In Re: Standard Jury Instructions in Criminal Cases – Report No. 2015-07 , 192 So. 3d 1190 ( 2016 )

Supreme Court of Florida
____________
No. SC15-1867
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2015-07.
[May 12, 2016]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to the standard jury
instructions and asks that the Court authorize the amended standard instructions.
We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following existing standard criminal
jury instructions: 28.1 (Driving Under the Influence); 28.1(a) (Driving Under the
Influence Causing Property Damage or Injury); 28.2 (Felony Driving Under the
Influence); 28.3 (Driving Under the Influence Causing Serious Bodily Injury); 28.4
(Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury]);
28.8(b) (Aggravated Fleeing or Eluding – Leaving a Crash Involving Serious
Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death);
28.8(c) (Aggravated Fleeing or Eluding – Leaving a Crash Involving Damage to a
Vehicle or Property then Causing Serious Bodily Injury or Death); 28.8(d)
(Aggravated Fleeing or Eluding – Leaving a Crash Involving Serious Bodily
Injury, Injury or Death then Causing Injury or Property Damage to Another);
28.8(e) (Aggravated Fleeing or Eluding – Leaving a Crash Involving Damage to a
Vehicle or Property then Causing Injury or Property Damage to Another); 28.14
(Boating Under the Influence); 28.15 (Boating Under the Influence Causing
Property Damage or Injury); 28.16 (Felony Boating Under the Influence); and
28.17 (Boating Under the Influence Causing Serious Bodily Injury). The
Committee also proposes the following new jury instruction: 28.4(b) (Leaving the
Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended
Property).
Before filing its report with the Court, the Committee published its proposals
for comment in The Florida Bar News. Three comments were received by the
Committee: one from the Florida Association of Criminal Defense Lawyers
(FACDL) pertaining to instruction 28.4(b); and one each from the Florida Public
Defender Association, Inc. (FPDA) and Public Defender Blaise Trettis, both
pertaining to the Driving Under the Influence (DUI) and Boating Under the
Influence (BUI) instructions. The Committee made some changes to its proposals
upon consideration of the three comments. With respect to the DUI and BUI
-2-
instructions, the Committee clarified the definition of “impaired.” With respect to
instruction 28.4(b), the Committee added a comment to the instruction addressing
the issue of mens rea. Because the Court did not view these changes as significant,
the Court did not publish the Committee’s proposals for further comment.
Having considered the Committee’s report and the comments received by
the Committee, we amend the standard jury instructions as proposed by the
Committee and authorize them for publication and use. We also authorize new
instruction 28.4(b), as proposed by the Committee, for publication and use. In so
doing, we note with respect to instruction 28.4(b) that the issue raised by FACDL,
that the misdemeanor hit-and-run statute underlying proposed instruction 28.4(b)
imposes an affirmative duty on a driver to take certain actions, and therefore
knowledge of involvement in an accident is implied, has not been expressly
addressed by any court. Accordingly, we decline to use the instant proceedings
authorizing the publication and use of standard jury instructions as the basis for
addressing such an issue. Such matters are appropriate for consideration by this
Court only within the context of an actual case or controversy. See art. V, § 3(b),
Fla. Const; In re Std. Jury Instr. in Crim. Cases—Report No. 2015-05, 41 Fla. L.
Weekly S140 (Fla. Apr. 7, 2016).
-3-
The new and amended criminal jury instructions, as set forth in the appendix
to this opinion, are hereby authorized for publication and use.1 New language is
indicated by underlining, and deleted language is indicated by struck-through type.
In authorizing the publication and use of these instructions, we express no opinion
on their correctness and remind all interested parties that this authorization
forecloses neither requesting additional or alternative instructions nor contesting
the legal correctness of the instructions. We further caution all interested parties
that any comments associated with the instructions reflect only the opinion of the
Committee and are not necessarily indicative of the views of this Court as to their
correctness or applicability. The instructions as set forth in the appendix shall be
effective when this opinion becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
1. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
-4-
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,
for Petitioner
-5-
APPENDIX
28.1 DRIVING UNDER THE INFLUENCE
§ 316.193(1), Fla. Stat.
To prove the crime of Driving under the Influence, the State must prove
the following two elements beyond a reasonable doubt:
1. (Defendant) drove [or was in actual physical control of] a
vehicle.
2. While driving [or in actual physical control of] the vehicle,
(defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence, you
must also determine whether the State has proven beyond a reasonable doubt
whether:
a. the defendant had a [blood] [breath]-alcohol level of
.15 or higher while driving [or in actual physical
control of] the vehicle.
b. the defendant was accompanied in the vehicle by a
person under the age of 18 years at the time of the
dDriving under the iInfluence.
-6-
Definitions. Give as applicable.
