, we affirm. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. GLICKSTEIN, J., concurs. POLEN, J., dissents with opinion. POLEN, Judge, dissenting. I respectfully dissent, as I believe that the supreme court implicitly upheld multiple convictions under section 316.193(3)(c)(2) in Boutwell....
...which stated that regardless of the number of injured persons, there can be only one conviction under section
322.34(3) (driving with suspended license/serious bodily injury). However, the Wright court specifically allowed multiple convictions under
316.193(3)(c)(2), finding that a single accident resulting in four injured persons may allow four convictions for DUI causing serious injury....
...re is no reason why the same principle should not apply to driving with a suspended license and causing serious bodily injury to more than one person. Id. (Emphasis added.) Clearly, the dissent interprets Boutwell to allow multiple convictions under 316.193(3)(c)(2)....
...Although this analysis isn't very instructive, the Wright court reached a common sense result.
655 So.2d 126, 129 (Fla. 5th DCA 1995). Based on this interpretation of Boutwell, and the position of the Fifth District in Melbourne, I conclude that multiple convictions are permitted under
316.193(3)(c)(2)....
CopyPublished | Florida 5th District Court of Appeal
person’s normal faculties are impaired.” See §
316.193(1)(a), Fla. Stat. (2021); see also Hoffman v.
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 4948, 1997 WL 231485
...in June 1994, a date prior to the February 8,1995 use of said control. By enacting Florida’s implied consent statute, the legislature provided a statutory basis for the admission of blood alcohol test results in criminal trials. 2 In this regard, section 316.1934(2) of the Florida Statutes (1993) provides that the results of any blood alcohol test administered in accordance with the requirements of the implied consent statute shall be admissible into evidence....
...pproved by the Department of Law Enforcement.” The *104 statute also provides that any “insubstantial differences between the approved techniques and actual testing procedures” in any individual case do not render the test results invalid. See § 316.1934, Fla.Stat....
...ncluding test reliability, the technician’s qualifications, and the test results’ meaning.” Robertson v. State,
569 So.2d 861, 863 (Fla. 5th DCA 1990), app’d,
604 So.2d 783 (Fla.1992). REVERSED and REMANDED. COBB and THOMPSON, JJ., concur. . §
316.193, Fla.Stat. (1993). . §
316.1932, Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 5211, 2000 WL 554896
...We find that the circuit court’s orders violate section
322.28(5), Florida Statutes (1999), and thus, the orders depart from the essential requirements of law. We, therefore, grant DHSMV’s petitions for certiorari and quash the orders under review. All respondents had been arrested for violating section
316.193, Florida Statutes, the DUI statute, and had their driver’s licenses suspended pursuant to section
322.2615....
CopyPublished | Florida 2nd District Court of Appeal
under the influence with property damage. See §
316.193(3)(c)1, Fla. Stat. (2022). Following a guilty
CopyPublished | Florida 4th District Court of Appeal
...We grant the State’s motion seeking clarification, withdraw our prior
opinion, and replace it with this corrected opinion.
The defendant appeals from her conviction and sentence for
misdemeanor driving under the influence (DUI) with property damage in
violation of section 316.193(3)(a)–(c)1., Florida Statutes (2019)....
CopyPublished | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 8559, 2006 WL 1479640
...Jones failed to satisfactorily perforin field sobriety tests and refused to submit to a breath test (after implied consent warnings were given and he was advised of the consequences of refusal). He was arrested for driving under the influence in violation of section 316.193(1) and his driving privileges were suspended. See § 316.1932(l)(a), Fla....
CopyPublished | Florida 5th District Court of Appeal | 1990 Fla. App. LEXIS 3921, 1990 WL 71777
...The sentencing document imposing a sentence of five years incarceration is corrected to reflect that the sentence is imposed as to case number 88-172. . Attempted burglary of a dwelling, §§
810.02 and
777.04(4)(c), Fla.Stat. . Driving under the influence, §
316.193(1), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal
a substance abuse course, as set forth in section
316.193(5), Florida Statutes (2022), we reverse his
CopyPublished | Supreme Court of Florida | 12 Fla. L. Weekly 259, 1987 Fla. LEXIS 1921
...ON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY, F.S. 800.-04; (8) A. .. new instruction: CONTRABAND IN COUNTY DETENTION FACILITY, F.S.
951.22; (9) A new instruction: 3.04(g) — VOLUNTARY INTOXICATION; (10) Amended instruction on DUI MANSLAUGHTER, F.S.
316.193; (11) An addition in instruction 3.04(c) ENTRAPMENT, deleting the last paragraph of the instruction and substituting the following: “On the issue of entrapment, the State must convince you beyond a reasonable doubt that the defendant was not entrapped”; (12) A new instruction on ACCESSORY AFTER THE FACT, F.S....
CopyPublished | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 8070, 2005 WL 1250306
...The machine used in this case was an intoxilyzer 5000 series instrument. The required Form 16 provides all results and all other requested information shall be recorded on FDLE/ATP Form 24. Form 24, in turn, contains a signature line and a name line. Section 316.1934(5), Florida , Statutes, provides: (5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s. 316.1932 or. s. 316.1933, is admissible in evidence under the exception to the hearsay rule.......
...The citation indicated Gurry’s license was suspended for a violation of section
322.2615, Florida Statutes. That statute provides suspension shall be pursuant to either the driver refusing to submit to a lawful breath, blood or urine test, or a violation of section
316.193, driving with an unlawful blood alcohol level....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 1870868, 2012 Fla. App. LEXIS 8111
...anism. We express no opinion on that subject and do not have a sufficient record to analyze the issue. Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion. WHATLEY and VILLANTI, JJ., Concur. . § 316.193(1), Fla. Stat. (2008). . § 316.1939, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 1870863, 2012 Fla. App. LEXIS 8221
...If a lower tribunal determines that the stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible. We express no opinion on these issues. Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion. WHATLEY and VILLANTI, JJ., Concur. . § 316.193(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 1869927, 2012 Fla. App. LEXIS 8124
...882 , 697 N.W.2d 675 (2005); Beller v. Rolfe, 194 P.3d 949 (Utah 2008). However, we express no opinion on this issue. Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion. ALTENBERND and WHATLEY, JJ., Concur. . § 316.193(1), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2005 WL 1199067
...to its model specification for breath testing equipment use this ratio." Id. "The 1:2100 ratio is also recognized by the Committee on Alcohol and Other Drugs of the National Safety Council as an accurate way to determine blood alcohol content." Id. Section 316.193(1)(b)-(c), Florida Statutes (2003), provides that a person is legally intoxicated if he has a blood alcohol level of .08 or more grams of alcohol per 100 milliliters of blood, or a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath....
CopyPublished | Florida 2nd District Court of Appeal | 1996 Fla. App. LEXIS 5164, 1996 WL 257041
PATTERSON, Acting Chief Judge. The state appeals from an order of the Pasco County Court declaring section 316.193(6)(d), Florida Statutes (1993), the DUI vehicle impoundment law, to be unconstitutionally vague. We affirm. After the trial court declared the impoundment provision unconstitutional, Raymond Muller pleaded no contest to DUI, and was adjudicated guilty and placed on probation. Section 316.193(6)(d), Florida Statutes (1993), states, in pertinent part: In addition to the penalty imposed under paragraph (a), paragraph (b), or paragraph (e), the court shall also order the impoundment or immobilization of the vehicle that was d...
...ing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co.,
269 U.S. 385, 391 ,
46 S.Ct. 126,127 ,
70 L.Ed. 322 (1926). We determine section
316.193(6)(d) to fall within that definition and affirm the trial court....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 5143, 1996 WL 257333
PER CURIAM. John Magee appeals his judgments and sentences which were imposed by the trial court after a jury found him guilty of driving under the influence, section
316.193, Florida Statutes (1993), and driving while license suspended, section
322.34, Florida Statutes (1993)....
CopyPublished | Florida 1st District Court of Appeal | 13 Fla. L. Weekly 1185, 1988 Fla. App. LEXIS 2037, 1988 WL 47481
PER CURIAM. The defendant was charged and convicted of manslaughter by operating a motor vehicle while intoxicated, in violation of Section
316.1931(1), (2)(c), Florida Statutes (1985), 1 and vehicular homicide, in violation of Section
782.071, Florida Statutes (1985)....
...dant’s condition and the vehicular accident known to the law enforcement officer who ordered the blood test gave him probable cause to believe that the defendant’s operation of her vehicle while intoxicated caused the other driver’s death, see § 316.1933(1), Fla....
...We remand for resentencing on the D.W.I. manslaughter conviction after the points scored for the vehicular homicide on the sentencing guidelines scoresheet have been eliminated. Reversed and remanded. . Originally codified at Section 860.01(1), (2), Florida Statutes (1981), Section 316.1931 was repealed by Chapter 86-296, Section 13, Laws of Florida (effective October 1, 1986), and replaced by Section 316.193, Florida Statutes (Supp....
CopyPublished | Florida 5th District Court of Appeal | 1997 WL 255329
...t sentences for the two counts or whether it intended to impose incarceration *702 on one count to be followed by probation on the other count. Second, both of appellant's convictions were third-degree felonies with five-year statutory maximums. See § 316.193(3), Fla....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 330, 2014 WL 1923478, 2014 Fla. LEXIS 1629
... transported to the Hillsborough County Jail. Two Breathalyzer tests administered
at the Hillsborough County Jail showed that Judge Sheehan had a breath-alcohol
level of .171 and .161. Both scores were more than double Florida’s legal limit for
breath-alcohol level of .08. See § 316.193(1)(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2008 WL 2037755
...Adolfo Hernandez seeks to reverse the trial court's denial of his motion to dismiss a felony DUI based on expiration of the speedy trial period in an underlying misdemeanor DUI in county court. We reverse. Hernandez was arrested on July 22, 2005, and charged by citation with driving under the influence of alcohol pursuant to section 316.193, Florida Statutes (2005), driving in violation of imposed restrictions, and driving with a suspended driver's license....
...These charges were filed in county court as misdemeanors. [1] At an October 7, 2005 hearing on these charges, the State announced that it was filing a felony information in the circuit court based on the same offenses, charging Hernandez with count 1, felony DUI pursuant to section 316.193(2)(b)3, Florida Statutes (2005), as well as the other citation violations as counts 2 and 3....
...e felony DUI because they are not the same offense. See State v. Woodruff,
676 So.2d 975 (Fla.1996). Misdemeanor DUI does not require proof of existence of three or more misdemeanor DUI convictions as does felony DUI. Woodruff,
676 So.2d at 977; see §
316.193, Fla. Stat. (2005). But the Woodruff Court concluded that section
316.193(2)(b) requires that there be a conviction for the current DUI misdemeanor to establish the crime of felony DUI after three previous misdemeanor DUI convictions....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 5266, 1998 WL 236190
POLEN, Judge. Appellant, Maxine Devers-Lopez (Devers-Lopez), was convicted of driving under the influence of alcohol and/or Halcion in violation of section 316.193(1), Florida Statutes (1995)....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 5160, 2000 WL 524827
...was not preserved below. See Nelson v. State,
719 So.2d 1230, 1232 (Fla. 1st DCA 1998). The DUI statute the State cites in support of affirming the sentence provides that “the total period of probation and incarceration may not exceed one year.” §
316.193(6)(a), Fla....
CopyPublished | District Court of Appeal of Florida
that he violated section
316.193(1), and (2) he pled to a violation of section
316.193(2)(b)1., Florida
CopyPublished | Florida 4th District Court of Appeal | 1994 WL 68835
...A conclusive presumption establishing an element of a crime can violate due process because it relieves the state of its burden of proof. Sandstrom v. Montana,
442 U.S. 510,
99 S.Ct. 2450,
61 L.Ed.2d 39 (1979). A somewhat similar issue was involved in State v. Rolle,
560 So.2d 1154 (Fla. 1990), with regard to the fact that section
316.193, Florida Statutes (1990) allows conviction for driving under the influence based on proof of a blood-alcohol level of 0.10% as an alternative to proof of impairment....
CopyPublished | Florida 5th District Court of Appeal | 1989 WL 20682
...ely guard against themselves." Bonds also contends that allowing Fleming to avail himself of the seat belt defense in this case would permit him to escape civil liability for violation of two criminal statutes: the prohibition against drunk driving (section
316.193) and the prohibition against *585 supplying alcoholic beverages to minors (section
562.11)....
...Butler,
359 So.2d 498 (Fla. 4th DCA 1978); Bryant v. Jax Liquors,
352 So.2d 542 (Fla. 1st DCA 1977), cert. denied,
365 So.2d 710 (Fla. 1978). The statute does not apply to Fleming under the instant facts. While Fleming may be guilty of drunk driving pursuant to section
316.193, that is not a legal basis to negate the seat belt defense created by Pasakarnis....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 2061, 1997 WL 100953
CAMPBELL, Acting Chief Judge. Appellant, Joseph Thomas Wissel, challenges his judgment and sentence for D.U.I. in violation of section 316.193, Florida Statutes (1993), entered following a county court jury trial that took place after his motions to suppress were denied....
...The certified question posed to us essentially asks whether every step, aspect or procedure employed in the simulation tests used to inspect breath test instruments pursuant to Florida Administrative Code Rules 11D-8.005 and 11D-8.006 must be expressly prescribed by rule or regulation required by section 316.1932(l)(f)l and adopted pursuant to chapter 120, The Florida Administrative Procedures Act....
CopyPublished | Florida 4th District Court of Appeal
...To detain a driver for a DUI investigation, an officer must have a
reasonable suspicion that the driver’s normal faculties are impaired, not
only that he has consumed alcohol. See State v. Velasco,
368 So. 3d 997,
999–1000 (Fla. 4th DCA 2023) (citing §
316.193(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...constitutes a
crime under any Florida law. At most, the visitation clerk's relaying of Peterson's
physical condition to the officers might have provided reasonable suspicion to conduct a
traffic stop for driving under the influence of drugs. See § 316.193(1)(a), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).
For the reasons that follow, we reverse.
I.
In April 2021, Alahmari was arrested and charged with one count of
driving under the influence, a misdemeanor under section 316.193, Florida
Statutes....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 802, 1988 Fla. App. LEXIS 1247, 1988 WL 26267
...e numbers. The appellant was originally convicted of aggravated battery, adjudication was withheld and he was given community control based upon an alleged plea agreement. He subsequently was charged with: Death by an impaired driver in violation of Section
316.193, Florida Statutes (1986); Vehicular Homicide in violation of Section
782.071, Florida Statutes (1985); Leaving the scene of an accident with personal injuries in violation of Section
316.027, Florida Statutes (1985); and Driving with...
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 12493
...3.251 was intended to change or expand a criminal defendant’s right to jury trial under our state constitution. In various instances our state legislature has granted a right to jury trial in situations not reached by our state constitution. See §§
316.1934(4),
932.61, Fla....
...nse. It did not base its holding on the state constitution or rule 3.251. In the most recent case, State v. Whirley,
421 So.2d 555 (Fla. 2d DCA 1982), review granted, case no. 62,948, our sister court held that a person charged with the violation of section
316.193(1), Florida Statutes (1981), driving under the influence of alcohol, which was also in violation of a city ordinance, did not have the right to a jury trial unless the penalty which could be imposed took the offense out of the category of petty offenses, as defined by Baldwin ....
CopyPublished | Florida 5th District Court of Appeal
...Assistant Attorney General, Tallahassee, for Appellee.
March 28, 2025
EISNAUGLE, J.
Robert Brown appeals the denial of his motion filed under
Florida Rule of Criminal Procedure 3.800(a) challenging his three
sentences imposed pursuant to section 316.193, Florida Statutes
(2014). In his motion, Brown argued that his sentence is illegal
because it does not include “monthly reporting probation” and
completion of a substance abuse program as required by section
316.193(5), Florida Statutes....
...would only inure to Defendant’s detriment.” We affirm because
Brown is not prejudiced by the alleged error.
Brown was sentenced for one count of driving under the
influence (“DUI”) manslaughter and two counts of DUI serious
bodily injury under section
316.193, Florida Statutes. As to the
first count, the trial court sentenced Brown to the statutory
maximum of 15 years in prison pursuant to section
316.193(3)(c)3.a.
The trial court did not impose the statutory maximum
sentence as to the two counts of DUI with serious bodily injury.
Instead, on each of those counts, Brown received 2.5 years in
prison. Importantly, Brown’s sentences run consecutive to each
other for a total composite sentence of 20 years.
On appeal, Brown argues that his sentences are illegal
because he “did not receive a period of probation,” citing to section
316.193(5), Florida Statutes.1 See Powers v. State,
316 So. 3d 352
(Fla. 4th DCA 2021); Archer v. State,
332 So. 3d 24 (Fla. 2d DCA
2021). Section
316.193(5), in pertinent part, provides:
The court shall place all offenders convicted of violating
this section on monthly reporting probation and shall
require completion of a substance abuse course conducted
by a DUI program licensed by the department under
s....
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 3852, 1992 WL 59249
JOANOS, Chief Judge. Appellee Rodrick C. Coatney pled nolo contendere to a felony charge of driving under the influence. See § 316.193(2)(b), Fla.Stat....
...fine of $1,000.00, and to perform 150 hours of community service during the probationary period. The state contends that section
316.656, Florida Statutes (1989), does not permit the trial court to withhold adjudication of guilt for any violation of section
316.193....
...The applicable provision, section 316.-656(1), Florida Statutes (1989), states in pertinent part: (1) Notwithstanding the provisions of s.
948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s.
316.193, ......
...(Emphasis supplied.) The second district held that “the sentencing requirements of this section are mandatory and cannot be circumvented.” *500 State v. Griffith,
540 So.2d 916 (Fla. 2d DCA 1989). We agree since appellee in this case pled nolo contendere to a violation of section
316.193(2)(b), the provisions of section
316.656(1) apply....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 3476, 2000 WL 301078
...Because the circuit court order departs from the essential requirements of law, we grant the DMV’s petition for certiorari and quash the order under review. The respondent, Kathy Peterson, was arrested for driving under the influence of alcohol in violation of section 316.193, Florida Statutes (1999), on July 9, 1999....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 3224, 1993 WL 80596
...2 He raises two issues on appeal. We affirm one and reverse the other. The facts are that he drove his automobile while intoxicated into another vehicle and seriously injured the four occupants thereof. The state attorney filed an information charging him with four violations of section
316.193(3)(c)(l) and four violations of section
322.34(3)....
...The court deferred sentencing for one week. After the plea had been accepted and before the sentencing hearing, however, the state filed a motion to set aside the plea because it had erroneously charged defendant with a misdemeanor under section 316.-193(3)(e)(l), instead of a felony under section 316.193(3)(c)(2)....
...Defendants cannot be held to know what the state has failed to say in so many words. We reverse this unilateral amendment of an information after a plea to it had already been accepted in open court. AFFIRMED AND REVERSED IN PART. HERSEY and KLEIN, JJ., concur. . See § 316.193(3)(c)(2), Fla.Stat. (1991). Originally, he was charged with a violation of section 316.193(3)(c)(l), which involves driving under the influence and causing damage to the property or person of another....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 1163434, 2013 Fla. App. LEXIS 4747
...first Driving Under the Influence with Alcohol Level.15 or Higher offense. 1 Holbrook concedes that the sentence is in error. Accordingly, we reverse and remand for resentencing. REVERSED and REMANDED. SAWAYA, PALMER and EVANDER, JJ., concur. . See § 316.193(4), Fla....
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 579, 1989 Fla. App. LEXIS 1019, 1989 WL 16656
conviction for DUI manslaughter was pursuant to section 316.-193(3)(c)(3), Florida Statutes (1987). Previously
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 3718, 2003 WL 1239204
...the property of another, imposing what he described as “mandatory conditions” that McGhee pay a $250 fine, attend Level I DUI school, perform fifty hours of community service, and have his car immobilized for ten days. McGhee contends that under section 316.193(3), Florida Statutes (Supp.1998), these conditions are not mandatory. Section 316.193 provides, in pertinent 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 control of a vehicle within thi...
...hicle; and (c) Who, by reason of such operation, causes: 1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s.
775.082 or s.
775.083. 2. Serious bodily injury to another, as defined in s.
316.1933, commits a felony of the third degree, punishable as provided in s....
