In re Standard Jury Instructions in Criminal Cases-Report 2018-09 (262 So. 3d 59, 2019)

Citations

262 So. 3d 59

Full opinion text

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 for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On October 16, 2018, the Committee filed a report proposing amendments to the standard criminal jury instructions. The Committee's proposals pertain to the following existing instructions: 7.8 (Driving Under the Influence Manslaughter); 7.9 (Vehicular or Vessel Homicide); 16.12 (Leaving a Child Unattended or Unsupervised in a Motor Vehicle); 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] ); 28.4(a) (Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended Property); 28.4(b) (Leaving the Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended Property); 28.5 (Reckless Driving); 28.5(a) (Racing on a Highway); 28.6 (Fleeing to Elude a Law Enforcement Officer); 28.7 (Fleeing to Elude a Law Enforcement Officer (Sirens and Lights Activated) ); 28.8 (Fleeing to Elude a Law Enforcement Officer (Siren and Lights Activated with High Speed or Reckless Driving) ); 28.8(a) (Fleeing to Elude a Law Enforcement Officer (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) ); 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) ); 28.13 (Refusal to Submit to Testing); and 28.18 (Failure to Obey the Lawful Order of a [Police] [Fire] [Traffic] Official).

Following publication in The Florida Bar News , the Committee received one comment pertaining to the addition of the terms "personal delivery devices" and "mobile carriers" to the definition of "vehicle." In response, the Committee added the following sentence to the italicized note preceding the definition from section 316.003(99), Florida Statutes (2018): "Some of these terms have their own statutory definitions, which should be given if necessary." Both terms are further defined in section 316.003. See § 316.003(39) ; § 316.003(53), Fla. Stat. (2018).

We authorize the proposed amendments to the instructions for publication and use as proposed and with any modifications discussed below, and discuss the more significant amendments to the instructions as well.

Instructions 7.8, 28.1, 28.1(a), 28.3, 28.4, 28.4(a), 28.4(b), 28.5, 28.6, 28.7, 28.8, 28.8(a), 28.8(b), 28.8(c), 28.8(d), 28.8(e), and 28.18 update the definition of "vehicle" to include as exceptions "personal delivery devices" and "mobile carriers." Those same instructions, as well as 7.9, 16.12, 28.2, and 28.5(a), add the italicized sentence "Some of these terms have their own statutory definitions, which should be given if necessary" above the definitions for "vehicle" or "motor vehicle."

Next, we update the definition of "motor vehicle" to delete "motorcycle" and to add as exceptions "mobile carrier" and "personal delivery device" to instructions 16.12, 28.5, 28.5(a), and 28.13.

In addition, in instructions 28.8(b) and 28.8(d), we add the following italicized trial note and instruction pertaining to whether the defendant caused the victim's injury or death as part of aggravated fleeing or eluding:

Give if it is alleged in the charging document that the defendant caused victim injury or death as part of violating § 316.027, Fla. Stat. § 921.0021(7)(e), Fla. Stat.

If you find that (defendant) committed Aggravated Fleeing, you must then determine whether the State proved beyond a reasonable doubt that [he] [she] caused [death] [or] [severe injury] [or] [moderate injury] [or] [slight injury] to (victim).

Lastly, on the Court's own motion, we change the statutory citation for "vessel" in instruction 7.9 to cite to the correct statutory definition, section 327.02(46), Florida Statutes, see ch. 2017-163, § 2, Laws of Fla., and add the sentence "Some of these terms have their own statutory definitions which should be given if necessary" in the italicized note above the definition for "vehicle" in instruction 28.1(a) to be consistent with the other amended instructions.

Having considered the Committee's report, we authorize the amended instructions as set forth in the appendix to this opinion for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. We 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. 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. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

Appendix APPENDIX

7.8 DRIVING UNDER THE INFLUENCE MANSLAUGHTER

§ 316.193(3)(a), (3)(b), and (3)(c)3., Fla. Stat.