§ 316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.1934(1), Fla. Stat.
Normal faculties include but are not limited to the ability to see, hear,
walk, talk, judge distances, drive an automobile, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
Give if applicable.
The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
Actual physical control of a vehicle means the defendant must be
physically in [or on] the vehicle and have the capability to operate the vehicle,
regardless of whether [he] [she] is actually operating the vehicle at the time.
§ 322.01(2), Fla. Stat.
Alcoholic beverages are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
-7-
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant drove with an unlawful blood or breath-alcohol level, impairment
becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence if at the time
of the alleged offense, the vehicle was inoperable. However, it is not a defense
if the defendant was driving under the influence before the vehicle became
inoperable. Therefore, if you are not convinced beyond a reasonable doubt
that the vehicle was operable at the time of the alleged offense, you should find
the defendant not guilty. However, if you are convinced that the vehicle was
-8-
operable at the time of the alleged offense, then you should find the defendant
guilty, if all the other elements of the charge have been proved beyond a
reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE — 316.193(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comment
A misdemeanor instruction was adopted in 1981 as part of Standard Jury
Instructions In Misdemeanor Cases. In 1992, a similar instruction was adopted for
Florida Standard Jury Instructions In Criminal Cases. That instruction was
amended in 1995 and 1998; both instructions were merged into a revised
instruction in 2000, which was amended in 2009 [6 So. 3d 574] and 2016.
28.1(a) DRIVING UNDER THE INFLUENCE CAUSING
PROPERTY DAMAGE OR INJURY
§ 316.193(3)(a)(b)(c)1, Fla. Stat.
To prove the crime of Driving under the Influence Causing [Property
Damage] [Injury], the State must prove the following three elements beyond a
reasonable doubt:
1. (Defendant) drove [or was in actual physical control of[ a
vehicle.
2. While driving [or in actual physical control of] the vehicle,
(defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
-9-
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to causing [damage to the property of (victim)]
[injury to the person of (victim)].
Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence Causing
[Property Damage] [Injury], you must also determine whether the State has
proven beyond a reasonable doubt whether:
a. the defendant had a [blood] [breath]-alcohol level of
.15 or higher while driving [or in actual physical
control of] the vehicle.
b. the defendant was accompanied in the vehicle by a
person under the age of 18 years at the time of the
dDriving under the iInfluence.
Definitions. Give as applicable.
§ 316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.1934(1), Fla. Stat.
Normal faculties include but are not limited to the ability to see, hear,
walk, talk, judge distances, drive an automobile, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
- 10 -
Give if applicable.
The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
Actual physical control of a vehicle means the defendant must be
physically in [or on] the vehicle and have the capability to operate the vehicle,
regardless of whether [he] [she] is actually operating the vehicle at the time.
§ 322.01(2), Fla. Stat.
Alcoholic beverages are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
- 11 -
3. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant drove with an unlawful blood or breath-alcohol level, impairment
becomes moot.; Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence Causing
[Property Damage] [Injury] if at the time of the alleged offense, the vehicle
was inoperable. However, it is not a defense if the defendant was driving
under the influence before the vehicle became inoperable. Therefore, if you
are not convinced beyond a reasonable doubt that the vehicle was operable at
the time of the alleged offense, you should find the defendant not guilty.
However, if you are convinced that the vehicle was operable at the time of the
alleged offense, then you should find the defendant guilty, if all the other
elements of the charge have been proved beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING PROPERTY
DAMAGE OR INJURY — - 316.193(3)(a)(b)(c)1.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
DUI 316.193(1) 28.1
Attempt 777.04(1) 5.1
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Comment
This instruction was adopted in 2009, In re Standard Jury Instructions in
Criminal Cases-Report No. 2008-08, [6 So. 3d 574] (Fla. 2009), and amended in
2009 [18 So. 3d 523], and 2016.
28.2 FELONY DRIVING UNDER THE INFLUENCE
§ 316.193(2)(b)1 or § 316.193(2)(b)3, Fla. Stat.
To prove the crime of Driving under the Influence, the State must prove
the following two elements beyond a reasonable doubt:
1. (Defendant) drove [or was in actual physical control of] a
vehicle.
2. While driving [or in actual physical control of] the vehicle,
(defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence, you
must also determine whether the State has proven beyond a reasonable doubt
whether:
a. the defendant had a [blood] [breath]-alcohol level of
.15 or higher while driving [or in actual physical
control of] the vehicle.
b. the defendant was accompanied in the vehicle by a
person under the age of 18 years at the time of the
dDriving under the iInfluence.
- 13 -
Definitions. Give as applicable.
§ 316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.1934(1), Fla. Stat.
Normal faculties include but are not limited to the ability to see, hear,
walk, talk, judge distances, drive an automobile, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
Give if applicable.
