State v. Hubbard, 94,116.

CourtUnited States State Supreme Court of Florida
Writing for the CourtLEWIS, J.
Citation751 So.2d 552
PartiesSTATE of Florida, Petitioner, v. Frederick Van HUBBARD, Respondent.
Docket NumberNo. 94,116.,94,116.
Decision Date16 December 1999

751 So.2d 552

STATE of Florida, Petitioner,
Frederick Van HUBBARD, Respondent

No. 94,116.

Supreme Court of Florida.

December 16, 1999.

751 So.2d 553
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Stephen R. White, Assistant Attorney General, Tallahassee, Florida, for Petitioner

Robert R. Kimmel of Law Offices of Kimmel & Batson, Chartered, Pensacola, Florida, for Respondent.


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 quash it in part, approve Melvin under the reasoning expressed herein, and remand for proceedings consistent herewith.


Respondent Frederick Van Hubbard (Hubbard) was convicted of DUI manslaughter. Hubbard claimed on appeal that the trial court erred in utilizing a standard jury instruction adopted by this Court and not instructing the jury pursuant to a special requested jury instruction containing a negligence element.1 The First District agreed and reversed and remanded for a new trial. The court began its analysis by noting that the statute at issue, section 316.193, Florida Statutes (1995), was amended in 1986 and construed by this Court three years later in Magaw v. State, 537 So.2d 564 (Fla.1989). Hubbard, 748 So.2d at 289. While emphasizing that Magaw interpreted the amended statute as containing an explicit causation requirement, the court acknowledged that it "makes no mention of negligence or deviation from a reasonable standard of care" by the operator of an automobile. Hubbard, 748 So.2d at 289. Nevertheless, the First District noted that a majority of Florida's district courts of appeal have interpreted Magaw as reading a simple negligence element into the crime of DUI manslaughter. Hubbard, 748 So.2d at 290. The court also recognized the Fourth District's contrary interpretation in Melvin, 677 So.2d at 1318, that Magaw did not "requir[e] that the standard instruction be

751 So.2d 554
broadened to specify lack of care as a distinct element."

Turning to the case at hand, the First District detailed that over Hubbard's objection the trial court used the standard jury instruction for DUI manslaughter adopted by this Court in 1992. See Hubbard, 748 So.2d at 291 (citing Standard Jury Instructions-Criminal Cases No. 92-1, 603 So.2d 1175, 1195 (Fla.1992)). That instruction precisely mirrored the elements of DUI manslaughter adopted in this Court's 1992 opinion, which contained an explicit causation requirement but made no mention of negligence or deviation from a standard of care. The First District then noted that this Court recently adopted a revised DUI manslaughter standard jury instruction, which again cited Magaw in support of the causation element while remaining silent regarding negligence or deviation from a standard of care. Nevertheless, while acknowledging that sequence of events, the court ultimately reversed the trial court's ruling and certified conflict with Melvin, reasoning:

Of course, the fact that the Supreme Court has adopted a standard jury instruction does not make that instruction the substantive law of Florida. See Steele v. State, 561 So.2d 638, 645 (Fla. 1st DCA 1990) ("While the standard jury instructions are intended to assist the trial court in its responsibility to charge the jury on the applicable law, the instructions are intended only as a guide, and can in no wise relieve the trial court of its responsibility to charge the jury correctly in each case.") Nevertheless, we cannot completely ignore the fact that twice, since the Magaw opinion, the Florida Supreme Court has adopted standard jury instructions that do not contain a negligence element. This may well be because, despite the language in the Magaw opinion, the substantive statute for DUI manslaughter does not contain any reference to negligence. See § 316.193(3)(c)3, Fla. Stat. (1995). In its brief in this case, the State urges that "`causation' adequately covers the statutory topic, without an explicit digression into `negligence.'" The State's position is not completely without logical force, given the appellant's concession at oral argument, that, if negligence must be part of the jury charge, the standard instruction (adopted less than a week before this case was argued) will never be legally sufficient in a DUI manslaughter case where causation is contested. Nevertheless, we follow the precedent of this court and others and hold that the trial court erred by failing to give the Magaw instruction. In hopes that the Supreme Court will soon resolve this question that has arisen repeatedly in the nine years since Magaw, we certify direct conflict with the Fourth District's Melvin decision.

