JACK V. BASS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state's use of the presumption of impairment was not harmless error when the blood sample handling was not adequately proven, likely contributing to the jury's verdict.
Jack V. Bass was convicted of DUI causing death, with the state relying on blood alcohol test results. Bass objected to the use of the presumption of …
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PLEUS, J.
Jack V. Bass was convicted of driving under the influence of alcohol and thereby causing a death, a violation of sections 316.193(1), and 316.193(3)(a)(b)(e)3., Florida Statutes (1999). As part of its case against Bass, the state relied on the blood alcohol test results of a blood draw administered on Bass pursuant to the state’s implied consent law. See §§ 316.1932-316.1934.
Pursuant to the implied consent law, the analysis to determine a person’s blood alcoholic content is to be done in accordance with methods approved and set forth by the Florida Department of Law Enforcement (FDLE). § 316.1934(3). In State v. Miles, 775 So. 2d 950 (Fla.2000), the Florida Supreme Court found that the rules promulgated by the FDLE 1 providing for the testing of blood samples were so deficient with respect to the proper preservation of the blood that the state could not use the statutory presumptions of impairment set forth in section 316.1934(2).
In the instant case, while not relying specifically on Miles, Bass objected to the state’s use of the presumption based on the lack of evidence presented as to the handling of his blood sample from the time it was drawn until the time it was analyzed by the FDLE. The state encourages us to find harmless error given the other evidence presented of Bass’s impairment. As in Hembree v. State, 790 So. 2d 590 (Fla. 5th DCA 2001), and more recently in Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001), however, we find we cannot conclude that the state’s use of the presumption did not likely contribute to the jury’s verdict. Accordingly, we vacate Bass’s judgment and sentence. The case is remanded to the trial court for a new trial.
REVERSED; REMANDED.
SHARP, W., and GRIFFIN, JJ., concur. . The FDLE, effective July 29, 2001, amended its rules to provide for more specific procedures regarding the proper preservation of blood samples. Servis v. State, 802 So. 2d 359.
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Cardenas v. State, 867 So. 2d 384 (Fla. 2004)…ent instruction could not be harmless. See Servís v. State, 802 So. 2d 359, 360 (Fla. 5th DCA 2001) (refusing to find error harmless because there was no way to determine the theory upon which the jury relied in reaching its verdict); Bass v. State, 801 So. 2d 975, 975-76 (Fla. 5th DCA 2001) (refusing to find error harmless even given "other evidence presented of Bass’s impairment” because “we cannot conclude that use of presumption did not likely contribute to the verdict”); Hembree v. State, 790 So. 2d 590,…
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Bonine v. State, 811 So. 2d 863 (Fla. 5th DCA 2002)…tutory presumption of impairment in section 316.1934. This was clearly erroneous pursuant to State v. Miles, 775 So. 2d 950 (Fla.2000). In similar cases, we have recently rejected the state’s request to find such error to be harmless. Bass v. State, 801 So. 2d 975 (Fla. 5th DCA 2001); Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001). We write now to more fully explain our rationale. Application of the harmless error rule in this situation depends on whether the case involves “insufficiency of proof,” ie.,…
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McBride v. State, 816 So. 2d 656 (Fla. 2d DCA 2002)…ath, and a police officer testified that McBride said he had been drinking all day. The Fifth District has concluded that, based upon certain facts, erroneously instructing the jury on the statutory presumptions is harmful error. See Bass v. State, 801 So. 2d 975 (Fla. 5th DCA 2001); Servis v. State, 802 So. 2d 359 (Fla. 5th [*658] DCA 2001); Hembree v. State, 790 So. 2d 590 (Fla. 5th DCA 2001). However, due to the overwhelming evidence of McBride’s impairment presented by the State, we conclude that the err…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Miles, 775 So. 2d 950 (Fla. 2000)
- Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001)
- Hembree v. State, 790 So. 2d 590 (Fla. 5th DCA 2001)