          Supreme Court of Florida
                                  ____________

                                  No. SC15-1867
                                  ____________


  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                    REPORT NO. 2015-07.

                                  [May 12, 2016]

PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Criminal

Cases (Committee) has submitted proposed changes to the standard jury

instructions and asks that the Court authorize the amended standard instructions.

We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committee proposes amending the following existing standard criminal

jury instructions: 28.1 (Driving Under the Influence); 28.1(a) (Driving Under the

Influence Causing Property Damage or Injury); 28.2 (Felony Driving Under the

Influence); 28.3 (Driving Under the Influence Causing Serious Bodily Injury); 28.4

(Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury]);

28.8(b) (Aggravated Fleeing or Eluding – Leaving a Crash Involving Serious

Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death);
28.8(c) (Aggravated Fleeing or Eluding – Leaving a Crash Involving Damage to a

Vehicle or Property then Causing Serious Bodily Injury or Death); 28.8(d)

(Aggravated Fleeing or Eluding – Leaving a Crash Involving Serious Bodily

Injury, Injury or Death then Causing Injury or Property Damage to Another);

28.8(e) (Aggravated Fleeing or Eluding – Leaving a Crash Involving Damage to a

Vehicle or Property then Causing Injury or Property Damage to Another); 28.14

(Boating Under the Influence); 28.15 (Boating Under the Influence Causing

Property Damage or Injury); 28.16 (Felony Boating Under the Influence); and

28.17 (Boating Under the Influence Causing Serious Bodily Injury). The

Committee also proposes the following new jury instruction: 28.4(b) (Leaving the

Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended

Property).

      Before filing its report with the Court, the Committee published its proposals

for comment in The Florida Bar News. Three comments were received by the

Committee: one from the Florida Association of Criminal Defense Lawyers

(FACDL) pertaining to instruction 28.4(b); and one each from the Florida Public

Defender Association, Inc. (FPDA) and Public Defender Blaise Trettis, both

pertaining to the Driving Under the Influence (DUI) and Boating Under the

Influence (BUI) instructions. The Committee made some changes to its proposals

upon consideration of the three comments. With respect to the DUI and BUI


                                       -2-
instructions, the Committee clarified the definition of “impaired.” With respect to

instruction 28.4(b), the Committee added a comment to the instruction addressing

the issue of mens rea. Because the Court did not view these changes as significant,

the Court did not publish the Committee’s proposals for further comment.

      Having considered the Committee’s report and the comments received by

the Committee, we amend the standard jury instructions as proposed by the

Committee and authorize them for publication and use. We also authorize new

instruction 28.4(b), as proposed by the Committee, for publication and use. In so

doing, we note with respect to instruction 28.4(b) that the issue raised by FACDL,

that the misdemeanor hit-and-run statute underlying proposed instruction 28.4(b)

imposes an affirmative duty on a driver to take certain actions, and therefore

knowledge of involvement in an accident is implied, has not been expressly

addressed by any court. Accordingly, we decline to use the instant proceedings

authorizing the publication and use of standard jury instructions as the basis for

addressing such an issue. Such matters are appropriate for consideration by this

Court only within the context of an actual case or controversy. See art. V, § 3(b),

Fla. Const; In re Std. Jury Instr. in Crim. Cases—Report No. 2015-05, 41 Fla. L.

Weekly S140 (Fla. Apr. 7, 2016).




                                         -3-
      The new and amended criminal jury instructions, as set forth in the appendix

to this opinion, are hereby authorized for publication and use.1 New language is

indicated by underlining, and deleted language is indicated by struck-through type.

In authorizing the publication and use of these instructions, we express no opinion

on their correctness and remind all interested parties that this authorization

forecloses neither requesting additional or alternative instructions nor contesting

the legal correctness of the instructions. We further caution all interested parties

that any comments associated with the instructions reflect only the opinion of the

Committee and are not necessarily indicative of the views of this Court as to their

correctness or applicability. The instructions as set forth in the appendix shall be

effective when this opinion becomes final.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.




       1. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.

                                         -4-
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases

Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,

      for Petitioner




                                       -5-
                                  APPENDIX

                 28.1 DRIVING UNDER THE INFLUENCE
                          § 316.193(1), Fla. Stat.

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

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

      2.    While driving [or in actual physical control of] the vehicle,
            (defendant)

      Give 2a or 2b 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].

     Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, 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
                  dDriving under the iInfluence.




                                      -6-
      Definitions. Give as applicable.
      § 316.003(75), Fla. Stat.
      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.

      § 316.1934(1), Fla. Stat.
      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.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      Give if applicable.
      The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
      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.

      § 322.01(2), Fla. Stat.
      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.

      When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (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

                                       -7-
             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.

       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).

       Defense of inoperability; give if applicable.
       It is a defense to the charge of Driving under the Influence if at the time
of the alleged offense, the vehicle was inoperable. 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


                                         -8-
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.

                           Lesser Included Offenses

           DRIVING UNDER THE INFLUENCE — 316.193(1)
 CATEGORY ONE            CATEGORY TWO             FLA. STAT.       INS. NO.
 None
                         Attempt                  777.04(1)        5.1


                                     Comment
       A misdemeanor instruction was 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 instructions were merged into a revised
instruction in 2000, which was amended in 2009 [6 So. 3d 574] and 2016.