To prove the crime of Driving

U nder the Influence Manslaughter, 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 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 the cause of the death of [(victim)] [an unborn child].

Give if

§ 316.193(3)(a), (3)(b), and (3)(c)3.b., Fla. Stat., is charged.

If you find the defendant guilty of Driving

U nder the Influence Manslaughter, you must further determine whether the State proved beyond a reasonable doubt that:

(Defendant), at the time of the crash,

a. knew or should have known that the crash occurred

and

b. failed to give information as required by law

and c. failed to render aid as required by law.

Florida law requires that the driver of any vehicle involved in a crash resulting in injury to or death of any person, or damage to any vehicle or other property which is driven or attended by any person, must supply [his] [her] name, address, and the registration number of the vehicle [he] [she] is driving to any person injured in the crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash. Upon request and if available, the driver shall also exhibit [his] [her] license or permit to drive.

The driver shall give the same information and, upon request, exhibit his or her license or permit, to any police officer who is at the scene of the crash or who is investigating the crash.

The driver shall also render reasonable assistance to any person injured in the crash, including carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

In the event none of the persons specified above are in condition to receive the information to which they otherwise would be entitled, and no police officer is present, the driver of a vehicle involved in the crash, after trying to fulfill the requirements listed above as much as possible, shall immediately report the crash to the nearest office of a duly authorized police authority and supply the information specified above.

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving

U nder the Influence Manslaughter, 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 Driving uUnder the Influence.

Definitions. Give as applicable.

§ 316.003(9

9 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

"Vehicle" is every device in, upon, or by which any person or property is or may be transported or drawn upon a highway [ , except personal delivery devices, mobile carriers, and 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.

§ 877.111(1), Fla. Stat.

(___________)is a chemical substance under Florida law.

Chapter 893, Fla. Stat.

(___________)is a controlled substance under Florida law.

§ 775.021(5), Fla. Stat.

An "unborn child" means a member of the species Homo sapiens , at any stage of development, and who is carried in the womb.

Give if applicable. § 775.021(5)(b), Fla. Stat.

Driving Under the Influence Manslaughter does not require the State to prove that the defendant knew or should have known that (victim)was pregnant or that the defendant intended to cause the death of the unborn child.

Give if appropriate. § 316.1934(2)(a) and (2)(b), 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.

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

U nder the Influence Manslaughter 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 MANSLAUGHTER - 316.193(3)(

a), (3)(

b), and (3)(

c)3. CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Driving under the 316.193(1) 28.1 Influence Driving under the 316.193(3)(a), 28.3 influence causing (3)(b), and serious bodily injury (3)(c)2. Driving under the 316.193(3)(a), 28.1(a) influence causing (3)(b), and damage to person or (3)(c)1. property

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [508 So.2d 1221], 1992 [603 So.2d 1175], 1995 [665 So.2d 212], 1998 [723 So.2d 123], 2006 [946 So.2d 1061], 2009 [6 So.3d 574], 2016 [190 So.3d 1055],

and

2017 [211 So.3d 995], and 2019.

7.9 VEHICULAR OR VESSEL HOMICIDE

§ 782.071 or § 782.072, Fla. Stat.

To prove the crime of [Vehicular] [Vessel] Homicide, the State must prove the following three elements beyond a reasonable doubt:

Give 1a, 1b, or 1c as applicable. Element 1a applies to either Vehicular Homicide or Vessel Homicide. Element 1b applies to Vehicular Homicide only. Element 1c applies to Vessel Homicide only. See § 775.021(5), Fla. Stat.

1. a. (Victim) is dead.

b. An unborn child is dead by injury to the mother.

c. An unborn child is dead.

2. The death was caused by the operation of a [motor vehicle] [vessel] by (defendant).

3. (Defendant) operated the [motor vehicle] [vessel] in a reckless manner likely to cause the death of or great bodily harm to another person.

Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016).

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Luzardo v. State, 147 So.3d 1083 (Fla. 3d DCA 2014).

