DAVID MICHAEL CUNNINGHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Cunningham appeals his felony DUI conviction, challenging the jury instruction on blood alcohol level (BAL) despite his refusal to take a Breathalyzer test. The court affirmed the conviction, finding the BAL instruction was proper to give context to the refusal evidence, though noting a supplementary instruction would have been preferable.
The BAL instruction was properly given because it was necessary to give contextual meaning to the evidence of the defendant's refusal to take the test. However, the court noted it would have been preferable for the trial judge to have supplemented the instruction by directing the jury to base its determination solely on whether the state showed impairment of normal faculties, since no BAL evidence was actually presented.
[1] A jury instruction regarding a blood alcohol level of .08 percent or higher is permissible in a felony DUI case even if the defendant refused to take a test measuring tha…
[2] Evidence of a defendant's refusal to take a blood alcohol test is admissible when the defendant had a substantial motivation to avoid such a test.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court reasonably determined that the jury had to be informed that one could be convicted of DUI with a BAL of .08 or higher, in order to comprehend the significance of the refusal to take a test measuring that level.”
Establishes the court's holding that the BAL instruction was proper to provide context for the refusal evidence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCunningham was stopped on suspicion of DUI and refused to take a Breathalyzer test. At trial, the state presented evidence of this refusal but no actu…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Felony Dui cases and more on FLexlaw
PETERSON, J.
David Michael Cunningham appeals his conviction for felony DUI. § 316.193(2)(b), Fla. Stat. (1997). We affirm.
One of the points raised by the appellant does merit discussion. The trial court instructed the jury that they could convict appellant if they found either that Cunningham’s normal faculties were impaired by alcohol or if he had a blood alcohol level (BAL) of .08 percent or higher. Subsequent to his stop for suspicion of a DUI offense, Cunningham refused to take a “Breathalyzer test,” thereby preventing testing of his BAL. At trial, the defense argued that it did not make sense to have the jury consider whether the appellant violated the DUI statute by having an unlawful BAL. Ultimately, however, the defense conceded that the state was entitled to an instruction on BAL. Otherwise, the evidence presented by the state, that the appellant refused to take the BAL test, would lose its contextual meaning.
We conclude that under the circumstances of the case, the trial court reasonably determined that the jury had to be informed that one could be convicted of DUI with a BAL of .08 or higher, in order to comprehend the significance of the refusal to take a test measuring that level. It would have been preferable for the trial judge to have then explained that because no evidence of BAL was presented in this case the jury should base its determination of whether appellant violated the DUI law solely on the first factor, to wit: whether the state sufficiently showed that the appellant, while driving, was under the influence of alcohol to the extent that his normal faculties were impaired.- With this supplementary instruction, the jury would have been informed of the significance of BAL results and the state still could have made the argument that appellant’s refusal to take a BAL test evidenced a consciousness of guilt. Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986) (evidence of defendant’s refusal to take a blood alcohol test is admissible where the defendant had substantial motivation to not behave as he did). The defense, however, did not offer this additional instruction or any alternative. Since objection to the jury instructions was not made this issue has not been preserved for appeal. See Bertolotti v. Dugger, 514 So. 2d 1095 (Fla.1987).
AFFIRMED.
COBB and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Kelly v. State, 761 So. 2d 495 (Fla. 5th DCA 2000)…PER CURIAM. AFFIRMED. Fla. R.App. P. 9.140(d); Bertolotti v. Dugger, 514 So. 2d 1095, 1096 (Fla.1987); Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982); Cunningham v. State, 739 So. 2d 1200, 1201 (Fla. 5th DCA 1999). DAUKSCH, HARRIS and PETERSON, JJ., concur.…
-
Narkeith K. Payne v. State, 875 So. 2d 685 (Fla. 5th DCA 2004)…[*686] PER CURIAM. AFFIRMED. See Cunningham v. State, 739 So. 2d 1200 (Fla. 5th DCA 1999); Booker v. State, 514 So. 2d 1079, 1081 (Fla.1987). SHARP, W., THOMPSON and MONACO, JJ., concur.…
Authorities Cited
- Bertolotti v. Dugger, 514 So. 2d 1095 (Fla. 1987)
- Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986)