           28.1(a) DRIVING UNDER THE INFLUENCE CAUSING
                    PROPERTY DAMAGE OR INJURY
                       § 316.193(3)(a)(b)(c)1, Fla. Stat.

      To prove the crime of Driving under the Influence Causing [Property
Damage] [Injury], the State must prove the following three elements beyond a
reasonable doubt:

      1.    (Defendant) drove [or was in actual physical control of[ a
            vehicle.

      2.    While driving [or in actual physical control of] the vehicle,
            (defendant)

      Give 2a or 2b 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


                                       -9-
                  grams of alcohol per [100 milliliters of blood] [210
                  liters of breath].

      3.    As a result of operating the vehicle, (defendant) caused or
            contributed to causing [damage to the property of (victim)]
            [injury to the person of (victim)].

     Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, alcohol level of .20 or higher.)
     If you find the defendant guilty of Driving under the Influence Causing
[Property Damage] [Injury], 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
                  dDriving under the iInfluence.

      Definitions. Give as applicable.
      § 316.003(75), Fla. Stat.
      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.

      § 316.1934(1), Fla. Stat.
      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.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.




                                      - 10 -
      Give if applicable.
      The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
      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.

      § 322.01(2), Fla. Stat.
      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.

      When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (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.

                                       - 11 -
      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.

       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).

      Defense of inoperability; give if applicable.
      It is a defense to the charge of Driving under the Influence Causing
[Property Damage] [Injury] if at the time of the alleged offense, the vehicle
was inoperable. 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.

                             Lesser Included Offenses

     DRIVING UNDER THE INFLUENCE CAUSING PROPERTY
          DAMAGE OR INJURY — - 316.193(3)(a)(b)(c)1.
 CATEGORY ONE    CATEGORY TWO      FLA. STAT. INS. NO.
 DUI                               316.193(1)       28.1
                 Attempt           777.04(1)        5.1




                                        - 12 -
                                   Comment

      This instruction was adopted in 2009, In re Standard Jury Instructions in
Criminal Cases-Report No. 2008-08, [6 So. 3d 574] (Fla. 2009), and amended in
2009 [18 So. 3d 523], and 2016.


            28.2 FELONY DRIVING UNDER THE INFLUENCE
                 § 316.193(2)(b)1 or § 316.193(2)(b)3, Fla. Stat.

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

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

      2.    While driving [or in actual physical control of] the vehicle,
            (defendant)

      Give 2a or 2b 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].

     Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, 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
                  dDriving under the iInfluence.

                                      - 13 -
      Definitions. Give as applicable.
      § 316.003(75), Fla. Stat.
      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.

      § 316.1934(1), Fla. Stat.
      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.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      Give if applicable.
      The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
      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.

      § 322.01(2), Fla. Stat.
      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.

      When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (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

                                       - 14 -
             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.

       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. Robertson v. State, 604 So. 2d 783, 792, n.14 (Fla. 1992); Tyner v.
State, 805 So. 2d 862 (Fla. 2d DCA 2001).

       Defense of inoperability; give if applicable.
       It is a defense to the charge of Driving under the Influence if at the time
of the alleged offense, the vehicle was inoperable. 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


                                        - 15 -
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.

       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. 316.193(12), Fla. Stat.
      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.




                                        - 16 -
                            Lesser Included Offenses

   FELONY DRIVING UNDER THE INFLUENCE – [THIRD OFFENSE
        WITHIN 10 YEARS OF A PRIOR CONVICTION] [FOURTH
               OFFENSE] — 316.193(2)(b)1. or 316.193(2)(b)3.
 CATEGORY         CATEGORY         FLA. STAT.           INS. NO.
 ONE              TWO
 Driving under                     316.193(1)           28.1
 the influence
                  Attempt          777.04(1)            5.1
                  Driving under    316.193(3)(a)(b)(c)1 28.1(a)
                  the influence
                  causing property
                  damage or injury

                                   Comments

       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 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).

      This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2016.

            28.3 DRIVING UNDER THE INFLUENCE CAUSING
                       SERIOUS BODILY INJURY
                      § 316.193(3)(a)(b)(c)2., Fla. Stat.

      To prove the crime of Driving under the Influence Causing Serious
Bodily Injury, the State must prove the following three elements beyond a
reasonable doubt:




                                      - 17 -
      1.    (Defendant) drove [or was in actual physical control of] a
            vehicle.

      2.    While driving [or in actual physical control of] the vehicle,
            (defendant)

      Give 2a or 2b 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].

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

     Give if applicable. § 316.193(4), Fla. Stat. (Offenses committed prior to
October 1, 2008, 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
                  0.15 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
                  dDriving under the iInfluence.

      Definitions. Give as applicable.
      § 316.003(75), Fla. Stat.
      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.

      § 316.1934(1), Fla. Stat.
      Normal faculties include but are not limited to the ability to see, hear,
walk, talk, judge distances, drive an automobile, make judgments, act in


                                      - 18 -
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      Give if applicable.
      The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
      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.

      § 322.01(2), Fla. Stat.
      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.

      § 316.1933, Fla. Stat.
      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.