The State does not have to prove the defendant intended to harm or injure anyone. However, the reckless operation of a [motor vehicle] [vessel] requires the State to prove more than a failure to use ordinary care. A "reckless manner" means in willful or wanton disregard for the safety of persons or property. "Willful" means intentional, knowing and purposeful. "Wanton" means with a conscious and intentional indifference to consequences and with the knowledge that damage is likely to be done to persons or property.

Enhanced penalty.

§ 782.071(1)(b) or § 782.072(2), Fla. Stat. Give if applicable.

If you find the defendant guilty of [Vehicular] [Vessel] Homicide, you must then determine whether the State has further proved beyond a reasonable doubt that:

1. At the time of the accident, (defendant) knew, or should have known, that the accident occurred; and

2. (Defendant) failed to give information and render aid as required by law. (Read applicable portion of § 316.062, Fla. Stat., or § 327.30, Fla. Stat., as charged in information or indictment.)

However, the State is not required to prove (defendant)knew that the accident resulted in injury or death.

Definitions. Applicable only to Vehicular Homicide.

§ 316.003(42), Fla. Stat. Some of these terms have their own statutory definitions which should be given if necessary.

A "motor vehicle" is a self-propelled vehicle not operated upon rails or guideway[, but not including any bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped].

Give if applicable. § 782.071(2), Fla. Stat.

An "unborn child" means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

§ 327.02(

46 ) Fla. Stat. Applicable only to Vessel Homicide.

"Vessel" is synonymous with 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.

§ 327.02(33), Fla. Stat. Applicable only to Vessel Homicide.

"Operate" means to be in charge of, in command of, or in actual physical control of a vessel upon the waters of this state, 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.

Lesser Included Offenses

VEHICULAR OR VESSEL HOMICIDE - 782.071 or 782.072 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Reckless driving 316.192 28.5 Reckless operation of 327.33 vessel Culpable negligence 784.05(2) 8.9 Culpable negligence 784.05(1) 8.9

Comments

Culpable negligence is a Category Two lesser included offense of both vehicular and vessel homicide.

The decedent's conduct may only be asserted as a defense to vehicular homicide when that conduct could be viewed as the sole proximate cause of the accident which resulted in the death or unless there is some reason why it would be unjust or unfair to impose criminal liability. See Union v. State, 642 So.2d 91, 94 (Fla. 1st DCA 1994); see also Miller v. State, 250 So.3d 144 (Fla. 1st DCA 2018); Reaves v. State, 979 So.2d 1066, 1069 (Fla. 1st DCA 2008); Michel v. State, 752 So.2d 6, 12 (Fla. 5th DCA 2000); and Nunez v. State, 721 So.2d 346, 347 (Fla. 2d DCA 1998).

This instruction was adopted in 1981 and amended in 1989, 2006 [946 So.2d 1061], 2008 [994 So.2d 1038],

and

2015 [176 So.3d 938], and 2019.

16.12 LEAVING A CHILD UNATTENDED OR UNSUPERVISED IN A MOTOR VEHICLE

§ 316.6135, Fla. Stat.

To prove the crime of Leaving a Child Unattended or Unsupervised in a Motor Vehicle, the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) was a [parent of] [legal guardian for] [person responsible for] (victim).

2. (Victim) was younger than 6 years of age.

Give 3a and/or 3b as applicable.

3. (Defendant) left (victim) unattended or unsupervised in a motor vehicle

a. for a period in excess of 15 minutes.

Note to Judge: Give 3b, if applicable, only when the crime charged is a violation of F.S.§ 316.6135(4), Fla. Stat.

b. for any period of time if [the motor of the vehicle was running] [the health of the child was in danger] [the child appeared to be in distress].

Give if crime charged is a violation of Fla. Stat. § 316.6135(4), Fla. Stat.

4. In so doing, (defendant) caused [great bodily harm] [a permanent disability] [permanent disfigurement] to (victim).

Definition.

