FLORIDA TRAFFIC-RELATED APPELLATE OPINIONS
January – March, 2005
[Editor=s Note: In order to reduce possible confusion, the defendant in a criminal case will be
referred to as such even though his/her technical designation may be appellant, appellee,
petitioner, or respondent. In civil cases, parties will be referred to as they were in the trial
court, that is, plaintiff or defendant. In administrative suspension cases, the driver will be
referred to as the defendant throughout the summary, even though such proceedings are not
criminal in nature. Also, a court will occasionally issue a change to a previous opinion on
motion for rehearing or clarification. In such cases, the original summary of the opinion will
appear followed by a note. The date of the latter opinion will determine the placement order
in these summaries.]
Driving Under the Influence
Leveritt v. State, 896 So. 2d 704 (Fla. 2005).
The Supreme Court was confronted with the following question of great public
importance:
In a DUI [Driving Under the Influence] manslaughter trial, is it fundamental error
to give a jury instruction that is erroneous based upon the presumption of
impairment declared invalid under Miles v. State [State v. Miles], 775 So. 2d 950
(Fla. 2000), when the opinion in Miles was issued during pendency of the appeal
in the instant case, and when Miles changed the law applicable to the jury
instruction presumptions of impairment, and when the issue of impairment was
disputed at trial and is an essential element of the crime.
The Court, observing that it was unable to ascertain from the district court’s opinion
whether the giving of the presumption of impairment instruction was fundamental error,
answered the certified question in the negative, vacated the decision below, and remanded for
reconsideration in light of Cardenas v. State, 867 So. 2d 384 (Fla. 2004). Cardenas held that an
improper instruction on the statutory presumption of impairment given contrary to the ho