Shaw v. State, 5D00-851.
| Decision Date | 09 March 2001 |
| Docket Number | No. 5D00-851.,5D00-851. |
| Citation | 783 So.2d 1097 |
| Parties | David L. SHAW, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Douglas R. Beam of Douglas R. Beam, P.A., Melbourne, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee.
ON MOTION FOR REHEARING OR CLARIFICATION
The state has moved for rehearing or clarification of our decision reversing the defendant's conviction for felony driving under the influence. The state challenges one aspect of the decision, our determination that Horizontal Gaze Nystagmus (HGN) evidence was improperly presented at trial. We find the state's motion to be meritorious and accordingly withdraw our previous opinion and substitute the following in its place.
The defendant appeals from his convictions for felony driving while license permanently revoked1 and felony driving under the influence.2 The defendant raises a plethora of issues on appeal. We find that two points merit discussion and that one necessitates reversal of the felony driving under the influence conviction and sentence and remand for a new trial.3
The defendant claims that the state was improperly permitted to introduce, over objection, evidence of HGN by way of a videotape made of the defendant just after the stop. The defendant claims the jury was exposed to HGN evidence without corresponding expert scientific testimony to correlate this test to alcohol impairment. However, the trial court found on the record that determining any HGN results from the videotape would be impossible. In light of this factual determination, we find no reversible error on this point.
However, the trial court reversibly erred in allowing the state, over objection, to argue that it met its burden in the felony driving under the influence prosecution by proving that the defendant's faculties were weakened rather than impaired. Section 316.193, Florida Statutes provides in relevant part:
The state asserts that the terms "weakened" and "impaired" are similar in meaning and that the argument was proper. The state's premise is incorrect. Impair denotes a worsening or diminishment in some material respect. Weaken means to reduce...
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In re Standard Jury Instructions in Criminal Cases—Report 2018-09
... ... in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner PER CURIAM. The Supreme Court Committee ... Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001). "Impaired" means diminished in some material respect ... ...
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State v. Hullinger
...Van Kirk, 306 Mont. 215, 32 P.3d 735 (2001) (erroneous introduction of HGN without proper foundation was harmless); Shaw v. State, 783 So.2d 1097 (Fla.Dist.Ct.App. 2001); State v. Doriguzzi, 334 N.J.Super. 530, 760 A.2d 336 (2000) (HGN is scientific test that must meet Frye standard of admi......
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In re Standard Jury Instructions in Criminal Cases—Report No. 2015–07, SC15–1867.
...judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001).Impaired means diminished in some material respect.Give if applicable.The option of “on a vehicle” pertains to vehicles s......
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In re Standard Jury Instructions in Criminal Cases—Report No. 2016-08
...judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001)."Impaired" means diminished in some material respect.Give if applicable.The option of "on a vehicle" pertains to vehicles......