Wilhelm v. State, 87-1493
| Decision Date | 14 June 1989 |
| Docket Number | No. 87-1493,87-1493 |
| Citation | 544 So.2d 1144,14 Fla. L. Weekly 1469 |
| Parties | 14 Fla. L. Weekly 1469 Michael J. WILHELM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.
Michael Wilhelm appeals his conviction for DWI-Manslaughter following a jury trial. He contends that the trial court violated his right to due process by instructing the jury to apply a mandatory rebuttable presumption on the issue of his intoxication. We agree, but find that the error was harmless in light of the overwhelming evidence of the appellant's intoxication.
The charges against the appellant stem from an accident near Fort Myers Beach that occurred about 6:00 in the evening on June 8, 1986. The evidence at trial established that a semi-tractor driven by the appellant skidded across the center line of San Carlos Boulevard, "bounced off" a station wagon driven by Donald Lawson and then crashed into a taxicab. Donald Lawson's seven-year-old son, a passenger in the station wagon, suffered severe head injuries and later died.
The driver of the taxicab, Joseph Venuto, testified at trial that just before the collision, he saw the semi-tractor pull out "hard" or "quick" onto the boulevard from Home Avenue, "swerve for a second" and then completely swerve out of control. Venuto also testified that immediately after the accident the appellant, dressed only in shorts, appeared to be "incapacitated" which according to Venuto meant that he reeked of alcohol.
The jury also heard testimony from Florida Highway Patrol Trooper Howard Cole that the appellant was unsteady on his feet, seemed very "skittish", and walked around in circles. Trooper Cole stated that the appellant could not concentrate and appeared generally confused, that his speech was slurred, that he mumbled, and that there was a strong odor of alcohol coming from him. The appellant failed the standard field sobriety tests given by Cole to determine coordination and balance. When asked to recite the alphabet, the appellant sang the alphabet song, finishing with, "Now I know my ABC's, tell me what you think of me." Cole testified that based on his observations and experience, he concluded that the appellant was intoxicated.
The appellant denied that he was intoxicated. He testified he had had one beer about three hours before the accident and had also taken Nyquil for his cold. The appellant contended that the collision occurred when he braked to avoid hitting cars that were slowing in front of him.
The jury also heard evidence from a Florida Department of Law Enforcement chemist who testified that he had tested a sample of the appellant's blood and that it had a .20 percent alcohol content. The chemist told the jury that the appellant would have had to have ingested sixteen ounces of Nyquil to produce that test result.
At the conclusion of evidence the trial court gave the jury, over objection, certain instructions concerning the effect to be given the chemical test, including an instruction that if the jury found from the evidence
that the defendant had point one zero percent or more by weight of alcohol in his blood, it is a prima facie case that the defendant was under the influence of alcoholic beverages to the extent his normal faculties were impaired.
This language tracks that of section 316.1934(2)(c), Florida Statutes (1986).
The appellant argues that the court erred in giving the above instruction, as the only substantial issue in the case was whether he was intoxicated and the instruction thus shifted the burden to him to prove his innocence. We agree with the appellant that, as given, the instruction creates a mandatory rebuttable presumption of impairment and thus violates the due process clause of both the United States and...
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Wilhelm v. State
...Atty. Gen., and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for respondent. EHRLICH, Justice. We have for review Wilhelm v. State, 544 So.2d 1144, 1146 (Fla.2d DCA 1989), which certified the following as a question of great public DOES THE JURY INSTRUCTION BASED ON THE STATUTORY PRESUMPTION ......
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Busch v. State, 87-2705
...DCA 1988); Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988). We agree with the reasoning of our sister court in Wilhelm v. State, 544 So.2d 1144, 1145-1146 (Fla. 2d DCA 1989). Constitutional error does not in every circumstance mandate reversal of a conviction. Chapman v. California, 386 ......
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Arnold v. State, 89-02994
...offense." Eutsey, 383 So.2d at 223. The present situation is distinguishable from cases the appellant cites, such as Wilhelm v. State, 544 So.2d 1144 (Fla. 2d DCA 1989), which held that mandatory rebuttable presumptions violate the defendant's due process rights if they relieve the state fr......