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Tyner v. State9/12/2001
Petition for Review Denied April 2, 2002
Stephen Tyner challenges his judgment and sentence for driving under the influence of alcohol/manslaughter (DUI manslaughter) and DUI causing property damage in violation of section 316.193, Florida Statutes (1995). Under the particular circumstances of this case, we affirm. But see Dodge v. State, 2001 Fla. App. LEXIS 8322, 26 Fla. L. Weekly D 1550 (Fla. 4th DCA June 20, 2001).
The primary issue presented to us by Mr. Tyner is whether he was convicted of the DUI offense based upon the proof admitted at trial relative to his blood alcohol level and the improper application of the presumption of impairment created by section 316. 1934, Florida Statutes (1995). The State concedes that it was not entitled to the use of the presumption of impairment created by section 316. 1934 because Mr. Tyner's blood alcohol test and results were not obtained in accordance with the core policies of the implied consent law, sections 316. 1932,316. 1933 and 316. 1934, Florida Statutes (1995). See State v. Miles, 775 So. 2d 950 (Fla. 2000) (Miles II); Townsend v. State, 774 So. 2d 693 (Fla. 2000); Robertson v. State, 604 So. 2d 783 (Fla. 1992); State v. Bender, 382 So. 2d 697 (Fla. 1980). However, the State argues, and we agree, that Mr. Tyner was properly convicted because the evidence of his blood alcohol test results were admitted after the establishment of the three-prong predicate set forth in Robertson. The jury was not instructed regarding the presumption of impairment created by section 316. 1934, nor did the State argue the presumption to the jury.
Prior to trial, Mr. Tyner filed a motion to suppress, or in the alternative, a motion in limine to exclude his blood alcohol test results due to the inadequacy of FDLE rules regarding the collection and storage of blood samples. The trial judge denied the motion. At trial, however, the State realized that the use of the presumption created by the implied consent law might jeopardize on appeal any conviction based on the presumption because Townsend and Miles II were then pending before our supreme court. Based on their trepidations, the State chose to introduce the blood evidence in accord with the three-prong predicate and analysis of Robertson. The record before us reveals the following colloquy between the trial judge and the assistant state attorney:
THE COURT: It sounds to me, like, at this point, though, the state has now reached the point where it would rely on Robertson and Bender, and attempt to introduce the evidence through the scientific methods as before implied consent.
MR. KIRKLAND: That is correct, Your Honor... And we are doing this to hedge -- I'm being very frank with the court -- that in the event the appellate court holds that the blood rules are inadequate, and that the state was not entitled to the presumption, and that the scientific predicate should have been laid, we're going to go ahead and lay in on this case.
Although the trial judge indicated that the State would be permitted to utilize the implied consent law presumption, in a wise abundance of caution, the State chose not to do so. The record reveals that the evidence of Mr. Tyner's blood alcohol level was properly admitted according to the three-prong predicate and analysis of Robertson. At the close of evidence, the trial judge instructed the jury regarding the DUI offense as follows:
Before you can find the defendant, Stephen C. Tyner, guilty of DUI manslaughter as charged in Count One, the State must prove the following three elements beyond a reasonable doubt: One, the defendant operated a vehicle; two, the defendant by reason of such operation caused or contribute
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