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Smallridge v. State6/20/2005
This is an appeal from two convictions of manslaughter while driving under the influence of alcohol (DUI) in violation of section 316.193(3)(c)3, Florida Statutes (2001). We affirm all issues and specifically address five of the eight issues raised.
Eric Smallridge first contends the lower court erred by instructing the jury it could find appellant guilty if he caused or contributed to the cause of the deaths of the two victims, because, at the time of the offense, the DUI statute only criminalized conduct that "caused" the death of a victim, not conduct that merely "contributed to the cause" of the death, and the information filed in the case alleged only the "cause" theory. Smallridge timely objected to the court's use of Florida Standard Jury Instruction (Criminal) DUI Manslaughter, which provides that before a jury can find a defendant guilty of such offense, the state must prove, among other things, that the "(defendant) caused or contributed to the death of (victim)." Appellant argues that the charge as given broadens the information by including a theory not authorized in the underlying statute, section 316.193(3)(c)3. We reject this argument and conclude the term "cause" encompasses a cause which contributes to an injury.
In creating the DUI manslaughter instruction, the Supreme Court Committee on Standard Jury Instructions in Criminal Cases referred to the Florida Supreme Court's opinion in Magaw v. State, 537 So. 2d 564 (Fla. 1989), which, in construing the 1986 amendments to the DUI manslaughter statute, noted that before the revisions, the statute was, in effect, a strict-liability statute, and that the legislature had for the first time added to it a causation element. In particular, the court observed:
We conclude that the 1986 amendment introduced causation as an element of the crimes proscribed by section 316.193(3). We caution, however, that the statute does not say that the operator of the vehicle must be the sole cause of the fatal accident. Moreover, the state is not required to prove that the operator's drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.
Id. at 567 (emphasis added) (footnote omitted).
Smallridge takes particular comfort in a concurring opinion contained in a later opinion of the supreme court wherein Justice Anstead expressed criticism of the language of the instruction by its addition of the words "caused or contributed to the cause" of the victim's death, noting that such language "greatly expand the reach of this penal statute." State v. Hubbard, 751 So. 2d 552, 566 (Fla. 1999) (Anstead, J., specially concurring). Notwithstanding Justice Anstead's assessment of the statute, the majority did not incorporate his views within its opinion, wherein it observed that the standard jury instruction, as it pertained to causation, reflected the Magaw analysis, which in turn had recognized that a vehicle's operator need not be the sole cause of injury. Id. at 564. The court specifically noted that the 1986 amendments "included only a nexus between an accident and the operation of a vehicle." Id. In fact, no Florida court, since the adoption of the instruction, has disapproved its use. See, generally, Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001); Gerlitz v. State, 725 So. 2d 393 (Fla. 4th DCA 1998); Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998). As a consequence, we reject appellant's arguments that the trial court erred in giving the standard instruction on DUI manslaughter.
Neither can
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