Jury

Florida Jury Instructions

One of the best ways to understand Florida’s criminal laws is to read the standard jury instructions. By reading the standard jury instructions, you can understand what the jury is told about the law immediately before they go back into the jury room to deliberate.

When the jury begins their deliberations, the jury receives a written copy of the jury instructions, which they bring with them into the deliberation room. For this reason, the wording of the jury instructions is important.

Florida’s Florida Standard Jury Instructions, approved by the Florida Supreme Court, can be found on The Florida Bar website at www.floridabar.org/rules/florida-standard-jury-instructions/. The standard jury instructions are organized into the following categories:

  • Criminal Jury Instructions
  • Civil Jury Instructions
  • Jury Instructions for Jimmy Ryce cases involving Involuntary Civil Commitment
  • Jury Instructions for Business and Contract and Cases

The proposed amendments to the standard jury instructions are published for comment in the “Notices” section Florida Bar News.

Florida Jury Instructions in Criminal DUI Cases

The standard jury instructions for DUI cases have remained the same for the last 25 years, with a few important exceptions discussed below. The court does not tell the jury about the potential penalties or punishments imposed after a conviction for DUI. Florida Rule of Criminal Procedure 3.390(a) provides:

“…the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial.”

Contact a DUI Defense Attorney at the Sammis Law Firm in Tampa, FL, to discuss the facts of your particular DUI charge in Hillsborough County, FL.

Call 813-250-0500 today.


Jury Instructions for DUI Misdemeanors

The misdemeanor jury instructions for DUI were adopted in 1981 as part of Standard Jury Instructions In Misdemeanor Cases. In 1992, a similar instruction was adopted for Florida Standard Jury Instructions In Criminal Cases. That instruction was amended in 1995 and 1998.

Both of these jury instructions were merged into a revised instruction in 2000. The jury instruction for DUI was last amended in 2009 and 2016.

28.1 DRIVING UNDER THE INFLUENCE (DUI) under Florida Statute § 316.193(1)

To prove the crime of Driving under the Influence (DUI), the State must prove the following two elements beyond a reasonable doubt:

1. [The Defendant] drove or was in actual physical control of a vehicle.

2. While driving or in actual physical control of the vehicle, [the Defendant]

Give 2a or b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].


Enhancements for BAC of .15 or above or Minor in the Vehicle

Give if applicable. (For offenses committed before October 1, 2008, this instruction refers to an alcohol level of .20 or higher.)

If you find the defendant guilty of Driving under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving or in actual physical control of the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the driving under the influence.


Definitions for DUI Jury Instructions

Vehicle is every 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 mental and physical acts of our daily lives.

Impaired means diminished in some material respect.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] 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.; Ch. 893, Fla. Stat.

(        ) is a chemical substance under Florida law.  § 877.111(1), Fla. Stat.


Presumptions of Impairment Depending on Blood or Breath Alcohol Level

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

  1. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
  2. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Prior to the 2016 amendments, the jury instructions provided:

When appropriate, give one or more of the following instructions on the presumptions of impairment established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.


Jury Instructions on Defense of Inoperability

When appropriate, the jury might receive the following instruction on the defense of interoperability:

“It is a defense to the charge of Driving under the Influence if the vehicle was inoperable at the time of the alleged offense. However, it is not a defense if the defendant was driving under the influence before the vehicle 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 proved beyond a reasonable doubt.”


Felony DUI Based on Prior Convictions

28.2 FELONY DRIVING UNDER THE INFLUENCE (DUI) under Florida Statute §316.193(2)(b)1 or § 316.193(2)(b)3

The first set of instructions the jury will be given is provided above. If the jury finds the Defendant guilty of DUI, the following instructions can be given.

Give as applicable if the jury finds the defendant guilty of Driving under the Influence.

Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6)(k), Fla. Stat. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

Now that you have found the defendant guilty of Driving under the Influence, you must further determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant was previously convicted two times of Driving under the Influence and one of the prior Driving Under the Influence convictions took place within 10 years of the Driving Under the Influence that you found the defendant committed.

b. the defendant was previously convicted three times of Driving under the Influence.

Give if applicable. Florida Statute 316.193(12)

If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of Driving under the Influence, you may conclude that the State has established that prior Driving under the Influence conviction.

However, such evidence may be contradicted or rebutted by other evidence. Accordingly, this inference may be considered along with any other evidence in deciding whether the defendant has a prior Driving under the Influence conviction.


Comment for Felony DUI Florida Jury Instruction

This instruction should be used for Felony Driving Under the Influence based on prior convictions.

For Felony Driving Under the Influence based on prior convictions, it is an error to inform the jury of prior Driving Under the Influence / Boating Under the Influence convictions until the verdict on the underlying Driving under the Influence is rendered.

Therefore, if the information or indictment contains an allegation of prior Driving Under the Influence / Boating Under the Influence convictions, do not read that allegation and do not send the information or indictment into the jury room.

If the defendant is found guilty of Driving under the Influence, the historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).


Felony DUI Based on Serious Bodily Injury

28.3 DRIVING UNDER THE INFLUENCE (DUI) CAUSING SERIOUS BODILY INJURY Under Florida Statute § 316.193(3)(a)(b)(c)2

To prove the crime of Driving under the Influence Causing Serious Bodily Injury, the State must prove the two elements required for a DUI and a third element:

3. As a result of operating the vehicle, (defendant) caused or contributed to causing serious bodily injury to (victim).


Florida Statute § 316.1933 – Definition of Serious Bodily Injury under Florida Law

Serious bodily injury means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.


Rules on Florida’s Standard Jury Instructions

Rule 3.390(a) provides that the Florida Standard Jury Instructions in Criminal Cases appearing on The Florida Bar’s website be used, as provided in Florida Rule of Judicial Administration 2.580, by the presiding judge in instructing the jury in a criminal case.

The presiding judge shall instruct the jury only on the law of the case before or after the argument of counsel and may provide appropriate instructions during the trial.

If the instructions are given before the final argument, the presiding judge shall give the jury final procedural instructions after the final arguments are concluded and before deliberations….


Additional Resources

Chapter 28.1 Florida DUI Standard Jury Instructions – Visit the website of the Florida Supreme Court to find Chapter 28.1 on driving under the influence for § 316.193(1), Fla. Stat., provided in Rich Text Format. After proposed instructions are submitted by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the Florida Supreme Court will authorize the instructions for publication and use.

Florida Jury Instructions Civil Home – Visit the website of the Florida Supreme Court to find a list of the standard jury instructions for civil cases, including contract and business cases, whistleblower cases, negligent infliction of emotional distress, and the open and obvious doctrine. The website contains the standard jury instructions for civil cases prepared by the Florida Supreme Court Standard Jury Instructions Committee (Civil) and approved for publication by the Florida Supreme Court.

Florida Jury Instructions for Sympathy – The standard criminal and civil jury instructions contain a warning not to let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party influence your decision when reaching a verdict. Instead of using sympathy for or against one party, the verdict must be based on the evidence received and the law on which the jury has been instructed.

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