...s clear. Fla. Convalescent Ctrs. v. Somberg,
2003 WL 252155 ,
840 So.2d 998, 999 (Fla. Feb. 6, 2003). McGhee contends that the trial judge erred in finding that he was required to impose any special conditions on his probation. He argues that, under section
316.193(3)(c)l., DUI causing damage to property is punishable solely as provided in section
775.082 and section
775.083, and that section
316.193(6) applies only to a conviction for violation of subsection (1) of the same section. Section
316.193(5) by its terms applies to “any offender convicted of violating this section.” In contrast, subsection (6) applies to “any person convicted of a violation of subsection (1).” The variation in wording is a distinction with a difference. See Parker v. State,
406 So.2d 1089, 1092 (Fla.1981). Subsection (5) requires probation and DUI school on any violation of section
316.193....
...Even if the statute were not clear on its face, application of traditional principles of statutory construction would lead to the same conclusion. The language of subsection (5) has been carried forward since the crime of DUI causing property damage was first incorporated into section 316.193 in 1986, and has been left substantially unaltered despite numerous other statutory revisions....
...4 Had the legislature not intended it to apply to DUI with property damage, it had every opportunity to amend it. Importantly, subsection (6) limits the period of probation and incarceration for a first conviction to one year, a period inconsistent with section 316.193(3)c.2....
...However, a trial judge is not required to make a violator convicted of DUI with personal injury or property damage perform community service or have his car immobilized. These terms may not be practical or desirable if a defendant is serving a long prison sentence prior to his probation. Like section 316.193(6), and in contrast to subsection (5), section 316.193(2) applies only if the person is convicted of a violation of subsection (1)....
...5 Additional support for our ruling is found in State v. Griffith,
540 So.2d 916 (Fla. 2d DCA 1989). There, the defendant pled guilty to two counts of DUI. Because of his extensive prior history, the crimes were prosecuted as felonies. The version of section
316.193 in effect when the crimes were committed provided, in pertinent part: (2)(a) Except as provided in paragraph (b) ......
...By a fine of: c. Not less than $1,000 or more than $2,500 for a third conviction; and. (b) Any person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in ... s.
775.083.... §
316.193(2). The second district held that the statute: provides an escalating schedule of mandatory fines and maximum jail sentences depending upon whether the conviction is the offender’s first, second, or third. §
316.193(2)(a), Fla. Stat. (1987). Fourth and subsequent convictions, however, are dealt with in a separate subsection,
316.193(2)(b), which specifies only that the offense is a felony of the third degree and makes no reference to fines....
...s to the penalties prescribed for third degree felonies by *504 adding “(h)owever, the fine imposed for such fourth or subsequent violation may not be less than $1,000.” See Ch. 91-255, § 1, at 2444, Laws of Fla. 6 No similar change was made to section 316.193(3)(c)l....
...t joy riding with two under-aged nephews; caused an accident which resulted in the death of a young husband on the way to the beach with his wife; and lied about his name at the scene, knowing there was a warrant out for his arrest. . Prior to 1986, section 316.193(1) defined the crime and subsection (2) prescribed minimum and maximum fines, and maximum sentences....
...violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2),” the court for a first conviction was required to place the defendant on probation and order that he perform at least fifty hours of community service. See § 316.193(4)(a), Fla....
...sed pursuant to subsection (2)” simply acknowl *502 edged that probation was required in addition to the fine and sentence addressed in subsection (2). Unfortunately, when the crime of DUI causing injury to person or property was incorporated into section 316.193(3) in the 1986 amendments, the legislature amended subsection (6) to read "regardless of any penalty imposed pursuant to ......
...Florida Chapter 88-5, Laws of Florida, added the requirement of probation in subsection (5). See Ch. 88-5, § 2, at 191, Laws of Fla. Prior to that time, DUI school, but not probation, was required. . Prior to 1986, driving under the influence (DUI) and driving while intoxicated (DWI) represented separate offenses. See § 316.193, Fla. Stat. (1985); § 316.1931, Fla. Stat. (1985). Only DWI carried enhanced penalties where the driving episode caused an accident. See § 316.1931(2), Fla. Stat. (1985). In 1986, DWI was repealed and its concept incorporated into section 316.193, Florida Statutes....
...Subsection (3) in substantially its 1998 version was added. Former subsection (3), requiring attendance at a substance abuse course, became subsection (5) and continued to apply to "any person convicted of violating this section.” . Our view is buttressed by a review of section 316.1931, Florida Statutes (1985), the DWI law, which specifically provided that "the penalty imposed for [DWI with property damage] shall not be less than the penalty provided under s. 316.193.” § 316.1931(2)(a). When section 316.1931 was repealed and the crime of DUI with property damage incotpo-rated into section 316.193(3), this plain directive to impose at least the required minimum punishment for a simple DUI was dropped....
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 717, 1989 Fla. App. LEXIS 1397, 1989 WL 23489
SHIVERS, Judge. Appellant Madison was charged in June 1987 with felony DUI in violation of section 316.193(2)(b), Florida Statutes, which provides that “[a]ny person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree....” In November 1987, appellant filed a motion to dismiss pursuant to Fla.R....
...In affirming the circuit court’s retention of jurisdiction, however, we note that it is the function of the chief judge of each circuit court to assign other judges to temporary service in the same circuit. Rule of Judicial Administration 2.050(b)(4). ZEHMER and BARFIELD, JJ., concur. . In language similar to that used in section
316.193(2)(b), section
812.014(2)(c), Florida Statutes (1981) [now section
812.014(2)(d), Florida Statutes (1987)] provides that: ‘‘[u]pon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the t...
CopyPublished | Florida 6th District Court of Appeal
...3d DCA 2024) (“[W]e hold that juries may award punitive damages
where voluntary intoxication is involved in an automotive accident in Florida.” (quoting
Ingram v. Pettit,
340 So. 2d 922, 924 (Fla. 1976))).
Dinkins relies on Ingram and section
316.193, Florida Statutes, to defend his
entitlement to bring a punitive damages claim....
...known risk to
the public and punitive damages are a suitable corollary to those criminal laws designed
to discourage such reckless disregard for public safety.” While we agree with Dinkins’s
recitation of the law, he overlooks that Ingram and section 316.193 both require a
showing of intoxication or impairment that is absent here.
In Ingram, the Florida Supreme Court held that “the voluntary act of driving
‘while intoxicated’ evinces, without more, a sufficiently reckless a...
...ial amount of alcohol in a 45-minute period
and appeared intoxicated); Matalon v. Lee,
847 So. 2d 1077, 1079 (Fla. 4th DCA 2003)
(“A jury may award punitive damages where voluntary intoxication is involved in an
automobile accident.”).
Section
316.193—the current version of the DUI manslaughter statute—also
requires some showing of impaired faculties: “[a] person is guilty of the offense of
driving under the influence and is subject to punishment ....
...any substance controlled under chapter 893,2 when affected to the extent
2
The parties do not dispute that marijuana is such a substance.
6
that the person’s normal faculties are impaired.” § 316.193(1)(a), Fla....
...As to sections 1 and 2, while I
agree that the trial court erred in permitting Dinkins to assert a punitive damages claim,
I do so for somewhat different reasons.
I agree with the majority that the proffered evidence is insufficient to show
intoxication under Ingram or impairment under section 316.193....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 1973, 1991 WL 30429
PER CURIAM. Armando Trujillo has appealed the sentence imposed after his conviction of driving under the influence, contrary to section 316.193(l)(a), Florida Statutes (1989). We reverse and remand for resentencing. This was Trujillo’s first conviction under this statute. The appropriate punishment was therefore a fine of between $250 and $500, § 316.193(2)(a)l.a., and a term of probation of no more than one year, § 316.193(6)(a). However, the trial court imposed an indefinite period of probation, to last until Trujillo paid a fine of $1,000. In addition, although first-offense DUI is a misdemeanor, see § 316.193(2)(a)2.a....
...Trujillo alleges error in the amount of the fine, the length of the probationary period and the degree of the offense recorded below. The state concedes error on all points. We therefore reverse the sentence imposed herein, and remand for imposition of a fine between $250 and $500, § 316.193(2)(a)l.a., imposition of a term of probation not to exceed one year, § 316.193(6)(a), and for correction of the judgment to reflect conviction of a misdemeanor, §§ 316.193(2)(a)2.a....
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 2587, 2000 WL 263183
...We must remand for re-sentencing on all remaining convictions because the vacation of the conviction for leaving the scene of an accident with injury may affect the sentencing guideline score sheet computations, AFFIRMED in part; REVERSED in part; REMANDED for re-sentencing. DAUKSCH and W. SHARP, JJ„ concur. . § 316.193(1) and (3)(a)(b)3, Fla. Stat. (1997). . § 316.193(3)(c) 1, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2002 WL 312535
...The trial judge denied Wilson's motion for rehearing, and this appeal followed. We affirm. In his appeal, Wilson argues that like Servis, he is entitled to relief because the jury was improperly instructed regarding the statutory presumptions of impairment pursuant to section 316.1934(2), Florida Statutes (1997)....
...State,
730 So.2d 265, 267 (Fla.1999). This is not one of those rare cases. Id.,
805 So.2d at 995. We agree with the First District Court of Appeal that Miles has no retroactive application. AFFIRMED. THOMPSON, C.J., and COBB, J., concur. NOTES [1] §
316.193(3)(c)3., Fla. Stat. (1997). [2] §
322.34(1), Fla. Stat. (1997). [3] §
316.193(3)(c)2., Fla....
CopyPublished | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 8150
...N.J.G., a seventeen-year-old child [“Appellant”], through counsel, seeks review of a decision of the circuit court denying his petition for writ of prohibition, seeking to preclude the county court of Orange County from exercising jurisdiction over his prosecution for violation of section 316.193 Florida Statutes (2006)....
...Nevertheless, for the reasons explained by the circuit court and from our own review of the pertinent legislation and its history, we reject petitioner’s argument that, in enacting section 985.201, the legislature intended that jurisdiction over offenses in chapter 316, such as 316.193, be moved to the juvenile division of the circuit court....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4042, 1990 WL 73282
PER CURIAM. Appellee, Douglas Carter, was charged with driving under the influence in violation of section 316.193, Florida Statutes (1989)....
CopyPublished | Supreme Court of Florida
...Respondent.
June 30, 2022
POLSTON, J.
Petitioner Robert Velazco argues that his convictions for
driving under the influence causing damage to property and serious
bodily injury to a person under section 316.193(3)(c), Florida
Statutes (2014), are degree variants of the same criminal offense so
that double jeopardy is violated....
...person of another, i.e., “damage to the motorcycle and/or scooter
and/or moped of” Rodas. Velazco proceeded to trial and was found
guilty as charged and sentenced accordingly.
On appeal, Velazco challenged his dual convictions under two
subsections of section
316.193, which provides in relevant part:
(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 or
contributes to causing:
1. Damage to the property or person of another
commits a misdemeanor of the first degree, punishable
as provided in s.
775.082 or s.
775.083.
2. Serious bodily injury to another, as defined in s.
316.1933, commits a felony of the third degree,
punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
§
316.193(3). Velazco was convicted of DUI causing damage to
property or person in violation of section
316.193(3)(c)1. (a first-
degree misdemeanor) and DUI causing serious bodily injury in
-3-
violation of section
316.193(3)(c)2....
...See Valdes,
3 So. 3d at 1076
(stating that a crime that has aggravated forms of the basic offense
“can evince a relationship of degree”); see also Velazco,
305 So. 3d
at 88 (Emas, C.J., concurring in part and dissenting in part).
Subsection (1) of section
316.193 sets forth the elements of the
basic DUI offense:
(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 ac...
...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.
§ 316.193(1), Fla. Stat. (2014). Subsections (2), (3), and (4)
delineate varying penalties for certain aggravating conduct. For
example, repeat violations of the DUI statute correspond with
increased fines and increased terms of imprisonment. See, e.g.,
§ 316.193(2)(a) (providing for a $500-$1,000 fine and up to six
months’ imprisonment for a first conviction and a $1,000-$2,000
fine and up to nine months’ imprisonment for a second conviction).
Other provisions increase the amount of fines and terms of
imprisonment based on certain factors present during the DUI
episode. See, e.g., § 316.193(4) (providing for increased fines and
terms of imprisonment if the person, while driving under the
influence, had a blood-alcohol level or breath-alcohol level of 0.15
or higher, or was accompanied by a minor); see also Velazco, 305
So....
...$1000-$2000, $2000-$4000, $4000 or more), and other escalating
penalties (e.g., restriction, suspension or revocation of driving
privileges) based upon the existence and establishment of certain
aggravating conduct”).
Relevant to this case, section 316.193(3) contains several
provisions detailing certain aggravating conduct with corresponding
increases in punishment as the harm caused by the DUI driver
increases:
(3) Any person:
(a) Who is in violation of...
...contributes to causing:
1. Damage to the property or person of another
commits a misdemeanor of the first degree, punishable as
provided in s.
775.082 or s.
775.083.
2. Serious bodily injury to another, as defined in s.
316.1933, commits a felony of the third degree,
punishable as provided in s....
...775.082, s.
775.083, or s.
775.084, if:
(I) At the time of the crash, the person knew, or
should have known, that the crash occurred; and
(II) The person failed to give information and render
aid as required by s.
316.062.
§
316.193(3) (emphasis added).
Velazco was convicted of DUI causing damage to property or
person in violation of section
316.193(3)(c)1. 5 and DUI causing
serious bodily injury in violation of section
316.193(3)(c)2. Both
offenses are found in the same subsection of the DUI statute, one
5. Section
316.193(3)(c)1. is an “alternative conduct” statute,
meaning “a statute that proscribes conduct in the alternative.”
Roughton v. State,
185 So. 3d 1207, 1210 (Fla. 2016). The statute
can be violated by causing property damage or bodily injury. See
§
316.193(3)(c)1....
...ot the specific
conduct charged or proven at trial.” State v. Maisonet-Maldonado,
308 So. 3d 63, 70-71 (Fla. 2020) (quoting Tambriz-Ramirez v. State,
248 So. 3d 1087, 1094 (Fla. 2018)).
- 13 -
after another. See §
316.193(3)(c)1.-2.; see also Gil v....
...ning “a level based on the
seriousness of an offense”). Further, the two offenses contain
nearly identical elements. Common to both offenses is the
requirement that a person first commit the basic DUI offense set
forth in subsection (1). See § 316.193(3)(a). DUI causing damage to
property or person requires the defendant to operate a vehicle,
while under the influence, and by reason of such operation, cause
damage to the property or person of another. See § 316.193(3)(c)1.
DUI causing serious bodily injury requires the defendant to operate
a vehicle, while under the influence, and by reason of such
- 14 -
operation, cause serious bodily injury to another. See
§ 316.193(3)(c)2. The lone difference between the two offenses, as
Judge Emas explained below, is the final aggravating conduct—the
seriousness of the resulting harm, which “when viewed in the
context of section 316.193, most clearly establishes that the instant
offenses meet the degree-variant exception and compels the
conclusion that felony DUI serious bodily injury and DUI bodily
injury/property damage are merely aggravated forms of the basic
DUI offense.” Velazco, 305 So....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 9661, 2001 WL 758731
...4th DCA 2000), we held that “prior convictions arising from one episode do not qualify as predicate offenses under the felony DUI statute.” Under Lainez , Byrd’s current DUI conviction could be considered only a second offense, which could not be reclassified as a felony. See § 316.193(2)(b), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 9994, 2007 WL 1827286
...We therefore reverse the trial court’s denial of the motion to suppress and because the motion to suppress is dispositive, we remand, and direct the tpal court to vacate Morris’s conviction. Reversed and Remanded with Directions. WARNER and KLEIN, JJ., concur. . Section
316.191, Florida Statutes, deals with drag racing; section
316.193, Florida Statutes, deals with driving while under the influence; and section
322.34, Florida Statutes, deals with driving while license has been suspended, revoked, cancelled, or otherwise disqualified.
CopyPublished | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1407, 1986 Fla. App. LEXIS 8439
whether defendants, charged with violating Section 316.-193(l)(a), Florida Statutes (1983), “[d]riving
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 3099940, 2013 Fla. App. LEXIS 9803
...Phillip Martin Baker timely appeals from the order denying his rule 3.850 motion. We agree with Baker that the motion is not procedurally barred and reverse. In 2010, Baker was charged with felony driving under the influence (“DUI”) for a third DUI violation within ten years after a prior DUI conviction. See § 316.193(2)(b), Fla. Stat. (2010). Baker entered a plea of nolo contendere to the lesser included offense of misdemeanor DUI, in violation of section 316.193(2)(a), Florida Statutes, and was sentenced to twelve months’ probation....
CopyPublished | Florida 1st District Court of Appeal
...The State
charged Beamon with DUI manslaughter, later amending the
information to add a count of vehicular manslaughter. Beaman
agreed to enter a plea of no contest to DUI manslaughter in
exchange for dismissal of the vehicular manslaughter count.
Beaman was subject to a four-year mandatory minimum
sentence under section 316.193(3), Florida Statutes, and scored
124.5 months—10.375 years—for her LPS....
...court sentenced Beaman to sixty months (five years) in prison,
suspended that sentence, and imposed 124.5 months of probation.
Over the State’s objection, the court also suspended the mandatory
minimum sentence. The State appeals.
II
Section 316.193(3), Florida Statutes, provides that “[a] person
who is convicted of DUI manslaughter shall be sentenced to a
2
mandatory minimum term of imprisonment of 4 years.” (Emphasis
supplied)....
...hat
a departure from the LPS was justified, only its failure to impose
a mandatory minimum sentence.
3
a minimum mandatory prison sentence); State v. Brown,
599 So.
2d 286 (Fla. 3d DCA 1992) (same).
Because section
316.193(3) requires a term of four years of
imprisonment for DUI manslaughter, and because suspending the
sentence does not constitute imposition of a term of imprisonment,
the trial court’s sentence is improper....
CopyAgo (Fla. Att'y Gen. 2004).
Published | Florida Attorney General Reports
...unit development (PUD), where the public does not have a right to travel and the PUD has not entered into a written agreement with the local government for traffic control jurisdiction? 2. If so, is the court's holding limited to enforcement only of section 316.193 , Florida Statutes? As your questions are interrelated, they will be answered together....
...Such agreement, however, must provide for reimbursement for the actual costs of traffic control and enforcement and for liability insurance and indemnification by the party or parties who own or control such road or roads. 5 In Zink v. State , 6 the defendant argued that the prohibition in section 316.193 (1)(a), Florida Statutes, against driving while under the influence of alcohol could not be applied to him since his offense was committed on private property and not on a public highway. While the defendant recognized that section 316.193 (1)(a) makes it unlawful for a person under the influence of alcohol, to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle "within this state," he argued that the phrase "w...
...rpretation of meaning "upon the streets and highways and elsewhere throughout the state where the public might have the right to travel." The Zink court declined to adopt the defendant's interpretation, stating that the phrase "within this state" in section 316.193 (1)(a), Florida Statutes, is not ambiguous and "very lucidly indicates the legislature's intent to encompass all lands in the state." 7 The court agreed with the lower court that "it is not objectionable that the Florida Legislature h...
...bition against driving while under the influence of alcohol more broadly throughout the state than certain other prohibitions contained in chapter 316." 8 A review of the Zink court's decision clearly indicates the court considered the provisions of section 316.193 , Florida Statutes, to apply throughout the state, including on roads on which the public did not have the right to travel....
...it development (PUD), where the public does not have a right to travel and the PUD has not entered into a written agreement with the local government for traffic control jurisdiction. The court's decision, however, relates only to the enforcement of section 316.193 , Florida Statutes....
...316.006 (2)(b)2., Fla. Stat., which provides that "[t]he exercise of jurisdiction provided for herein shall be in addition to jurisdictional authority presently exercised by municipalities under law . . . ." 6
448 So.2d 1196 (Fla. 1st DCA 1984). See s.
316.193 (1), Fla....
CopyAgo (Fla. Att'y Gen. 1980).
Published | Florida Attorney General Reports
date of conviction of the current offense(s). Section
316.193(1) and (2)(a), (b), and (c), F. S., are stated
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1434, 1988 Fla. App. LEXIS 2526, 1988 WL 60466
...mit and that the appellant drove a vehicle and crashed head-on into another vehicle causing three deaths. This fact is an inherent component of DUI manslaughter and therefore will not support a departure from the presumptive guidelines sentence. See § 316.193(3)(c)3, Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal
...Appellant, who was standing in the driveway at the time, was pinned under
one of the vehicles and suffered severe injuries from the crash. 1
1Merrill was subsequently convicted of driving under the influence causing or
contributing to serious bodily injury, a third-degree felony under section
316.193(3)(a), (b) and (c)(2), Florida Statutes, and sentenced to six months in jail.
3
Soon after, appellant filed a civil suit against appellees as the
companies involved in the manufacture, dis...