The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
Actual physical control of a vehicle means the defendant must be
physically in [or on] the vehicle and have the capability to operate the vehicle,
regardless of whether [he] [she] is actually operating the vehicle at the time.
§ 322.01(2), Fla. Stat.
Alcoholic beverages are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
- 14 -
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant drove with an unlawful blood or breath-alcohol level, impairment
becomes moot. Robertson v. State, 604 So. 2d 783, 792, n.14 (Fla. 1992); Tyner v.
State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence if at the time
of the alleged offense, the vehicle was inoperable. However, it is not a defense
if the defendant was driving under the influence before the vehicle became
inoperable. Therefore, if you are not convinced beyond a reasonable doubt
that the vehicle was operable at the time of the alleged offense, you should find
- 15 -
the defendant not guilty. However, if you are convinced that the vehicle was
operable at the time of the alleged offense, then you should find the defendant
guilty, if all the other elements of the charge have been proved beyond a
reasonable doubt.
Give as applicable if the jury finds the defendant guilty of Driving under the
Influence. Note: BUI and out-of-state DUI/DWI convictions count as prior
convictions. See §316.193(6)(k), Fla. Stat. See State v. Harbaugh, 754 So. 2d 691
(Fla. 2000).
Now that you have found the defendant guilty of Driving under the
Influence, you must further determine whether the State has proven beyond a
reasonable doubt whether:
a. the defendant was previously convicted two times of
Driving under the Influence and one of the prior
Driving Under the Influence convictions took place
within 10 years of the Driving Under the Influence
that you found the defendant committed.
b. the defendant was previously convicted three times of
Driving under the Influence.
Give if applicable. 316.193(12), Fla. Stat.
If the records of the Department of Highway Safety and Motor Vehicles
show that the defendant has been previously convicted of Driving under the
Influence, you may conclude that the State has established that prior Driving
under the Influence conviction. However, such evidence may be contradicted
or rebutted by other evidence. Accordingly, this inference may be considered
along with any other evidence in deciding whether the defendant has a prior
Driving under the Influence conviction.
- 16 -
Lesser Included Offenses
FELONY DRIVING UNDER THE INFLUENCE – [THIRD OFFENSE
WITHIN 10 YEARS OF A PRIOR CONVICTION] [FOURTH
OFFENSE] — 316.193(2)(b)1. or 316.193(2)(b)3.
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Driving under 316.193(1) 28.1
the influence
Attempt 777.04(1) 5.1
Driving under 316.193(3)(a)(b)(c)1 28.1(a)
the influence
causing property
damage or injury
Comments
This instruction should be used for Felony Driving under the Influence based
on prior convictions. For Felony Driving under the Influence based on prior
convictions, it is error to inform the jury of prior Driving under the
Influence/Boating under the Influence convictions until the verdict on the
underlying Driving under the Influence is rendered. Therefore, if the information
or indictment contains an allegation of prior Driving under the Influence/Boating
under the Influence convictions, do not read that allegation and do not send the
information or indictment into the jury room. If the defendant is found guilty of
Driving under the Influence, the historical fact of prior convictions shall be
determined separately by the jury in a bifurcated proceeding. See State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2016.
28.3 DRIVING UNDER THE INFLUENCE CAUSING
SERIOUS BODILY INJURY
§ 316.193(3)(a)(b)(c)2., Fla. Stat.
To prove the crime of Driving under the Influence Causing Serious
Bodily Injury, the State must prove the following three elements beyond a
reasonable doubt:
- 17 -
1. (Defendant) drove [or was in actual physical control of] a
vehicle.
2. While driving [or in actual physical control of] the vehicle,
(defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to causing serious bodily injury to (victim).
Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence, you
must also determine whether the State has proven beyond a reasonable doubt
whether:
a. the defendant had a [blood] [breath]-alcohol level of
0.15 or higher while driving [or in actual physical
control of] the vehicle.
b. the defendant was accompanied in the vehicle by a
person under the age of 18 years at the time of the
dDriving under the iInfluence.
Definitions. Give as applicable.
§ 316.003(75), Fla. Stat.
Vehicle is every device, in, upon or by which any person or property is,
or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.1934(1), Fla. Stat.
Normal faculties include but are not limited to the ability to see, hear,
walk, talk, judge distances, drive an automobile, make judgments, act in
- 18 -
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
Give if applicable.
The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
Actual physical control of a vehicle means the defendant must be
physically in [or on] the vehicle and have the capability to operate the vehicle,
regardless of whether [he] [she] is actually operating the vehicle at the time.
§ 322.01(2), Fla. Stat.
Alcoholic beverages are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
§ 316.1933, Fla. Stat.
