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Drunk Driving Elements
28.1 DRIVING WHILE UNDER THE
INFLUENCE
§ 316.193, 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 b 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 or
b. had a blood-alcohol level of 0.08 or more grams of alcohol per 100
milliliters of blood, or a breath-alcohol level of 0.08 or more grams of
alcohol per 210 liters of breath.
Definitions: give as
applicable
“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.
“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.
“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.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. F.S. Chapter 893.
( ) is a chemical substance under Florida law. F.S. 877.111(1).
When appropriate, give one or more of the following instructions on the
presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and
(2)(c).
1. If you find from the evidence that the defendant had a blood or breath
alcohol level of 0.05 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.
2. If you find from the evidence that the defendant had a blood or breath
alcohol level in excess of 0.05 but less than 0.08, you may consider that
evidence with other competent evidence in determining whether the defendant was
under the influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired; or
3. If you find from the evidence that the defendant had a blood or breath
alcohol level of 0.08 or more, that evidence would be sufficient by itself to
establish that the defendant was under the influence of alcohol to the extent
that [his] [her] normal faculties were impaired. However, such evidence may be
contradicted or rebutted by other evidence demonstrating that the defendant was
not under the influence to the extent that [his] [her] normal faculties were
impaired.
These presumptions may be considered along with any other evidence presented in
deciding whether the defendant was under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
Give only if this defense is raised.
It is a defense to the charge of driving or being in actual physical control of
a vehicle while under the influence if at the time of the alleged offense the
vehicle was inoperable. However, it is not a defense if, while impaired, the
defendant drove or was in actual physical control of the vehicle before it
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
In addition to misdemeanor DUI charges, this instruction is also for charges of
felony DUI based on prior convictions. A misdemeanor instruction was adopted in
1981 as part of Standard Jury Instructions In Misdemeanor Cases. In 1992 [ 603
So.2d 1175], a similar instruction was adopted for Florida Standard Jury
Instructions In Criminal Cases. That instruction was amended in 1995 [ 665 So.2d
212] and 1998 [ 723 So.2d 123], and both instructions were merged into this
revised instruction in 2000 [ 765 So.2d 692]. |
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