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 6335, 1996 WL 325338
...e, the change must be stricken as the oral pronouncement prevails. Justice v. State,
674 So.2d 123 (Fla.1996). The condition of probation orally pronounced at sentencing is reinstated. AFFIRMED as modified. DAUKSCH, COBB and THOMPSON, JJ., concur. . §
316.193(1), (3)(a), (3)(b), and (3)(c)3„ Fla....
CopyPublished | District Court, S.D. Florida | 2011 U.S. Dist. LEXIS 64020, 2011 WL 2416049
...However, at trial it was established that the Corps and the CAC eventually agreed that the depth cut-off was twelve, not twenty-four, inches. . The Court notes that Downs’ blood alcohol level was significantly over the legal driving limit of 0.08 grams of alcohol per 100 milliliters of blood. See Fla. Stat. § 316.193 ....
CopyAgo (Fla. Att'y Gen. 1995).
Published | Florida Attorney General Reports
...s after the date of the arrest, a copy of the notice of suspension, the driver's license of the person arrested, and a report of the arrest, including an affidavit stating the officer's grounds for belief that the person arrested was in violation of s. 316.193 ; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit; a copy of the citation...
...Such reports, which shall be in the record for consideration by the hearing officer, may include but are not limited to: (a) The uniform traffic citation issued to the driver; (b) An affidavit stating the officer's grounds for belief that the person arrested was in violation of s. 316.193 ; (c) An affidavit of any breath, urine or blood test refusal, HSMV Form 72054, submitted by a law enforcement officer; (d) The results of any breath or blood test documenting the driver's blood alcohol level; (e) The officer's alcohol inf...
...da Statutes, may be used in documents when the law authorizes verification on information or belief. The use of this phrase is sufficient to subject the affiant to the penalties of perjury. Sincerely, Robert A. Butterworth Attorney General RAB/tgk 1 Section 316.193 , Fla. Stat. (1994 Supp.). 2 Section 316.1932 , Fla....
CopyPublished | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 403, 2009 Fla. LEXIS 1024, 2009 WL 1956381
...on 28.1(a) for publication and use as requested by the Committee in report number 2009-03. As submitted by the Committee to the Court in report number 2008-08, proposed instruction 28.1(a) did not include the presumption of impairment established by section 316.1934(2)(c), Florida Statutes (2008)....
...But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. Accordingly, we correct the Committee’s inadvertent exclusion of the presumption of impairment under section 316.1934(2)(c) from its prior submission....
...he date of this opinion in which to file comments with the Court. 3 It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur. APPENDIX 28.1(a) DRIVING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY § 316.193(3)(a)(b)(c)l, 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 §
316.193f(2)(a), (2)(b), and (2)(c), Fla....
...However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt. Lesser Included Offenses DRIVING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY— _316.193(3)(a)(b)(e)l_ CATEGORY CATEGORY FLA._INI& ONE TWO STAT. NO. DUI_316.193(1) 28.1 Attempt_777.04(1) 5.1 Comment This instruction was adopted in 2009, In re Standard Jury Instructions in Criminal Cases-Report No....
CopyPublished | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 10867, 2012 WL 2617596
...her his or her refusal to take the breath test was incident to a lawful arrest. Id. The court directed that the hearing officer is required to “make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id....
...Pan-kau submitted to a breath test and the results indicated a blood alcohol level between .163 and .174. Unlike the previous four cases, the record in the present case *924 does not reflect whether Ms. Pankau was charged with the criminal offense of driving under the influence. See § 316.193, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 10872, 2012 WL 2617597
...her his or her refusal to take the breath test was incident to a lawful arrest. Id. The court directed that the hearing officer is required to “make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id....
...Gonzalez submitted to a breath test and the results indicated a blood alcohol level between .190 and .193. Unlike the previous four cases, the record in the present case does not reflect whether Mr. Gonzalez was charged with the criminal offense of driving under the influence. See § 316.193, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 10343, 2007 WL 1931361
...ision Services Program. Butler enrolled in the program. Thereafter, Butler received a letter informing him that his driver’s license would be issued with a “P” restriction upon installation of an ignition interlock device on his vehicle. See §§ 316.193(2)(b)l., .1937, Fla....
...of Highway Safety & Motor Vehicles v. Gonzalez-Zaila,
920 So.2d 1220, 1222 (Fla. 3d DCA 2006). Although the device was not mandatory at the time of Butler’s conviction, the requirement was mandatory at the time he sought reinstatement in January 2007. §
316.193(4)(c),....
CopyPublished | Florida 5th District Court of Appeal
...Kaigle, of The Kaigle Law
Firm, P.A., Orlando, for Appellee.
PER CURIAM.
The State appeals an order granting the motion to suppress filed by Appellee. The
State contends that the police had reasonable suspicion to arrest Appellee for driving
under the influence of alcohol in violation of section 316.193, Florida Statutes (2015).
Based on the record before us, we agree....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 8589, 1997 WL 423446
...The previous probation was reinstated to run consecutively to the new probation. The state appeals, and we reverse. Section
316.656(1) provides as follows: “(1) Notwithstanding the provisions of s.
948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s.
316.193, for manslaughter resulting from the operation of a motor vehicle, or for vehicular homicide.”
316.656(1), Fla. Stat. (1995). Defendant was convicted on his plea of guilty to an offense under section
316.193, driving while under the influence but not involving any death....
...e the trial judge had discretion to suspend the recommended guidelines sentence and impose probation without any period of incarceration. We disagree. The plain meaning of this statute is that the court may not suspend sentence for any offense under 316.193, even those not involving a death. One of the enumerated offenses under section 316.193 is as follows: “(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 within this state a...
...al substance set forth in See.
877.111, or any substance controlled under chapter 893, when affected 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.” §
316.193(1), Fla. Stat. (1995). No injury or death is necessary to constitute a violation under this provision. One of the penalties for a violation of section
316.193(1) is prescribed in section
316.193(2)(b) as follows: “Any person who is convicted of a fourth or subsequent violation of this section is guilty of 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 shall be not less than $1,000.” §
316.193(2), Fla. Stat. (1995). In addition, subsection (3) of section
316.193 provides as follows: “(3) Any person: (a) who is in violation of subsection (1); (b) who operates a vehicle; *320 and (e) who, by reason of such operation, causes 1. damage to the property or person of another is guilty of a misdemeanor of the first degree, punishable as provided in s.
775.082 or s:
775.083. 2. Serious bodily injury to another, as defined in s.
316.1933, is guilty of a felony of the third degree, punishable as provided in s.775.082, s.
775.083, or s.
775.084. 3. The death of any human being is guilty of DUI manslaughter, a felony of the second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084.” §
316.193(3), Fla....
...It is, however, a separate kind of offense under section 319.193, but not the only kind of offense. As subsection (1) shows, one can be guilty of a DUI violation without causing any injury. The three categories under section
316.656(1) are therefore (A) any section
316.193 offense, (B) manslaughter, and (C) vehicular homicide. They are joined in the statute disjunctively by the word “or.” And so, the power to suspend sentence is abrogated if any one of the 3 section
316.193 categories is present. One can be guilty of a violation of section
316.193(1) without injuring or killing another person; the legislature thus intends to forbid suspension of sentence whenever an offense while driving involves alcohol. It also intends to forbid suspension of sentence whenever a death results from the use of alcohol. In this case, defendant was convicted under section
316.193(2)(b) for his seventh DUI offense....
CopyPublished | Florida 5th District Court of Appeal | 2008 WL 2605073
...As a result, QUADIR SABREE caused or contributed to the cause of the death of Walter Steven Dixon.
978 So.2d at 841. In reversing Mr. Sabree's conviction based on fundamental error in the jury instruction, the Fourth District held: In order to be guilty of driving under the influence pursuant to section
316.193(1)(a)-(c), Florida Statutes (2004), a person must be either (a) "affected to *740 the extent that [his] normal faculties are impaired" by alcohol or a controlled substance, which includes cocaine, (b) have a "blood-alcohol level of 0....
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 11065, 2006 WL 1805580
PER CURIAM. Bryan Plummer (Appellant) appeals the denial of his 3.800(b) motion, three eviden-tiary rulings, and a ruling that section 316.193, Florida Statutes (2002), is constitutional....
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 4885, 1990 WL 95345
PER CURIAM. A jury found Tyndal guilty of being in actual physical control of a vehicle while he was under the influence of alcohol. The offense is a third degree felony under section 316.193(2)(b), Florida Statutes (1987), due to Tyndal’s three prior convictions for driving under the influence of alcohol (DUI)....
CopyPublished | District Court of Appeal of Florida | 1987 Fla. App. LEXIS 9517, 12 Fla. L. Weekly 1840
PER CURIAM. Appellant appeals the lower court’s final judgment adjudicating him guilty of D.W.I. manslaughter (driving while intoxicated causing death, section 316.1931(2)(c), Florida Statutes (1985)). We find that one of appellant’s points on appeal has merit. The trial court denied appellant’s request for a jury instruction on D.U.I. (driving under the influence). D.U.I. is proscribed m section 316.193, Florida Statutes (1985), and section 316.193(l)(a) can be equated essentially with simple D.W.I., proscribed in section 316.1931(1), Florida Statutes (1985)....
...mberly court also notes that the Schedule of Lesser Included Offenses in the Florida Standard Jury Instructions In Criminal Cases lists, in category one, the necessarily lesser included offenses on which jury instructions must be given. Id. at 931 . Section 316.1931(1), driving while intoxicated, is listed as a category one necessarily lesser included offense of section 316.-1931(2)(c), D.W.I....
CopyPublished | Florida 4th District Court of Appeal
manslaughter or vehicular manslaughter. Section
316.193(3), Florida Statutes (2010), provides for the
CopyPublished | Florida 2nd District Court of Appeal | 2014 WL 3613107, 2014 Fla. App. LEXIS 11161
...Assistant Attorney General, Tampa, for
Appellant.
Benjamin G. DeBerg, St. Petersburg, for
Appellee.
PER CURIAM.
The State appeals the order dismissing the information charging Gary
Salter with felony driving under the influence in violation of section 316.193(2)(b)(3),
Florida Statutes (2012)....
CopyPublished | District Court of Appeal of Florida
9-30-5-3(a)(1) is section
316.193(2)(b)1., Florida Statutes (2014). Like Indiana’s code, section
316.193 allows
CopyPublished | District Court of Appeal of Florida | 1986 Fla. App. LEXIS 8950, 11 Fla. L. Weekly 1568
...This crime was in addition to the already existing crime of driving while under the influence (DUI). Both these crimes were contained in Section 316.028, Florida Statutes (1974 Supp.). Morea was convicted of the DUBAL crime in 1975. Two years later, in 1977, these crimes were renumbered as Section 316.193, Florida Statutes (1977)....
...In that same year, the revocation statute, Section
322.28(2)(a), Florida Statutes (1977), specifically enumerated suspension for both DUBAL and DUI. Under the 1983 statute, DUBAL and DUI are treated the same regarding punishment, and in fact appear together in the same statute, Section
316.193, Florida Statutes (1983). The 1983 revocation statute does not specifically refer to DUBALs and DUIs, but refers only to offenses under Section
316.193....
...Although the two offenses were punished differently in 1975, they were renumbered in 1977 and are currently so numbered. In 1977, the revocation statute specifically included DUBALs. It was only after the punishments became the same that the revocation statute referred generically to Section 316.193....
...MILLS and WENTWORTH, JJ., concur. . Section
322.28(2)(a), Florida Statutes (1983), states, in part: (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 s.
316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than ten years. For purposes of this paragraph, a conviction for a violation of former s. 860.01 shall be considered a violation of s.
316.1931....
...he following: For the purposes of this paragraph, a previous conviction outside of this state for a violation of any alcohol-related or drug-related traffic offense substantially similar to the offense of driving under the influence as proscribed by s. 316.193 will be considered a previous conviction for violation of s. 316.193, and a conviction for violation of former s. 316.028 or former s. 860.01 is considered a conviction for violation of s. 316.193 or s. 316.1931, respectively.
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 8221, 1992 WL 164178
...Griffith,
540 So.2d 916 (Fla. 2d DCA 1989). The trial court is directed to adjudicate Carter guilty, in compliance with the mandatory requirement set forth in section
316.656(1), Florida Statutes (1989), of driving under the influence of alcoholic beverages as proscribed by section
316.193(2)(b), Florida Statutes (1989)....
CopyPublished | Florida 3rd District Court of Appeal
...draw
and toxicology report, on April 16, 2021, the State charged Garcia by
information as an adult with four counts of driving under the influence (DUI)
2
manslaughter, a second-degree felony, pursuant to section 316.193(3)(c)(3),
Florida Statutes (2020), and multiple other charges....
...and order no pretrial
release.
1
The State also charged Garcia with four counts of vehicular
homicide/reckless manner, a second-degree felony, section
782.071(1)(A);
and two counts of DUI causing serious bodily injury, a third-degree felony,
section
316.193(3)(c)(2)....
... of physical harm to persons.” §
907.041(1), Fla. Stat. (2020). The statute
continues, instructing that the trial court “may order pretrial detention” upon
finding a “substantial probability” that Garcia committed “DUI manslaughter
as defined by section
316.193” and that Garcia “poses a threat of harm to
the community.” Id....
...But the trial court is in the best position to weigh these facts and
determine the probability that Garcia was “under the influence of alcoholic
beverages” or controlled substances “when affected to the extent that [his]
normal faculties [were] impaired” at the time of the crash. § 316.193(1)(a),
Fla....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 9720, 2001 WL 788508
...We reverse and remand for further proceedings on the appellant’s allegation that trial counsel was ineffective for failure to investigate and to discover that his first DUI conviction was uncounseled, and thus, the first conviction was invalid for enhancing his fourth DUI to a third-degree felony. Section 316.193(2)(b), Florida Statutes (1997), provides that a defendant should be charged with a third-degree felony for a DUI if he has three prior DUI convictions....
CopyPublished | Florida 5th District Court of Appeal | 1997 WL 402531
...Sam Baxter Bardwell of Sam Baxter Bardwell, P.A., Titusville, for Appellee. PER CURIAM. The State of Florida, Department of Highway Safety and Motor Vehicles (DMV), appeals an order staying the suspension of appellee's driving privileges. Appellee was arrested for driving under the influence (DUI) in violation of section 316.193, Florida Statutes (1995)....
CopyPublished | Supreme Court of Florida | 1981 Fla. LEXIS 2753
...following plan for the implementation of the DWI Schools Coordination Trust Fund. (1)Effective July 1, all DWI schools in the state of Florida shall assess three dollars at the time of enrollment against every individual convicted of a violation of Section 316.193 or 860.01, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 102, 1992 WL 1345
...We reverse appellant’s conviction and sentence for felony DUI. See State v. Rodriguez,
575 So.2d 1262 (Fla.1991). The information charged appellant with driving under the influence, “to the extent that his normal faculties were impaired, in violation of Florida Statute
316.193(l)(a).” Nothing in the information places the defendant on notice that the charge is punishable under section
316.193(2)(b) as a felony rather than as a misdemeanor DUI, other than the state bringing the charge in the circuit court....
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 105, 2000 WL 6124
...3, 1999). Accordingly, we reverse the conviction. Because this determination is dispositive, we do not reach the other points raised by Apple in his appeal. REVERSED and REMANDED with directions to discharge Apple. HARRIS and PETERSON, JJ., concur. . § 316.193(3)(c)3, Fla. Stat. (1997). . § 316.193(2)(b), Fla....
...er 893 to the extent HIS normal faculties were impaired or with a blood alcohol level of 0.08 percent or higher, and by reason of such operation caused the death of another human being, to-wit: CONSTANCE HOLLY ELLIOT, in violation of Florida Statute 316.193(1) and 316.193(3)(a)(b)(c)3[.]
CopyPublished | Florida 4th District Court of Appeal
...Underwood, Assistant Attorney General, West Palm Beach, for appellant.
Jacob A. Cohen of Law Offices of Jacob A. Cohen, PLLC, Boca Raton,
for appellee.
KUNTZ, J.
Robin Bender was charged with one count of Driving under the
Influence in violation of section 316.193(1), Florida Statutes (2019) and
section 316.1934(1), Florida Statutes (2019)....
CopyPublished | Supreme Court of Florida
...Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
-5-
APPENDIX
7.8 DRIVING UNDER THE INFLUENCE MANSLAUGHTER
§§ 316.193(3)(a), (3)(b), and (3)(c)3., Fla....
...alcohol per [100 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
child].
Give if §§ 316.193(3)(a), (3)(b), and (3)(c)3.b., Fla....
...e crash, after
trying to fulfill the requirements listed above as much as possible, shall
immediately report the crash to the nearest office of a duly authorized police
authority and supply the information specified above.
Give if applicable. § 316.193(4), Fla....
...“Vehicle” is every device in, upon, or by which any person or property
is or may be transported or drawn upon a highway[, except personal delivery
devices, mobile carriers, and devices used exclusively upon stationary rails or
tracks].
§ 316.1934(1), Fla....
...Stat.
Driving Under the Influence Manslaughter does not require the State to
prove that the defendant knew or should have known that (victim) was
pregnant or that the defendant intended to cause the death of the unborn
child.
Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....
...determining whether the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...en
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 MANSLAUGHTER —
316.193(3)(Aa), (3)(Bb), and (3)(Cc)3.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Driving under the 316.193(1) 28.1
Influence
Driving under the 316.193(3)(a), 28.3
influence causing (3)(b), and
serious bodily injury (3)(c)2.
Driving under the 316.193(3)(a), 28.1(a)
influence causing (3)(b), and
damage to person or (3)(c)1.
property
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So....
...Comment
This instruction was adopted in 2009 [
3 So. 3d 1172] and amended in 2013
[
131 So. 3d 755] and 2019.
- 14 -
28.1 DRIVING UNDER THE INFLUENCE
§
316.193(1), Fla....
...extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 316.193(4), Fla....
...“Vehicle” is every device, in, upon or by which any person or property
is, or may be, transported or drawn upon a highway[, except personal delivery
devices, mobile carriers, and devices used exclusively upon stationary rails or
tracks].
§ 316.1934(1), Fla....
...description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
Give if appropriate. §
316.1934(2)(a) and (2)(b), Fla....
...whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...However, if you are convinced that the
vehicle was operable at the time of the alleged offense, then you should find
the defendant guilty, if all the other elements of the charge have been proved
beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE — 316.193(1)
CATEGORY ONE CATEGORY TWO FLA....
...That instruction was
amended in 1995 and 1998; both instructions were merged into a revised
instruction in 2000, which was amended in 2009 [
6 So. 3d 574], and 2016 [
192 So.
3d 1190], and 2019.
28.1(a) DRIVING UNDER THE INFLUENCE CAUSING
PROPERTY DAMAGE OR INJURY
§
316.193(3)(a)(b)(c)1, Fla....
...liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to causing [damage to the property of (victim)]
[injury to the person of (victim)].
Give if applicable. § 316.193(4), Fla....
...“Vehicle” is every device, in, upon or by which any person or property
is, or may be, transported or drawn upon a highway[, except personal delivery
devices, mobile carriers, and devices used exclusively upon stationary rails or
tracks].
§ 316.1934(1), Fla....
...- 19 -
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
Give if appropriate. §
316.1934(2)(a) and (2)(b), Fla....
...hether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...alleged offense, then you should find the defendant guilty, if all the other
elements of the charge have been proved beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING PROPERTY
DAMAGE OR INJURY —
316.193(3)(a)(b)(c)1.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
DUI
316.193(1) 28.1
Attempt
777.04(1) 5.1
Comment
This instruction was adopted in 2009 [
6 So. 3d 574] and amended in 2009
[
18 So. 3d 523], and 2016 [
192 So. 3d 1190], and 2019.
28.2 [FELONY] DRIVING UNDER THE INFLUENCE
§
316.193(2)(b)1 or §
316.193(2)(b)3, Fla....
...b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
- 21 -
Give if applicable. § 316.193(4), Fla....
...“Vehicle” is every device, in, upon or by which any person or property
is, or may be, transported or drawn upon a highway[, except personal delivery
devices, mobile carriers, and devices used exclusively upon stationary rails or
tracks].
§ 316.1934(1), Fla....
...- 22 -
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
Give if appropriate. §
316.1934(2)(a) and (2)(b), Fla....
...hether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...the defendant guilty, if 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 uUnder
the Influence. Note: BUI and out-of-state DUI/DWI convictions count as prior
convictions. See §316.193(6)(k), Fla....
...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 uUnder the Influence.
Give if applicable. 316.193(12), Fla....
...viction.
- 24 -
Lesser Included Offenses
FELONY DRIVING UNDER THE INFLUENCE – [THIRD OFFENSE
WITHIN 10 YEARS OF A PRIOR CONVICTION] [FOURTH
OFFENSE] —
316.193(2)(b)1. or
316.193(2)(b)3.