Hubbard, 748 So.2d at 291.

The First District also found that the trial court improperly admitted evidence that Hubbard's driving privileges had been suspended in the past. Id. During cross examination of a Florida Highway Patrol investigator, Hubbard had elicited testimony that he had a valid driver's license when the deadly accident occurred. The State did not object to Hubbard's question. After the State advised that it intended to have the investigator testify that Hubbard's license had been previously suspended, the trial court ruled, over objection, that Hubbard opened the door on cross-examination to such a line of questioning. Id. The investigator testified accordingly on redirect examination. The First District concluded that the investigator's testimony was inadmissible under section 90.403, Florida Statutes (1995), "because the danger of prejudice outweighed any probative value that could have been attributed to the fact of prior license suspensions." Id. at 288-292.


This case implicates tort as well as criminal law principles, while also involving the

751 So.2d 555
proper roles of the legislature and judiciary in establishing and defining criminal offenses. Although the issue presented concerns the standard jury instruction for DUI manslaughter, it cannot be properly resolved without an extensive examination of the DUI manslaughter statute first enacted in the early part of this century2 and our periodic construction thereof. A review of cases from other jurisdictions is also instructive

DUI Manslaughter Statute

To place the current state of the law in context, we begin by reviewing the evolution of the DUI manslaughter statute, our case law construing the statute, and the recently adopted DUI manslaughter standard jury instruction. Under our case law for the last 75 years, simple negligence has been something of a subliminal or presumed underlying element of DUI manslaughter.3 That is, the Legislature determined "that it is criminal negligence for a person in an intoxicated condition to attempt to drive an automobile upon the highways of this state and that if death results to any person while so doing, such initial negligence will be imputed to the act itself and the driver held guilty of manslaughter." Cannon v. State, 91 Fla. 214, 218, 107 So. 360, 362 (1926) (emphasis added).4 Or, stated another way, "[t]he provision of the statute with reference to the death of a person being `caused' by the operation of the car is the equivalent of stating that death resulted from his misconduct which had its inception at the time he took control of the car and proceeded to operate it while not in possession of his faculties." Roddenberry v. State, 152 Fla. 197, 202 11 So.2d 582, 585 (1942).5

As to a negligence element, we explicitly stated that "there is no burden upon the state to prove that at the time of the incident the defendant was negligent. That element is established if it be shown that he was not, at the time, in possession of his faculties due to the voluntary use of intoxicants." Id. at 201, 11 So.2d 582, 11 So.2d at 585. In a similar vein, another opinion from that era defined DUI manslaughter as "the causing of the death of a human being by the operation of a motor vehicle while intoxicated." Tootle v. State, 100 Fla. 1248, 1250, 130 So. 912, 913 (1930). Thus, in that case we concluded that "[i]t was not necessary to allege culpable negligence of the defendant in the operation of the motor vehicle, as that is not a specific element of the offense defined by the particular statute."6 Tootle, 100 Fla. at 1251, 130 So. at 913.7

More recently, we construed section

751 So.2d 556
316.193's precursor statute8 in Baker v. State, 377 So.2d 17 (Fla.1979). There, the defendant challenged the constitutionality of the DUI manslaughter statute on the basis that it did not require a causal connection between the intoxication and the resulting fatality. We initially surveyed our case law and concluded that neither specific intent nor a causal connection between the prohibited act of driving while intoxicated and the resulting death were elements of DUI manslaughter. Id. at 18. From that point of departure, we rejected Baker's substantive due process argument, reasoning that
Statutes which impose strict criminal liability, although not favored, are nonetheless constitutional, particularly when the conduct from which the liability flows involves culpability or constitutes malum in se as opposed to malum prohibitum. Two classic examples of such legislation are statutes which impose severe criminal sanctions where a homicide occurs during the commission of a felony and where one has intercourse with a female under a prescribed statutory age. In the case of felony murder, there need be no showing of causation or active participation by the defendant in the homicide so long as he is proven to have been a participant in the felony out of which the homicide occurred. In the instance of statutory rape it is no defense that the defendant actually believed

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