Cardenas v. State
| Citation | 867 So.2d 384 |
| Decision Date | 26 February 2004 |
| Docket Number | No. SC02-1264, No. SC02-927. |
| Parties | Ronald R. CARDENAS, Jr., Petitioner, v. STATE of Florida, Respondent. State of Florida, Petitioner, v. Howard Russell Bonine, Respondent. |
| Court | United States State Supreme Court of Florida |
Ronald R. Cardenas, Jr., pro se, DeFuniak Springs, FL, for Petitioner.
Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Robert L. Martin, Assistant Attorney General, Tallahassee, FL, for Respondent.
Charles J. Crist, Jr., Attorney General, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, FL, for Petitioner.
James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
These cases, which we have consolidated for purposes of this opinion, present two related questions concerning a standard jury instruction in prosecutions for driving or boating under the influence of alcohol. The questions are, first, whether giving the standard jury instruction on the presumption of impairment contrary to our decision in State v. Miles, 775 So.2d 950 (Fla.2000), is fundamental error and second, if preserved, whether the error in giving the instruction is harmful per se or instead subject to a harmless error analysis.
In Miles, we held that the jury should not be instructed on the presumption of impairment when the State introduces blood-alcohol evidence that it obtained without complying with the quality assurance requirements of the implied consent law. See id. at 956-57. The standard jury instruction on the presumption of impairment, which was given in both cases under review, provides that a blood-alcohol level of .08 percent "is sufficient by itself" to establish that the driver was impaired.
In Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002), the First District Court of Appeal concluded that giving the standard instruction on the presumption of impairment contrary to Miles is not fundamental error that can be raised initially on appeal, and certified the following question of great public importance:
IS IT FUNDAMENTAL ERROR TO GIVE A JURY INSTRUCTION ON THE PRESUMPTION OF IMPAIRMENT IN VIOLATION OF THE PRECEPTS OF STATE V. MILES, 775 So.2d 950 (Fla.2000)?
In Bonine v. State, 811 So.2d 863, 866 (Fla. 5th DCA 2002), the Fifth District Court of Appeal concluded that instructing the jury on the presumption of impairment in violation of Miles is harmful error per se. The Fifth District certified conflict with McBride v. State, 816 So.2d 656 (Fla. 2d DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-619 (Fla. Mar. 18, 2002), in which the Second District concluded that giving the improper instruction was harmless error. See Bonine, 811 So.2d at 867
.2 We have jurisdiction in both cases. See art. V, § 3(b)(4), Fla. Const.
For the reasons that follow, we approve Cardenas, quash Bonine, and disapprove McBride to the extent that it holds that the error is harmless solely because of overwhelming evidence of actual impairment.
Cardenas was charged with two counts of boating under the influence (BUI) manslaughter and one count of BUI causing serious bodily injury, among other offenses. On the BUI counts, the State alleged that Cardenas was operating the boat either while he was impaired or while he had a blood- or breath-alcohol level of 0.08 percent or higher. At trial, the State introduced evidence that Cardenas had been drinking before the fatal collision and had a blood-alcohol level of 0.0999 percent. Cardenas's theory of defense was that another person was operating the boat at the time of the accident.
The trial court gave the standard jury instruction that provided two alternative methods in which to prove the crimes charged: that the State had to prove beyond a reasonable doubt that at the time of the fatal accident, Cardenas "was under the influence of alcoholic beverages to the extent that his normal faculties were impaired or had a blood alcohol level of .08 or higher." The court instructed the jury that "[n]ormal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and in general, to normally perform the many mental and physical acts of our daily lives." The court also gave the standard jury instruction on the presumptions of impairment contained in the implied consent law.3 The jury, utilizing a general verdict form, found Cardenas guilty as charged.4
On appeal, Cardenas asserted that the trial court committed reversible error under Miles by giving the standard jury instruction on the presumption of impairment after the State failed to comply with the requirements of the implied consent law in obtaining the blood-alcohol evidence relied upon for the presumption. The First District affirmed Cardenas's convictions, concluding that the issue was not preserved for appeal. The court also concluded that the instruction did not constitute fundamental error, but certified the question as having great public importance. See Cardenas, 816 So.2d at 727
.
Bonine was charged with driving under the influence (DUI) manslaughter and leaving the scene of a fatal accident after the vehicle he was driving struck and killed a motorcyclist. On the DUI manslaughter count, the State alleged in the alternative that Bonine was impaired by alcohol or a controlled substance, or had a blood-alcohol level of 0.08 percent or higher. In a dissenting opinion, Judge Harris summarized the evidence supporting both impairment and unlawful blood-alcohol level:
A witness observed the defendant's vehicle "weaving in front of him" to such an extent that the witness dropped back, only to observe the defendant's vehicle further up the road stopped by the side of the highway about a quarter of a mile beyond the accident scene where it had run into a concrete sign/bench. The witness saw a motorcycle on the ground and the body of the victim lying in the ditch. The motorcycle had been rear-ended. The witness then observed appellant staggering back toward the scene of the accident and heard him admit that he had hit the motorcyclist but thought it was a deer. An officer described the defendant as "smelling of alcohol" and as having slurred speech. Further, defendant admitted to having consumed beer on the day in question and his blood-alcohol level was .226.
Bonine, 811 So.2d at 869 (Harris, J., dissenting). The theories of defense were reasonable doubt that Bonine was impaired and unreliability of the blood-alcohol evidence.
As in Cardenas, the trial court instructed the jury that the crime of DUI could be established either by actual impairment or by having a blood-alcohol level of .08 or higher. The court also instructed the jury on the presumption of impairment. Utilizing a general verdict form, the jury found Bonine guilty as charged, and Bonine appealed the conviction. The Fifth District, sitting en banc, determined that giving the instruction despite the State's failure to comply with the requirements of the implied consent law constituted error under Miles, and held that the error was harmful per se. See Bonine, 811 So.2d at 866
.
The statute criminalizing DUI currently provides that a defendant can be charged and convicted under three alternative theories:
§ 316.193(1), Fla. Stat. (2003). Section 327.35, Florida Statutes, (1995), the BUI statute under which Cardenas was convicted, is identical to the DUI statute in regard to the alternative elements of impairment and unlawful blood-or breath-alcohol level.5 Thus, subsection (1)(a) requires proof of impairment, while the strict liability approach of subsections (1)(b) and (1)(c) requires proof of driving with an unlawful blood-or breath-alcohol level, otherwise known as DUBAL.6
The blood-alcohol evidence that proves DUBAL may be admitted under either the common law governing scientific test results or the implied consent law. Under the common law, a scientific test result on intoxication is admissible "if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test." State v. Bender, 382 So.2d 697, 699 (Fla.1980).
Admission of blood-alcohol evidence under the common law predicate does not trigger any presumption regarding impairment. The State may rely on the presumption of impairment only if the additional requirements of the implied consent law for quality assurance of the blood sample are met. See Robertson v. State, 604 So.2d 783, 792 (Fla.1992)
.7 Following Robertson, we held in Miles that the administrative rule governing blood collection and testing procedures under the implied consent law was invalid because it did not adequately provide for the preservation of blood-alcohol evidence. We further held in Miles that noncompliance with these strict quality assurance requirements precludes the State from relying on the presumption of impairment. See
775 So.2d at 953-57. Because the implied consent provisions are identical in all material respects...
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