All DUIs charged in Florida are done so in an alternative manner. Specifically, the state attorney’s office charges that the driver was impaired by alcohol and/or a controlled substance. This is done in an effort to avoid limiting the prosecutor to having to prove that the defendant’s impairment came from “only alcohol” or “only drugs” and not either or a mixture of both. Over the past 25 years, we have represented thousands of clients who had a mixture of alcohol and/or controlled substances in their blood when pulled over and investigated for DUI. Many times, the levels of a controlled substance are not determined, yet included in the prosecutor’s case in chief. In other words, a prosecutor will introduce evidence of alcohol being in the bloodstream in addition to a controlled substance, despite failing to have any evidence whatsoever as to the amount of the controlled substance in that defendant’s blood.
The flaw in prosecuting a DUI in this manner is that a conviction for having a controlled substance in one’s system is absolutely improper as the state is required to prove not the presence of a controlled substance, but rather that the defendant was “under the influence” of that substance.
From a practitioner’s standpoint, one should be very cautious when examining jury instructions in this regard. Where there is no evidence as to the amount of a substance other than alcohol in your client’s system, jury instructions reading “impaired by alcohol and/or a controlled substance” within the same sentence would be entirely improper. Keep in mind that such an error is “fundamental to require reversal” under State v. Weaver, 957 So. 2d 586, and no objection is necessary to get a second trial should your client be convicted.
For more information about very precise manner in which jury instructions should be read where a Defendant is alternatively charged, contact William Moore at (954) 523-5333.