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Cardenas v. State2/26/2004
e presumption of impairment is, as the Court stated in Robertson, a "moot concern." 604 So.2d at 792 n. 14.
Relying on our statement in Robertson, the Fourth District has held that the improper instruction on the presumption of impairment is harmless error when the State proves DUBAL "beyond a reasonable doubt." State v. Cameron, 837 So.2d 1111, 1113 (Fla. 4th DCA 2003); cf. Rolle, 560 So.2d at 1157 (Barkett, J., specially concurring) ("As long as the jury was properly instructed on the DUBAL theory, any error in the other theory was, in effect, harmless."). Moreover, as Judge Harris recognized in Bonine, if the proof of unlawful blood alcohol level falls short, the instruction on the presumption of impairment "does not come into play" and is harmless. 811 So.2d at 868 n. 2 (Harris, J., dissenting).
As to the proper harmless error analysis when the jury is not instructed on DUBAL, we disagree with the view of Judge Harris in Bonine, 811 So.2d at 870, and the holding of the Second District in McBride, 816 So.2d at 656, that overwhelming evidence of impairment alone can render the error in instructing on the presumption of impairment harmless. As noted by the Fifth District in the majority opinion in Bonine, we have emphasized that the test of harmless error
is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
811 So.2d at 866 (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)). Relying on the same passage from DiGuilio, this Court held that an unconstitutional predecessor to the instruction on the presumption of impairment given in these cases was not harmless beyond a reasonable doubt even though there was other evidence of actual impairment. See Wilhelm v. State, 568 So.2d 1, 3 (Fla.1990).
Where the evidence of actual impairment is strong, as it was in both Bonine and McBride, [FN11] the jury may nonetheless*396 choose to rely in part or whole on the presumption of impairment instruction that a blood alcohol level of .08 percent "is sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired." We therefore disapprove McBride to the extent that it departs from the DiGuilio test for harmless error. [FN12] See also Williams v. State, 863 So.2d 1189 (Fla.2003) (quashing district court decision that incorrectly applied DiGuilio test); Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) (same).
FN11. The Second District relied on the following facts in finding the error harmless in McBride:
At trial, the State presented evidence from several witnesses that McBride drove at approximately 70 miles per hour in a 35 miles per hour zone, swerved in and out of lanes, had trouble maintaining a lane, nearly rear-ended a minivan, barely missed hitting a bicyclist, and swerved into oncoming traffic, where he hit the victim's car head on. Additionally, testimony showed that McBride's tires were screeching as he wove through traffic and that he cut so closely in front of other cars that the drivers were forced to slam on their brakes in order to avoid being hit by McBride's vehicle. Furthermore, two of the p
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