Fla. Stat.

§ 316.003(

42 ) , Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

" Motor vehicle " means a self-propelled vehicle not operated upon rails or guideway [ ,

including a motorcycle,

but not a bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped ] .

§ 316.003(99), 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[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Great bodily harm. Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016).

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Lesser Included Offenses

LEAVING A CHILD UNATTENDED OR UNSUPERVISED IN A MOTOR VEHICLE - 316.6135(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Leaving a Child 316.6135(1)(a) 16.12 Unattended if

violation

§ 316.6135(4), Fla. Stat. is charged. Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2009 [3 So.3d 1172] and amended in 2013 [131 So.3d 755] and 2019.

28.1 DRIVING UNDER THE INFLUENCE

§ 316.193(1), Fla. Stat.

To prove the crime of Driving

U nder 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.

If you find the defendant guilty of Driving

U nder 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 Driving uUnder the Influence.

Definitions. Give as applicable.

§ 316.003(

99 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

" Vehicle " is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway [ , except personal delivery devices, mobile carriers, and 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.

Give if appropriate. § 316.1934(2)(a) and (2)(b), 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.

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving

U nder 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 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 [192 So.3d 1190], and 2019.

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

U nder 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 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.

If you find the defendant guilty of Driving

U nder 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 Driving uUnder the Influence.

Definitions. Give as applicable.

§ 316.003(

(99) , Fla. Stat. Some of these terms have their own statutory definitions which should be given if necessary.

" Vehicle " is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway [, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks ] .

§ 316.1934(1), Fla. Stat.

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.

§ 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.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving

U nder 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

Comment

This instruction was adopted in 2009 [6 So.3d 574] and amended in 2009 [18 So.3d 523],

and

2016 [192 So.3d 1190], and 2019.

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

U nder 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.

If you find the defendant guilty of Driving

U nder 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 Driving uUnder the Influence.

Definitions. Give as applicable.

§ 316.003(

(99) , Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

§ 316.1934(1), Fla. Stat.

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.

§ 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.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving

Give as applicable if the jury finds the defendant guilty of Driving

U nder 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

U nder 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 uUnder 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 uUnder 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

U nder the Influence, you may conclude that the State has established that prior Driving

U nder 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

U nder the Influence conviction.

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

U nder the Influence based on prior convictions. For Felony Driving

U nder the Influence based on prior convictions, it is error to inform the jury of prior Driving

U nder the Influence/Boating

U nder the Influence convictions until the verdict on the underlying Driving

U nder the Influence is rendered. Therefore, if the information or indictment contains an allegation of prior Driving

U nder the Influence/Boating

U nder 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

U nder 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 [192 So.3d 1190], and 2019.

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

U nder the Influence Causing Serious Bodily 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 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.

If you find the defendant guilty of Driving

U nder 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 Driving uUnder the Influence.

Definitions. Give as applicable.

§ 316.003(

99 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

§ 316.1934(1), Fla. Stat.

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.

§ 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.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving

U nder 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.

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], 2013 [131 So.3d 720],

and

2016 [192 So.3d 1190], and 2019.

28.4 LEAVING THE SCENE OF A CRASH INVOLVING [DEATH] [SERIOUS BODILY INJURY] [INJURY]

§ 316.027(2), Fla. Stat.; § 316.062, Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [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 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.

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, 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, 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 as close to the crash 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]

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

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.

Give if it is alleged in the charging document that the defendant caused victim injury or death. § 921.0021(7)(e), Fla. Stat.

If you find that ( defendant ) committed the crime of Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury], you must then determine whether the State proved beyond a reasonable doubt that [he] [she] caused [death] [or] [severe injury] [or] [moderate injury] [or] [slight injury] to (victim).

Enhancement.

Give when the State alleged the victim was a "vulnerable road user."

§ 316.027(2)(f), Fla. Stat.

If you find that (

defendant

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.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

§ 316.003(

99 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

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 personal delivery devices, mobile carriers, and 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. 1st DCA 1987).