Serious bodily injury means a physical condition that creates a
substantial risk of death, serious personal disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.
When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
- 19 -
2. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a
blood or breath-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant drove with an unlawful blood or breath-alcohol level, impairment
becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence Causing
Serious Bodily Injury if at the time of the alleged offense, the vehicle was
inoperable. However, it is not a defense if the defendant was driving under the
influence before the vehicle became inoperable. Therefore, if you are not
convinced beyond a reasonable doubt that the vehicle was operable at the time
of the alleged offense, you should find the defendant not guilty. However, if
you are convinced that the vehicle was operable at the time of the alleged
offense, then you should find the defendant guilty, if all the other elements of
the charge have been proved beyond a reasonable doubt.
- 20 -
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY
INJURY—316.193(3)(a)(b)(c)2.
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
Driving under the 316.193(3)(a)(b)(c)1. 28.1
influence causing injury 28.1(a)
Driving under the 316.193(1) 28.1
influence
Driving under 316.193(3)(a)(b)(c)1. 28.1(a)
the influence
causing
property
damage
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 1992 and amended in 1998 [723 So. 2d 123],
2009 [6 So. 3d 574], and 2013 [131 So. 3d 720], and 2016.
28.4 LEAVING THE SCENE OF A CRASH INVOLVING
[DEATH] [SERIOUS BODILY INJURY] [INJURY]
§ 316.027(12), Fla. Stat.; § 316.062, Fla. Stat.
To prove the crime of Leaving the Scene of a Crash Involving [Death]
[Injury], the State must prove the following four elements beyond a
reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident occurring on public or private property resulting
in [injury to] [death of] any person.
2. (Defendant) knew that [he] [she] was involved in a crash or
accident.
Give 3a if death is charged or 3b if injury or serious bodily injury is
charged.
- 21 -
3. a. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to the person.
Give 4a, 4b, or both as applicable.
4. a. (Defendant) willfully failed to stop at the scene of the
crash or accident or as close to the crash or accident
as possible and remain there until [he] [she] had given
“identifying information” to the [injured person]
[driver] [occupant] [person attending the vehicle] and
to any police officer investigating the crash or
accident.
[or]
b. (Defendant) willfully failed to render “reasonable
assistance” to the injured person if such treatment
appeared to be necessary or was requested by the
injured person.
If the State proves that the defendant willfully failed to give any part of
the “identifying information” or willfully failed to give reasonable assistance,
the State satisfies this element of the offense.
Give if serious bodily injury is charged. § 316.027(1)(a), Fla. Stat.;
§ 316.027(2)(b), Fla. Stat.
If you find that (defendant) committed the crime of Leaving the Scene of
a Crash Involving Injury, you must then determine whether the State proved
beyond a reasonable doubt that the injury was a serious bodily injury.
“Serious bodily injury” means an injury to a person, including the
driver, which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.
Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
- 22 -
If you find that (defendant) committed the crime of Leaving the Scene
of a Crash Involving [Death] [Serious Bodily Injury] [or] [Injury], you must
then determine whether the State proved beyond a reasonable doubt that the
[injured person] [person who died] was:
[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-
of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed
primarily for farm use] [a skateboard] [roller-skates] [in-line
skates] [a horse-drawn carriage] [an electric personal assistive
mobility device] [a wheelchair] on [a public right-of-way]
[crosswalk] [shoulder of the roadway]].
Definitions. Give as applicable. Fla. Stat. § 316.003(75). § 316.003(75),
Fla. Stat.
A “vehicle” is any device in, upon, or by which any person or property
is, or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.062, Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
“Reasonable assistance” includes carrying or making arrangements to
carry the injured person to a physician or hospital for medical treatment.
Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
“Willfully” means knowingly, intentionally and purposely.
If the “vulnerable road user” enhancement is given, insert applicable
definitions from § 316.003, Fla. Stat.
- 23 -
Lesser Included Offenses
LEAVING THE SCENE OF A CRASH INVOLVING DEATH
OR INJURY — 316.027(12)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None Leaving the 316.027(2)(b) 28.4
Scene of a Crash
Involving Serious
Bodily Injury*
Leaving the Scene of a 316.027(2)(a) 28.4
Crash Involving
Injury*
Attempt 777.04(1) 5.1
LEAVING THE SCENE OF A CRASH INVOLVING SERIOUS
BODILY INJURY — 316.027(2)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Leaving the Scene of a 316.027(2)(a) 28.4
Crash Involving Injury
Attempt 777.04(1) 5.1
Comments
* In Williams v. State, 732 So. 2d 431 (Fla. 2d DCA 1999), the court stated
in dictum that Leaving the Scene of a Crash Involving Injury is a necessarily
lesser-included offense of Leaving the Scene of a Crash Involving Death. In other
areas, however, where there is no issue that a person was killed as a result of an
incident giving rise to criminal charges, non-death lessers are not appropriate. See,
e.g., State v. Barritt, 531 So. 2d 338 (Fla. 1988); Humphrey v. State, 690 So. 2d
1351 (Fla. 3d DCA 1997).
