DENNIS WAYNE SERVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the jury instructions regarding statutory presumptions of impairment were improper because the underlying administrative rule for blood sample preservation was inadequate.
Dennis Wayne Servís was convicted of DUI manslaughter. The jury received instructions on statutory presumptions of impairment, which Servís objected t…
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PETERSON, J.
Dennis Wayne Servís appeals his conviction for DUI manslaughter pursuant to section 316.193(3)(a)(b)(e)(3), Florida Statutes (1999). He was convicted after a trial in which instructions were given to the jury over his objection regarding statutory presumptions of impairment pursuant to section 316.1934(2), Florida Statutes (1999).
We must vacate the judgment of guilt and sentence because the Florida Supreme Court in State v. Miles, 732 So. 2d 350 (Fla. 1st DCA), rev. granted, 740 So. 2d 529 (Fla.1999), approved in part, quashed in part, 775 So. 2d 950 (Fla.2000), held that Florida Administrative Code Rule 11D-8.012,1 fails to adequately provide for the preservation of blood samples taken for blood-alcohol analysis. Therefore, the impairment presumptions associated with the implied consent statutes2 are not available to the State.
The State argues that the instructions on statutory presumption given to the jury were harmless error because of the overwhelming evidence of guilt and because the instructions allowed the jury to find Servís guilty either under a theory of being impaired without the statutory presumptions or that he had a blood-alcohol level of .08 or higher. Unfortunately, however, there is no way of analyzing the jury’s verdict to determine the theory upon which it relied in rendering its verdict, and if it relied upon the statutory presumptions it was error under Miles.
We vacate the judgment and sentence and remand for a new trial.
JUDGMENT AND SENTENCE VACATED; REMANDED.
THOMPSON, C. J., and PLEUS, J., concur. . Rule 11D-8012 was subsequently revised on July 29, 2001 to prescribe specific procedures for the collection and preservation of the blood sample.
. Fla. Stat. §§ 316.1932-316.1934 (1999).
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Cardenas v. State, 867 So. 2d 384 (Fla. 2004)…n certifying conflict with Bonine, the Second District in Searles also cited several other decisions in which the Fifth District concluded that the error in giving the presumption of impairment instruction could not be harmless. See Servís v. State, 802 So. 2d 359, 360 (Fla. 5th DCA 2001) (refusing to find error harmless because there was no way to determine the theory upon which the jury relied in reaching its verdict); Bass v. State, 801 So. 2d 975, 975-76 (Fla. 5th DCA 2001) (refusing to find error harmles…
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Servis v. State, 855 So. 2d 1190 (Fla. 5th DCA 2003)…lision which resulted in the death of Anthony Foster. The case was originally tried on 31 August 2000, and Servis was convicted. The case was appealed to this court, and this court reversed and remanded the case for a new trial. See Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001). At the second trial, there was testimony that on the day of the accident, Servis ran a stop light in his truck, and that as a result of the ensuing collision, Servis’s truck hit a motorcycle driven by Foster and a vehicle drive…
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Bonine v. State, 811 So. 2d 863 (Fla. 5th DCA 2002)…This was clearly erroneous pursuant to State v. Miles, 775 So. 2d 950 (Fla.2000). In similar cases, we have recently rejected the state’s request to find such error to be harmless. Bass v. State, 801 So. 2d 975 (Fla. 5th DCA 2001); Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001). We write now to more fully explain our rationale. Application of the harmless error rule in this situation depends on whether the case involves “insufficiency of proof,” ie., a mistake about the weight or factual import of the…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Miles, 775 So. 2d 950 (Fla. 2000)
- Lamb v. State, 732 So. 2d 350 (Fla. 5th DCA 1999)
- State v. Miles, 732 So. 2d 350 (Fla. 1st DCA 1999)