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Leveritt v. State5/7/2002
on of the trial court would have been appropriate. Thus, any objection challenging the instruction would have been pointless.
Because the presumption of impairment instruction declared invalid in Miles involved directions to the jury on resolving disputed issues of fact that must be considered by the jury in assessing the evidence material to a central and essential element of the crime here charged, I would hold that the erroneous jury instruction constituted fundamental error which need not have been preserved by an objection. See Sochor, 619 So. 2d at 290; Steele, 561 So. 2d at 644-45; and Harrison v. State, 743 So. 2d 178, 179 (Fla. 3d DCA 1999). Finally, because the issue of intoxication and the validity of the blood test was the central disputed issue at trial and the erroneous instruction may have contributed to the conviction, I would conclude that the error was not harmless beyond a reasonable doubt. See Goodwin v. State, 751 So. 2d 537, 541 (Fla. 1999).
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