See Mancuso v. State, 652 So. 2d 370 (Fla. 1995), State v. Dumas, 700 So.
2d 1223 (Fla. 1997), and State v. Dorsett, 158 So. 3d 557 (Fla. 2015).
This instruction was adopted in 1995 [665 So. 2d 212] and amended in 2008
[973 So. 2d 432], and 2015 [166 So. 3d 131], and 2016.
- 24 -
28.4(b) LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO
AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY
§ 316.063(1), Fla. Stat.
To prove the crime of Leaving the Scene of a Crash Involving Damage
to an Unattended Vehicle or Unattended Property, the State must prove the
following four elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
collision.
2. The crash or collision resulted in damage to another vehicle
or other property.
3. The vehicle or other property was not driven or attended by
any person.
4. (Defendant) failed to immediately stop at the scene of the
crash or collision and then and there either
a. locate and notify the operator or owner of the vehicle
or other property of [his] [her] name and address and
the registration number of the vehicle [he] [she] was
driving, or
b. attach securely in a conspicuous place in or on the
vehicle or other property a written notice giving [his]
[her] name and address and the registration number
of the vehicle [he] [she] was driving, and, without
unnecessary delay, notify the nearest office of a duly
authorized police authority.
§ 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
- 25 -
Lesser Included Offense
LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO
AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY—
316.063(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comments
As of September 2015, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage to violate this statute. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015) and Mancuso v. State, 652 So. 2d 370 (Fla. 1995)
dealing with § 316.027, Fla. Stat., which, unlike § 316.063, Fla. Stat., contains an
explicit willfulness requirement.
This instruction was adopted in 2016.
28.8(b) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Serious Bodily Injury or Death)
§ 316.1935(4)(b) and § 316.027, Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident occurring on public or private property resulting
in [serious bodily injury to] [injury to] [the death of] any
person.
2. (Defendant) knew that [he] [she] was involved in a crash or
accident.
- 26 -
Give 3a if death is charged or 3b if injury or serious bodily injury is
charged.
3. a. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to the person.
Give 4a or 4b or both as applicable.
4. (Defendant)
a. willfully failed to stop at the scene of the crash or
accident or as close to the crash or accident as
possible and remain there until [he] [she] had given
“identifying information” to the [injured person]
[driver] [occupant][person attending the vehicle or
other damaged property] and to any police officer
investigating the crash or accident.
[or]
b. willfully failed to render “reasonable assistance” to
the injured person if such treatment appeared to be
necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant), knowing [he][she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his][her]vehicle in compliance with the order to stop] [and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she]
caused [serious bodily injury to] [the death of] (name of
victim).
- 27 -
§ 316.027, Fla. Stat.
A driver has the legal duty to immediately stop [his] [her] vehicle at the
scene of the crash or accident or as close to the scene of the crash or accident
as possible and provide “identifying information.”
If the State proves beyond a reasonable doubt that the defendant
willfully failed to give any part of the “identifying information” or willfully
failed to give reasonable assistance, the State satisfies this element of the
offense.
Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
If you find that the State proved beyond a reasonable doubt that
(defendant) committed elements #1 – #4, you must then determine whether the
State also proved beyond a reasonable doubt that the [injured person] [person
who died] in element #1 was:
[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-
of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed
primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a
horse-drawn carriage] [an electric personal assistive mobility device] [a
wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the
roadway]].
Definitions. Give as applicable.
Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Fla. Stat. § 316.062, Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
- 28 -
“Reasonable assistance” includes carrying or making arrangement to
carry the injured person to a physician or hospital for medical treatment.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
§ 316.027(1)(a), Fla. Stat.
“Serious bodily injury” means an injury to a person [including the
driver,] which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Injury or Death and then Causing Serious
Injury Bodily Injury or Death) —
316.1935(4)(b) and 316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Leaving Scene of a 316.027(2)(c) 28.4
Crash Involving
Death*
Leaving the Scene of 316.027(2)(b) 28.4
a Crash Involving
Serious Bodily
Injury*
Aggravated Fleeing 316.1935(4)(a) 28.84
Fleeing to Elude LEO 316.1935(1) 28.6
Leaving Scene of a 316.027(1)(b) 28.4
Crash Involving
Death
Leaving Scene of a 316.027(1)(a)(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO 316.1935(1) 28.6
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
- 29 -
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to
Police or Fire 316.072(3) 28.18
Department Officials
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death,
Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is
charged as a separate count, then Leaving the Scene should not be given as a
lesser-included offense of Aggravated Fleeing or Eluding.