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Driving under
316.193(1) 28.1
the influence
Attempt
777.04(1) 5.1
Driving under
316.193(3)(a)(b)(c)1 28.1(a)
the influence
causing property
damage or injury
Comments
This instruction should be used for Felony Driving uUnder the Influence
based on prior convictions....
...2d 691 (Fla. 2000).
This instruction was adopted in 2009 [
6 So. 3d 574] and amended in 2016
[
192 So. 3d 1190], and 2019.
28.3 DRIVING UNDER THE INFLUENCE CAUSING
SERIOUS BODILY INJURY
§
316.193(3)(a)(b)(c)2., Fla....
...grams of alcohol per [100 milliliters of blood] [210
liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to causing serious bodily injury to (victim).
Give if applicable. § 316.193(4), Fla....
...hich any person or property
is, or may be, transported or drawn upon a highway[, except personal delivery
- 26 -
devices, mobile carriers, and devices used exclusively upon stationary rails or
tracks].
§ 316.1934(1), Fla....
...Stat.
Alcoholic beverages are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
§
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.
Give if appropriate. §
316.1934(2)(a) and (2)(b), Fla....
...whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla....
...the charge have been proved beyond a reasonable doubt.
- 28 -
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY
INJURY—316.193(3)(a)(b)(c)2.
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
Driving under the 316.193(3)(a)(b)(c)1. 28.1
influence causing injury 28.1(a)
Driving under the 316.193(1) 28.1
influence
Driving under 316.193(3)(a)(b)(c)1....
...A “motor vehicle” is a self-propelled vehicle not operated upon rails or
guideway[, but not including any bicycle, motorized scooter, electric personal
assistive mobility device, mobile carrier, personal delivery device, swamp
buggy, or moped].
Fla. Stat. § 316.1935, Fla....
...NO.
None
Attempt
777.04(1) 5.1
Comment
This instruction was adopted in 2009 [
6 So. 3d 574] and amended in 2012
[
95 So. 3d 868], and 2013 [
31 So. 3d 755], and 2019.
28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
§
316.1935(1), Fla....
...State,
512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935(1)
CATEGORY ONE CATEGORY TWO FLA....
...State,
512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to elude
316.1935(1) 28.6
Reckless Driving (if
316.192(1)(b) 28.5
there is evidence that
the fleeing was in a
motor vehicle)
Disobedience to Police
or Fire Department
316.072(3...
...2d 1081], 2011 [
73 So. 3d 136], 2015 [
166 So. 3d 161], and 2018 [
236
So. 3d 244], and 2019.
28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving)
§
316.1935(3)(a), Fla....
...State,
512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935 (3)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to elude
316.1935(2) 28.7
Fleeing to elude
316.1935(1) 28.6
Reckless Driving (if
316.192(1) 28.5
wanton disregard for the
safety of persons or
property is charged or if
there is evidence that
the fleeing was in a
motor vehicle)
Disobedien...
...3d 161], and 2018 [
236
So. 3d 244], and 2019.
28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving
Causing Serious Bodily Injury or Death)
§
316.1935(3)(b), Fla....
...State,
512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
- 49 -
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935(3)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to elude
316.1935(3)(a) 28.8
Fleeing to elude
316.1935(2) 28.7
Fleeing to elude
316.1935(1) 28.6
Reckless Driving (if
316.192(1) 28.5
wanton disregard for
the safety of persons
or property is
charged or if there is
evidence that the
fleeing is in a motor
vehicle)
Disobedience to...
...3d 161], and 2018 [
236 So. 3d 244], and
2019.
28.8(b) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Serious Bodily Injury or Death)
§
316.1935(4)(b) and §
316.027, Fla....
...d Offenses
- 53 -
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Death and then Causing Serious Injury Bodily
Injury or Death) —
316.1935(4)(b) and
316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA....
...INS. NO.
Leaving Scene of a
316.027(2)(c) 28.4
Crash Involving
Death*
Leaving the Scene of
316.027(2)(b) 28.4
a Crash Involving
Serious Bodily
Injury*
Aggravated Fleeing
316.1935(4)(a) 28.8428.8(d)
Leaving Scene of a
316.027(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude
316.1935(1) 28.6
LEO
Fleeing to Elude LEO
316.1935(3)(b) 28.8128.8(a)
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was
in a motor vehicle)
Disobedience to
Police or Fire
316.072(3) 28.18
Department
Officials**
Comments
* §
316.1935(4), Fla....
...3d 1190], and 2018
[
236 So. 3d 244], and 2019.
28.8(c) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then
Causing Serious Bodily Injury or Death)
§
316.1935(4)(b) and §
316.061, Fla....
...stationary rails or tracks].
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Injury or Death) —
316.1935(4)(b) and
316.061
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Aggravated Fleeing
316.1935(4)(a) 28.8528.8(e)
Fleeing to Elude LEO
316.1935(1) 28.6
Leaving the Scene of a
316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
Fleeing to Elude LEO
316.1935(3)(b) 28.8128.8(a)
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police
316.072(3) 28.18
or Fire Department
Officials**
Comments
* §
316.1935(4), Fla....
...3d 1190], and 2018
[
236 So. 3d 244], and 2019.
28.8(d) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Injury or Property Damage to Another)
§
316.1935(4)(a) and §
316.027 Fla....
...-
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Death and then Causing Injury or Property
Damage to Another) —
316.1935(4)(a) and §
316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA....
...Death*
Leaving Scene of
316.027(2)(b) 28.4
Crash Involving
Serious Bodily
Injury*
Leaving Scene of a
316.027(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude
316.1935(1) 28.6
LEO
Fleeing to Elude LEO
316.1935(3)(b) 28.8128.8(a)
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was
in a motor vehicle)
Disobedience to
Police or Fire
316.072(3) 28.18
Department
Officials**
Comments
* §
316.1935(4), Fla....
...3d 1190], and 2018
[
236 So. 3d 244], and 2019.
28.8(e) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then
Causing Injury or Property Damage to Another)
§
316.1935(4)(a) and §
316.061, Fla....
...stationary rails or tracks].
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving A Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another) —
316.1935(4)(a) and
316.061
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to Elude LEO
316.1935(1) 28.6
Leaving the Scene of a
316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
Fleeing to Elude LEO
316.1935(3)(b) 28.8128.8(a)
Fleeing to Elude LEO
316.1935(3)(a) 28.8
Fleeing to Elude LEO
316.1935(2) 28.7
Reckless Driving (if
316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police
316.072(3) 28.18
or Fire Department
Officials**
Comments
*§
316.1935(4), Fla....
...on the motor vehicle and have the capability to operate the motor vehicle,
regardless of whether [he] [she] is actually operating the vehicle at the time.
Lesser Included Offenses
REFUSAL TO SUBMIT TO TESTING — 316.1939
CATEGORY ONE CATEGORY TWO FLA....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 32, 1991 WL 435
...We disagree with the appellant that Wilhelm is controlling and now order that the mandate issue wherein we affirmed the appellant’s conviction. In Wilhelm , the defendant was charged with vehicular homicide, manslaughter and driving while under the influence [DUI], the latter pursuant to section 316.1931, Florida Statutes (1985)....
...Thus were Wilhelm’s due process rights violated. The supreme court pointed out a significant distinction between the Wilhelm holding and its recent holding in State v. Rolle,
560 So.2d 1154 (Fla.1990). In Rolle the defendant was charged pursuant to section
316.193, Florida Statutes (1985), which had alternative elements for the prosecution to prove: either that Rolle was impaired by alcohol [DUI] or that he had an unlawful blood alcohol level [DUBAL], Since Wilhelm was convicted only under sect...
...ie” language without explanation impermissibly lead the jury to believe it must find impairment. In Rolle , the jury need not have found impairment if it found the necessary blood alcohol level to satisfy the alternative element of the crime under section 316.193. It is this distinction which is important to our holding. The appellant, like Rolle under the identical 1985 version, was charged under section 316.193, Florida Statutes (1987), which has alternative methods of proof: DUI or DUBAL....
...The prosecution presented evidence showing that the appellant’s blood alcohol level was .13 percent; the defense presented evidence that the test was poorly done so as to skew the test results. From this conflicting evidence the jury found the appellant guilty of violating section 316.193 although the verdict form does not specify under which alternative the jury so found....
CopyPublished | Florida 4th District Court of Appeal
...consecutive probation,
and it revoked his license for twenty years. Appellant later moved to
withdraw his plea. He argued that neither his attorney nor the court
informed him that a conviction of DUI involving serious bodily injury to
another under section
316.193(3)(c)2., Florida Statutes (2015), required
the court to revoke his driver’s license for a minimum of three years under
section
322.28(4)(a), Florida Statutes.
We review a trial court’s denial of a motion to withdraw plea for an
abuse of discretion....
CopyPublished | Florida 2nd District Court of Appeal
...See §
782.071, Fla. Stat. (2021). "DUI manslaughter" is when a death is
caused by a person operating a vehicle under the influence of alcoholic
beverages or a chemical substance, to the extent that "the person's
normal faculties are impaired." See §
316.193(1)(a), (3)(c)3, Fla....
...First, we note that the trial court orally imposed a $1,000 fine at
sentencing. The written sentence cites the general "Fines" statute,
section
775.083, for this fine. Instead, the applicable statute to impose a
fine for driving under the influence is section
316.193(2)(a)1. If the
statutory citation was a scrivener's error and the trial court intended to
impose the $1,000 fine under section
316.193(2)(a)1, the trial court may
3
reimpose the fine under the correct statute on remand....
...2d DCA 2022) (remanding for correction of scrivener's
error to reflect the correct statute).
In Ground 8, Glaubius argues that the $25, $50, and $60 court
costs imposed pursuant to section
938.07, should be stricken. If the
trial court finds that the $1,000 fine was imposed for driving under the
influence under section
316.193, the additional $135 is proper. See §
938.07 ("[A] court cost of $135 shall be added to any fine imposed
pursuant to s.
316.193 ....
CopyPublished | Florida 5th District Court of Appeal | 1997 Fla. App. LEXIS 282, 1997 WL 30876
...We affirm the circuit court’s dismissal of the petition. *53 The information charging the four DUI counts alleged that Hertzschuch operated a motor vehicle under the influence of alcohol and while doing so did damage to four vehicles parked on the street, in violation of section 316.193(3), Florida Statutes (1995)....
CopyPublished | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 538, 1992 WL 12311
...and to resentence the defendant, accordingly.” On remand, however, *784 the trial court failed to vacate the conviction and sentenced appellant to 12 months in jail and payment of a fine of $2,500. This sentence exceeds the maximum sentence allowed by law for a first offense D.U.I. Section 316.193(2)(a), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 375, 1994 WL 22570
...Perez, a deputy with the Hillsbor-ough County Sheriffs Office, had been drinking that night and upon exiting his car simply stated to the officer who had arrived at the scene, “I’m a deputy sheriff and I fucked up.” He was convicted and sentenced for violating section 316.193(3), 1 Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 442, 2003 WL 141623
...da Rule of Appellate Procedure 9.160(b): DOES THE STANDARD DUI JURY INSTRUCTION, WHICH INCLUDES BOTH THE IMPAIRMENT THEORY AND THE UNLAWFUL BLOOD ALCOHOL THEORY, HAVE THE EFFECT OF GIVING AN INSTRUCTION ON THE STATUTORY PRESUMPTIONS OF IMPAIRMENT IN SECTION 316.1934(2) 1 , FLORIDA STATUTES (2001), SUCH THAT IT IS ERROR TO GIVE THE STANDARD DUI JURY INSTRUCTION WHERE BLOOD ALCOHOL RESULTS WERE ADMITTED VIA THE TRADITIONAL PREDICATE? We have accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160(d)....
...Seltzer went to the hospital and made contact with Schreiber. He claimed she *346 still smelled of alcohol as they spoke. Seltzer asked her if he could take a sample of her blood; however, he did not read her her rights under the Implied Consent Law, §§ 316.1932, 316.1933, 316.1934, Fla. Stat. (2001). See § 316.1932(l)(a)(2)(e), Fla....
...These blood draws reflected a blood alcohol content (“BAC”) of 0.15 and 0.14, respectively. Thereafter Schreiber was charged with driving “while she was under the influence of an alcoholic beverage to the extent that her normal faculties were impaired and/or with a [BAC] of 0.08 or more,” in contravention of Section 316.193, Fla....
...Florida law authorizes two alternative theories for the crime of driving under the influence: driving while one’s normal faculties are “impaired” [“impairment theory”], or driving with a blood alcohol level of 0.08 or higher [“unlawful blood alcohol theory — DUBAL”]. § 316.193(1)(a),(b), Fla....
...14 (emphasis supplied). The court further noted there is some redundancy in the statutory DUI scheme, since impairment is presumed if *347 the defendant’s BAC is [0.08] or higher. See § 316.1984(2), Fla. Stat. However, the presumption of impairment created by s. 316.1934(2) is a moot concern if the State proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful BAC, ie., 0.08 or higher. Id. Adding further confusion to this redundancy issue, in Miles II, our Supreme Court held the statutory presumption provided for in s. 316.1934(2) was invalid, ie., the State is not legally entitled to the presumptions of impairment associated with the Implied Consent Law....
...We find no error in the lower court’s findings Schreiber’s consent was not knowing and voluntary under the totality of the circumstances. See State v. Jerome,
541 So.2d 756, 757 (Fla. 4th DCA 1989). Furthermore, we hold Officer Seltzer lacked authority to compel Schreiber’s blood pursuant to section
316.1933(1), where the only injury resulting from the accident was Schreiber’s two fractured ankles, from which she fully recovered; Seltzer had no *348 probable cause that her operation of the motor vehicle had resulted in the “death or serious bodily injury of a human being.” §
316.1933(1), Fla. Stat. (2001); see Galgano v. Buchanan,
783 So.2d 302 (Fla. 4th DCA 2001)(broken leg resulting in 5% permanent impairment did not constitute “serious bodily injury” under section
316.1933(1)); cf. Gerlitz v. State,
725 So.2d 393 (Fla. 4th DCA 1998)(compelled blood provisions of section
316.1933(1) applicable where victim of car accident suffered a broken back)....
...o his request was ineffectual, the lower court acted correctly in suppressing the results of those blood draws. AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with the foregoing opinion. GUNTHER and GROSS, JJ., concur. . Section 316.1934(2), Florida Statutes (2001), in pertinent part, provides: At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a...
...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...
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 478, 1999 WL 22263
...In fact, at the sentencing hearing the defense appeared to agree with the scoresheet calculation. We do *983 not think this ground was preserved for appellate purposes. AFFIRMED. PETERSON and THOMPSON, JJ., concur. . §§
782.04(1) &
777.04(1 )(4)(c), Fla. Stat. (1997). . §
316.193, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 263, 2010 WL 173607
...o deportation is the September 17th, 1999 conviction for domestic battery. Gomez stated that on February 28, 1998, prior to the domestic battery incident, he was arrested in Miami-Dade County, Florida for driving under the influence, in violation of section 316.193, Florida Statutes, for which he pled nolo contendere, was adjudicated guilty, and was ordered to pay a fine of $884.25....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 275, 2002 WL 63360
...The appellant also alleges that her sentence is illegal because it exceeds the statutory maximum for D.U.I. manslaughter. The trial court did not address this claim, but we find the appellant’s claim has merit. The statutory maximum for the appellant’s D.U.I. manslaughter conviction is 180 months. See § 316.193(3)(c)(3)(a), Fla....
...However, because the appellant was sentenced on multiple counts, her sentence must be examined with regard to the total exposure she faced. See Cauble v. State,
742 So.2d 422 (Fla. 2d DCA 1999). The statutory maximum for D.U.I. causing serious bodily injury is 60 months. See §
316.193(3)(c)(2), Fla....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 276, 1987 Fla. App. LEXIS 6306
ORFINGER, Judge. Bewick appeals his felony conviction on two counts of driving while intoxicated (D.W.I.) causing serious bodily injury, section 316.1931, Florida Statutes (Supp....
...Stuler,
122 So.2d 1 (Fla.1960). Here the legislature has clearly expressed its intent to punish a second drunk driving conviction more severely where the second incident involves damage to the person or property of another, even if the first one did not. Subsection (1) of section
316.1931 makes it unlawful for a person to drive, operate or be in control of a vehicle when under the influence of alcoholic beverages or certain drugs to the extent that such person has been deprived of full possession of his or her faculties. It thus describes the prohibited conduct. This subsection also provides that a previous conviction for violation un *74 der section
316.193 or former section 316.-028 shall be considered a previous conviction for violation of subsection (1)....
...runk driving offense) is guilty of a felony of the third degree. This is clearly what the statute says and what it means. The trial court read the statute correctly and properly denied the motion to dismiss. AFFIRMED. DAUKSCH and COBB, JJ., concur. .Section 316.1931, Florida Statutes (Supp.1984) provides: (1) It is unlawful for any person, while in an intoxicated condition or under the influence of alcoholic beverages, any chemical substance set forth in s....
...to drive, be in actual physical control of, or operate within this state any automobile, truck, motorcycle, or other vehicle. Except as provided in subsection (2), any person convicted of a violation of this section shall be punished as provided in s. 316.193. For the purposes of this subsection, a previous conviction under s. 316.193 or former s....
...ovided in paragraph (b) or paragraph (c), is guilty of a misdemeanor of the first degree, punishable as provided in s.
775.082 or s.
775.083, but the penalty imposed for a violation of this paragraph shall be not less than the penalty provided under s.
316.193. (b) Any person in violation of subsection (1) who by reason of such operation of a vehicle causes serious bodily injury to another, as defined in s.
316.1933, and who at the time of the offense: 1....
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 1580, 2006 WL 297654
...134 (Fla.1938), we limit our consideration solely to the application of the Cardenas fundamental error analysis to the instant case. Background Our analysis begins with the statutory framework under which this case proceed *44 ed. The DUI manslaughter statute, section 316.193(3), Florida Statutes (1997), incorporates the DUI • statute, section 316.193(1)....
...nking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following: If you find from the evidence that the defendant had a blood alcohol level of .08 percent [sic] or more, that evi *45 dence would be sufficie...
...The jury found appellant guilty on both counts. The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued. [[Image here]] Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section 316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v....
...The Court explained that the strict liability of DUBAL could be proven by admission of blood alcohol evidence by either of two means: the statutory presumption of DUI impairment or the common law governing admissibility of scientific test results. Under the statutory presumption, see section 316.193(1), Florida Statutes (2003), a person is deemed impaired if his or her blood alcohol level is equal to or greater than .08 grams of alcohol per 100 milliliters of blood (or 210 liters of breath)....
...ase the conviction. Apart from appellant’s blood alcohol level, the record does contain evidence, such as testimony concerning the odor of alcohol about appellant’s person and his vehicle, which suggests that appellant was actually impaired. See § 316.193(l)(c), Fla....
...Cardenas. In both of those trials the Bender test was satisfied. Thus, the jury was not weighing the evidence of actual impairment. Instead, the respective juries were able to convict on the strict liability subsections of the DUI statute, sections 316.193(l)(b) or (c). In the case at bar, it cannot be assumed that the jury weighed the evidence and found actual impairment, so that a conviction could be obtained under section 316.193(l)(a), when the case was tried as a strict liability case under section 316.193(l)(b)....
...impaired and/or did drive or was in actual physical control of a vehicle while having a blood alcohol level of .08 percent or above, and by reason of the operation of said vehicle, did kill [the victim], a human being, contrary to the provisions of Section 316.193(l)(a)(b) and 316.193(3), Florida Statutes.” ....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 377, 1989 Fla. App. LEXIS 469, 1989 WL 8336
WIGGINTON, Judge. Dennis Solomon brings this appeal from the trial court’s “Order on Implied Consent Hearing,” suspending Solomon’s driving privileges pursuant to the provisions of sections 316.1932 and 322.261, Florida Statutes (1987)....
...d the test. Solomon maintains that his nose was broken prior to the test and for that reason he had refused to take the test, instead desiring to go to the hospital. Although appellant was initially charged with a misdemeanor offense of violation of section 316.193, Florida Statutes, driving while under the influence, he was ultimately recharged with a third degree felony violation of said section on the basis that on three or more occasions he had been convicted of DUI or other substantially similar offenses under section 316.193....
...hed up while in the cell prior to being asked to take the test. Much later, on March 29, 1988, four days following appellant’s acquittal by the jury, a trial court entered its “Order on Implied Consent Hearing” adjudging that the provisions of section 316.1932 and 322.261 “have been sustained in that [Solomon’s] driving privileges are suspended.” Solomon’s position on appeal is that, from its verdict, the jury obviously concluded that his nose was broken prior to his refusal to tak...
