Rolle v. State, 87-2089

• Decision Date: 27 April 1988
• Docket Number: No. 87-2089,87-2089
• Citation: 528 So.2d 1208,13 Fla. L. Weekly 1030
• Parties: 13 Fla. L. Weekly 1030 Carlton ROLLE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1208

528 So.2d 1208

13 Fla. L. Weekly 1030

Carlton ROLLE, Appellant, v. STATE of Florida, Appellee.

No. 87-2089.

District Court of Appeal of Florida Fourth District.

April 27, 1988.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

Appellant, Carlton Rolle, was charged and convicted of felony driving under the influence in violation of section 316.193, Florida Statutes (1985), for which he was sentenced to one year in the county jail. He presents two points for appellate consideration, only one of which we find constitutes reversible error.

Section 316.1934(2)(c), Florida Statutes (1985), provides:

(2) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood or breath, shall give rise to the following presumptions:

....

(c) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. Moreover, such person who has a blood alcohol level of 0.10 percent or above is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood alcohol level.

In instructing the jury in the present case the trial court advised the jury, over defense objection, that:

If you find from the evidence that the Defendant had a blood alcohol level of .10 percent or more, that evidence would be sufficient by itself to establish that the Defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.

Based upon Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), and Miller v. Norvell, 775 F.2d 1572 (11th Cir.1985), Rolle contends that the aforesaid statute and instruction thereon given by the court create an unconstitutional mandatory rebuttable presumption on the issue of impairment--an issue that must be proven to the satisfaction of the jury beyond a reasonable doubt--because they relieve the state of its burden of proof of the essential element of impairment by instructing the jury not that it has a choice to determine whether the defendant was impaired based upon the results of a mechanical test, but that it must accept as proven the essential fact of impairment if the test result shows a blood alcohol reading of .10% or more. Predictably, the state argues that the instruction and statute involve only a permissive presumption and, therefore, do not offend the due process considerations set forth in Francis and Miller. The state finds support in numerous cases decided by the Supreme Court of Florida, such as State v. Ferrari, 398 So.2d 804 (Fla.1981); State v. Bender, 382 So.2d 697 (Fla.1980); Fitzgerald v. State, 339 So.2d 209 (Fla.1976); and others such as Hall v. State, 440 So.2d 689 (Fla. 1st DCA 1983). However, those cases are no longer viable vis-a-vis this question because, in Francis, which postdated those cases, the Supreme Court of the United States stated:

The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning. The federal constitutional question is whether a reasonable juror could have understood the [charge] as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.

105 S.Ct. at 1972 (citation omitted). The statute in question provides that a reading of 0.10% or more by weight of alcohol "shall be prima facie evidence that the person is impaired." The instruction in question as given advised the jury that, if they found from the evidence that the defendant had a blood alcohol level of .10% or more, "that evidence would be sufficient by itself to establish" that the defendant was impaired. As worded, the statute provides that a reading of .10% or more ipso facto is enough to find the defendant impaired and, thus, guilty, unless the defendant comes forward with evidence and rebuts the presumption. The instruction, by its wording, tells the jury that proof of a .10% reading would be sufficient, which is the equivalent of "should be" sufficient to find him impaired. Black's Law Dictionary 1441 (5th ed. 1979). Thus, it appears a reasonable juror could conclude from such a directive that, if the reading is .10%, no...