316.1934
Presumption of impairment; testing methods.
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316.1934 Presumption of impairment; testing methods.—
(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 normal faculties, to drive or be in actual physical control of any motor vehicle within this state. 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.
(2) 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 vehicle while under the influence of alcoholic beverages or controlled 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:
(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(c) 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. Moreover, 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.
The presumptions 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.
(3) A chemical analysis of a person’s blood to determine alcoholic content or a chemical or physical test of a person’s breath, in order to be considered valid under this section, must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. Any insubstantial differences between approved techniques and actual testing procedures or any insubstantial defects concerning the permit issued by the department, in any individual case do not render the test or test results invalid. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to termination or revocation in accordance with rules adopted by the department.
(4) Any person charged with a violation of s. 316.193, whether in a municipality or not, is entitled to trial by jury according to the Florida Rules of Criminal Procedure.
(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. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by 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.
The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.
(6) Nothing in this section prohibits the prosecution of a person under s. 322.62. The provisions of subsection (2) do not apply to such prosecution and the presumptions made pursuant to that subsection may not be introduced into evidence during such prosecution.
History.—ss. 2, 3, ch. 67-308; ss. 19, 35, ch. 69-106; ss. 3, 4, ch. 70-279; s. 1, ch. 70-439; s. 3, ch. 74-384; s. 42, ch. 76-31; s. 1, ch. 76-153; s. 51, ch. 77-147; s. 5, ch. 82-155; s. 2, ch. 83-218; s. 5, ch. 84-359; s. 17, ch. 86-296; s. 5, ch. 88-5; s. 2, ch. 88-82; s. 27, ch. 89-282; s. 4, ch. 91-255; s. 22, ch. 92-58; ss. 2, 4, ch. 93-124; s. 316, ch. 95-148; s. 5, ch. 96-330.
Note.—Former s. 322.262.
Notes of Decisions
Cited in 186
cases (8 in the last 5 years), 1983–2026 · leading case: Robertson v. State
Robertson v. State (1992)
“§ 316.1934, Fla. Stat. (1987). Accordingly, we find no error in the admission of either Dr.”
Belvin v. State (2006)
“He argued that the affidavit was hearsay and that he had a statutory right to subpoena the technician for trial, pursuant to section 316.1934(5), Florida Statutes. After concluding that the breath test affidavit was trustworthy, the trial court overruled petitioner's objection…”
State v. Belvin (2008)
“§ 316.1934(5), Fla. Stat. The affidavit must contain the following: (a) The type of test administered and the procedures followed; (b) The time of the collection of the blood or breath sample analyzed; (c) The numerical results of the test indicating the alcohol content of the…”
State v. Rolle (1990)
“[2] Prior to 1982, section 316.1934 was numbered as section 322.”
In Re: Standard Jury Instructions in Criminal Cases-Report 2018-09. (2019)
“§ 316.1934(1), Fla. Stat. "Normal faculties" include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
Williams v. State (1998)
“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.”
State v. Mechler (2005)
“ot on test result itself, but concluding that "[i]f a chemical test is administered to the defendant within the statutorily prescribed four hours, the test result will create a presumption that the defendant's blood alcohol level was at least as high at the time the defendant…”
Shiver v. State (2005)
“This "breath test affidavit" [1] was prepared by the trooper.”
Freddie Beckham, III v. Commonwealth of Virginia (2017)
“Fla. Stat. § 316.1934 (2) (emphasis added).”
Tyner v. State (2001)
“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.”
In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2015-07 (2016)
“§ 316.1934(1), Fla. Stat. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
State v. Miles (1999)
“The State of Florida appeals an order in which the trial court ruled that the state will not be entitled to a presumption pursuant to section 316.1934, Florida Statutes (1995), in its prosecution of appellee on charges of driving under the influence of alcohol…”
— 316.1934(1) — 9 cases
In Re: Standard Jury Instructions in Criminal Cases-Report 2018-09. (2019)
“§ 316.1934(1), Fla. Stat. "Normal faculties" include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
State v. Meador (1996)
In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2015-07 (2016)
“§ 316.1934(1), Fla. Stat. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
Williams v. State (1998)
“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.”
Euceda v. State (1998)
— 316.1934(2) — 43 cases
State v. Weitz (1986)
Robertson v. State (1992)
“§ 316.1934, Fla. Stat. (1987). Accordingly, we find no error in the admission of either Dr.”
State v. Rolle (1990)
“[2] Prior to 1982, section 316.1934 was numbered as section 322.”
State v. Miles (2000)
Williams v. State (1998)
“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.”
— 316.1934(2)(3) — 1 case
State v. Osborne (1983)
— 316.1934(2)(a) — 10 cases
In Re: Standard Jury Instructions in Criminal Cases-Report 2018-09. (2019)
“§ 316.1934(1), Fla. Stat. "Normal faculties" include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2015-07 (2016)
“§ 316.1934(1), Fla. Stat. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
— 316.1934(2)(b) — 5 cases
Williams v. State (1998)
“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.”
State v. Bastos (2008)
Dodge v. State (2001)
Donaldson v. State (1990)
Sizensky v. State (1991)
— 316.1934(2)(c) — 58 cases
State v. Rolle (1990)
“[2] Prior to 1982, section 316.1934 was numbered as section 322.”
Robertson v. State (1992)
“§ 316.1934, Fla. Stat. (1987). Accordingly, we find no error in the admission of either Dr.”
In Re: Standard Jury Instructions in Criminal Cases-Report 2018-09. (2019)
“§ 316.1934(1), Fla. Stat. "Normal faculties" include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2015-07 (2016)
“§ 316.1934(1), Fla. Stat. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
State v. Miles (2000)
— 316.1934(2)(e) — 1 case
— 316.1934(3) — 23 cases
Robertson v. State (1992)
“§ 316.1934, Fla. Stat. (1987). Accordingly, we find no error in the admission of either Dr.”
State v. Montello (2004)
State v. Slaney (1995)
Delgado v. State (2006)
Ridgeway v. State (1987)
— 316.1934(4) — 10 cases
State v. Rodriguez (1991)
Caverly v. State (1983)
In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2015-07 (2016)
“§ 316.1934(1), Fla. Stat. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”
State v. Reed (1984)
— 316.1934(5) — 23 cases
Belvin v. State (2006)
“He argued that the affidavit was hearsay and that he had a statutory right to subpoena the technician for trial, pursuant to section 316.1934(5), Florida Statutes. After concluding that the breath test affidavit was trustworthy, the trial court overruled petitioner's objection…”
State v. Belvin (2008)
“§ 316.1934(5), Fla. Stat. The affidavit must contain the following: (a) The type of test administered and the procedures followed; (b) The time of the collection of the blood or breath sample analyzed; (c) The numerical results of the test indicating the alcohol content of the…”
State v. Buttolph (2007)
Shiver v. State (2005)
“This "breath test affidavit" [1] was prepared by the trooper.”
— 316.1934(5)(e) — 2 cases
Shiver v. State (2005)
“This "breath test affidavit" [1] was prepared by the trooper.”
— 316.1934(c)(3) — 1 case
Donaldson v. State (1988)
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