CopyPublished | Florida 1st District Court of Appeal | 2016 WL 455625
...3
suspension order.” Subsection (5) of the statute provides in part:
[A] person whose driving privilege has been permanently revoked
because he or she has been convicted four or more times of violating s.
316.193 [addressing DUI offenses] or former s. 316.1931 may, upon
the expiration of 5 years after the date of the last conviction ....
...appellate review of the suspensions. Id. at 278. We granted the certiorari petitions,
finding that the orders departed from the essential requirements of law by violating
section
322.28(5). Id. We explained that all the respondents had been arrested for
violating section
316.193, the DUI statute, and had their licenses suspended pursuant
to section
322.2615....
CopyPublished | Florida 3rd District Court of Appeal | 2004 Fla. App. LEXIS 931, 2004 WL 231468
...lts were admissible at trial. We deny the petition because the circuit court did not depart from the essential requirements of law. Appellee State of Florida charged Scho-field with driving under the influence of alcoholic beverages, in violation of section 316.193, Florida Statutes (2000)....
...t test results unreliable. We cannot agree with Schofield that the circuit court departed from the essential requirements of law in this case and that this results in a miscarriage of justice. We first turn to the affidavit received into evidence. 1 Section 316.1934(5), *448 Florida Statutes (2000), provides that an affidavit is “admissible without further authentication.” The affidavit further constitutes “presumptive proof of the results of an authorized test.” Id. If the affidavit indicates that the breath alcohol test level is 0.08 or higher, the “presumptive proof of the results” gives rise to the rebuttable presumption of impairment as set forth in section 316.1934(2)....
...When employed in a statute, words of common usage should be interpreted in a plain and ordinary sense. Id. First, the affidavit is proper both in form and content. Schofield does not contest that the affidavit contains all of the requisite information required in section 316.1934, Florida Statutes....
...Nonetheless, evidence of the use of dentures during a breath alcohol test go to the weight accorded the test result, not the admissibility of the test result, the latter of which lies fully within the discretion of the *449 court. See State v. Allen, 74 Or.App. 275 , 702 P.2d 1118 (1985). Petition denied. . Section 316.1934(5), Florida Statutes (2000), allows the admission of breath test results by affidavit. It states in pertinent part: (5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s....
CopyPublished | Florida 1st District Court of Appeal
...Watson, who was concerned by the
speed of the semi-truck at the time of the accident, estimated
that it was going the speed limit.
Furthermore, DUI manslaughter requires proof that a
defendant operated a vehicle while impaired within the meaning
of section 316.193(1), Florida Statutes (2013), and, “by reason of
such operation, cause[d] or contribute[d] to causing . . . [t]he
death of any human being . . . .” § 316.193(3)(c)3.a., Fla....
...he
statutory presumption of impairment, because the blood alcohol
death, see Hubbard,
751 So. 2d at 562; Magaw,
537 So. 2d at 566,
whereas the current version requires operating the vehicle to
“cause or contribute to” the victim’s death. See §
316.193(3)(c)3.,
Fla....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 1600, 1996 WL 82202
...We affirm the defendant’s appeal; affirm in part and reverse in part the state’s appeal and remand. The defendant was charged with misdemeanor DUI by an information which pled the statutory alternatives of impairment or having a blood alcohol level of .08 percent or above, contrary to section 316.193(1), Florida Statutes....
...The trial court certified two questions of great public importance: I. WHETHER THE STATE MUST ALLEGE THE EXISTENCE OF A PRIOR DUI CONVICTION IN THE CHARGING DOCUMENT FOR A *1066 SUBSEQUENT MISDEMEANOR DUI BEFORE A DEFENDANT CONVICTED OF SAME BE SENTENCED WITH ENHANCED PENALTIES AS SET FORTH IN SECTION 316.193(2), FLORIDA STATUTES. We modify that question to read: WHETHER THE STATE MUST ALLEGE PRIOR DUI CONVICTIONS IN THE CHARGING DOCUMENT BEFORE A DEFENDANT, CHARGED AND CONVICTED OF MISDEMEANOR DUI, CAN RECEIVE AN ENHANCED MISDEMEANOR DUI PENALTY UNDER SECTION 316.193(2)(a), FLORIDA STATUTES....
...As modified, we answer the question in the negative. II. WHETHER THE STATE MUST ALLEGE THE EXISTENCE OF A BLOOD OR BREATH ALCOHOL READING OF 0.20% OR GREATER IN THE CHARGING DOCUMENT THEREBY REQUIRING A DEFENDANT CONVICTED OF SAME BE SENTENCED WITH ENHANCED PENALTIES AS SET FORTH IN SECTION 316.193(4), FLORIDA STATUTES....
...We grant the state’s request and modify this question to read: WHETHER THE STATE MUST ALLEGE IN THE CHARGING DOCUMENT THE EXISTENCE OF A BLOOD OR BREATH ALCOHOL LEVEL OF .20 PERCENT OR ABOVE, OR THE ACCOMPANIMENT OF A MINOR IN THE VEHICLE, IN ORDER TO SENTENCE A DEFENDANT CONVICTED OF DUI TO ENHANCED PENALTIES UNDER SECTION
316.193(4), FLORIDA STATUTES. As modified, we answer the question in the affirmative. / The Defendant’s Appeal A person convicted of DUI without property damage or injury to a person is guilty of a second degree misdemeanor. See §§
316.193 &
775.081(2), Fla.Stat. (1993). However, upon a person’s fourth or subsequent DUI conviction, the person is guilty of a third degree felony. See §
316.193(2)(b), Fla.Stat....
...Although the level or degree of crime does not rise from a second degree misdemeanor until the fourth conviction (absent property damage or injury to a person), the statutorily mandated penalty does increase with each of the first three convictions. See § 316.193(2)(a), Fla.Stat....
...endant’s prior DUI conviction. II The State’s Appeal A A person is guilty of second degree misdemeanor DUI if he drives under the influence of alcohol to the extent that his normal faculties are impaired or his BAL is .08 percent or above. See §§
316.193(1) &
775.081(2), Fla.Stat. (1993). Subsection (4) of section
316.193 provides enhanced penalties for anyone convicted under subsection (1) who had a BAL of .20 percent or above or who was accompanied in the vehicle by a minor....
...State,
590 So.2d 29 (Fla. 5th DCA 1991), or felony DUI based on three or more prior DUI convictions, see, e.g., Rodriguez, 575 *1068 So.2d at 1265 , the degree or level of crime does not change due to the .20 percent or above BAL or the presence of a minor. Compare §§
316.193(2)(b) & (3), Fla.Stat. (1993), mth §
316.193(4), Fla.Stat....
...the affirmative. We conclude that the trial court did not err in ruling that the state was required to allege the .20 percent or above BAL in the information and in failing to impose the corresponding enhanced mandatory minimum fine of $1,000 under section 316.193(4)....
CopyPublished | Florida 4th District Court of Appeal | 1996 Fla. App. LEXIS 1749, 1996 WL 82766
...4th DCA 1996), we answer the following certified question, as modified, in the negative, and affirm the trial court. WHETHER THE STATE MUST ALLEGE PRIOR DUI CONVICTIONS IN THE CHARGING DOCUMENT BEFORE A DEFENDANT, CHARGED AND CONVICTED OF MISDEMEANOR DUI, CAN RECEIVE AN ENHANCED MISDEMEANOR DUI PENALTY UNDER SECTION 316.193(2)(a), FLORIDA STATUTES....
CopyPublished | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 2046, 2002 WL 269239
...It then found him guilty of felony DUI. He later moved for a new trial on the same grounds as his prior objection, but the court denied the motion. A defendant convicted of DUI without property damage or injury to a person is guilty of a second degree misdemeanor. See §§
316.193,
775.081(2), Fla. Stat. (1999). However, upon a defendant’s fourth or subsequent DUI conviction, he is guilty of a third degree felony. §
316.193(2)(b), Fla....
...reasonable doubt. State v. Rodriguez,
575 So.2d 1262 (Fla.1991). Ward contends that the state did not provide competent substantial evidence that he had three, as opposed to two, prior DUI convictions and, thus, that it did not prove this element of section
316.193(2)(b) beyond a reasonable doubt....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 553, 1985 Fla. App. LEXIS 12561
...e to obtain” two levels of appeal. Combs v. State,
436 So.2d 93, 96 (Fla.1983). We write only to eradicate any uncertainty as to the adequacy of Florida’s Uniform Traffic Citation' as *266 the instrument upon which to pursue conduct violative of Section
316.193, Florida Statutes. Gardner was charged with the violation of Section
316.193, Florida Statutes....
...In affirming the county court’s order, the circuit court relied on the decision of our sister court in Layman v. State,
455 So.2d 607 (Fla. 5th DCA 1984), in which it was held that a “Florida Uniform Traffic Citation or Notice to Appear, alleging a violation of §
316.193, without specification to either subsection (1)(a) or (1)(b) is sufficient to charge a violation of this statute in either of the two ways it can be violated.” We agree with the Layman court and hold that a defendant who is charged in a Florida Uniform Traffic Citation for the violation of Section
316.193, Florida Statutes, is adequately made aware of the infraction for which he or she will be tried....
CopyPublished | Florida 4th District Court of Appeal
...6
Beaussicot v. State,
95 So. 3d 472, 474 (Fla. 4th DCA 2012) (alteration in
original) (quoting Macias v. State,
959 So. 2d 782, 784 (Fla. 4th DCA
2007)).
Here, the defendant was charged with and convicted of DUI pursuant
to section
316.193(1), Florida Statutes (2021), under which the state was
required to prove that: (1) the defendant drove or was in actual physical
control of a vehicle, and (2) while driving or in actual physical control of a
vehicle, the defendant was under the influence of a controlled substance
to the extent his normal faculties were impaired. See §
316.193(1)(a), Fla.
Stat....
...were impaired on February 17, 2021.
While the state argues the evidence was admissible to prove absence of
mistake or accident, the absence of mistake or accident was not at issue –
the state did not have to prove the absence of mistake or accident under
section 316.193(1)(a), and the defendant did not assert a mistake or
accident....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 685610, 2017 Fla. App. LEXIS 2315
...At the Polk County jail, Mr. Hamilton twice refused to provide a breath
sample, the second time occurring after the deputy had read him the statutory implied-
consent warning. The State charged Mr. Hamilton with DUI (two prior convictions), see
§ 316.193(1)(a), (2)(b)(2), Fla. Stat. (2011), but a county court jury found Mr. Hamilton
not guilty. The following day, the State charged Mr. Hamilton with refusing to submit to
a breath test. See § 316.1939(1)....
CopyPublished | Florida 3rd District Court of Appeal | 2006 WL 398628
...Section
322.271(2)(d), Florida Statutes (2003) allows the DMV to require use of an ignition interlock device upon review of an application for license reinstatement, as follows: "The department, based upon review of the licensee's application for reinstatement, may require use of an ignition interlock device pursuant to s.
316.1937." §
322.271(2)(d), Fla....
...of a license reinstatement application. We additionally note that in 1997, at the time Gonzalez was convicted and his *1222 license was permanently revoked, there was no mandatory provision for placement of the interlock device upon conviction. See § 316.193(4), Fla. Stat. (1997). However, the mandatory requirement was in place by 2003, when Gonzalez applied for the hardship license reinstatement. § 316.193(4)(c) (2003)....
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 1447, 2009 WL 416518
...ircuit court departed from the essential requirements of the law in concluding that the hearing officer performing the formal administrative review hearing was required to address whether Mr. Escobio was placed under lawful arrest for a violation of section 316.193, Florida Statutes (2006)....
...This issue centers on recent amendments to section
322.2615. Prior to October 1, 2006, section
322.2615(1)(a), Florida Statutes (2005), required a law enforcement officer to “suspend the driving privilege of a person who has been airested by a law enforcement officer for a violation of s.
316.193, relating to unlawful blood-alcohol level or breath-alcohol level.” (Emphasis added.) A driver whose license was suspended in this manner could request a formal review pursuant to section
322.2615(6)....
...hether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of alcoholic beverages, (2) whether the person was placed under lawful arrest for a violation of section 316.193, and (3) whether the person had an unlawful breath- or blood-alcohol level....
...influence of alcoholic beverages, and (2) whether the person had an unlawful breath- or blood-alcohol level. The statute no longer permits the hearing officer to consider “[wjhether the person was placed under lawful arrest *641 for a violation of s.
316.193.” §
322.2615(7)(a)(2), Fla....
...That suspension is thus governed by the statute as amended on October 1, 2006. Mr. Escobio does not dispute that the amended statute applies in this case, nor does he challenge the validity of the amended statute. Rather, he argued to the circuit court and now argues to this court that the interplay of sections
316.1932, Florida Statutes (2006), and section
322.2615, as amended, continue to permit the hearing officer to consider the legality of the arrest in determining whether to sustain the administrative license suspension....
...Like the amendments to subsection (7)(a) discussed above, subsection (7)(b) was also amended by chapter 2006-290, section 45, to remove a provision that permitted the hearing officer to consider “[w]hether the person was placed under lawful arrest for a violation of s. 316.193” when assessing whether a license was properly suspended for refusing to take a breath-alcohol test....
...See id. at 306 . The Fifth District acknowledged that the amended provisions of section
322.2615(7)(b) applied in Pelham . Nevertheless, the Fifth District noted that Pel-ham’s “consent” to a breath-alcohol test was implied under the provisions of section
316.1932(1)(a)(1)(a), Florida Statutes (2007): This statute, sometimes referred to as the Implied Consent Law, provides that any person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to testing to determine the “alcoholic content of his or her blood or breath if the person is lawfully arrested -” §
316.1932(1)(a)(1)(a), Fla....
...5th DCA 2003). It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest. Pelham,
979 So.2d at 305-306 . The Fifth District concluded that sections
316.1932 and
322.2615 were interde *642 pendent and had to be read in pari mate-ria....
...h-alcohol test, we concluded that the plain language of section
322.2615(7)(b) limits the hearing officer’s scope of review and excludes any consideration of the lawfulness of the arrest and that that section could not be read in pari materia with section
316.1932 to create an ambiguity that did not exist. Moreover, Pelham, Hernandez, and McLaughlin all involve license suspensions based upon the driver’s refusal to submit to a breath-alcohol test. These cases specifically address whether the driver may be penalized under section
316.1932(1)(a)(1)(a) for the refusal if the request was somehow improper....
...Rather, the plain language of section
322.2615 requires the suspension of a driver’s license when that driver is shown to have operated a motor vehicle while having an unlawful breath-alcohol level. It limits the driver’s administrative review of the suspension to these two issues. §
322.2615(1)(a), (7)(a). Section
316.1932 is not implicated under these circumstances....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 2179, 2016 WL 618892
...Roxana Patino entered an open guilty plea to DUI manslaughter and DUI
with property damage. On the DUI manslaughter conviction, the trial court sentenced
her to the statutory mandatory minimum term of four years in prison pursuant to section
316.193(3)(c)(3), Florida Statutes (2012), to be followed by eleven years of probation.
The trial court awarded Patino 540 days of jail credit....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 492, 1988 Fla. App. LEXIS 618, 1988 WL 11347
...The test of the defendant’s breath sample revealed that his blood alcohol level was .11% at the time. The defendant filed a motion to suppress, contending the results of the blood alcohol test could not be admitted into evidence because the Intoxilyzer 4011AS test was not a chemical test pursuant to section 316.1932(l)(a), Florida Statutes, and Department of Health and Rehabilitative Services (HRS) Rule 10D-42.024....
...munity service work, and submit to an alcohol abuse evaluation. The Pinellas County Court certified the following question to this court: IS IT PERMISSIBLE FOR THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES TO CONSTRUE THE LANGUAGE OF SECTIONS 316.1932(l)(a) and (b)1., AND 316.1932(l)(f)l., FLORIDA STATUTES, AS AUTHORITY FOR THE PROMULGATION OF THE RULE DEFINITION CONTAINED IN CHAPTER 10D-42.-211(6) (sic) F.A.C., THUS ALLOWING A C.M.I....
...In certifying the above question, the trial court’s order set forth the following specific findings: a. On December 2, 1985, the Defendant was stopped and arrested in Pinellas County, Florida, for “driving under the influence of alcoholic beverages, chemical or controlled substances” in violation of Florida Statute 316.193....
...Pursuant to the arrest the Defendant was transported to the Pinellas County Jail where he voluntarily gave a breath sample. The sample was collected and tested by a Model 4011AS Intoxilyzer instrument under the supervision of personnel at the Pinellas County Jail. c. Florida Statute 316.1932(l)(a) provides, inter alia, that any person who accepts the privilege to operate a motor vehicle within Florida is deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood. d. Florida Statute 316.1932(l)(b) (sic) and (l)(f) (sic) delegates to the Department of Health and Rehabilitative Services (H.R.S.) the authority to promulgate rules and regulations governing the administration of tests determining the weight of alcohol in a person’s blood and authorizes H.R.S to approve satisfactory techniques or methods....
...For this purpose, the department is authorized to approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid. 316.1932(l)(b)l, Florida Statutes The tests 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 regulations which shall have been adopted by the Department of Health and Rehabilitative Services....
...proved by the Department of Health and Rehabilitative Services for reliability of result and facility of administration, and shall provide an approved method of admin *889 istration which shall be followed in all such tests given under this section. 316.1932(l)(f)l., Florida Statutes h....
...See §
34.017(3), Fla. Stat.; Fla.R.App.P. 9.160. The trial judge’s order includes the essential references and quotations from relevant statutes and regulations thereby obviating the need for repetition in this opinion. The defendant argues that the language of section
316.1932, Florida Statutes, and of HRS Rule 10D-42.0211(6) operates to exclude the Intoxilyzer from the category of approved blood alcohol chemical testing devices. Specifically he points to the language “approved chemical test” in section
316.1932(l)(a) and the language “chemical analysis” in section
316.1932(l)(f)3....
...Thus, he argues that the trial court erred in concluding that the legislature intended to include the Intoxilyzer 401 IAS in the group of devices that perform chemical tests of body fluids. The state responds that the term “chemical test” used in section 316.1932 was not intended to refer to the method of testing; rather, it refers to any properly recognized analysis of the chemistry of the breath which determines the defendant’s blood alcohol content....
CopyPublished | Florida 3rd District Court of Appeal | 1990 Fla. App. LEXIS 904, 1990 WL 12773
...reversal. Thus, we reverse his conviction, vacate the sentence and remand for a new trial. In Magaw v. State,
537 So.2d 564, 567 (Fla.1989), the supreme court elaborated upon and gave definition to the element of causation in prosecutions based upon section
316.193(3): [T]he statute does not say that the operator of the vehicle must be the sole cause *1216 of the fatal accident....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 1640, 2006 WL 304526
...Meaningful appellate review of the trial court’s denial of the defendant’s motion for a mistrial is not possible based on the record provided to us. Therefore, the defendant’s judgment and sentence must be reversed, and this matter remanded for a new trial. REVERSED and REMANDED. SAWAYA and MONACO, JJ., concur. . See § 316.193(3), Fla....
CopyPublished | Florida 4th District Court of Appeal
...Assistant Attorney General, West Palm Beach, for appellee.
ON CONFESSION OF ERROR
ARTAU, J.
The defendant appeals from her conviction and sentence for
misdemeanor driving under the influence (DUI) with property damage in
violation of section 316.193(a)–(c)1., Florida Statutes (2019)....
CopyPublished | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 18443, 2003 WL 22867657
...As to the latter, we conclude that trial counsel did render ineffective assistance in advising O’Quinn concerning his plea to felony driving while license suspended. On September 22, 2000, the State charged O’Quinn by information with one count of driving under the influence resulting in serious bodily injury to another, section
316.193(1) & (3)(a), (b) & (c)2, Florida Statutes (2000) (count I), and one count of felony driving while license suspended, revoked, or canceled, section
322.34(2)(c), Florida Statutes (2000) (count II)....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...iff's rights under this chapter). Section
772.102(1)(a) enumerates a number of criminal activities ranging from homicide *924 to horse racing. However, nowhere in this section is the crime for which the Debtor was convicted; to-wit, Florida Statutes §
316.193; driving under the influence of alcohol....
