Hembree v. State

Full title: VERNON HEMBREE, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fifth District

Date published: Aug 3, 2001

790 So. 2d 590 (Fla. Dist. Ct. App. 2001)

Opinion

Case No. 5D00-1531

Opinion filed August 3, 2001

Appeal from the Circuit Court for Citrus County, Patricia Thomas, Judge.

Flem K. Whited, III, of Whited, Fuller Miller, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

SHARP, W.,

Hembree appeals from his convictions and sentences for DUI/manslaughter¹ and two counts of DUI causing injury.² This case arose out of an automobile accident on April 18, 1999, in which Hembree was involved as a driver. One person was killed and two others were injured. We reverse for a new trial.

1 § 316.193(3)(a)(b)(c)(3), Fla. Stat.

2 § 316.193(1) and (2)(a), Fla. Stat.

Over defense objection, the trial court instructed the jury on the statutory presumptions of impairment in section 316. 1934(2), the implied consent law. See §§ 316. 1932 — 316. 1934, Fla. Stat. The state never attempted to introduce the blood alcohol test results by showing compliance with the FDLE rules dealing with blood testing. Rather the state relied on meeting the Bender ³ three prong common law predicate. The trial court admitted the evidence on that basis.

3 State v. Bender, 382 So.2d 697 (Fla. 1980). See also Robertson v. State, 604 So.2d 783 (Fla. 1992).

However, after the trial in this case, the Florida Supreme Court held that the state is not entitled to the statutory presumptions under these circumstances. It ruled that the statutory presumptions are specifically contingent on the state establishing compliance with the mandate for quality assurance of the implied consent law. State v. Miles, 775 So.2d 950 (Fla 2000); Townsend v. State, 774 So.2d 693 (Fla. 2000); State v. Sandt, 774 So.2d 692 (Fla. 2000). The Bender or common law predicate for admission of blood test results will not, standing alone, support the giving of the statutory presumptions in the implied consent law.

The state tacitly concedes error. The error in this case, giving the instructions based on the implied consent law presumptions and arguing their impact to the jury was clearly prejudicial, and it was clearly preserved.

REVERSED and REMANDED for new trial

PLEUS and ORFINGER, R. B., JJ., concur.