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Tyner v. State9/12/2001
el (DUBAL), nor is there any argument that the state failed to prove that Rolle had a blood-alcohol level of greater than 0.10 percent.
560 So. 2d at 1157 n.3. Therefore, we conclude that Mr. Tyner was properly convicted of DUI/manslaughter and DUI/property damage under either or both alternative theories of (1) actual impairment (without use of the statutory presumption) and/or (2) strict liability for unlawful blood alcohol (DUBAL). We observe that the legislature continues to specifically recognize the offense of driving with an unlawful blood alcohol level as an alternative to an impairment DUI offense. Section 316. 1934 (2)(c), Florida Statutes (2000), provides:
If there was at that time a blood-alcohol level or breath- alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.
(emphasis added).
Finally, we would be remiss if we did not acknowledge that our reasoning and conclusions reached were aided and presaged by Judge Blue's concurring opinion in State v. Townsend, 746 So. 2d 495 (Fla. 2d DCA 1999), aff'd in part, rev'd in part, 774 So. 2d 693 (Fla. 2000), wherein he stated:
Second, assuming the State can have the blood test results admitted into evidence through expert testimony, which is the way this type of evidence was admitted for years, the jury will be instructed that a blood-alcohol level which exceeds 0.08 is an element of DUI. See § 316.193, Fla. Stat. (1995). See also Robertson, 604 So. 2d at 792 n.14. This instruction is available to the State regardless of the presumption instruction.
746 So. 2d at 497. See also Richardson v. State, 2001 Fla. App. LEXIS 8494, 26 Fla. L. Weekly D 1568 (Fla. 5th DCA June 22, 2001).
Mr. Tyner raises as an additional error in the trial below the trial judge's instructions to the jury that the deceased victim's failure to wear a seat belt was not a defense to DUI/manslaughter. We find no error in the giving of the complained-of instruction. Union v. State, 642 So. 2d 91 (Fla. 1st DCA 1994); Frazier v. State, 530 So. 2d 986 (Fla. 1st DCA 1988), aff'd in part, rev'd in part, 559 So. 2d 1121 (Fla. 1990).
Affirmed.
PARKER, A.C. J., and SILBERMAN, J., Concur.
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