CopyPublished | Florida 2nd District Court of Appeal | 1998 Fla. App. LEXIS 15262, 1998 WL 833571
...Meaningful appellate review of the trial court’s denial of the defendant’s motion for a mistrial is not possible based on the record provided to us. Therefore, the defendant’s judgment and sentence must be reversed, and this matter remanded for a new trial. REVERSED and REMANDED. SAWAYA and MONACO, JJ., concur. . See § 316.193(3), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 20136, 2010 WL 5391552
...hicle in this state while under the influence of alcoholic beverages or chemical or controlled substances. 2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in section 316.193....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 104, 1988 Fla. App. LEXIS 5775, 1988 WL 139112
...l from arguing “causation” to the jury. The trial court denied the motion and the state appealed. We have elected to treat the appeal as a petition for certiorari, and for the reasons stated below, we deny the petition. Prior to the enactment of section
316.193, our supreme court held that DWI/manslaughter was a strict liability offense. Thus, a causal relationship between the defendant’s manner of operating a vehicle while intoxicated and the victim’s death was unnecessary for conviction of a violation of the then-controlling statute, section
316.1931, Florida Statutes (1983). 1 See Armenia v. State,
497 So.2d 638 (Fla.1986); Baker v. State,
377 So.2d 17 (Fla.1979). Section
316.1931 was repealed and replaced by section
316.193, effective October 1, 1986, which provides in pertinent part: *712
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 wi...
...The death of any human being is guilty of DUI manslaughter, a felony of the second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. (emphasis added). It is clear that in repealing section 316.-1931 and replacing it with a substantially amended section
316.193, the legislature intended to require a causal connection between an intoxicated driver’s operation of a motor vehicle and injury or death....
...See House of Representatives, Committee on Criminal Justice, Staff Analysis to HB 8-B (June 18, 1986). Accordingly, the trial court did not depart from the essential requirements of law in denying the state’s motion in limine. Petition for writ of certiorari denied. SCHEB, A.C.J., and DANAHY and HALL, JJ., concur. . Section 316.1931, Florida Statutes (1983), provided in pertinent part: 316.1931 Driving automobile while intoxicated; punishment.— (1) It is unlawful for any person, while in an intoxicated condition or under the influence of alcoholic beverages, any chemical substance set forth in s....
...drive, be in actual physical control of, or operate over the highways, streets, or thoroughfares of this state 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.......
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 163, 1986 Fla. App. LEXIS 11459
...We reverse. Spells was convicted for the offense of driving with an unlawful blood alcohol level (DUBAL) on two occasions in 1976 and 1977, in contravention of section 316.028, Florida Statutes (1975). On October 1, 1977, that section was renumbered to section 316.193. On June 29, 1984, Spells was convicted for driving while under the influence of intoxicants (DUI), a violation of section 316.193, Florida Statutes (1983)....
...ety and Motor Vehicles v. Bender,
497 So.2d 1332 (Fla. 2d DCA 1986). Bender had also been convicted of two violations of section 316.028, Florida Statutes (1975). Upon a third DUI conviction in 1984, after section 316.028 had been renum *21 bered to section
316.193, the trial court revoked Bender’s license for an indeterminate period not to exceed one year....
...The Department, however, revoked Bender’s license for ten years. Bender challenged that determination in the circuit court, which quashed the Department’s revocation order. On appeal this court reversed. The fundamental principles underlying our opinion in Bender operate here as well. Section 316.193 is nothing more than a renumbered version of section 316.028; the offense of DTJI remains the same; and therefore offenses under both statutes are included within the scope of section 322.-28(2)(a)3, which requires: 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 316.1931 or a combination of such sections, the driver’s license or driving privilege shall be revoked for not less than 10 years....
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 18322, 2004 WL 3023408
...The court's belief was based on an opinion that the circuit court sitting in its appellate capacity had issued in consolidated DUI cases where the defendants before conviction had been ordered to undergo psychological evaluation and attend a substance abuse course conducted by a state-approved DUI school, as provided in section 316.193(5), Florida Statutes (2001). State v. Price, 8 Fla. L. Weekly Supp. 617 (Fla. 20th Cir.Ct.2001). Because section 316.193(5) imposed conditions of evaluation and treatment upon conviction, the circuit court’s appellate panel affirmed the trial courts' dismissals on double jeopardy grounds....
CopyPublished | Court of Appeals for the Eleventh Circuit
...On October 21, 1998, the Board affirmed
the immigration judge’s removal order and dismissed the appeal.
Mr. Le appeals the Board’s determination that driving under the influence with
serious bodily injury is an aggravated felony under section 101(a)(43)(F) of the INA.
1
Fla. Stat. Ann. § 316.193(3)(1996).
2
Fla....
...its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.”
18 U.S.C. § 16. Mr. Le was convicted under Fla. Stat. Ann. § 316.193(3)....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 17108, 1999 WL 1243803
...Deel’s argument also overlooks the purpose behind a charging document. That purpose is to inform the accused of the nature of the offense charged. It is undisputed that the offenses charged were sufficiently described in the citations personally given to her. The UTCs charged her with violations of subsection
316.193(1) and subsection
318.14(3), the appropriate statutes....
...We conclude that the traffic citations conveyed all the information necessary to answer the charges and constituted a valid charging instrument. See State v. Witcher,
737 So.2d 584 (Fla. 1st DCA 1999) (traffic citation contained all the elements necessary to charge misdemeanor DUI under §
316.193(1) as it cited that statute and alleged a blood alcohol level of over .08)....
...Accordingly, the circuit court correctly concluded that the county court has jurisdiction to try Deel because the traffic cita *114 tions validly charged her with the misdemeanor offenses of DUI and refusal to sign a summons. §
34.01(l)(a), Fla. Stat. (1997). AFFIRMED. ANTOON, C.J., and HARRIS, J., concur. . §§
316.193(1) &
318.14(3), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1989 Fla. App. LEXIS 7388, 1989 WL 153626
...We agree as to the first issue and reverse without addressing the remaining issues raised on appeal. As this court noted in Satterfield v. State,
553 So.2d 793 (Fla. 1st DCA 1989), uncertainty existed at the time these cases were tried as to whether the amended statute, section
316.193(3)(c) Florida Statutes (1986), required proof of a causal relationship....
CopyPublished | Florida 5th District Court of Appeal | 1983 Fla. App. LEXIS 25261
Appellant was charged in Count II with violating section
316.193, Florida Statutes (1981), which states in part:
CopyPublished | Florida 5th District Court of Appeal
...property of Eden Tall, a first degree misdemeanor. 1 She was sentenced to
five years in prison on Count One, four years in prison on Count Two, and
one year of probation on Count Three, all to be served consecutively. Counts
One and Three were violations of section 316.193(3), Florida Statutes
(2019), both were based on the same vehicular accident caused by
Appellant’s driving under the influence, and both concerned the same
individual victim.
1
Appellant does not appeal her con...
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 19198, 2011 WL 6004357
...(1) beyond its jurisdiction; or (2) in a manner that departed from the essential requirements of the law. See Haines City Community Development v. Heggs,
658 So.2d 523, 525 (Fla.1995). Florida DUI law reads, in pertinent part, as follows: Fla. Stat.
316.193, Driving Under the Influence: (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 control of a vehicle within this stat...
...Here, Petitioner sought to present evidence that he did not commit DUI because he did not have the intent to operate a vehicle. Intent to operate a motor vehicle is not an element of the charge of DUI, nor is lack of intent to operate a motor vehicle a legally cognizable defense to DUI. See § 316.193, Fla....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2508, 1986 Fla. App. LEXIS 10892
MILLS, Judge. Roper appeals from a conviction for driving while intoxicated, Section 316.1931, Florida Statutes (1983). He contends the trial court committed reversible error by refusing his request that the jury be instructed that the chemical test presumption contained in Section 316.1934, Florida Statutes (1983), did not mean, without more, he was intoxicated. He asserts further error in the trial court’s denial of his motions for judgment of acquittal. We find no error and affirm. Section 316.193, Florida Statutes (1983), driving while under the influence (DUI), is a separate offense from Section 316.1931, DWI....
...ed to be under the influence to the extent his normal faculties are impaired, i.e., he is presumed to be intoxicated. Relying on Kujawa v. State, we find no error in the trial court’s instructions to the jury, which merely tracked the language of' Section 316.1934....
CopyPublished | Florida 3rd District Court of Appeal | 2012 Fla. App. LEXIS 21660, 2012 WL 6602861
...he time of the incident in question. 6 We answer that question in the affirmative. Affirmed. . In Florida, the legal limit for the offense of driving with an unlawful blood alcohol level is 0.08 or more grams of alcohol per 100 milliliters of blood. § 316.193(l)(b), Fla....
CopyPublished | Supreme Court of Florida | 11 Fla. L. Weekly 15, 1985 Fla. LEXIS 1427
...(5) Revise the form appearing at 3.988(a) to incorporate a point value for inclusion in the prior record factor to be 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 where the offender is convicted of a violation of section 316.1931 or section 327.351, where the operation of a motor vehicle or vessel by the offender while intoxicated as defined in section 316.1931(1) or section 327.351(1), results in the death of any human being and the scoresheet utilized in sentencing is the form appearing at 3.988(a). For purposes of determining a prior conviction for violation of the above-enumerated statutes, 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 as a prior conviction....
...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.-G4(l)(a) ], and subsection
316.1931(2), 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: C...
...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), 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 a violation of section 316.1931 or section 316.193 or for *316 mer 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....
CopyPublished | Florida 4th District Court of Appeal
...attempted to back up, but “did not go any further because [the] golf cart
was at a complete stop behind hers.”
Defendant refused to take a sobriety test. The officer then placed
Defendant under arrest. The State charged Defendant with DUI pursuant
to section 316.193, Florida Statutes (2022).
Defendant originally pled not guilty and moved to suppress the
witnesses’ statements leading up to her arrest, based on the arresting
officer’s lack of probable cause to arrest Defendant for DUI....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 15898, 1998 WL 879103
FULMER, Judge. John P. Auger raises four issues in this' appeal from his convictions for two counts of DUI manslaughter. See § 316.193(3)(c)(3), Fla....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 3, 1986 Fla. App. LEXIS 10991
or controlled substances in violation of section
316.193, Florida Statutes, and with careless driving
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 17896
CAMPBELL, Judge. This cause is before the court on petition for certiorari to review the order of the circuit court reversing the county court’s judgment that respondent drove while under the influence of alcoholic beverages contrary to Section 316.193, Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 12892, 1995 WL 739704
PER CURIAM. In these consolidated cases, the state seeks review of the county courts’ nonfinal orders which declare unconstitutional section 316.193(6)(d), Florida Statutes (1993) (the DUI vehicle impoundment law). The state charged the defendants with DUI, and after pretrial hearings, the county courts found section 316.193(6)(d) unconstitutional. The record reveals that the substantive charges remain dormant. Pursuant to section 316.193(6)(d), the issue of vehicle impoundment does not arise until after conviction, and as in the case at hand, a pretrial order declaring a statute or ordinance unconstitutional, without more, is not appealable....
CopyPublished | Florida 2nd District Court of Appeal
...Jervis Wise of Brunvand Wise, P.A., Clearwater, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Nicole Rochelle Smith,
Assistant Attorney General, Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Stephen Panaro was convicted of driving under the influence of
alcohol in violation of section 316.193(1), Florida Statutes (2022)....
...his opinion, Panaro's behavior was consistent with his calculation of the
probable BAL.
The trial court granted the State's motion principally on relevance
grounds, reasoning that the State had charged Panaro with "normal
faculties" impairment under section 316.193(1)(a) and not with
presumptive impairment based on a blood- or breath-alcohol level of .08
or more under section 316.193(1)(b) or (c)....
...Accordingly, a
court's discretion may be abused when "its ruling is based on an
'erroneous view of the law or on a clearly erroneous assessment of the
evidence.' " Id. (quoting Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384,
405 (1990)). We conclude that that is what happened here.
Pursuant to section
316.193,
(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
control of a vehicle within this s...
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 12519, 1991 WL 265065
...The state seeks review of the trial court’s denial of its motion to correct sentence. The sole issue raised in this appeal is whether section
316.656, Florida Statutes (1989), authorizes the trial court to withhold adjudication of guilt for violations of section
316.193, Florida Statutes....
...Appellant pled nolo contendere to charges of driving a motor vehicle while under the influence of alcoholic beverages (DUI), and driving with a suspended license. Because appellant had three prior DUI convictions, the case was transferred to the circuit court for disposition, pursuant to section 316.193(2)(b)....
...n County work squad, and suspended appellant’s driver’s license for life. The state filed a motion to correct sentence, maintaining that pursuant to section
316.656, Florida Statutes, adjudication of guilt must be pronounced for any violation of section
316.193. We agree. Section
316.656(1), Florida Statutes (1989), the governing section, provides: (1) Notwithstanding the provisions of s.
948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation ofs.
316.193, for manslaughter resulting from the operation of a motor vehicle, or for vehicular homicide. (Emphasis supplied.) The applicable portions of section
316.193, Florida Statutes (1989), 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...
...ed in conviction.” Id. See also State v. Griffith,
540 So.2d 916 (Fla. 2d DCA 1989), holding that the section
316.656(1) adjudication provision is mandatory, and precludes the trial court from withholding adjudication of guilt for any violation of section
316.193....
CopyPublished | Florida 1st District Court of Appeal | 1989 Fla. App. LEXIS 7144, 1989 WL 153711
PER CURIAM. We reverse the appellant’s convictions because he was charged, in effect, with three misdemeanors in the circuit court. The state contends that the driver-under-the-influence charge, because it referred to Section 316.193(2)(b), Florida Statutes (1988), was sufficient to make this charge a felony because of prior convictions and cites Pritchard v....
CopyPublished | Florida 3rd District Court of Appeal
...We agree and grant the petition.1
I
Sands was arrested and charged with one count of vehicular homicide,
in violation of section
782.071(1)(a), Florida Statutes (2023), one count of
driving under the influence (“DUI”) manslaughter, in violation of section
316.193(3)(c)(3)(a), Florida Statutes (2023), and one count of no valid
driver’s license with death, in violation of section
322.34(6), Florida Statutes
(2023)....
CopyPublished | Florida 2nd District Court of Appeal | 2007 WL 4322331
...and the statutory authority underlying it. See Hill v. State,
664 So.2d 327 (Fla. 1st DCA 1995); Johnson v. State,
664 So.2d 1105 (Fla. 1st DCA 1995). *2 Further, the trial court announced that Cross would have to pay a five percent surcharge under section
316.193, Florida Statutes (2003). The assessment of this surcharge was improper, because section
316.193 prescribes the penalties for driving under the influence, a crime not charged in the information. Therefore, the five percent surcharge pursuant to section
316.193 is stricken....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 18812, 2003 WL 22927232
...hird-degree felony and to correct the sentence/probation orders accordingly. §
775.082(3)(d), Fla. Stat. (2002). The State charged Appellant with fleeing or attempting to elude a law-enforcement officer (Count I), a second-degree felony pursuant to section
316.1935(3), Florida Statutes (2002); felony DUI (Count II), a third-degree felony pursuant to section
316.193, Florida Statutes (2002); and misdemeanor driving without a valid driver’s license (Count III), a violation of section
322.03(1), Florida Statutes (2002)....
CopyPublished | Supreme Court of Florida
...(a) Who is in violation of subsection (1);
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes or contributes to
causing:
....
2. Serious bodily injury to another, as defined in s.
316.1933
commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
§
316.193, Fla....
...degree,
punishable as provided in s.
775.082 or s.
775.083.
§
322.34(6), Fla. Stat. (2014).
-6-
suspended licenses, and the DWLS statute provides no aggravation for any level of
intoxication. See §
316.193(3)-(4), Fla. Stat.; §
322.34(2), (5)-(7), Fla. Stat. Both
may be aggravated when the driver causes serious bodily injury, and in this case
were, but each statute provides separately for that aggravation. See §§
316.193(3),
322.34(6), Fla....
CopyPublished | Florida 4th District Court of Appeal | 1997 Fla. App. LEXIS 13678, 1997 WL 756626
...t which was already factored into the presumptive guidelines sentence. The appellant pled guilty to the charged crime of driving while license suspended and admitted three counts of violating her probation for felony driving under the influence. See § 316.193(b), Florida Statutes (1995)....
CopyPublished | Supreme Court of Florida | 30 Fla. L. Weekly Supp. 827, 2005 Fla. LEXIS 2389
...The charges against Judge Maloney stem from his actions during the early morning hours of January 10, 2003. On January 10; 2003, an officer of the Lakeland Police Department, (Lakeland Police), arrested Travis Braddy for driving under the influence of alcohol, in violation of section 316.193,- Florida Statutes (2003)....
...of the Lakeland Police, that Braddy be released to the custody of his father. Florida law provides that persons arrested for driving under the influence of alcohol may not be immediately released from custody. 1 -Notwithstanding the requirements of section 316.193(9), and based solely *787 upon Judge Maloney’s demands, the Lake-land Police released Braddy to his father on the morning in question....
...Accordingly, we hereby command Judge Maloney to appear before this Court for administration of a public reprimand at a time to be established by the Clerk of this Court. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO and BELL, JJ., concur. . Section 316.193, which regulates driving under the influence, provides in pertinent part: (9) A person who is arrested for a violation of this section may not be released from custody: (a)Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s....
...877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired; (b) Until the person's blood-alcohol level or breath-alcohpl level is less than 0.05; or (c) Until 8 hours have elapsed from the time the person was arrested. *787 § 316.193(9), Fla....
CopyPublished | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1923, 1987 Fla. App. LEXIS 9766
...on should be denied. Consequently, it subsequently entered an order certifying a question of great public importance questioning the propriety of State v. Prues. In its order, the county court stated that the appellee’s blood was drawn pursuant to section 316.1933, Florida Statutes (1985)....
...ontrol of a person under the influence of alcoholic beverages or controlled substances has caused the death or serious bodily injury of a human being, such person shall submit upon the request of a law enforcement officer, to a test of his blood.... § 316.1933(1), Fla.Stat. (1985). In State v. Prues, the Fourth District Court of Appeal held that section 316.-1933(1) only applies where one other than the driver has died or been seriously injured. We believe this is a correct interpretation of section 316.1933(1) because section 316.1931(2)(a), the statute that describes the type and degree of crime that has been committed by a driver under the influence who causes serious bodily injury, refers only to serious bodily injury of another. 1 Section 316.1931(2)(b) describes the type and degree of crime that has been committed when a driver under the influence causes damage only to the property or person of another....
...test from a driver thought to be under the influence who has caused damage only to his own person or property, the only purpose the test could serve would be to provide evidence upon which to base a charge of driving under the influence pursuant to section 316.193 or section 316.1931....
...ich a driver thought to be under the influence has been arrested and taken to a medical facility and the administration of a breath or urine test is impractical or. impossible. § 316.-1932(l)(c), Fla.Stat. (1985). Consequently, an interpretation of section 316.1933(1) contrary to that of the Fourth District in State v....
...ND IS THE ONLY PERSON TO SUSTAIN BODILY INJURY, MAY A LAW ENFORCEMENT OFFICER WHO HAS PROBABLE CAUSE TO BELIEVE THAT THE DRIVER IS UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES REQUIRE THE DRIVER TO SUBMIT TO A BLOOD TEST UNDER SECTION 316.1933(1) EVEN THOUGH THE DRIVER OBJECTS THERETO? Affirmed. THREADGILL, J., and UPCHURCH, Associate J., concur. . Section 316.1931 was repealed effective October 1, 1986. Ch. 86-296, §§ 13, 29, Laws of Florida. The type and degree of crime committed by a driver under the influence who causes serious bodily injury to another is now found in section 316.193(3)(a-c)l. . The type and degree of crime committed by a driver under the influence who causes damage to the person or property of another is now in section 316.193(3)(a-c)2.
CopyPublished | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 10811, 2009 WL 2382387
...The Department has the authority to revoke the driver's license of a Florida resident for certain out-of-state convictions. §
322.24, Fla. Stat. (2008). The Department treated the New York DWAI offense as a conviction for driving under the influence ("DUI") under Florida law. See §
316.193(1), Fla....
...ection 1192(1), which states, "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." N.Y. Veh. & Traf. Law § 1192(1) (2008). The Florida counterpart is paragraph 316.193(1)(a), Florida Statutes (2008), which provides that a person is guilty of the offense of driving under the influence ....
...For length of suspension, prior offenses include out-of-state convictions for certain enumerated offenses "or any other [out-of-state] alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as proscribed by s. 316.193....
CopyPublished | Florida 3rd District Court of Appeal | 1992 Fla. App. LEXIS 8394, 1992 WL 185037
...challenge which was the basis upon which we had previously ordered Wright be granted a new trial. See Jefferson v. State,
595 So.2d 38 (Fla.1992). Accordingly, we affirm defendant Wright’s conviction on four counts of driving under the influence, §
316.193(3), Fla....
