Melvin v. State, 95-1908
| Decision Date | 31 July 1996 |
| Docket Number | No. 95-1908,95-1908 |
| Citation | 677 So.2d 1317 |
| Parties | 21 Fla. L. Weekly D1731 James D. MELVIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.
Melvin appeals a DUI manslaughter judgment and sentence. We affirm Melvin's conviction, but remand in accordance with our decision in Catholic v. State, 632 So.2d 272 (Fla. 4th DCA 1994), so that the court may delete a provision in the order of probation requiring Melvin to pay for drug testing. See also Kirkland v. State, 666 So.2d 974 (Fla. 1st DCA 1996); Cumbie v., State, 597 So.2d 946 (Fla. 1st DCA 1992).
The victim died from injuries incurred in an automobile collision in which Appellant's van turned in front of the victim's oncoming vehicle. Witnesses testified that a traffic signal facing the oncoming car was green. Appellant claimed that he had a left turn arrow. The accident occurred at 9:00 p.m. There was evidence that Appellant was intoxicated.
We comment only on two points on appeal, the denial of a requested jury instruction and the admission of testimony by the on-scene investigator regarding a method of alcohol and impairment detection known as the Horizontal Gaze Nystagmus (HGN) test.
The standard instruction for the charge of DUI manslaughter reads as follows:
Before you can find the defendant guilt of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) operated a vehicle.
2. (Defendant), by reason of such operation, caused or contributed to the cause of death of the (victim).
3. At the time of such operation (defendant)
a. [was under the influence of [alcoholic beverages] ... to the extent that [his] ... normal faculties were impaired.]
b. [had a blood alcohol level of 0.10 percent or higher.]
Fla. Std. Jury Instr. (Crim.) 71.
Melvin proposed, based on his interpretation of Magaw v. State, 537 So.2d 564 (Fla.1989), the following modification to part 2 of the standard instruction:
2. (Defendant), by reason of such operation, caused a collision by deviation or lack of care, which was a cause of the death of (victim).
This request was denied.
In Magaw, the supreme court discussed the 1986 change in section 316.1931, Florida Statutes, governing DUI manslaughter. Prior to 1986, DUI manslaughter was a "strict liability" crime, requiring proof only of intoxication and death, with no required showing of causation between the death and the method of operation of the defendant's vehicle. Id. at 565-66. The 1986 amendment to the statute added the element of causation. Id. at 567. However, the supreme court cautioned in Magaw that:
the statute does not say that the operator of the vehicle must be the sole cause of the fatal accident. Moreover, the state is not required to prove that the operator's drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.
Id. at 567. The standard instruction was amended in 1992 to its present form and Magaw is cited as a reference to that instruction.
Magaw has been interpreted as recognizing that for DUI manslaughter, the state must prove that the defendant was negligent and that this negligence was a contributing cause of the death. See Foster v. State, 603 So.2d 1312 (Fla. 1st DCA 1992), rev. denied, 613 So.2d 4 (Fla.1993); Parker v. State, 590 So.2d 1027 (Fla. 1st DCA 1991), rev. denied, 599 So.2d 1279 (Fla.1992). In Murphy v. State, 578 So.2d 410 (Fla. 4th DCA 1991), disapproved on other grounds, State v. Chapman, 625 So.2d 838 (Fla.1993), we recognized, distinguishing DUI manslaughter from vehicular homicide, that DUI manslaughter "requires proof of simple negligence while operating an automobile under the influence of alcohol." Id. at 411, citing Magaw.
We, nevertheless, find no error in the court's denial of the requested instruction. The standard jury instruction for DUI manslaughter requires a finding that by reason of operation of the vehicle, Melvin caused or contributed to the victim's death. Explicit in this instruction is a determination by the jury of causation--Melvin had to cause the death by reason of his operation of his vehicle. Although in Magaw the court elaborated on the meaning of the term "caused," we do not construe that opinion as requiring that the standard instruction be broadened to specify lack of care as a distinct element. For example, based on the standard instruction, if the jury concluded that someone else had caused...
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State v. Hubbard
...LEWIS, J. We have for review Hubbard v. State, 748 So.2d 288 (Fla. 1st DCA 1998), based upon certified conflict with Melvin v. State, 677 So.2d 1317 (Fla. 4th DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve Hubbard in part and quas......
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Robinson v. State
...The State points to other incriminating evidence in the record4 and attempts to analogize the present case to Melvin v. State, 677 So.2d 1317, 1318-19 (Fla. 4th DCA 1996) (holding admission of HGN testimony error where witness was "a police officer with special training but without scientif......
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Jordan v. State, 96-3589
...gaze nystagmus. See State v. Meador, 674 So.2d 826, 835 (Fla. 4th DCA), rev. denied, 686 So.2d 580 (Fla.1996); Melvin v. State, 677 So.2d 1317 (Fla. 4th DCA 1996). ...
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VAN HUBBARD v. State
...for DUI manslaughter need not be broadened to specify lack of care as a distinct element of the charge. See Melvin v. State, 677 So.2d 1317 (Fla. 4th DCA 1996). In so holding, the Fourth District noted that explicit in the standard jury instruction "is a determination by the jury of causati......
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Tragedy behind the wheel: understanding manslaughter by culpable negligence, vehicular homicide, and DUI manslaughter.
...D.C.A.), rev. denied, 676 So. 2d 1368 (Fla. 1996). [17] Collins v. State, 605 So. 2d 568 (Fla. 5th D.C.A. 1992). [18] Melvin v. State, 677 So. 2d 1317 (Fla. 4th D.C.A. [19] McCreary v. State, 371 So. 2d 1024 (Fla. 1979). [20] W.E.B. v. State, 553 So. 2d 323 (Fla. 1st D.C.A. 1989); State v. ......