      When appropriate, give one or of the following instructions on the
presumptions of impairment established by Give if appropriate. § 316.1934(2)(a),
and (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.

                                       - 19 -
      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.

       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).

       Defense of inoperability; give if applicable.
       It is a defense to the charge of Driving under the Influence Causing
Serious Bodily Injury if at the time of the alleged offense, the vehicle was
inoperable. 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.




                                        - 20 -
                             Lesser Included Offenses

    DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY
                         INJURY—316.193(3)(a)(b)(c)2.
 CATEGORY ONE              CATEGORY      FLA. STAT.            INS. NO.
                           TWO
 Driving under the                       316.193(3)(a)(b)(c)1. 28.1
 influence causing injury                                      28.1(a)
 Driving under the                       316.193(1)            28.1
 influence
                           Driving under 316.193(3)(a)(b)(c)1. 28.1(a)
                           the influence
                           causing
                           property
                           damage
                           Attempt       777.04(1)             5.1

                                     Comment

      This instruction was adopted in 1992 and amended in 1998 [723 So. 2d 123],
2009 [6 So. 3d 574], and 2013 [131 So. 3d 720], and 2016.

           28.4 LEAVING THE SCENE OF A CRASH INVOLVING
              [DEATH] [SERIOUS BODILY INJURY] [INJURY]
                  § 316.027(12), Fla. Stat.; § 316.062, Fla. Stat.

      To prove the crime of Leaving the Scene of a Crash Involving [Death]
[Injury], the State must prove the following four elements beyond a
reasonable doubt:

      1.     (Defendant) was the driver of a vehicle involved in a crash or
             accident occurring on public or private property resulting
             in [injury to] [death of] any person.

      2.     (Defendant) knew that [he] [she] was involved in a crash or
             accident.

      Give 3a if death is charged or 3b if injury or serious bodily injury is
charged.



                                        - 21 -
      3.     a.    (Defendant) knew, or should have known from all of
                   the circumstances, including the nature of the crash
                   or accident, of the injury to or death of the person.

             b.    (Defendant) knew, or should have known from all of
                   the circumstances, including the nature of the crash
                   or accident, of the injury to the person.

      Give 4a, 4b, or both as applicable.
      4.    a.     (Defendant) willfully failed to stop at the scene of the
                   crash or accident or as close to the crash or accident
                   as possible and remain there until [he] [she] had given
                   “identifying information” to the [injured person]
                   [driver] [occupant] [person attending the vehicle] and
                   to any police officer investigating the crash or
                   accident.

      [or]

             b.    (Defendant) willfully failed to render “reasonable
                   assistance” to the injured person if such treatment
                   appeared to be necessary or was requested by the
                   injured person.

      If the State proves that the defendant willfully failed to give any part of
the “identifying information” or willfully failed to give reasonable assistance,
the State satisfies this element of the offense.

      Give if serious bodily injury is charged. § 316.027(1)(a), Fla. Stat.;
§ 316.027(2)(b), Fla. Stat.
      If you find that (defendant) committed the crime of Leaving the Scene of
a Crash Involving Injury, you must then determine whether the State proved
beyond a reasonable doubt that the injury was a serious bodily injury.

      “Serious bodily injury” means an injury to a person, including the
driver, which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.

      Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.

                                      - 22 -
      If you find that (defendant) committed the crime of Leaving the Scene
of a Crash Involving [Death] [Serious Bodily Injury] [or] [Injury], you must
then determine whether the State proved beyond a reasonable doubt that the
[injured person] [person who died] was:

      [a pedestrian].
      [actually engaged in work upon a highway].
      [actually engaged in work upon utility facilities along a highway].
      [engaged in the provision of emergency services within the right-
      of-way].
      [operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
      the roadway].
      [riding an animal].
      [lawfully operating [a farm tractor or similar vehicle designed
      primarily for farm use] [a skateboard] [roller-skates] [in-line
      skates] [a horse-drawn carriage] [an electric personal assistive
      mobility device] [a wheelchair] on [a public right-of-way]
      [crosswalk] [shoulder of the roadway]].

       Definitions. Give as applicable. Fla. Stat. § 316.003(75). § 316.003(75),
Fla. Stat.
       A “vehicle” is any 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.

      § 316.062, Fla. Stat.
      “Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.

      “Reasonable assistance” includes carrying or making arrangements to
carry the injured person to a physician or hospital for medical treatment.

      Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
      “Willfully” means knowingly, intentionally and purposely.

       If the “vulnerable road user” enhancement is given, insert applicable
definitions from § 316.003, Fla. Stat.