CopyPublished | Supreme Court of Florida
a defendant is charged with a violation of section
316.193, Florida Statutes, each party shall have 3
CopyPublished | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 13443, 2007 WL 2456207
...equest for a finding of probable cause as a prerequisite to seeking the forfeiture of Peggy Frey’s car under the Florida Contraband Forfeiture Act. We affirm. Frey was arrested for driving under the influence of alcohol (“DUI”) in violation of section 316.193, Florida Statutes (2006)....
...ursuant to the Florida Contraband Forfeiture Act. The Act allows the government to seek the forfeiture of any personal property, including any motor vehicle, used in the commission of a felony. §§
932.701(2)(a)5.,
932.703(1)(a), Fla. Stat. (2006). Section
316.193(2)(b)1....
CopyPublished | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 12666
...It does not preclude the circuit court from exercising jurisdiction where, as in the present case, another statute (section
26.012(2)(d)) specifically provides for circuit court jurisdiction. REVERSED and REMANDED. MONACO, C.J., concurs. COHEN, J., dissents with opinion. . §
316.027(l)(a), Fla. Stat. (2008). . §
316.193, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2009 WL 2632174
...avoid arrest, battery upon the investigating officer, resisting with violence, or, as in this case, leaving the scene of an accident with injuries. Surely this is not what the Legislature intended. NOTES [1] §
316.027(1)(a), Fla. Stat. (2008). [2] §
316.193, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 12396, 2002 WL 1972106
...of two victims arising out of a single accident cannot stand because the manslaughter statute is ambiguous apd will support only a single conviction because the statute refers to “the death of any human being” instead of “a” human being. See § 316.193(3)(c), Fla....
...y. The DUI driver may sustain multiple convictions because the violation causes injury to each victim. Melbourne v. State,
679 So.2d 759, 765 (Fla.1996). See also State v. Wright,
546 So.2d 798, 799 (Fla. 1st DCA 1989)(“It is abundantly clear from Section
316.193 that the legislature contemplated separate of *125 fenses where different victims are injured or killed, or where the driver causes damage to different victims’ property.”)....
...D ACTS IN THE COURSE OF A SINGLE EPISODE, PRECLUDE MULTIPLE CONVICTIONS FOR DUI MANSLAUGHTER WHERE MORE THAN ONE DEATH OCCURS IN A SINGLE ACCIDENT AS APPROVED IN MELBOURNE v. STATE. AFFIRMED.' SHAHOOD, J., concur. KLEIN, J., dissents with opinion. . § 316.193(3)(c)3.b, Florida Statutes (2001), provides that a person who drives under the influence and by reason of such operation causes the death of any human being commits a DUI manslaughter classified as a felony of the first dégree, if: (I) At...
...person knew, or should have known, that the crash occurred; and (II) The person failed to give information and render aid as required by s.
316.062. If the two conditions do not apply, however, the person commits a felony of the tsecond degree. See §
316.193(3)(c)3.a. . Any person: (a) Who is in violation of subsection (1) [driving under the influence]; (b) Who operates a vehicle; and *124 (c) Who, by reason of such operation, causes: 3. The death of any human being commits DUI manslaughter.... §
316.193(3)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal
...The State agrees that Appellant’s sentence on this count must
include a probationary period long enough to allow him to complete a
substance abuse course. DUI manslaughter is considered a second-
degree felony punishable by up to fifteen years in prison. §
316.193(3)(c)3.a., Fla. Stat. (2019); §
775.082(3)(d), Fla. Stat. (2019).
Pursuant to section
316.193(5), Florida Statutes (2019), “[t]he court shall
place all offenders convicted of violating this section on monthly reporting
probation and shall require completion of a substance abuse course.”
As we said in Powers v....
...n years in
prison, including a four-year mandatory minimum sentence, for one count
of DUI manslaughter. Id. at 354. Despite the parties’ agreement, the trial
court declined to include a probationary period. Id. However, after
interpreting sections
316.193 and
775.082, we reversed and remanded for
a de novo resentencing to “include a probationary period that, at a
minimum, is of sufficient length to permit Appellant to complete a
substance abuse course pursuant to section
316.193(5).” Id. at 356. As
2
such, we reverse and remand for the correction of Appellant’s sentence to
comply with section
316.193(5).
On the fourth issue, Appellant argues the trial court erred by imposing
$50 in investigative costs and $150 in DUI costs against him at sentencing.
Imposing such costs involves questions of statutory interpretation, which
we review de novo....
...Therefore, we reverse and remand for the trial court to strike the
$50 in investigative costs in the final cost order.
As to the $150 DUI costs, under Florida law, if a defendant is convicted
of DUI, “a court cost of $135 shall be added to any fine imposed pursuant
to s. 316.193 or s....
CopyPublished | Florida 5th District Court of Appeal | 1993 Fla. App. LEXIS 8760, 1993 WL 323151
...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 section 316.193; (3) whether the person refused to submit to any test after being requested to do so; and (4) whether the person was advised of the consequences of a refusal....
CopyPublished | Court of Appeals for the Eleventh Circuit
bodily injury in violation of Florida Statute §
316.193(3)(c)(2). The Supreme Court held that the conviction
CopyPublished | Supreme Court of Florida | 13 Fla. L. Weekly 510, 1988 Fla. LEXIS 885, 1988 WL 90343
...REASON FOR CHANGE The reason for the change was to bring Subsection (a) into conformity with the statutory language in F.S.
322.282 which states "substance abuse education course” rather than a “DWI Counter Attack School”. Subsection (d) is new and was designed to allow compliance with F.S.
316.193(5), where the person did not reside in the State of Florida, and was in Florida for only a short, temporary stay, that attendance at a substance abuse course in Florida would constitute a hardship. F.S.
316.193(5) requires only that the substance abuse course be “specified by the Court”....
...The court shall grant additional time to the defendant for the purpose of preparing his defense if the amendment has prejudiced the defendant. PROPOSED RULE New Rule 6.180 Sentencing In DUI Cases SENTENCING, REPEAT OFFENDERS: A Defendant alleged to have a prior conviction within the meaning of F.S. 316.193 shall have a right to silence concerning any prior conviction at the time of plea or sentence....
...dant’s driving privilege for a longer period than the Court has entered if a prior record is discovered by the Department. PROPOSED RULE New Rule 6.183 Peremptory Challenges In every jury trial in which a Defendant is charged with a violation of F.S. 316.193, each party shall have THREE (3) peremptory challenges, but the trial court, in the interest of justice, may in its discretion permit additional challenges....
...16 and 322, Florida Statutes, whose chemical results show a blood alcohol content by weight of .20 percent or more. This paragraph was eliminated by the Committee as there is no “lesser offense” for a DUI. Moreover, the enhanced penalty, under F.S. 316.193(4) for a blood alcohol level of .20 or above, has inherently changed the entire previous meaning of the eliminated subsection....
CopyPublished | Florida 5th District Court of Appeal | 2012 WL 3627393, 2012 Fla. App. LEXIS 14163
...3d DCA 2005) (holding that defendant who was prematurely released from prison through no fault of his own was entitled to have time spent at liberty credited to his sentence). REVERSED and REMANDED. LAWSON and EVANDER, JJ„ concur. . §§
322.34(5),
322.264, Fla. Stat. (2008). . §
316.193(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 12976, 2014 WL 4113091
...In cases
involving alcohol intoxication, a prima facie case can be established by proof that a
person operating or in actual physical control of a vehicle is "under the influence of
alcohol . . . to the extent that [his or her] normal faculties are impaired," § 316.193(1)(a),
Fla. Stat. (2009), the person has "a blood-alcohol level of 0.08 or more grams of alcohol
per 100 milliliters of blood," § 316.193(1)(b), or the person has "a breath-alcohol level of
0.08 or more grams of alcohol per 210 liters of breath." § 316.193(1)(c)....
...In this case, the record suggests no reason why the medical blood test
would have been irrelevant to the charges contained in the information. Thus, Mr. Laws
can argue only that his decision to refuse to comply with the request for a sobriety test
under section 316.1932 somehow prevented the introduction of otherwise relevant
evidence. It is noteworthy that subsection 316.1932(1) expressly makes a refusal to
submit to the statutory test a separate misdemeanor offense and provides that the
refusal is admissible in evidence "in any criminal proceeding." Nothing in sections
316.1932, .1933, or .1934 suggests that the commission of this separate misdemeanor
requires the suppression of relevant evidence in a criminal proceeding under section
316.193.
Mr....
...Paul, III, DWI: Blood, Tests & Fears: A Crash Course in Blood
Alcohol Samples, 25 Champion 39 (June 2001); Carol A. Roehrenbeck & Raymond W.
Russell, Blood is Thicker than Water: What You Need to Know to Challenge a Serum
Blood Alcohol Result, 8 Crim. Just. 14 (Fall 1993).
-5-
316.1932(1)(f)....
CopyPublished | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 12016, 2002 WL 1906553
...credit. With respect to the victim injury points claim, appellant was charged with, and pled guilty to, one count of DUI manslaughter of Christine Locket. The information did not contain any additional counts for other crimes, such as a violation of section 316.193(3)(c)(2), Florida Statutes (1989), DUI causing serious bodily injury....
CopyPublished | Florida 4th District Court of Appeal
...factual findings, while reviewing application of the law to the facts de
novo.” State v. Castaneda,
79 So. 3d 41, 41-42 (Fla. 4th DCA 2011). In
this case, we are asked to determine whether the officer had reasonable
suspicion to detain appellee.
Section
316.193(1), Florida Statutes (2022), makes it unlawful for a
person to drive a vehicle while under the influence of alcoholic beverages
or controlled substances “when affected to the extent that the person’s
normal faculties are impaired . . . .” Section
316.1934(1), Florida Statutes
(2022), provides it is unlawful for a person to drive a motor vehicle while
under the influence of alcoholic beverages or controlled
substances, when affected to the extent that the person’s...
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 8236, 1994 WL 445595
...This matter is reversed and remanded for an evidentiary hearing on this single issue. 1 Mr. Brown has an extensive history of driving under the influence of alcohol. In 1987, he was charged with and convicted of felony DUI, which requires three prior convictions for DUI. § 316.193(2)(b), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal
...But
evidence of poor road conditions and inadequate signage would
have had very little probative value in light of the overwhelming
evidence of Koroly’s intoxication and the extremely low threshold
for proving causation under the DUI manslaughter statute. See §
316.193, Fla....
...driving was the sole cause of the fatal crash. As we recently
explained in Pryear v. State, 43 Fla. L. Weekly D491 (Fla. 1st DCA
Feb. 28, 2018):
DUI manslaughter requires proof that a defendant
operated a vehicle while impaired within the meaning of
section 316.193(1), Florida Statutes (2013), and, “by
reason of such operation, cause[d] or contribute[d] to
causing . . . [t]he death of any human being . . . .” §
316.193(3)(c)3.a., Fla....
...in Magaw and Hubbard. Id. The previous version of the statute
required that operating a vehicle while intoxicated “cause” a death,
whereas the current version requires operating a vehicle while
intoxicated “cause or contribute to” the victim’s death. See §
316.193(3)(c)3., Fla....
CopyPublished | Florida 2nd District Court of Appeal
...Cline, Senior Assistant Attorney General, Tampa, for Petitioners.
Robert N. Harrison of Robert N. Harrison, P.A., Venice, for Respondents.
BLACK, Judge.
The State seeks certiorari review of the trial court's order
determining that the State could not introduce, pursuant to section
316.1934(5), Florida Statutes (2023), evidence of breath alcohol tests
obtained during driving under the influence investigations in three
separate cases.1 The same Intoxilyzer 8000 was used in each of the
three investigations, and a single order was rendered by the trial court
precluding the State from relying on the test results pursuant to section
316.1934(5) in all three cases. We consolidate the petitions for purposes
of this opinion and deny relief.
Robert Kilburn, Holly Marano, and Arthur Depauw were each
charged with driving under the influence, in violation of section 316.193.
Kilburn, Marano, and Depauw individually filed motions to suppress,
arguing that the Intoxilyzer 8000 used in their respective breath alcohol
1 The State initially sought review of the order pursuant to Florida
Rule of Appellate Procedure 9.140(c)(1)(B) as an order suppressing
evidence....
...Kepke,
596
So. 2d 715, 717 (Fla. 4th DCA 1992). Therefore, this court converted the
appeals to petitions for writs of certiorari.
2
test was not an approved instrument and therefore not an approved test,
as required by section
316.1932(1)(a).
The trial court rendered an order granting the motions to suppress
on the statutory basis raised in the motions....
...was a repair not performed by an authorized repair facility and that,
therefore, the breath tests were not conducted in substantial compliance
with chapter 11D-8 of the Florida Administrative Code, such that the
tests were not "approved" for purposes of section 316.1932, made
applicable through section 316.1934(5).
Evidence at the suppression hearing included an email from a
sheriff's deputy to the Florida Department of Law Enforcement advising
that the breath tube of the intoxilyzer in question was "leaking and
broken and in need of r...
...would be available on an acquittal, the State may properly invoke
certiorari review." Id.
Here, the State argues that the trial court's interpretation of the
applicable law deprived it of "the statutory presumption of proof of breath
tests results under section 316.1934" such that its ability to prosecute
these cases has been substantially impaired. Because the court's ruling
prevents the State from introducing the Intoxilyzer 8000 results under
section 316.1934 and therefore precludes any presumptions afforded
under the statute, the State has satisfied the jurisdictional prongs for
certiorari review....
...nd that
because Department inspectors are authorized to perform maintenance
on intoxilyzers, the breath tests were conducted in substantial
compliance with chapter 11D-8 of the Florida Administrative Code,
rendering them approved for the purposes of section 316.1932....
...substantial compliance test" and that substantial compliance was shown
where the intoxilyzer passed Department inspections pursuant to rule
11D-8.003(3), validating "the approval, accuracy and reliability of an
evidentiary breath test instrument."
Section 316.1932(1)(a)1.a provides:
A person who accepts the privilege extended by the laws of
this state of operating a motor vehicle within this state is, by
operating such vehicle, deemed to have given his or her
consent to submit to an approved chemical test ....
...of Law Enforcement is responsible for the regulation of the operation,
inspection, and registration of breath test instruments utilized under the
driving and boating under the influence provisions and related provisions
located in this chapter and chapters 322 and 327." § 316.1932(1)(a)2.
And the Program "[p]romulgate[s] rules for the administration and
implementation of this section, including definitions of terms." §
316.1932(1)(a)2.l. The Program also has "the authority to approve repair
facilities for the approved breath test instruments, including the
authority to set criteria for approval." § 316.1932(1)(a)2.p. Finally, "[a]n
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." § 316.1932(1)(b)2.
5
Neither "maintenance" nor "repair" is defined in chapter 316 of the
Florida Statutes or chapter 11D-8 of the Florida Administrative Code.
"[W]hen the legislature does not define a term, we may derive its meaning
from dictionaries." Alvarez-Sowles v....
CopyPublished | Florida 2nd District Court of Appeal
driving under the influence, in violation of section
316.193. Kilburn, Marano, and Depauw individually filed
CopyPublished | Florida 2nd District Court of Appeal
...Cline, Senior Assistant Attorney General, Tampa, for Petitioners.
Robert N. Harrison of Robert N. Harrison, P.A., Venice, for Respondents.
BLACK, Judge.
The State seeks certiorari review of the trial court's order
determining that the State could not introduce, pursuant to section
316.1934(5), Florida Statutes (2023), evidence of breath alcohol tests
obtained during driving under the influence investigations in three
separate cases.1 The same Intoxilyzer 8000 was used in each of the
three investigations, and a single order was rendered by the trial court
precluding the State from relying on the test results pursuant to section
316.1934(5) in all three cases. We consolidate the petitions for purposes
of this opinion and deny relief.
Robert Kilburn, Holly Marano, and Arthur Depauw were each
charged with driving under the influence, in violation of section 316.193.
Kilburn, Marano, and Depauw individually filed motions to suppress,
arguing that the Intoxilyzer 8000 used in their respective breath alcohol
1 The State initially sought review of the order pursuant to Florida
Rule of Appellate Procedure 9.140(c)(1)(B) as an order suppressing
evidence....
...Kepke,
596
So. 2d 715, 717 (Fla. 4th DCA 1992). Therefore, this court converted the
appeals to petitions for writs of certiorari.
2
test was not an approved instrument and therefore not an approved test,
as required by section
316.1932(1)(a).
The trial court rendered an order granting the motions to suppress
on the statutory basis raised in the motions....
...was a repair not performed by an authorized repair facility and that,
therefore, the breath tests were not conducted in substantial compliance
with chapter 11D-8 of the Florida Administrative Code, such that the
tests were not "approved" for purposes of section 316.1932, made
applicable through section 316.1934(5).
Evidence at the suppression hearing included an email from a
sheriff's deputy to the Florida Department of Law Enforcement advising
that the breath tube of the intoxilyzer in question was "leaking and
broken and in need of r...
...would be available on an acquittal, the State may properly invoke
certiorari review." Id.
Here, the State argues that the trial court's interpretation of the
applicable law deprived it of "the statutory presumption of proof of breath
tests results under section 316.1934" such that its ability to prosecute
these cases has been substantially impaired. Because the court's ruling
prevents the State from introducing the Intoxilyzer 8000 results under
section 316.1934 and therefore precludes any presumptions afforded
under the statute, the State has satisfied the jurisdictional prongs for
certiorari review....
...nd that
because Department inspectors are authorized to perform maintenance
on intoxilyzers, the breath tests were conducted in substantial
compliance with chapter 11D-8 of the Florida Administrative Code,
rendering them approved for the purposes of section 316.1932....
...substantial compliance test" and that substantial compliance was shown
where the intoxilyzer passed Department inspections pursuant to rule
11D-8.003(3), validating "the approval, accuracy and reliability of an
evidentiary breath test instrument."
Section 316.1932(1)(a)1.a provides:
A person who accepts the privilege extended by the laws of
this state of operating a motor vehicle within this state is, by
operating such vehicle, deemed to have given his or her
consent to submit to an approved chemical test ....
...of Law Enforcement is responsible for the regulation of the operation,
inspection, and registration of breath test instruments utilized under the
driving and boating under the influence provisions and related provisions
located in this chapter and chapters 322 and 327." § 316.1932(1)(a)2.
And the Program "[p]romulgate[s] rules for the administration and
implementation of this section, including definitions of terms." §
316.1932(1)(a)2.l. The Program also has "the authority to approve repair
facilities for the approved breath test instruments, including the
authority to set criteria for approval." § 316.1932(1)(a)2.p. Finally, "[a]n
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." § 316.1932(1)(b)2.
5
Neither "maintenance" nor "repair" is defined in chapter 316 of the
Florida Statutes or chapter 11D-8 of the Florida Administrative Code.
"[W]hen the legislature does not define a term, we may derive its meaning
from dictionaries." Alvarez-Sowles v....
CopyPublished | Florida 1st District Court of Appeal
...is of sufficient length to permit the defendant to complete a
substance abuse course. The trial court denied the motion, finding
that the probationary requirements were met by the imposition of
a trailing term of drug offender probation on Count III.
Section
316.193, Florida Statutes, provides that a person who
violates subsection (1), operates a vehicle, and causes the death of
another by operation of such, commits “[a] felony of the second
degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084.” §
316.193(3)(a)–(c)3.a., Fla....
...If the DUI program refers the
offender to an authorized substance abuse treatment
provider for substance abuse treatment, in addition to
any sentence or fine imposed under this section,
completion of all such education, evaluation, and
treatment is a condition of reporting probation.
§
316.193(5), Fla. Stat. (emphasis added).
Several of our sister courts have addressed the issue of
whether section
316.193(5)’s requirement of probation and
completion of a substance abuse course prevents a trial court from
imposing the maximum fifteen-year prison sentence allowed under
2
section
775.082....
...2d 45, 46 (Fla. 1994).
Here, it is undisputed that Appellant’s maximum
sentence for DUI Manslaughter—UBAL was fifteen
years pursuant to section
775.082(3)(c), Florida Statutes
(2011). The trial court could easily have construed section
316.193(5) and
775.082(3)(d) in harmony by simply
sentencing Appellant to a prison term less than the
statutory maximum of fifteen years and by providing for
a probationary component, with the combination of time
in prison and time of probation not exceeding fifteen
years....
...The Fourth District remanded the case for resentencing,
holding that Powers’s sentence “may not exceed fifteen years, and
shall include a probationary period that, at a minimum, is of
sufficient length to permit Appellant to complete a substance
abuse course pursuant to section 316.193(5).” Id....
