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Mollenberg v. State6/24/2005
e, e.g., State v. Tirohn, 556 So. 2d 447 (Fla. 5th DCA 1990). As DUI is a general intent crime, the Legislature has demarcated the line between criminal and non-criminal behavior by requiring impairment. Mollenberg is attempting to redraw this line contrary to the Legislature's intent.
Mollenberg also argues that the attempt instruction should have been given purely on the basis of his rights to have the jury instructed on his theory of the case and to allow the jury to exercise its pardon power. He cites to two out-of-state cases in which he asserts that convictions for attempted DUI were upheld as a "pure matter of lenity." See People v. Garcia, 262 Cal. Rptr. 915 (Cal. App. Dep't Super. Ct. 1989); Com. v. Underkoffler, 32 Pa. D. & C. 183 (Pa. Quar. Sess. 1938). Mollenberg misreads these cases. Neither Garcia nor Underkoffler relied on the principle of lenity. Instead, both cases involved situations where it was undisputed that the defendant was intoxicated and intended to drive, but there was conflicting evidence on the driving element. On these facts, the courts upheld convictions for attempted DUI.
In dictum, the Garcia court noted an additional problem with the concept of attempted impairment, stating,
In concluding that attempted driving under the influence is a California crime, we are not unmindful that there might be troublesome questions which will have to be resolved in later cases. In some instances there might be anomalous results.
For instance, driving under the influence is a general intent crime, making it unnecessary that there should exist an intent to violate the law. All that is necessary is that a person must intentionally do that which the law declares to be a crime. An attempt on the other hand requires a specific intent to commit the crime. (People v. Franquelin (1952) 109 Cal.App.2d 777, 783, 241 P.2d 651.) We can envision a situation in which a person who is mildly under the influence would be capable of forming the requisite specific intent to commit attempted driving under the influence, but a person who is severely intoxicated would be incapable of forming such intent.
262 Cal. Rptr. at 918. In other words, a defendant would arguably be entitled to argue the affirmative defense of voluntary intoxication might apply to attempted DUI, a specific intent crime, but not to DUI, a general intent crime.
More importantly, the concepts of lenity, jury pardons and being instructed on one's theory of defense all have the same prerequisite in Florida. They all require that there be some evidence of a lesser offense before the jury can be instructed on it. See Fla. R. Crim. P. 3.510(a). In the instant case, the trial court found that there was no evidence of attempt because it was undisputed that Mollenberg was driving. The evidence of impairment, or partial impairment, is irrelevant because we conclude that attempt does not apply to the impairment element.
Accordingly, we answer "No" to the certified question and affirm Mollenberg's conviction for DUI. We hold that there can be no attempted DUI where the driving element is conceded because attempt does not apply to the impairment element. Our holding makes it unnecessary for us to accept the State's invitation to decide the broader question of whether the crime of attempted DUI exists at all in Florida. That question was not certified by the lower court.
CERTIFIED QUESTION ANSWERED IN THE NEGATIVE; CONVICTION AFFIRMED.
SHARP, W., and THOMPSON, JJ., concur .
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