For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).
See Mancuso v. State, 652 So. 2d 370 (Fla. 1995), State v. Dumas, 700 So.
2d 1223 (Fla. 1997), and State v. Dorsett, 158 So. 3d 557 (Fla. 2015).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016.
28.8(c) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Injury or Death)
§ 316.1935(4)(b) and § 316.061, Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident.
2. The crash or accident resulted only in damage to a vehicle
or other property.
- 30 -
3. The [vehicle] [other property] was [driven] [attended] by [a
person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or
accident or as close to the crash or accident as possible and
remain there until [he] [she] had given “identifying
information” to the [driver or occupant of the damaged
vehicle] [person attending the damaged vehicle or property]
[and to any police officer at the scene of the crash or
accident or who is investigating the crash or accident.
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his] [her] vehicle in compliance with the order to stop] [and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] she] caused
[serious bodily injury to] [the death of] (name of victim).
If the State proves beyond a reasonable doubt that the defendant failed
to give any part of the “identifying information,” the State satisfies this
element of the offense.
Definitions.
Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Fla. Stat. § 316.062(1), Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
- 31 -
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Aggravated Fleeing 316.1935(4)(a) 28.85
Fleeing to Elude LEO 316.1935(1) 28.6
Leaving the Scene of a 316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police 316.072(3) 28.18
or Fire Department
Officials
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving
Damage to Attended Property. Therefore, if Leaving the Scene is charged as a
separate count, then Leaving the Scene should not be given as a lesser-included
offense of Aggravated Fleeing or Eluding.
As of September 2015, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage to violate this statute. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015) and Mancuso v. State, 652 So. 2d 370 (Fla. 1995)
dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an
explicit willfulness requirement.
For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).
- 32 -
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016.
28.8(d) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Injury or Property Damage to Another)
§ 316.1935(4)(a) and § 316.027 Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident occurring on public or private property resulting
in [serious bodily injury to] [injury to] [the death of] any
person.
2. (Defendant) knew that [he] [she] was involved in a crash or
accident.
Give 3a if death is charged or 3b if serious bodily injury or injury is
charged.
3. a. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to the person.
Give 4a or 4b or both as applicable.
4. (Defendant)
a. willfully failed to stop at the scene of the crash or
accident or as close to the crash or accident as
possible and remain there until [he] [she] had given
“identifying information” to the [injured person]
[driver] [occupant] [person attending the vehicle or
other damaged property] and to any police officer
investigating the crash or accident.
- 33 -
[or]
b. willfully failed to render “reasonable assistance” to
the injured person if such treatment appeared to be
necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant) knowing [he] [she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his][her]vehicle in compliance with the order to stop][and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she]
caused [an injury to] [damage to the property of] (name of
victim).
§ 316.027, Fla. Stat.
A driver has the legal duty to immediately stop [his] [her] vehicle at the
scene of the crash or accident or as close to the scene of the crash or accident
as possible and provide “identifying information.”
If the State proves beyond a reasonable doubt that the defendant
willfully failed to give any part of the “identifying information” or willfully
failed to give reasonable assistance, the State satisfies this element of the
offense.
Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
If you find that the State proved beyond a reasonable doubt that
(defendant) committed elements #1 – #4, you must then determine whether the
State also proved beyond a reasonable doubt that the [injured person] [person
who died] in element #1 was:
[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
- 34 -
[engaged in the provision of emergency services within the right-
of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed
primarily for farm use] [a skateboard] [roller-skates] [in-line
skates] [a horse-drawn carriage] [an electric personal assistive mobility
device] [a wheelchair] on [a public right-of-way]
[crosswalk] [shoulder of the roadway]].
Definitions. Give as applicable.
Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Fla. Stat. § 316.062, Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
“Reasonable assistance” includes carrying or making arrangement to
carry the injured person to a physician or hospital for medical treatment.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
§ 316.027(1)(a), Fla. Stat.
“Serious bodily injury” means an injury to a person [including the
driver,] which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.
- 35 -
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Injury or Death and then Causing Injury or
Property Damage to Another) —
316.1935(4)(a) and § 316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Leaving Scene of a 316.027(2)(c) 28.4
Crash Involving
Death*
Leaving Scene of 316.027(2)(b) 28.4
Crash Involving
Serious Bodily
Injury*
Fleeing to Elude LEO 316.1935(1) 28.6
Leaving Scene of a 316.027(1)(b) 28.4
Crash Involving
Death
Leaving Scene of a 316.027(1)(a)(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO 316.1935(1) 28.6
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to
Police or Fire 316.072(3) 28.18
Department Officials
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death,
Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is
- 36 -
charged as a separate count, then Leaving the Scene should not be given as a
lesser-included offense of Aggravated Fleeing or Eluding.
