State v. Rolle
| Decision Date | 01 March 1990 |
| Docket Number | No. 72383,72383 |
| Citation | 560 So.2d 1154 |
| Parties | 15 Fla. L. Weekly S102 STATE of Florida, Appellant, v. Carlton ROLLE, Appellee. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., and Richard G. Bartmon and Miles E. Ferris, Asst. Attys. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
We have for review Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988), in which the district court held unconstitutional section 316.1934(2)(c), Florida Statutes (1985), and the corresponding jury instructions. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and quash the decision of the district court below.
Rolle was charged and convicted of felony driving under the influence pursuant to section 316.193(2)(b), Florida Statutes (1985). That statute prescribes felony sanctions upon a fourth or subsequent violation of the drunk driving law, section 316.193(1), Florida Statutes (1985). Rolle was sentenced to one year in the county jail.
The district court reversed the conviction and sentence and remanded the cause for a new trial. The district court concluded that section 316.1934(2)(c), Florida Statutes (1985), and the corresponding jury instruction shifted the burden of proof to the defendant on an element of the crime, impairment, in violation of the due process clause of the United States Constitution. Rolle, 528 So.2d at 1209-10. We disagree.
In determining whether the challenged statute and jury instruction constitute a permissive inference or an unconstitutional presumption, a review of the relevant history of chapter 316 is both instructive and enlightening. Prior to 1974, driving under the influence (DUI) could be proven in only one way, by proof of impairment. § 316.028(1), Fla.Stat. (1973). 1 In 1974, the legislature created the offense of driving with an unlawful blood-alcohol level (DUBAL). Ch. 74-384, § 1, Laws of Fla. (codified at § 316.028(3), Fla.Stat. (Supp.1974)). At that time, DUBAL was clearly a separate offense from DUI. It was located in a separate paragraph of the statute from DUI, and contained separate, and lesser penalties for conviction. Compare § 316.028(1), (2), Fla.Stat. (Supp.1974) with § 316.028(3)-(4), Fla.Stat. (Supp.1974). Under this statutory scheme, if the state could not prove impairment the defendant could still be convicted of DUBAL. This Court upheld DUBAL against constitutional attack in Roberts v. State, 329 So.2d 296 (Fla.1976).
However, in 1982 the statutory landscape changed dramatically. The legislature substantially reworded the statute, consolidating DUI and DUBAL and providing identical penalties for conviction. Ch. 82-155, § 2, Laws of Fla. (codified at § 316.193(1)(a)-(b), Fla.Stat. (Supp.1982)). It is this statutory framework which concerns us today.
Section 316.193(1), Florida Statutes (1985), provides:
A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired [DUI]; or
(b) The person has a blood alcohol level of 0.10 percent or higher [DUBAL].
It is clear that this statute now creates one offense, driving under the influence, which may be proven in either of two ways: (a) by proof of impairment, or (b) by proof of a blood-alcohol level of 0.10 percent or higher. Because proof of either (a) or (b) is sufficient, if the state proves beyond a reasonable doubt that the defendant was "driving or in actual physical control of a vehicle within this state," and had a blood-alcohol level of 0.10 percent or higher, then the state need not prove impairment. However, if the state cannot prove that the defendant had a blood-alcohol level of 0.10 percent or higher, it may still obtain a conviction if it can prove impairment beyond a reasonable doubt.
At Rolle's trial, the state introduced the results of two breath tests. The first recorded his blood-alcohol level at 0.18 percent and the second at 0.20 percent. Over defense objection, the trial judge instructed the jury as follows:
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.
(Emphasis added.) This instruction derived from section 316.1934(2), Florida Statutes (1985), 2 which creates three categories of blood-alcohol levels and assigns a different evidentiary value to each:
(a) If there was at that time 0.05 percent or less by weight of alcohol in the person's blood, it shall be presumed that the person was not under the influence of alcoholic beverages to the extent that his normal faculties were impaired.
(b) If there was at that time in excess of 0.05 percent but less than 0.10 percent by weight of alcohol in the person's blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his normal faculties were impaired, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.
(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.
.... The foregoing provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.
(Emphasis added.)
In County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979), the United States Supreme Court discussed the various evidentiary devices at length:
The most common evidentiary device is the entirely permissive inference or presumption, which allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact.... Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt" standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the "no reasonable doubt" burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.
(Citations omitted; emphasis added.) In Francis v. Franklin, 471 U.S. 307, 315-16, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344 (1985), the Court further stated that in reviewing the constitutionality of a jury instruction, a specific instruction "must be considered in the context of the charge as a whole," and the "question is whether a reasonable juror could have understood the [specific instruction] as a mandatory presumption that shifted to the defendant the burden of persuasion on [an] element."
In this case, we believe that a reasonable juror would have understood the challenged instruction as allowing proof of a blood-alcohol level of 0.10 percent or higher to be evidence of impairment, not as requiring a finding of impairment in that circumstance. The language "would be sufficient by itself to establish," is not in any way mandatory and indicates that, should the jury wish to accept it, the evidence of a blood-alcohol level over 0.10 percent could provide the basis for a conviction. Further, the statutory framework described above was clearly explained to the jury in this case by both the prosecutor in her closing argument and by the judge in his instructions. To the extent the challenged instruction allowed the jury to substitute proof of a blood-alcohol level of 0.10 percent or higher for proof of impairment it correctly stated the law. Essentially, section 316.193 allows proof of a blood-alcohol level of 0.10 percent or higher to be substituted for proof of impairment--not as an unconstitutional presumption, but as an alternate element of the offense. 3 We therefore find no constitutional error in the challenged jury instruction.
We also find that section 316.1934(2)(c), Florida Statutes, creates a permissive inference, not an unconstitutional presumption. 4 Paragraph (a) clearly creates a presumption by its terms ("shall be presumed"). Paragraph (b) expressly authorizes only that a blood-alcohol level of 0.05-0.10 percent be admissible as evidence...
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