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Bonine v. State3/28/2002
t notes, there was abundant evidence of both impairment and unlawful blood alcohol level. However, as long as this court is bound to follow Miles, I must reluctantly vote to reverse because there is no way for this court to determine which theory the jury believed beyond a reasonable doubt. Under these circumstances, I believe that when a trial court erroneously instructs a jury to presume impairment, in violation of State v. Miles, 775 So. 2d 950 (Fla. 2000), the error is by definition harmful.
HARRIS, J., dissenting.
I respectfully dissent.
I agree that the trial court erred in giving the impairment presumption instruction in light of State v. Miles, 775 So. 2d 950 (Fla. 2000). The question then is whether the verdict can be sustained based on harmless error because of the clear proof of the alternative theory (driving with an unlawful blood-alcohol level) underlying the jury's general verdict entered herein or because the jury would have without doubt found impairment even had the improper instruction not been given.
In Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001), we held that the harmless error rule cannot apply in such cases because "there is no way of analyzing the jury's verdict to determine the theory upon which it relied in rendering its verdict." This is a confusing analysis because it apparently considers the presumption of impairment as a theory of guilt. It is not. Defendant was charged with and convicted of DUI Manslaughter, which may be proved by showing that the defendant caused the death of another either by driving while impaired or by driving with an unlawful blood-alcohol level. Thus the two theories of guilt are that 1) the defendant drove while impaired and/or 2) the defendant drove with an unlawful blood-alcohol level and caused the death of another. While the presumption arising from the defendant's blood-alcohol level, under the proper circumstances, may be prima facie evidence of impairment, it is not the only way of establishing such impairment. And in Robertson v. State, 604 So. 2d 783 (Fla. 1992), the supreme court clearly stated that even though the presumption of impairment would not apply unless the statute authorizing the presumption was strictly followed, still the test results showing the blood-alcohol level would be admissible in evidence if the blood was drawn by an authorized person and the state establishes the three- pronged Bender predicate. There is no dispute in this case that the State met its burden for admissibility of defendant's blood-alcohol level.
I do not accept the majority's contention that the verdict in this case was based on a legally inadequate theory. There was ample evidence to support both theories of guilt. The blood-alcohol level which was properly admitted into evidence speaks for itself. It was almost three times the legal limit. The other theory, impairment, was proved by the following facts:
A witness observed the defendant's vehicle "weaving in front of him" to such an extent that the witness dropped back, only to observe the defendant's vehicle further up the road stopped by the side of the highway about a quarter of a mile beyond the accident scene where it had run into a concrete sign/bench. The witness saw a motorcycle on the ground and the body of the victim lying in the ditch. The motorcycle had been rear-ended. The witness then observed appellant staggering back toward the scene of the accident and heard him admit that he had hit the motorcyclist but thought it was a deer. An officer described the defendant as "smelling of alcohol" and as having slurred speech. Further, defendant admitted to having consumed beer on the day in question and his blood-alcohol le
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