28.1. Driving While Under The Influence

28.1 DRIVING WHILE UN DER 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. [Name of defendant] drove or was in actual physical control of a vehicle. 2. While driving or in actual physical control of the vehicle, me of 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 [name of defendant]s 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-alcohl level of 0.08 or mo ore 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 mal and physical acts of our daily lives. ent Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehice, regardless of whether the ldefendant 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. [[ ____ ]] is a chemical substance under Florida law. 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): <<<<<<<<<********>>>>>>>>>>>>> 2 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 the defendants 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 the defendants 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 the defendants 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 the defendants normal faculties were impaired. These presumptions may be considered along with any other evidence presented in deciding whether [name of defendant] was under the influence of alcoholic beverages to the extent that [name of defendant]s 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 proven beyond a reasonable doubt. NOTE TO JUDGE: The official comment to this instruction states that instruction 28.1 should be used instead of this instruction.