VERNON HEMBREE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that giving jury instructions on statutory presumptions of impairment based on blood alcohol tests was error when the state did not establish compliance with quality assurance rules.
The defendant was convicted of DUI offenses arising from a fatal car accident. The trial court instructed the jury on statutory presumptions of impair…
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W. SHARP, Judge.
Hembree appeals from his convictions and sentences for DUI/manslaughter1 and two counts of DUI causing injury.2 This case arose out of an automobile accident on April 18, 1999, in which Hembree was involved as a driver. One person was killed and two others were injured. We reverse for a new trial.
Over defense objection, the trial court instructed the jury on the statutory presumptions of impairment in section 316.1934(2), the implied consent law. See §§ 316.1932-316.1934, Fla. Stat. The state never attempted to introduce the blood alcohol test results by showing compliance with the FDLE rules dealing with blood testing. Rather the state relied on meeting the Bended
three prong common law predicate. The trial court admitted the evidence on that basis.
However, after the trial in this case, the Florida Supreme Court held that the state is not entitled to the statutory presumptions under these circumstances. It ruled that the statutory presumptions are specifically contingent on the state establishing compliance with the mandate for quality assurance of the implied consent law. State v. Miles, 775 So. 2d 950 (Fla. 2000); Townsend v. State, 774 So. 2d 693 (Fla.2000); State v. Sandt, 774 So. 2d 692 (Fla.2000). The Bender or common law predicate for admission of blood test re-suits will not, standing alone, support the giving of the statutory presumptions in the implied consent law.
The state tacitly concedes error. The error in this case, giving the instructions based on the implied consent law presumptions and arguing their impact to the jury was clearly prejudicial, and it was clearly preserved.
REVERSED and REMANDED for new trial
PLEUS and ORFINGER, R.B., JJ„ concur. . § 316.193(3)(a)(b)(c)(3), Fla. Stat. . § 316.193(1) and (2)(a), Fla. Stat. . State v. Bender, 382 So. 2d 697 (Fla.1980). See also Robertson v. State, 604 So. 2d 783 (Fla. 1992).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cardenas v. State, 867 So. 2d 384 (Fla. 2004)…801 So. 2d 975, 975-76 (Fla. 5th DCA 2001) (refusing to find error harmless even given "other evidence presented of Bass’s impairment” because “we cannot conclude that use of presumption did not likely contribute to the verdict”); Hembree v. State, 790 So. 2d 590, 591 (Fla. 5th DCA 2001) (finding error "clearly prejudicial” and “clearly preserved”). In short, this is an issue certain to recur. In fact, if we do not address harmless error in Bonine, which has been fully briefed, we will have to order briefing…
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McBride v. State, 816 So. 2d 656 (Fla. 2d DCA 2002)…ded that, based upon certain facts, erroneously instructing the jury on the statutory presumptions is harmful error. See Bass v. State, 801 So. 2d 975 (Fla. 5th DCA 2001); Servis v. State, 802 So. 2d 359 (Fla. 5th [*658] DCA 2001); Hembree v. State, 790 So. 2d 590 (Fla. 5th DCA 2001). However, due to the overwhelming evidence of McBride’s impairment presented by the State, we conclude that the error here was harmless. Accordingly, we affirm McBride’s conviction. Affirmed. CASANUEVA and COVINGTON,1 JJ., Conc…
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Jack v. Bass, 801 So. 2d 975 (Fla. 5th DCA 2001)…nted as to the handling of his blood sample from the time it was drawn until the time it was analyzed by the FDLE. The state encourages us to find harmless error given the other evidence presented of Bass’s impairment. As [*976] in Hembree v. State, 790 So. 2d 590 (Fla. 5th DCA 2001), and more recently in Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001), however, we find we cannot conclude that the state’s use of the presumption did not likely contribute to the jury’s verdict. Accordingly, we vacate Bass’s…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bender, 382 So. 2d 697 (Fla. 1980)
- Robertson v. State, 604 So. 2d 783 (Fla. 1992)
- State v. Miles, 775 So. 2d 950 (Fla. 2000)
- Townsend v. State, 774 So. 2d 693 (Fla. 2000)
- State v. Sandt, 774 So. 2d 692 (Fla. 2000)