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Cardenas v. State2/26/2004
These cases, which we have consolidated for purposes of this opinion, present two related questions concerning a standard jury instruction in prosecutions for driving or boating under the influence of alcohol. The questions are, first, whether giving the standard jury instruction on the presumption of impairment contrary to our *387 decision in State v. Miles, 775 So.2d 950 (Fla.2000), is fundamental error and second, if preserved, whether the error in giving the instruction is harmful per se or instead subject to a harmless error analysis.
In Miles, we held that the jury should not be instructed on the presumption of impairment when the State introduces blood-alcohol evidence that it obtained without complying with the quality assurance requirements of the implied consent law. See id. at 956-57. The standard jury instruction on the presumption of impairment, which was given in both cases under review, provides that a blood-alcohol level of .08 percent "is sufficient by itself" to establish that the driver was impaired.
In Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002), the First District Court of Appeal concluded that giving the standard instruction on the presumption of impairment contrary to Miles is not fundamental error that can be raised initially on appeal, and certified the following question of great public importance:
IS IT FUNDAMENTAL ERROR TO GIVE A JURY INSTRUCTION ON THE PRESUMPTION OF IMPAIRMENT IN VIOLATION OF THE PRECEPTS OF STATE V. MILES, 775 So.2d 950 (Fla.2000)?
Cardenas, 816 So.2d at 726. [FN1]
FN1. The Second District Court of Appeal certified the same question in Daigle v. State, 848 So.2d 1233, 1234 (Fla. 2d DCA 2003), notice to invoke discretionary review filed, No. SC03-1284 (Fla. July 21, 2003). The First District also certified a similar question in Leveritt v. State, 817 So.2d 891, 897-98 (Fla. 1st DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-1369 (Fla. June 18, 2002).
We have stayed the proceedings in Daigle and Leveritt pending our decision in Cardenas.
In Bonine v. State, 811 So.2d 863, 866 (Fla. 5th DCA 2002), the Fifth District Court of Appeal concluded that instructing the jury on the presumption of impairment in violation of Miles is harmful error per se. The Fifth District certified conflict with McBride v. State, 816 So.2d 656 (Fla. 2d DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-619 (Fla. Mar. 18, 2002), in which the Second District concluded that giving the improper instruction was harmless error. See Bonine, 811 So.2d at 867. [FN2] We have jurisdiction in both cases. See art. V, § 3(b)(4), Fla. Const.
FN2. The Second District subsequently certified conflict with Bonine on the harmless error issue in Searles v. State, 816 So.2d 793, 795 (Fla. 2d DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-1254 (Fla. June 3, 2002). We have stayed the proceedings in Searles pending our decision in Bonine. McBride v. State, No. SC02-619 (Fla. notice filed March 18, 2002), is also pending review in this Court based on an alleged express and direct conflict with Bonine and three other Fifth District decisions. The proceedings in
McBride have also been stayed.
For the reasons that follow, we approve Cardenas, quash Bonine, and disapprove McBride to the extent that it holds that the error is harmless solely because of overwhelming evidence of actual impairment.
I. FACTS AND PROCEDURAL HISTORY
A. Cardenas
Cardenas was charged with two counts of boating under the influence (BUI) manslaughter and one count of BUI causing serious bodily injury, among other offenses. On the BUI counts, the State alleged that Cardenas was operating the boat either while he was impaired or while he had a blood- or breat
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