"Willfully" means knowingly, intentionally and purposely.

If the "vulnerable road user" enhancement is given, insert applicable definitions from § 316.003, Fla. Stat.

Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING DEATH - 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Leaving the Scene of a 316.027(2)(b) 28.4 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

* InWilliams 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

dispute 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).

As of September 2018, it was

It is

unclear whether the courts

will

would interpret the statutory phrase of "the driver of a vehicle involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3.See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007)(which was decided beforeGaulden v. State, 195 So.3d 1123 (Fla. 2016) but may still be good law ).

This instruction was adopted in 1995 [665 So.2d 212] and amended in 2008 [973 So.2d 432], 2015 [166 So.3d 161], 2016 [192 So.3d 1190],

and

2018 [236 So.2d 244], and 2019.

28.4(a) LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY

§ 316.061(1), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended 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.

2. The crash 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 as close to the crash 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 who is investigating the crash].

If the State proves that the defendant failed to give any part of the "identifying information," the State satisfies this element of the offense.

Definitions.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

§ 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.

§ 316.003(

99 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway [ , except

ing

personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks ] .

Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY-316.061(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments

As of September 2018, it was

It is

unclear whether the courts

will

As of

August 2017

September 2018, 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.Compare State v. Dorsett, 158 So.3d 557 (Fla. 2015), andMancuso 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.

This instruction was adopted in 2013 [131 So.3d 720] and amended in 2018 [236 So.3d 244], and 2019.

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.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

§ 316.003(

99 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except

ing

personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

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 2018, it was

It is

unclear whether the courts

will

As of

August 2017

September 2018, 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.Compare State v. Dorsett, 158 So.3d 557 (Fla. 2015), andMancuso 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 [192 So.3d 1190] and amended in 2018 [236 So.3d 244], and 2019.

28.5 RECKLESS DRIVING

§ 316.192(1)(a) and (1)(b), Fla. Stat.

To prove the crime of Reckless Driving, the State must prove the following beyond a reasonable doubt:

Give if § 316.192(1)(a), Fla. Stat. is charged.

(Defendant) drove a vehicle in Florida with a willful or wanton disregard for the safety of persons or property.

Give if Fla. Stat. § 316.192(1)(b), Fla. Stat. is charged.

(Defendant), while driving a motor vehicle, fled from a law enforcement officer.

Give if applicable.

Fla. Stat.

§ 316.192(3), Fla. Stat..

If you find (defendant)guilty of Reckless Driving, you must also determine whether the State has proven beyond a reasonable doubt that [he] [she] caused [damage to the [property] [or] [person] of another] [or] [serious bodily injury to another] as a result of operating the vehicle recklessly.

Definitions. Give if applicable.

W.E.B. v. State, 553 So.2d 323 (Fla. 1

st DCA 1989).

"Willful" means intentionally, knowingly and purposely.

"Wanton" means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.

Fla. Stat.

§ 316.003(

99 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

Give if applicable.

Fla. Stat.

§ 316.192(3)(c)2 , Fla. Stat.

"Serious bodily injury" means an injury to another person which consists of 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.

Give if applicable.

Fla. Stat.

§ 316.003(

42 ), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

A "motor vehicle" is a self-propelled vehicle not operated upon rails or guideway [ , but not including any bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped ] .

Fla. Stat.

§ 316.1935 , Fla. Stat.

"Fleeing a law enforcement officer" means 1) the defendant was operating a motor vehicle upon a street or highway in Florida; 2) a duly authorized law enforcement officer ordered the defendant to stop or remain stopped; 3) the defendant, knowing [he] [she] had been ordered to stop by a duly authorized law enforcement officer, either willfully refused or failed to stop the vehicle in compliance with the order or having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.

Fla. Stat.

§ 316.003(

81 ) , Fla. Stat.

" Street or Highway" means:

(a) the entire width between the boundary lines of every way or place of wha