                                      - 23 -
                             Lesser Included Offenses

        LEAVING THE SCENE OF A CRASH INVOLVING DEATH
                     OR INJURY — 316.027(12)(c)
CATEGORY ONE           CATEGORY TWO       FLA. STAT. INS. NO.
None Leaving the                          316.027(2)(b) 28.4
Scene of a Crash
Involving Serious
Bodily Injury*
Leaving the Scene of a                    316.027(2)(a) 28.4
Crash Involving
Injury*
                       Attempt            777.04(1)     5.1

       LEAVING THE SCENE OF A CRASH INVOLVING SERIOUS
                   BODILY INJURY — 316.027(2)(b)
CATEGORY ONE           CATEGORY TWO      FLA. STAT. INS. NO.
Leaving the Scene of a                   316.027(2)(a) 28.4
Crash Involving Injury
                       Attempt           777.04(1)     5.1

                                     Comments

       * In Williams v. State, 732 So. 2d 431 (Fla. 2d DCA 1999), the court stated
in dictum that Leaving the Scene of a Crash Involving Injury is a necessarily
lesser-included offense of Leaving the Scene of a Crash Involving Death. In other
areas, however, where there is no issue that a person was killed as a result of an
incident giving rise to criminal charges, non-death lessers are not appropriate. See,
e.g., State v. Barritt, 531 So. 2d 338 (Fla. 1988); Humphrey v. State, 690 So. 2d
1351 (Fla. 3d DCA 1997).

      See Mancuso v. State, 652 So. 2d 370 (Fla. 1995), State v. Dumas, 700 So.
2d 1223 (Fla. 1997), and State v. Dorsett, 158 So. 3d 557 (Fla. 2015).

      This instruction was adopted in 1995 [665 So. 2d 212] and amended in 2008
[973 So. 2d 432], and 2015 [166 So. 3d 131], and 2016.




                                        - 24 -
28.4(b) LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO
      AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY
                      § 316.063(1), Fla. Stat.

      To prove the crime of Leaving the Scene of a Crash Involving Damage
to an Unattended Vehicle or Unattended Property, the State must prove the
following four elements beyond a reasonable doubt:

     1.    (Defendant) was the driver of a vehicle involved in a crash or
           collision.

     2.    The crash or collision resulted in damage to another vehicle
           or other property.

     3.    The vehicle or other property was not driven or attended by
           any person.

     4.    (Defendant) failed to immediately stop at the scene of the
           crash or collision and then and there either

           a.    locate and notify the operator or owner of the vehicle
                 or other property of [his] [her] name and address and
                 the registration number of the vehicle [he] [she] was
                 driving, or

           b.    attach securely in a conspicuous place in or on the
                 vehicle or other property a written notice giving [his]
                 [her] name and address and the registration number
                 of the vehicle [he] [she] was driving, and, without
                 unnecessary delay, notify the nearest office of a duly
                 authorized police authority.

      § 316.003(75), Fla. Stat.
      “Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.




                                    - 25 -
                             Lesser Included Offense

  LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO
  AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY—
                       316.063(1)
 CATEGORY ONE    CATEGORY TWO      FLA. STAT. INS. NO.
 None
                 Attempt           777.04(1)  5.1

                                    Comments

       As of September 2015, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage to violate this statute. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015) and Mancuso v. State, 652 So. 2d 370 (Fla. 1995)
dealing with § 316.027, Fla. Stat., which, unlike § 316.063, Fla. Stat., contains an
explicit willfulness requirement.

      This instruction was adopted in 2016.



            28.8(b) AGGRAVATED FLEEING OR ELUDING
   (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
                  Causing Serious Bodily Injury or Death)
                  § 316.1935(4)(b) and § 316.027, Fla. Stat.

     To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:

      1.    (Defendant) was the driver of a vehicle involved in a crash or
            accident occurring on public or private property resulting
            in [serious bodily injury to] [injury to] [the death of] any
            person.

      2.    (Defendant) knew that [he] [she] was involved in a crash or
            accident.




                                       - 26 -
      Give 3a if death is charged or 3b if injury or serious bodily injury is
charged.
      3.    a.     (Defendant) knew, or should have known from all of
                   the circumstances, including the nature of the crash
                   or accident, of the injury to or death of the person.

             b.     (Defendant) knew, or should have known from all of
                    the circumstances, including the nature of the crash
                    or accident, of the injury to the person.

      Give 4a or 4b or both as applicable.
      4.    (Defendant)

             a.     willfully failed to stop at the scene of the crash or
                    accident or as close to the crash or accident as
                    possible and remain there until [he] [she] had given
                    “identifying information” to the [injured person]
                    [driver] [occupant][person attending the vehicle or
                    other damaged property] and to any police officer
                    investigating the crash or accident.

             [or]

             b.     willfully failed to render “reasonable assistance” to
                    the injured person if such treatment appeared to be
                    necessary or was requested by the injured person.

      5.     A duly authorized law enforcement officer ordered
             (defendant) to stop.

      6.     (Defendant), knowing [he][she] had been ordered to stop by
             a law enforcement officer, [willfully refused or failed to stop
             [his][her]vehicle in compliance with the order to stop] [and
             after having stopped in knowing compliance with the order
             to stop, willfully fled in a vehicle in an attempt to elude the
             law enforcement officer.]

      7.     As a result of (defendant) fleeing or eluding, [he] [she]
             caused [serious bodily injury to] [the death of] (name of
             victim).



                                        - 27 -
      § 316.027, Fla. Stat.
      A driver has the legal duty to immediately stop [his] [her] vehicle at the
scene of the crash or accident or as close to the scene of the crash or accident
as possible and provide “identifying information.”

       If the State proves beyond a reasonable doubt that the defendant
willfully failed to give any part of the “identifying information” or willfully
failed to give reasonable assistance, the State satisfies this element of the
offense.

      Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
      If you find that the State proved beyond a reasonable doubt that
(defendant) committed elements #1 – #4, you must then determine whether the
State also proved beyond a reasonable doubt that the [injured person] [person
who died] in element #1 was:

      [a pedestrian].
      [actually engaged in work upon a highway].
      [actually engaged in work upon utility facilities along a highway].
      [engaged in the provision of emergency services within the right-
      of-way].
      [operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
      the roadway].
      [riding an animal].
      [lawfully operating [a farm tractor or similar vehicle designed
      primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a
      horse-drawn carriage] [an electric personal assistive mobility device] [a
      wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the
      roadway]].

      Definitions. Give as applicable.
      Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
      “Willfully” means intentionally, knowingly, and purposely.

      Fla. Stat. § 316.062, Fla. Stat.
      “Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.



                                      - 28 -
      “Reasonable assistance” includes carrying or making arrangement to
carry the injured person to a physician or hospital for medical treatment.

      Fla. Stat. § 316.003(75), Fla. Stat.
      “Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.

      § 316.027(1)(a), Fla. Stat.
      “Serious bodily injury” means an injury to a person [including the
driver,] which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.

                           Lesser Included Offenses

                 AGGRAVATED FLEEING OR ELUDING
   (Leaving a Crash Involving Injury or Death and then Causing Serious
                     Injury Bodily Injury or Death) —
                      316.1935(4)(b) and 316.027(2)(c)
 CATEGORY ONE          CATEGORY TWO              FLA.STAT.        INS. NO.
Leaving Scene of a                            316.027(2)(c)       28.4
Crash Involving
Death*
Leaving the Scene of                          316.027(2)(b)       28.4
a Crash Involving
Serious Bodily
Injury*
Aggravated Fleeing                            316.1935(4)(a)      28.84
Fleeing to Elude LEO                          316.1935(1)         28.6
Leaving Scene of a                            316.027(1)(b)       28.4
Crash Involving
Death
Leaving Scene of a                            316.027(1)(a)(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO                          316.1935(1)         28.6
                      Fleeing to Elude LEO 316.1935(3)(b)         28.81
                      Fleeing to Elude LEO 316.1935(3)(a)         28.8
                      Fleeing to Elude LEO 316.1935(2)            28.7

                                      - 29 -
Reckless Driving (if                             316.192(1)(b)        28.5
there was evidence
that the fleeing was in
a motor vehicle)
                          Disobedience to
                          Police or Fire         316.072(3)           28.18
                          Department Officials

                                    Comments

       * § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death,
Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is
charged as a separate count, then Leaving the Scene should not be given as a
lesser-included offense of Aggravated Fleeing or Eluding.

     For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).

      See Mancuso v. State, 652 So. 2d 370 (Fla. 1995), State v. Dumas, 700 So.
2d 1223 (Fla. 1997), and State v. Dorsett, 158 So. 3d 557 (Fla. 2015).

      This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016.


            28.8(c) AGGRAVATED FLEEING OR ELUDING
 (Leaving a Crash Involving Damage to a Vehicle or Property then Causing
                      Serious Bodily Injury or Death)
                  § 316.1935(4)(b) and § 316.061, Fla. Stat.

     To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:

      1.    (Defendant) was the driver of a vehicle involved in a crash or
            accident.

      2.    The crash or accident resulted only in damage to a vehicle
            or other property.



                                       - 30 -
      3.    The [vehicle] [other property] was [driven] [attended] by [a
            person] [(name of person)].

      4.    (Defendant) failed to stop at the scene of the crash or
            accident or as close to the crash or accident as possible and
            remain there until [he] [she] had given “identifying
            information” to the [driver or occupant of the damaged
            vehicle] [person attending the damaged vehicle or property]
            [and to any police officer at the scene of the crash or
            accident or who is investigating the crash or accident.

      5.    A duly authorized law enforcement officer ordered
            (defendant) to stop.

      6.    (Defendant), knowing [he] [she] had been ordered to stop by
            a law enforcement officer, [willfully refused or failed to stop
            [his] [her] vehicle in compliance with the order to stop] [and
            after having stopped in knowing compliance with the order
            to stop, willfully fled in a vehicle in an attempt to elude the
            law enforcement officer].

      7.    As a result of (defendant) fleeing or eluding, [he] she] caused
            [serious bodily injury to] [the death of] (name of victim).

      If the State proves beyond a reasonable doubt that the defendant failed
to give any part of the “identifying information,” the State satisfies this
element of the offense.

      Definitions.
      Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
      “Willfully” means intentionally, knowingly, and purposely.

      Fla. Stat. § 316.062(1), Fla. Stat.
      “Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.

      Fla. Stat. § 316.003(75), Fla. Stat.
      “Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.

