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Mollenberg v. State6/24/2005
Mollenberg appeals his conviction for driving under the influence. This Court has discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A) because the county court certified the following question as one of great public importance:
Is a defendant in a DUI trial entitled to a jury instruction on the category 2 lesser included offense of attempt where the evidence adduced at trial shows
1. The defendant was driving a motor vehicle.
2. Breath tests indicate breath alcohol level of .043 and .051 g/210L.
3. The defendant performed poorly on field sobriety exercises.
4. Urine tests indicate the presence of controlled substances but not the amounts.
We answer the certified question in the negative and affirm Mollenberg's conviction.
Mollenberg was charged with DUI and driving while license suspended or revoked. At trial, Mollenberg did not dispute that he was driving, but claimed that he was not impaired. On the impairment element, the evidence conflicted. Volusia County Sheriff's Deputy Crane observed Mollenberg run two stop signs and a red light. Crane activated his emergency lights and siren but Mollenberg failed to stop. When he finally pulled over, Mollenberg struck some mail boxes on the side of the road. Mollenberg had bloodshot eyes, slurred speech, an odor of alcohol and performed poorly on field sobriety tests.
Mollenberg also admitted taking more than the prescribed amount of Lorazepam because his blood pressure was up. A urine test revealed the presence, but not the quantity, of Nordiazepam, Oxazapam, Lorazepam (Ativan), Alprazolam (Xanax) and Alphahydroxyalprazolam. All of these drugs are benzodiazepines, or central nervous system depressants, used to treat anxiety. They are not used to treat high blood pressure. Someone under the influence of these drugs would exhibit the same type of cognitive and psychomotor symptoms as under alcohol. Taking multiple types of these drugs and alcohol would have an additive effect, causing impairment.
However, Mollenberg's breath test results were only .043 and .051 grams per 210 liters of breath. Mollenberg admitted having one drink prior to driving.
At the charge conference, defense counsel requested an instruction on attempt. The trial court denied this request on the ground that the evidence showed a completed crime. The jury found Mollenberg guilty as charged. The trial court denied Mollenberg's motion for new trial and certified the above question as one of great public importance.
The lower court's certified question can be rephrased as follows: Is a defendant entitled to an instruction on attempted DUI where it is undisputed that the defendant was driving but conflicts as to whether he was impaired? There are no Florida opinions at the district or supreme court level discussing attempted DUI.
Mollenberg argues that attempt applies to the impairment element of DUI, contending that where there is some, but not conclusive evidence of impairment, a jury is entitled to consider that evidence as an "act in furtherance" and find the defendant guilty of attempted DUI. He admits that if his argument is accepted, "it follows then that a person who drinks and drives can be convicted of an attempt even if he is not impaired, or if impairment is not conclusively proven."
The State argues that such a result would punish innocent conduct. We agree. Under Mollenberg's construction, someone who drinks a beer or a glass of wine at a restaurant and then drives home could conceivably be charged with attempted DUI. Such a construction violates the principle of overbreadth. Se
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