For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).
See Mancuso v. State, 652 So. 2d 370 (Fla. 1995), State v. Dumas, 700 So.
2d 1223 (Fla. 1997), and State v. Dorsett, 158 So. 3d 557 (Fla. 2015).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016.
28.8(e) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another)
§ 316.1935(4)(a) and § 316.061, Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident.
2. The crash or accident resulted only in damage to a vehicle
or other property.
3. The [vehicle] [other property] was [driven] [attended] by [a
person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or
accident or as close to the crash or accident as possible and
remain there until [he] [she] had given “identifying
information” to the [driver or occupant of the damaged
vehicle] [person attending the damaged vehicle or property]
[and to any police officer at the scene of the crash or
accident or who is investigating the crash or accident].
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
- 37 -
6. (Defendant), knowing [he] [she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his] [her] vehicle in compliance with the order to stop] [and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] [she]
caused [injury to] [damage to the property of] (name of
victim).
If the State proves beyond a reasonable doubt that the defendant failed
to give any part of the “identifying information,” the State satisfies this
element of the offense.
Definitions.
Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Fla. Stat. § 316.062(1), Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving A Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Fleeing to Elude LEO 316.1935(1) 28.6
Leaving the Scene of a 316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
- 38 -
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police 316.072(3) 28.18
or Fire Department
Officials
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving
Damage to Attended Property. Therefore, if Leaving the Scene is charged as a
separate count, then Leaving the Scene should not be given as a lesser-included
offense of Aggravated Fleeing or Eluding.
As of September 2015, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage to violate this statute. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015) and Mancuso v. State, 652 So. 2d 370 (Fla. 1995)
dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an
explicit willfulness requirement.
For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016.
28.14 BOATING UNDER THE INFLUENCE
§ 327.35(1), Fla. Stat.
To prove the crime of Boating under the Influence, the State must prove
the following two elements beyond a reasonable doubt:
1. (Defendant) operated a vessel.
- 39 -
2. While operating the vessel, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 327.35(4), Fla. Stat.
If you find the defendant guilty of Boating under the Influence, you
must also determine whether the State has proven beyond a reasonable doubt
whether:
a. the defendant had a [blood] [breath]-alcohol level of
.15 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a
person under the age of 18 years at the time of the
bBoating under the iInfluence.
Definitions. Give as applicable.
State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
“Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.
§ 327.354(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
§ 327.02(30), Fla. Stat.
“Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.
- 40 -
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating or
in actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
- 41 -
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence if the vessel
was inoperable at the time of the alleged offense, unless the defendant was
controlling or steering the vessel while it was being towed by another vessel
upon the waters of the state. However, it is not a defense if the defendant was
boating under the influence before the vessel became inoperable.
Lesser Included Offenses
BOATING UNDER THE INFLUENCE — 327.35(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 2009 [6 So. 3d 574], and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.
- 42 -
28.15 BOATING UNDER THE INFLUENCE CAUSING
PROPERTY DAMAGE OR INJURY
§ 327.35(3)(a)(b)(c)1, Fla. Stat.
To prove the crime of Boating under the Influence Causing [Property
Damage] [Injury], the State must prove the following three elements beyond a
reasonable doubt:
1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
3. As a result of operating the vessel, (defendant) caused or
contributed to causing [damage to the property of (victim)]
[injury to the person of (victim)].
Give if applicable. § 327.35(4), Fla. Stat.
If you find the defendant guilty of Boating under the Influence Causing
[Property Damage] [Injury], you must also determine whether the State has
proven beyond a reasonable doubt whether:
a. the defendant had a [blood] [breath]-alcohol level of
.15 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a
person under the age of 18 years at the time of the
bBoating under the iInfluence.
Definitions. Give as applicable.
State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
“Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.
- 43 -
§ 327.354(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
§ 327.02(30), Fla. Stat.
“Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
- 44 -
[blood] [breath]-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence Causing
[Property Damage] [Injury] if the vessel was inoperable at the time of the
alleged offense, unless the defendant was controlling or steering the vessel
while it was being towed by another vessel upon the waters of the state.
However, it is not a defense if the defendant was boating under the influence
before the vessel became inoperable.
- 45 -
Lesser Included Offenses
BOATING UNDER THE INFLUENCE CAUSING PROPERTY
DAMAGE OR INJURY — 327.35(3)(a)(b)(c)1.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Boating under the 327.35(1) 28.14
Influence
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.
28.16 FELONY BOATING UNDER THE INFLUENCE
§ 327.35(2)(b)1. or § 327.35(2)(b)3., Fla. Stat.