                                     - 31 -
                            Lesser Included Offenses

                   AGGRAVATED FLEEING OR ELUDING
  (Leaving a Crash Involving Damage to a Vehicle or Property then Causing
          Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061
   CATEGORY ONE            CATEGORY TWO            FLA.STAT.        INS. NO.
 Aggravated Fleeing                              316.1935(4)(a) 28.85
 Fleeing to Elude LEO                            316.1935(1)       28.6
 Leaving the Scene of a                          316.061           28.4(a)
 Crash Involving
 Damage to Vehicle or
 Property*
                          Fleeing to Elude LEO   316.1935(3)(b) 28.81
                          Fleeing to Elude LEO   316.1935(3)(a) 28.8
                          Fleeing to Elude LEO   316.1935(2)       28.7
 Reckless Driving (if                            316.192(1)(b)     28.5
 there was evidence
 that the fleeing was in
 a motor vehicle)
                          Disobedience to Police 316.072(3)        28.18
                          or Fire Department
                          Officials

                                    Comments

      * § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving
Damage to Attended Property. Therefore, if Leaving the Scene is charged as a
separate count, then Leaving the Scene should not be given as a lesser-included
offense of Aggravated Fleeing or Eluding.

       As of September 2015, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage to violate this statute. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015) and Mancuso v. State, 652 So. 2d 370 (Fla. 1995)
dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an
explicit willfulness requirement.

     For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).

                                       - 32 -
      This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016.


            28.8(d) AGGRAVATED FLEEING OR ELUDING
   (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
              Causing Injury or Property Damage to Another)
                  § 316.1935(4)(a) and § 316.027 Fla. Stat.

     To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:

      1.     (Defendant) was the driver of a vehicle involved in a crash or
             accident occurring on public or private property resulting
             in [serious bodily injury to] [injury to] [the death of] any
             person.

      2.     (Defendant) knew that [he] [she] was involved in a crash or
             accident.

      Give 3a if death is charged or 3b if serious bodily injury or injury is
charged.
      3.    a.     (Defendant) knew, or should have known from all of
                   the circumstances, including the nature of the crash
                   or accident, of the injury to or death of the person.

             b.    (Defendant) knew, or should have known from all of
                   the circumstances, including the nature of the crash
                   or accident, of the injury to the person.

      Give 4a or 4b or both as applicable.
      4.    (Defendant)

             a.    willfully failed to stop at the scene of the crash or
                   accident or as close to the crash or accident as
                   possible and remain there until [he] [she] had given
                   “identifying information” to the [injured person]
                   [driver] [occupant] [person attending the vehicle or
                   other damaged property] and to any police officer
                   investigating the crash or accident.


                                        - 33 -
            [or]

            b.     willfully failed to render “reasonable assistance” to
                   the injured person if such treatment appeared to be
                   necessary or was requested by the injured person.

      5.    A duly authorized law enforcement officer ordered
            (defendant) to stop.

      6.    (Defendant) knowing [he] [she] had been ordered to stop by
            a law enforcement officer, [willfully refused or failed to stop
            [his][her]vehicle in compliance with the order to stop][and
            after having stopped in knowing compliance with the order
            to stop, willfully fled in a vehicle in an attempt to elude the
            law enforcement officer.]

      7.    As a result of (defendant) fleeing or eluding, [he] [she]
            caused [an injury to] [damage to the property of] (name of
            victim).

      § 316.027, Fla. Stat.
      A driver has the legal duty to immediately stop [his] [her] vehicle at the
scene of the crash or accident or as close to the scene of the crash or accident
as possible and provide “identifying information.”

       If the State proves beyond a reasonable doubt that the defendant
willfully failed to give any part of the “identifying information” or willfully
failed to give reasonable assistance, the State satisfies this element of the
offense.

      Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
      If you find that the State proved beyond a reasonable doubt that
(defendant) committed elements #1 – #4, you must then determine whether the
State also proved beyond a reasonable doubt that the [injured person] [person
who died] in element #1 was:

      [a pedestrian].
      [actually engaged in work upon a highway].
      [actually engaged in work upon utility facilities along a highway].



                                      - 34 -
      [engaged in the provision of emergency services within the right-
      of-way].
      [operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
      the roadway].
      [riding an animal].
      [lawfully operating [a farm tractor or similar vehicle designed
      primarily for farm use] [a skateboard] [roller-skates] [in-line
      skates] [a horse-drawn carriage] [an electric personal assistive mobility
      device] [a wheelchair] on [a public right-of-way]
      [crosswalk] [shoulder of the roadway]].

      Definitions. Give as applicable.
      Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
      “Willfully” means intentionally, knowingly, and purposely.

      Fla. Stat. § 316.062, Fla. Stat.
      “Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.

      “Reasonable assistance” includes carrying or making arrangement to
carry the injured person to a physician or hospital for medical treatment.

      Fla. Stat. § 316.003(75), Fla. Stat.
      “Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.

      § 316.027(1)(a), Fla. Stat.
      “Serious bodily injury” means an injury to a person [including the
driver,] which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.




