LARRY DOYLE REGISTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Doyle Register was convicted of DUI manslaughter and challenged a jury instruction regarding blood alcohol levels as creating an unconstitutional presumption that shifted the burden of proof. The appellate court affirmed, distinguishing the case from Wilhelm v. State and holding that the instruction created only a permissive inference, not a mandatory presumption, because guilt could be established through alternative means.
The instruction does not create an unconstitutional presumption but rather provides a permissive inference and an alternative element of the offense. Because DUI manslaughter could be proved either by showing impairment of normal faculties or by showing blood alcohol level of .10 percent or higher, the instruction correctly stated the law and did not unconstitutionally shift the burden of proof.
[1] A jury instruction stating that a blood alcohol level of .10 or more is prima facie evidence of impairment, which may be rebutted, correctly states the law when the offen…
[2] An instruction that allows a jury to substitute proof of a blood alcohol level of .10 percent or higher for proof of impairment does not create an unconstitutional presum…
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Join FLexlaw to unlock all legal intelligence“If you find from the evidence that the defendant had a .10 or more by weight of alcohol in his blood, it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.”
The contested jury instruction that Register claimed created an unconstitutional presumption
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Join FLexlaw to unlock all legal intelligenceRegister was convicted of DUI manslaughter under Florida Statutes Section 316.193(1989). The trial court instructed the jury that if they found the de…
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ERVIN, Judge.
Appellant, Larry Doyle Register, was convicted of DUI manslaughter under Section 316.193, Florida Statutes (1989). The following instruction, which was taken almost verbatim from Section 316.1934(2)(c), Florida Statutes (1989), was given to the jury:
If you find from the evidence that the defendant had a .10 or more by weight of alcohol in his blood, it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
Appellant contends, relying upon Wilhelm v. State, 568 So. 2d 1 (Fla.1990), that this instruction created a mandatory, rebut-table presumption which acted improperly to shift the burden of proof as to the intoxication element to the defendant. We find this case distinguishable from Wilhelm in that appellant’s guilt could be established either by proof of intoxication, i.e., impairment of his normal faculties, or by proof that his blood alcohol level was .10 percent or higher.1 Wilhelm could only be convicted by proof of intoxication.2 See Wilhelm, 568 So. 2d at 4 n. 4. See also State v. Rolle, 560 So. 2d 1154 (Fla.), cert. denied, — U.S. —, 111 S.Ct. 181, 112 L.Ed.2d 144 (1990). Consequently, to the extent the above instruction at bar allowed the jury to substitute proof of blood alcohol level of .10 percent or higher for proof of impairment, it correctly states the law. It does not, therefore, create an unconstitutional presumption, but merely provides an alternative element of the offense. Rolle, 560 So. 2d at 1156. Consequently, we hold that the instruction given here created merely a permissive inference.
AFFIRMED.
ZEHMER and MINER, JJ., concur. . See § 316.193(1), Fla.Stat. (1989).
. Wilhelm was convicted of DWJ manslaughter under Section 316.1931, Florida Statutes (1985).
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Cardenas v. State, 816 So. 2d 724 (Fla. 1st DCA 2002)…ntial elements of an offense. The challenged instruction merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject. See State v. Rolle, 560 So. 2d 1154, 1156 (Fla.1990); Register v. State, 582 So. 2d 762, 763 (Fla. 1st DCA 1991). In Smith v. State, 521 So. 2d 106 (Fla.1988), the supreme court was asked to determine whether the trial court had committed fundamental error by instructing the jury with an erroneous standard instruction on the insanity…
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Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002)…ntial elements of an offense. The challenged instruction merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject. See State v. Rolle, 560 So. 2d 1154, 1156 (Fla.1990); Register v. State, 582 So. 2d 762, 763 (Fla. 1st DCA 1991). As in Smith, we conclude that the erroneous instruction below did not deprive appellant of a fair trial. Thus, we find no fundamental error. Smith, 521 So. 2d at 108; see Cardenas v. State, 816 So. 2d 724 (Fla. 1st DCA 2002…1 / 2
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Leveritt v. State, 924 So. 2d 42 (Fla. 1st DCA 2006)…ntial elements of an offense. The challenged instruction merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject. See State v. Rolle, 560 So. 2d 1154, 1156 (Fla.1990); Register v. State, 582 So. 2d 762, 763 (Fla. 1st DCA 1991). As in Smith, we conclude that the erroneous instruction below did not deprive appellant of a fair trial. Thus, we find no fundamental error. Smith, 521 So. 2d at 108; see Cardenas v. State, 816 So. 2d 724 (Fla. 1st DCA 2002…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Carlton Rolle, 560 So. 2d 1154 (Fla. 1990)
- Wilhelm v. State, 568 So. 2d 1 (Fla. 1990)