To prove the crime of Boating under the Influence, the State must prove
the following two elements beyond a reasonable doubt:
1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
Give if applicable. § 327.35(4), Fla. Stat.
If you find the defendant guilty of Boating under the Influence, you
must also determine whether the State has proven beyond a reasonable doubt
whether:
a. the defendant had a [blood] [breath]-alcohol level of .
15 or higher while operating the vessel.
- 46 -
b. the defendant was accompanied in the vessel by a
person under the age of 18 years at the time of the
bBoating under the iInfluence.
Definitions. Give as applicable.
State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
“Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.
§ 327.354(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
§ 327.02(30), Fla. Stat.
“Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating or
in actual physical control of the vessel, the defendant had a
- 47 -
[blood] [breath]-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence if the vessel
was inoperable at the time of the alleged offense, unless the defendant was
controlling or steering the vessel while it was being towed by another vessel
- 48 -
upon the waters of the state. However, it is not a defense if the defendant was
boating under the influence before the vessel became inoperable.
Give as applicable if the jury finds the defendant is guilty of Boating Under
the Influence. Note: A Driving Under the Influence conviction, whether in Florida
or out-of-state, counts as a prior conviction. See §327.35(6)(i), Fla. Stat. See State
v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
Since you have found the defendant guilty of Boating under the
Influence, you must now determine whether the State has proven beyond a
reasonable doubt whether:
a. the defendant was previously convicted two times of
Boating under the Influence and one of the prior
Boating under the Influence convictions took place
within 10 years of the Boating under the Influence
that you found the defendant committed.
b. the defendant was previously convicted three times of
Boating under the Influence.
Lesser Included Offenses
FELONY BOATING UNDER THE INFLUENCE —
PRIOR CONVICTIONS — 327.35(2)(b)1. or 327.35(2)(b)3.
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Boating under 327.35(1) 28.14
the influence
Attempt 777.04(1) 5.1
Boating under 327.35(3)(a)(b)(c)1. 28.15
the influence
causing property
damage or injury
Comments
This instruction should be used for Felony Boating under the Influence
based on prior convictions. For Felony Boating under the Influence based on prior
convictions, it is error to inform the jury of prior Boating or Driving under the
- 49 -
Influence convictions before the verdict is rendered. Therefore, if the information
or indictment contains an allegation of prior Boating or Driving under the
Influence convictions, do not read that allegation and do not send the information
or indictment into the jury room. If the defendant is found guilty of Boating under
the Influence, the historical fact of prior convictions shall be determined separately
by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla.
2000).
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.
28.17 BOATING UNDER THE INFLUENCE
CAUSING SERIOUS BODILY INJURY
§ 327.35(3)(a)(b)(c)2, Fla. Stat.
To prove the crime of Boating under the Influence Causing Serious
Bodily Injury, the State must prove the following three elements beyond a
reasonable doubt:
1. (Defendant) operated a vessel.
2. While operating the vessel, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a
chemical substance] [a controlled substance] to the
extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more
grams of alcohol per [100 milliliters of blood] [210
liters of breath].
3. As a result of operating the vessel, (defendant) caused or
contributed to causing serious bodily injury to (victim).
Give if applicable. § 327.35(4), Fla. Stat.
If you find the defendant guilty of Boating under the Influence Causing
Serious Bodily Injury, you must also determine whether the State has proven
beyond a reasonable doubt whether:
- 50 -
a. the defendant had a [blood] [breath]-alcohol level of
.15 or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a
person under the age of 18 years at the time of the
boating under the influence.
Definitions. Give as applicable.
State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
“Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.
§ 327.354(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
§ 327.02(30), Fla. Stat.
“Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
§ 327.353(1)(b), Fla. Stat.
- 51 -
“Serious bodily injury” means a physical condition that creates a
substantial risk of death, serious personal disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.
When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level in excess of .05 but less than
.08, that fact does not give rise to any presumption that the
defendant was or was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in
actual physical control of the vessel, the defendant had a
[blood] [breath]-alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. But this
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
- 52 -
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence Causing
Serious Bodily Injury if the vessel was inoperable at the time of the alleged
offense, unless the defendant was controlling or steering the vessel while it was
being towed by another vessel upon the waters of the state. However, it is not
a defense if the defendant was boating under the influence before the vessel
became inoperable.
Lesser Included Offenses
BOATING UNDER THE INFLUENCE CAUSING
SERIOUS BODILY INJURY — 327.35(3)(a)(b)(c)2.
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Boating under the 327.35(3)(a)(b)(c)1. 28.15
Influence
Causing Injury
Boating under the 327.35(1) 28.14
influence
Attempt 777.04(1) 5.1
Boating under 327.35(3)(a)(b)(c)1. 28.15
the influence
causing property
damage
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.
- 53 -