                                      - 35 -
                           Lesser Included Offenses

                  AGGRAVATED FLEEING OR ELUDING
  (Leaving a Crash Involving Injury or Death and then Causing Injury or
                        Property Damage to Another) —
                        316.1935(4)(a) and § 316.027(2)(c)
 CATEGORY ONE             CATEGORY TWO              FLA.STAT.        INS. NO.
Leaving Scene of a                               316.027(2)(c)       28.4
Crash Involving
Death*
Leaving Scene of                                 316.027(2)(b)       28.4
Crash Involving
Serious Bodily
Injury*
Fleeing to Elude LEO                             316.1935(1)         28.6
Leaving Scene of a                               316.027(1)(b)       28.4
Crash Involving
Death
Leaving Scene of a                               316.027(1)(a)(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO                             316.1935(1)         28.6
                         Fleeing to Elude LEO 316.1935(3)(b)         28.81
                         Fleeing to Elude LEO 316.1935(3)(a)         28.8
                         Fleeing to Elude LEO 316.1935(2)            28.7
Reckless Driving (if                             316.192(1)(b)       28.5
there was evidence
that the fleeing was in
a motor vehicle)
                         Disobedience to
                         Police or Fire          316.072(3)          28.18
                         Department Officials

                                  Comments

      * § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death,
Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is



                                     - 36 -
charged as a separate count, then Leaving the Scene should not be given as a
lesser-included offense of Aggravated Fleeing or Eluding.

     For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).

      See Mancuso v. State, 652 So. 2d 370 (Fla. 1995), State v. Dumas, 700 So.
2d 1223 (Fla. 1997), and State v. Dorsett, 158 So. 3d 557 (Fla. 2015).

      This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016.



            28.8(e) AGGRAVATED FLEEING OR ELUDING
 (Leaving a Crash Involving Damage to a Vehicle or Property then Causing
                  Injury or Property Damage to Another)
                  § 316.1935(4)(a) and § 316.061, Fla. Stat.

     To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:

      1.    (Defendant) was the driver of a vehicle involved in a crash or
            accident.

      2.    The crash or accident resulted only in damage to a vehicle
            or other property.

      3.    The [vehicle] [other property] was [driven] [attended] by [a
            person] [(name of person)].

      4.    (Defendant) failed to stop at the scene of the crash or
            accident or as close to the crash or accident as possible and
            remain there until [he] [she] had given “identifying
            information” to the [driver or occupant of the damaged
            vehicle] [person attending the damaged vehicle or property]
            [and to any police officer at the scene of the crash or
            accident or who is investigating the crash or accident].

      5.    A duly authorized law enforcement officer ordered
            (defendant) to stop.


                                      - 37 -
      6.    (Defendant), knowing [he] [she] had been ordered to stop by
            a law enforcement officer, [willfully refused or failed to stop
            [his] [her] vehicle in compliance with the order to stop] [and
            after having stopped in knowing compliance with the order
            to stop, willfully fled in a vehicle in an attempt to elude the
            law enforcement officer].

      7.    As a result of (defendant) fleeing or eluding, [he] [she]
            caused [injury to] [damage to the property of] (name of
            victim).

      If the State proves beyond a reasonable doubt that the defendant failed
to give any part of the “identifying information,” the State satisfies this
element of the offense.

      Definitions.
      Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
      “Willfully” means intentionally, knowingly, and purposely.

      Fla. Stat. § 316.062(1), Fla. Stat.
      “Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.

      Fla. Stat. § 316.003(75), Fla. Stat.
      “Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.

                           Lesser Included Offenses

                 AGGRAVATED FLEEING OR ELUDING
(Leaving A Crash Involving Damage to a Vehicle or Property then Causing
   Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061
CATEGORY ONE           CATEGORY TWO         FLA.STAT.         INS. NO.
Fleeing to Elude LEO                        316.1935(1)       28.6
Leaving the Scene of a                      316.061           28.4(a)
Crash Involving
Damage to Vehicle or
Property*


                                     - 38 -
                           Fleeing to Elude LEO     316.1935(3)(b)     28.81
                           Fleeing to Elude LEO     316.1935(3)(a)     28.8
                           Fleeing to Elude LEO     316.1935(2)        28.7
 Reckless Driving (if                               316.192(1)(b)      28.5
 there was evidence
 that the fleeing was in
 a motor vehicle)
                           Disobedience to Police   316.072(3)         28.18
                           or Fire Department
                           Officials

                                    Comments

      * § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving
Damage to Attended Property. Therefore, if Leaving the Scene is charged as a
separate count, then Leaving the Scene should not be given as a lesser-included
offense of Aggravated Fleeing or Eluding.

       As of September 2015, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage to violate this statute. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015) and Mancuso v. State, 652 So. 2d 370 (Fla. 1995)
dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an
explicit willfulness requirement.

     For the category two lesser included offense of Disobedience to Police, see
Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010).

      This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016.



                 28.14 BOATING UNDER THE INFLUENCE
                             § 327.35(1), Fla. Stat.
       To prove the crime of Boating under the Influence, the State must prove
the following two elements beyond a reasonable doubt:

      1.     (Defendant) operated a vessel.


                                       - 39 -
      2.    While operating the vessel, (defendant)

      Give 2a or 2b 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].

     Give if applicable. § 327.35(4), Fla. Stat.
     If you find the defendant guilty of Boating 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 operating the vessel.

            b.     the defendant was accompanied in the vessel by a
                   person under the age of 18 years at the time of the
                   bBoating under the iInfluence.

      Definitions. Give as applicable.
      State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
      “Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.

      § 327.354(1), Fla. Stat.
      “Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

      § 327.02(30), Fla. Stat.
      “Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.

                                      - 40 -
      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      § 322.01(2), Fla. Stat.
      “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.