...ase—and section 316193
because section
775.082 provides for a maximum prison term of
fifteen years not a mandatory term of fifteen year.” Id. at 25–26.
We also conclude that there is no conflict between the general
sentencing statute and section
316.193....
...In doing so, we find that a
sentence for DUI manslaughter must include a term of probation
that allows for a defendant to complete a substance abuse course.
The trial court denied Appellant motion to correct sentencing
error, finding that the requirements of section 316.193(5) were met
by the imposition of a trailing term of drug offender probation on
Count III. While there is nothing in section 316.193(5) that
requires the probation be imposed on the DUI manslaughter count,
the drug offender probation imposed in this case does not satisfy
the statutory requirements....
...The conditions of probation imposed
do not require Appellant to “complet[e] a substance abuse course
conducted by a DUI program licensed by the department under s.
322.292, which [] include[s] a psychological evaluation of the
offender,” as required by statute. §
316.193(5), Fla. Stat.
Accordingly, the probation imposed does not satisfy the
requirements of the statute.
Because the requirements of section
316.193(5) are not
satisfied, we reverse Appellant’s sentence and remand for the trial
court to conduct a de novo sentencing hearing. As the court did in
Archer and Powers, we certify the following question of great public
importance to the Florida Supreme Court:
DOES SECTION
316.193(5)’S REQUIREMENTS OF “MONTHLY
REPORTING PROBATION” AND COMPLETION OF A
SUBSTANCE ABUSE COURT VITIATE A TRIAL COURT’S
DISCRETION TO IMPOSE THE MAXIMUM FIFTEEN-YEAR
PRISON SENTENCE PROVIDED IN SECTION
775.082, FL...
...App. P. 9.330 or
9.331.
_____________________________
BILBREY, J., concurring.
I concur in the majority opinion. Appellant’s sentence violated
Florida law because the sentencing court did not follow the plain
language of section 316.193(5), Florida Statutes, that required
“monthly reporting probation” as well as “completion of a
substance abuse course.” At least two other district courts have
ruled the same way....
...ity of the sentencing
process and sentence. We are not saying that the sentence of
fifteen years was too high, only that without requiring some period
of probation to allow the completion of a substance abuse course,
the sentence did not comply with section 316.193(5), Florida
Statutes.
The dissenting judge contends that he may disregard explicit
direction from the Florida Legislature as to DUI sentences as mere
“policy enforcement.” However, “sentencing policy is a matter of
substantive law that is within the province of the legislature.”
State v....
...2d DCA 2005) (citing Hall
v. State,
823 So. 2d 757, 763 (Fla. 2002)). We are not at liberty to
“ignore the criminal sentencing policy established by the
legislature. . . .” Id.
As the majority opinion and the opinions in Powers and Archer
point out, section
316.193(5) applies here since it refers to “all
offenders convicted of violating this section.” DUI manslaughter
is in “this section,” which consists of all of section
316.193. See Atl.
Gulf Communities Corp. v. City of Port St. Lucie,
764 So. 2d 14,
17–18 (Fla. 4h DCA 1999) (defining sections and subsections of
Florida statutes). Appellant was convicted of violating section
316.193(3)(c)3....
...The
Legislature has directed that the required course must be
6
“conducted by a DUI program licensed by the department [of
highway safety and motor vehicles] under s.
322.292, which must
include a psychosocial evaluation of the offender.” §
316.193(5),
Fla....
...ention factually justified)
punishment, which did not exceed the legislatively authorized
maximum. To nevertheless vacate his punishment decision is
effectively to say the level of the punishment chosen was too high,
thereby reading a new right into section 316.193(5), Florida
Statutes: a right to have an otherwise legislatively authorized
imprisonment sentence reduced to force a trial judge to grant an
unspecified amount of judicial grace (i.e., probation)....
...I”) as a person driving or
maintaining control of a vehicle while his “normal faculties are
impaired” by drugs or alcohol; or if he registers above a specified
blood-alcohol-content or breath-alcohol-content threshold
percentage. See § 316.193(1), Fla....
...mehow too long. As the
argument goes, even though the Legislature authorized the
punishment imposed by the judge here, the punishment was the
statutorily authorized maximum term, so there was no allowance
for the unspecified probationary period that section 316.193(5)
mentions as a matter of general policy....
...The provision we are discussing states that the sentencing
court “shall place all offenders convicted of violating this section
on monthly reporting probation and shall require completion of a
substance abuse course conducted by a DUI program.”
§ 316.193(5), Fla....
...Appellate review, in the sentencing context, considers the
limits on a trial judge’s authority and whether he has exceeded
them. A trial judge’s failure to abide by a policy statement that
probation generally should be included as part of sentencing for
DUI manslaughter—if that is even a proper reading of section
316.193(5)—does not give rise to the individualized harm required
for the exercise of our appellate judicial power....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 3217, 1997 WL 163013
...dge. The state petitions for certiorari from two decisions of the circuit court sitting in its appellate capacity holding that respondents’ motions to suppress the results of their pre-' release breath alcohol tests administered in accordance with section 316.193(9), Florida Statutes (1993), should have been granted by the county court....
...Both Talty and the State appealed the orders. In its opinion the circuit court noted that the implied consent statute requires law enforcement to inform a person suspected of driving under the influence of alcohol of the consequences of refusing the breath test. See § 316.1932(l)(a), Fla....
...Stat. (1993). In contrast, the pre-release statute, which permits a person to be released from custody if the person’s blood alcohol level is less than 0.05%, contains no warning that this test may be used as evidence in a criminal proceeding. See § 316.193(9). The court held that there is “a fundamental unfairness in section 316.193(9) in that it purports to allow the State to get in the back door evidence it could not get in the front door.” Finding that the relevancy is outweighed by the prejudice and fundamental unfairness in admitting the blood test, unless...
...o the breath test may be refused with the consequence of the loss of driving privileges and then allow the person to take a breath test to be released from custody and admit it in evidence, as the arrestee would not know the consequences of his act. Section 316.1932(l)(a) provides that any person accepting driving privileges in this state impliedly consents to the administration of breath, blood, or urine tests for alcohol and chemical substances when arrested for any offense allegedly committed while that person was driving a vehicle under the influence of alcohol....
...s, where the arrestee was advised of some adverse effects. We cannot say the same for the administration of the pre-release test. Once in custody, a person arrested for driving under the influence of alcohol may be released only upon compliance with section 316.193(9) which allows release under the following circumstances: (a) Until he is no longer under the influence of alcoholic beverages ... and affected to the extent that his normal faculties are impaired; (b) Until his blood alcohol level is less than 0.05 percent; or (c) Until 8 hours have elapsed from the time he was arrested. § 316.193(9)....
...We cannot say that the circuit court failed to apply the correct law when it made this due process analysis. However, we also discern another reason to uphold the circuit court’s opinion which was not articulated. We consider this issue to be one of statutory interpretation. Section 316.1934(2), Florida Statutes (1993), provides: Upon the trial of any civil or criminal action_the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible. ... (emphasis added). Notably, this section does not refer to the admission of the results of a test administered under section 316.193(9)(b)....
...evidence. 1 Therefore, under statutory construction principles, the pre-release test is not admissible in evidence against the person taking it. Petition for certiorari is denied. POLEN, J., concurs. STEVENSON, J., concurs specially with opinion. . Section 316.193(9) became law in 1991. Ch. 91-255, Laws of Fla. (1991). While section 316.1934 was enacted earlier, it was modified in the same law, and several other modifications to both statutes have occurred through the years. The Legislature has not seen fit to include section 316.193(9) in the admissible tests listed in section 316.1934(2).
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3191, 1991 WL 50228
PER CURIAM. Appellant challenges the denial of a motion to suppress the results of a blood alcohol test. Appellant was charged with driving under the influence of alcohol, a violation of section 316.193, Florida Statutes (1987)....
...and reserved the right to appeal the denial of the motion to suppress. In denying the motion, the trial court certified the following question of great public importance: Is a lawful arrest a prerequisite to a request for a blood sample pursuant to § 316.1932(l)(c) if a person is taken to a medical facility as a result of their [sic] involvement in an automobile accident? We have jurisdiction pursuant to rules 9.030(b)(4)(B) and 9.160, Florida Rules of Appellate Procedure....
...The officer read her an implied consent warning; appellant agreed to be tested and signed the consent form. She was not under arrest at that time. Appellant argues that the results of the blood test on which the state based the charges should be suppressed. She maintains that under section 316.1932(l)(c), Florida Statutes (1987), the blood test was improper because she had not been arrested before the officer requested her to submit to the test, and because a breath test was not impractical or impossible. We find no merit in her assertion. Under section 316.1932(l)(c), an arrest is not a prerequisite to a request for a blood test....
...In Perez , the Florida Supreme Court considered the admissibility of blood alcohol test results where the test was administered against the suspect’s will. The court held that a person who is involved in an automobile accident but who does not injure another may not be forced to submit to a blood test under section 316.1933(1), Florida Statutes (1985); 1 the court did not address the issue in the present case, namely, whether an arrest is a prerequisite to a request for a blood test. For that reason, the court’s statements about the arrest requirement do not apply, and the motion to suppress the results was properly denied. We therefore affirm the trial court’s order denying the motion to suppress. Affirmed. . Section 316.1933, was amended by Chapter 88-5, section 4, Laws of Florida.
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 3620, 1998 WL 158775
...4th DCA 1996), we reversed defendant’s conviction because of error in failing to allow a valid peremptory challenge of a juror. On retrial after remand, defendant was again convicted. In this appeal, he argues that the trial court erroneously admitted the results of pre-release breath alcohol tests administered under section 316.193(9), Florida Statutes (1993)....
...l in adducing this improper evidence. We will carefully examine the record in every case to make our own determination as to whether the violation has prejudiced the defendant. AFFIRMED. WARNER, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. . Section 316.193(1), Florida Statutes (1993), 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 w...
...any chemical substance set forth in s.
877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired; or (b) The person has a blood or breath alcohol level of 0.08 percent or higher.” Subsection
316.193(2)(b) provides that any person convicted of four or more violations under the statute is guilty of a third degree felony....
CopyPublished | Florida 1st District Court of Appeal | 1983 Fla. App. LEXIS 19069
...We therefore affirm the appellant’s conviction of resisting arrest with violence. Section
843.01, Fla.Stat. This case, when previously before us, resulted in an affirmance of the appellant’s conviction on a charge of driving while under the influence of alcoholic beverages. Section
316.193, Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal
...appellant.
James Uthmeier, Attorney General, and David Llanes, Assistant
Attorney General, for appellee.
Before LOGUE, C.J., and GORDO and BOKOR, JJ.
BOKOR, J.
Rene Castillo was charged with driving under the influence in violation
of section 316.193(1), Florida Statutes....
...2d 602, 609 (Fla. 1997). A person
is guilty of driving under the influence if they are “driving or in actual physical
control of a vehicle . . . under the influence of alcoholic beverages” to the
extent that their normal faculties are impaired. § 316.193(1)(a), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 5959, 2010 WL 1728849
...e]; (b) Who operates a vehicle; and (c) Who, by reason of such operation, causes or contributes to causing: 1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s.
775.082 or s.
775.083. §
316.193(3), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 2720, 2009 WL 886225
...Georgia statute at issue was not similar to Florida's DUI laws. DMV also argued it was statutorily empowered to make an independent determination as to whether a conviction for an out-of-state alcohol related traffic offense was similar to DUI under Section 316.193, Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 929, 1987 Fla. App. LEXIS 7513
...We find that the circuit court was correct in disapproving such credit and deny the petition for certiorari. Self was convicted in county court of driving under the influence of alcohol. Because the conviction was Self’s second within three years, the county court was required to sentence him to at least ten days in jail. § 316.193(4)(b), Fla.Stat....
...Muoio,
438 So.2d 160 (Fla. 2d DCA 1983). While anyone sentenced to a term of imprisonment is entitled to “credit for all of the time he spent in the county jail before sentence,” section
921.161(1) Florida Statutes (1985), that provision, like section
316.193(4)(b), is limited to actual incarceration and has been held inapplicable to such institutions as drug rehabilitation centers, Pennington v....
...is not required to allow such credit. However, as did the supreme court in Pennington , we rely on the plain language of the statute. We, accordingly, hold that credit for time served in institutions other than jails or prisons is unauthorized under section 316.193(4)(b)....
CopyPublished | District Court, N.D. Florida
...rn District of Florida charged defendant Charles F. Leekley ("Leekley"), in a two-count information. Count one charged Leekley with operating a motor vehicle while under the influence of an alcoholic beverage or controlled substance, in violation of Section 316.193 of the Florida Statutes, and Title 18, United States Code, Sections 7 and 13....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 6210, 2015 WL 1940785
...automobile driven
by Bertonatti struck and killed a bicyclist on the Bear Cut Bridge en route to Key
Biscayne. The incident occurred shortly before 8:00 a.m. on a Sunday morning as
Bertonatti was returning from a nightclub in downtown Miami.
1 § 316.193(3)(c)3.b, Fla....
CopyPublished | Florida 4th District Court of Appeal | 1994 Fla. App. LEXIS 3886, 1994 WL 149718
PER CURIAM. We affirm the judgment and order denying Appellant’s motion for new trial. We reverse and remand for resentencing. § 316.193(6), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 2901, 1990 WL 52317
...n to dismiss and certifying that the charge against the appellee for driving under the influence be treated as a misdemeanor. We reverse. The appellee filed the motion to prohibit enhancement after he was charged by information with felony DUI under section 316.193(2)(b), Florida Statutes (1987), which provides that a defendant shall be charged with felony DUI if he has three prior DUI convictions....
...The state contends that the trial court erred in granting the appellee’s motion because the appellee did not have a right to counsel under the law as it existed in 1982. When the appellee was convicted of the two DUI’s in 1982, he was not subject to more than six months’ imprisonment for either conviction. § 316.193(2), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 3591, 1991 WL 58882
...Although the conviction can be affirmed, the sentence must be reversed. This court has held that where the information failed to allege all the proper elements of the crime charged, the court cannot sentence the defendant on the more serious crime. Helmick v. State,
569 So.2d 869 (Fla. 2d DCA 1990). Section
316.193, Florida Statutes (1987), provides for periods of incarceration in excess of six months if the state alleges and it is proven at trial that the defendant is a repeat offender, damaged the property or person of another, or had a blood alcohol level of .20 or above....
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 1314176, 2012 Fla. App. LEXIS 6035
...right with respect to a previous misdemeanor conviction. On July 4, 2008, the state charged Yacoub with felony driving under the influence. The felony charge was based on her guilty plea to two misdemeanor DUI offenses within the past ten years. See § 316.193(2)(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 12724
...By petition for writ of certiorari, Zink seeks review of the circuit court’s order affirming the county court’s denial of his motion to dismiss the charge against him. We deny the petition. On December 20, 1983, Zink was charged with driving while under the influence of alcohol, in violation of section 316.193(l)(a), Florida Statutes (Supp.1982)....
...while drunk. Zink contends that the section 316.-193(l)(a) prohibition against driving while under the influence of alcohol cannot be applied to him since his offense was committed on private property and not on a public highway. He recognizes that section 316.193(l)(a) makes it is unlawful for a person under the influence of alcohol, to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle “within this state.” Zink argues, however,...
...ld be given the strict interpretation of meaning “upon the streets and highways and elsewhere throughout the state where the public might have the right to travel.” We decline to adopt Zink’s strained interpretation of the clear terminology of section 316.193(l)(a)....
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 1464557, 2014 Fla. App. LEXIS 5560
...sidered a conviction and his bond forfeiture a fine, that said conviction therefore was “uncounseled” and could not be counted as one of the three or more prior DUI convictions necessary to make the one charged in the instant case a felony under section 316.193(2)(b)3., Florida Statutes (2003)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Betham and Captain Love) makes that clear, and the Sheriff concedes the point in
his brief. See Answer Br. at 20–28.
In granting summary judgment in favor of the Sheriff, the district court
reasoned that the hold policy is consistent with Florida Statute § 316.193(9), which
allows the option of holding a person for eight hours after a DUI arrest. See D.E.
111 at 18. This constituted error for two independent reasons. First, unlike the hold
policy, § 316.193(9) does not mandate the blanket eight-hour detention of all DUI
arrestees. Second, even if it did, the statute could be unconstitutional as applied to
Ms. Barnett through the Sheriff’s hold policy.
The language of § 316.193(9) is as follows:
A person who is arrested for a violation of this section may not be
released from custody:
(a) Until the person is no longer under the influence of alcoholic
beverages, any chemical substance set forth in s....
...(emphasis added). Subsections (a), (b), and (c) are separated by an “or,” and that
word is “almost always disjunctive[.]” United States v. Woods,
571 U.S. 31, 45
(2019). So, as we explained in Deputy MacArthur’s interlocutory appeal,
“[§]
316.193 simply requires one of three conditions to be met to ensure sobriety
prior to releasing a DUI arrestee, one of which is an eight hours lapse from the time
of arrest and one of which is a blood-alcohol level below 0.05.” Barnett, 715 F.
App’x at 908. Unlike the Sheriff’s hold policy, pursuant to which officers are
required to detain DUI arrestees for eight hours, §
316.193 gives officers discretion
in determining when to release a DUI arrestee and allows for three release options
(only one of which is an eight-hour hold)....
...“When an officer exercises this
discretion under Florida law, the Constitution requires her to exercise her discretion
in a way that does not violate a person’s Fourth Amendment rights.” Id.
But even if the Sheriff’s hold policy were consistent with (or mandated by)
§ 316.193, the existence of a state statute does not answer the federal constitutional
question....
...McLaughlin,
500 U.S. 44, 58–59 (1991) (holding that a county policy
which provided for probable cause determinations within two days of a warrantless
arrest, exclusive of weekends and holidays, was inconsistent with the Fourth
Amendment). So, the fact that §
316.193 permits holding a DUI arrestee for up to
eight hours does not immunize the Sheriff’s hold policy, as applied to Ms....
...Alcocer is
consistent with our conclusion that where police have no probable cause to detain
an arrestee, the arrestee must be released. 6
6
In State v. Atkinson,
755 So. 2d 842, 845 (Fla. 5th DCA 2000), Florida’s Fifth District Court of
Appeal held that §
316.193(9) “is not unconstitutional in allowing temporary detention of an
apparently drunk driver, nor does such detention give rise to any viable claim of double jeopardy
by the detainee at any subsequent criminal trial.” We have considered A...
CopyPublished | Florida 4th District Court of Appeal
with respect to listing two subsections of section
316.193, Florida Statutes, as his offense statute numbers
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 4244
for driving under the influence of alcohol. Section
316.193, Fla.Stat. (1991).1 There is no dispute that
CopyPublished | Florida 2nd District Court of Appeal | 2002 WL 537594
...In order to convict on a charge of DUI manslaughter, the State must show that a defendant was under the influence or had an unlawful blood alcohol level while operating a vehicle and, by reason of such operation, caused the death of another human being. § 316.193(3)(c)(3), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Based on the
results of the field sobriety tests, Officer Torres placed Denninghoff under
arrest for driving under the influence and brought him to the local station for
further testing, which was refused. Denninghoff was issued a citation for
violation of Fla. Stat. § 316.193(1).
The matter proceeded to trial in Monroe County....
CopyPublished | District Court, M.D. Florida | 1996 U.S. Dist. LEXIS 5934, 1996 WL 224784
...Svaib (Svaib) was being treated at the emergency room of the base hospital for complaints of chest pain. A blood test taken at about 9:30 a.m. indicated that his blood alcohol content was .239, well above the legal limit of .08 established under Fla.Stat. § 316.193....
...arged with DUI based upon Luceroni’s observations. Luceroni never saw defendant operate his vehicle prior to detaining him. He did observe ear keys in defendant’s hand at the police station. DISCUSSION Defendant was cited for violating Fla.Stat. § 316.193 which requires that a person be: 1) driving or in actual physical control of a vehicle; and 2) under the influence of alcoholic beverages to the extent that the normal facilities are impaired or have a blood or breath alcohol level of .08 or higher....
...was sufficient to make the offense one “committed in the presence of an officer.” Id. at 621 . The Brown and Kirby cases support a finding that a suspect’s admission as to an essential element of a crime satisfies the requirements of Fla.Stat. § 316.193 that the violation be committed in the arresting officer’s presence....
CopyPublished | Florida 4th District Court of Appeal | 1996 Fla. App. LEXIS 3549, 1996 WL 165413
...Padilla,
629 So.2d 180 (Fla. 3d DCA 1993) (verification on information or belief permissible under section
322.2615(2), Florida Statutes (1991), where statute authorized affidavit stating “officer’s grounds for belief’ that person arrested had violated section
316.193), rev....
