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Bonine v. State3/28/2002
vel was .226.
Since the presumption of impairment has absolutely nothing to do with the charge of driving with an unlawful alcohol level, we must consider its effect on the impairment alternative theory.
There is no question but that driving while impaired and driving with an unlawful blood-alcohol level are valid alternative theories on which to base this manslaughter charge. Thus both theories are "legal" and either theory is sufficient to sustain the conviction. The impairment instruction, even though improper in this case, was but one way of establishing the fact of impairment. Impairment was also established in this case, totally separate from the instruction, by proving that the defendant, after consuming alcohol to the extent that his blood level reached .226, drove down the highway, weaving, and overtook and ran into the rear of a motorcycle, mistaking the motorcycle for a deer, and continued down the highway for a quarter of a mile until he ran into a concrete sign/bench. In State v. Burns, 491 So. 2d 1139 (Fla. 1986), the supreme court discussed our obligation as an appellate court in applying the harmless error test. Basically, the rule is that if we believe beyond a reasonable doubt that the error did not affect the verdict, then we should uphold the verdict. The supreme court stated our obligation another way in State v. Marshall, 476 So. 2d 150,153 (Fla. 1985): "It makes no sense to order a new trial, because of a nonfundamental error committed at trial, when we know beyond a reasonable doubt that the defendant will be convicted again." This confirms the notion that the defendant is entitled to a fair trial, not a perfect one.
In State. v. Martin, 717 So. 2d 462, 469 (Fla. 1998), the defendant was convicted of first degree murder by general verdict but contended that there was insufficient evidence of premeditation. The supreme court agreed that premeditation was not proved but upheld the conviction saying:
We agree with San Martin that the evidence in this case does not support premeditation, but do not find that reversal is warranted on this basis. While it may have been error to instruct the jury on both premeditation and felony murder (citation omitted) any error in this regard was clearly harmless. The evidence supported conviction for felony murder and the jury properly convicted San Martin of first degree murder on this theory. (Emphasis added.)
Even if we do not sustain the conviction because the alternative basis, unlawful blood-alcohol level, was so clearly established, we should sustain it on the basis of harmless error because the evidence independent of the instruction was so overwhelmingly convincing that this defendant was impaired that we can say beyond any reasonable doubt that the defendant would be convicted upon retrial because the error did not affect the verdict.
COBB, PALMER and ORFINGER, R.B., JJ., concur.
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