In re Standard Jury Instructions in Criminal Cases—Report No. 2015–07, SC15–1867.

• Decision Date: 12 May 2016
• Docket Number: No. SC15–1867.,SC15–1867.
• Citation: 192 So.3d 1190 (Mem)
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2015–07.
• Court: Florida Supreme Court

192 So.3d 1190 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2015–07.

No. SC15–1867.

Supreme Court of Florida.

May 12, 2016.

Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, FL; Judge Jerri Lynn Collins, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, FL; and Barton Neil Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following existing standard criminal jury instructions: 28.1 (Driving Under the Influence); 28.1(a) (Driving Under the Influence Causing Property Damage or Injury); 28.2 (Felony Driving Under the Influence); 28.3 (Driving Under the Influence Causing Serious Bodily Injury); 28.4 (Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury] ); 28.8(b) (Aggravated Fleeing or Eluding—Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death); 28.8(c) (Aggravated Fleeing or Eluding—Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death); 28.8(d) (Aggravated Fleeing or Eluding—Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Injury or Property Damage to Another); 28.8(e) (Aggravated Fleeing or Eluding—Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another); 28.14 (Boating Under the Influence); 28.15 (Boating Under the Influence Causing Property Damage or Injury); 28.16 (Felony Boating Under the Influence); and 28.17 (Boating Under the Influence Causing Serious Bodily Injury). The Committee also proposes the following new jury instruction: 28.4(b) (Leaving the Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended Property).

Before filing its report with the Court, the Committee published its proposals for comment in The Florida Bar News. Three

192 So.3d 1191

comments were received by the Committee: one from the Florida Association of Criminal Defense Lawyers (FACDL) pertaining to instruction 28.4(b); and one each from the Florida Public Defender Association, Inc. (FPDA) and Public Defender Blaise Trettis, both pertaining to the Driving Under the Influence (DUI) and Boating Under the Influence (BUI) instructions. The Committee made some changes to its proposals upon consideration of the three comments. With respect to the DUI and BUI instructions, the Committee clarified the definition of “impaired.” With respect to instruction 28.4(b), the Committee added a comment to the instruction addressing the issue of mens rea. Because the Court did not view these changes as significant, the Court did not publish the Committee's proposals for further comment.

Having considered the Committee's report and the comments received by the Committee, we amend the standard jury instructions as proposed by the Committee and authorize them for publication and use. We also authorize new instruction 28.4(b), as proposed by the Committee, for publication and use. In so doing, we note with respect to instruction 28.4(b) that the issue raised by FACDL, that the misdemeanor hit-and-run statute underlying proposed instruction 28.4(b) imposes an affirmative duty on a driver to take certain actions, and therefore knowledge of involvement in an accident is implied, has not been expressly addressed by any court. Accordingly, we decline to use the instant proceedings authorizing the publication and use of standard jury instructions as the basis for addressing such an issue. Such matters are appropriate for consideration by this Court only within the context of an actual case or controversy. See art. V, § 3(b), Fla. Const ; In re Std. Jury Instr. in Crim. Cases—Report No. 2015–05, ––– So.3d ––––, 41 Fla. L. Weekly S140 (Fla. Apr. 7, 2016).

The new and amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use.¹ New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

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28.1 DRIVING UNDER THE INFLUENCE

§ 316.193(1), Fla. Stat.

To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)

If you find the defendant guilty of Driving under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the dDriving under the iInfluence.

Definitions. Give as applicable.

§ 316.003(75), Fla. Stat.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.

Normal 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.

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 such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

(________) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

(________) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

When appropriate, give one or of the following instructions on the presumptions of impairment established by Give if appropriate. § 316.1934(2)(a), and (2)(b), and (2)(c), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol

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