SC02-1264 Ronald R. Cardenas, Jr. V. State of Florida

State: Florida

Docket No: SC02-1264

Case Date: 02/26/2004

Preview:Supreme Court of Florida
____________ No. SC02-1264 ____________

RONALD R. CARDENAS, JR. Petitioner, vs. STATE OF FLORIDA, Respondent.

____________ No. SC02-927 ____________ STATE OF FLORIDA, Petitioner, vs. HOWARD RUSSELL BONINE, Respondent. [February 26, 2004] PARIENTE, J. These cases, which we have consolidated for purposes of this opinion, present two related questions concerning a standard jury instruction in prosecutions

for driving or boating under the influence of alcohol. The questions are, first, whether giving the standard jury instruction on the presumption of impairment contrary to our decision in State v. Miles, 775 So. 2d 950 (Fla. 2000), is fundamental error and second, if preserved, whether the error in giving the instruction is harmful per se or instead subject to a harmless error analysis. In Miles, we held that the jury should not be instructed on the presumption of impairment when the State introduces blood-alcohol evidence that it obtained without complying with the quality assurance requirements of the implied consent law. See id. at 956-57. The standard jury instruction on the presumption of impairment, which was given in both cases under review, provides that a bloodalcohol level of .08 percent "is sufficient by itself" to establish that the driver was impaired. In Cardenas v. State, 816 So. 2d 724 (Fla. 1st DCA 2002), the First District Court of Appeal concluded that giving the standard instruction on the presumption of impairment contrary to Miles is not fundamental error that can be raised initially on appeal, and certified the following question of great public importance: IS IT FUNDAMENTAL ERROR TO GIVE A JURY INSTRUCTION ON THE PRESUMPTION OF IMPAIRMENT IN VIOLATION OF THE PRECEPTS OF STATE V. MILES, 775 So. 2d 950 (Fla. 2000)?

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Cardenas, 816 So. 2d at 726.1 In Bonine v. State, 811 So. 2d 863, 866 (Fla. 5th DCA 2002), the Fifth District Court of Appeal concluded that instructing the jury on the presumption of impairment in violation of Miles is harmful error per se. The Fifth District certified conflict with McBride v. State, 816 So. 2d 656 (Fla. 2d DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-619 (Fla. Mar. 18, 2002), in which the Second District concluded that giving the improper instruction was harmless error. See Bonine, 811 So. 2d at 867.2 We have jurisdiction in both cases. See art. V,

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