      When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
      1.     If you find from the evidence that while operating or
             in actual physical control of the vessel, the defendant had a
             [blood] [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 operating or in
              actual physical control of the vessel, the defendant had a
              [blood] [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 operating or in
              actual physical control of the vessel, the defendant had a
              [blood] [breath]-alcohol level of .08 or more, that evidence
              would be sufficient by itself to establish that the defendant

                                       - 41 -
             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.

       It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

      Defense of inoperability; give if applicable.
      It is a defense to the charge of Boating under the Influence if the vessel
was inoperable at the time of the alleged offense, unless the defendant was
controlling or steering the vessel while it was being towed by another vessel
upon the waters of the state. However, it is not a defense if the defendant was
boating under the influence before the vessel became inoperable.

                 Lesser Included Offenses
       BOATING UNDER THE INFLUENCE — 327.35(1)
 CATEGORY ONE   CATEGORY TWO          FLA. STAT. INS. NO.
 None
                Attempt               777.04(1)  5.1

                                      Comment

      This instruction was adopted in 2009 [6 So. 3d 574], and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.




                                         - 42 -
          28.15 BOATING UNDER THE INFLUENCE CAUSING
                    PROPERTY DAMAGE OR INJURY
                        § 327.35(3)(a)(b)(c)1, Fla. Stat.
      To prove the crime of Boating under the Influence Causing [Property
Damage] [Injury], the State must prove the following three elements beyond a
reasonable doubt:

      1.    (Defendant) operated a vessel.

      2.    While operating the vessel, (defendant)

      Give 2a or 2b 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].

      3.    As a result of operating the vessel, (defendant) caused or
            contributed to causing [damage to the property of (victim)]
            [injury to the person of (victim)].

     Give if applicable. § 327.35(4), Fla. Stat.
     If you find the defendant guilty of Boating under the Influence Causing
[Property Damage] [Injury], 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 operating the vessel.

            b.    the defendant was accompanied in the vessel by a
                  person under the age of 18 years at the time of the
                  bBoating under the iInfluence.

      Definitions. Give as applicable.
      State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
      “Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.


                                     - 43 -
      § 327.354(1), Fla. Stat.
      “Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

      § 327.02(30), Fla. Stat.
      “Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      § 322.01(2), Fla. Stat.
      “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.

      When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
      1.     If you find from the evidence that while operating or in
             actual physical control of the vessel, the defendant had a
             [blood] [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 operating or in
              actual physical control of the vessel, the defendant had a

                                       - 44 -
             [blood] [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 operating or in
             actual physical control of the vessel, the defendant had a
             [blood] [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.

       It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

      Defense of inoperability; give if applicable.
      It is a defense to the charge of Boating under the Influence Causing
[Property Damage] [Injury] if the vessel was inoperable at the time of the
alleged offense, unless the defendant was controlling or steering the vessel
while it was being towed by another vessel upon the waters of the state.
However, it is not a defense if the defendant was boating under the influence
before the vessel became inoperable.




                                         - 45 -
                           Lesser Included Offenses

      BOATING UNDER THE INFLUENCE CAUSING PROPERTY
               DAMAGE OR INJURY — 327.35(3)(a)(b)(c)1.
 CATEGORY ONE        CATEGORY TWO      FLA. STAT. INS. NO.
 Boating under the                     327.35(1)       28.14
 Influence
                     Attempt           777.04(1)       5.1

                                  Comment

      This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.


           28.16 FELONY BOATING UNDER THE INFLUENCE
                  § 327.35(2)(b)1. or § 327.35(2)(b)3., Fla. Stat.
       To prove the crime of Boating under the Influence, the State must prove
the following two elements beyond a reasonable doubt:

      1.    (Defendant) operated a vessel.

      2.    While operating the vessel, (defendant)

      Give 2a or 2b 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].

     Give if applicable. § 327.35(4), Fla. Stat.
     If you find the defendant guilty of Boating 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 operating the vessel.


                                     - 46 -
              b.   the defendant was accompanied in the vessel by a
                   person under the age of 18 years at the time of the
                   bBoating under the iInfluence.

      Definitions. Give as applicable.
      State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
      “Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.

      § 327.354(1), Fla. Stat.
      “Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

      § 327.02(30), Fla. Stat.
      “Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      § 322.01(2), Fla. Stat.
      “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.

      When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
      1.     If you find from the evidence that while operating or
             in actual physical control of the vessel, the defendant had a

                                      - 47 -
             [blood] [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 operating or in
             actual physical control of the vessel, the defendant had a
             [blood] [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 operating or in
             actual physical control of the vessel, the defendant had a
             [blood] [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.

       It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

      Defense of inoperability; give if applicable.
      It is a defense to the charge of Boating under the Influence if the vessel
was inoperable at the time of the alleged offense, unless the defendant was
controlling or steering the vessel while it was being towed by another vessel


                                         - 48 -
upon the waters of the state. However, it is not a defense if the defendant was
boating under the influence before the vessel became inoperable.

       Give as applicable if the jury finds the defendant is guilty of Boating Under
the Influence. Note: A Driving Under the Influence conviction, whether in Florida
or out-of-state, counts as a prior conviction. See §327.35(6)(i), Fla. Stat. See State
v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

      Since you have found the defendant guilty of Boating under the
Influence, you must now determine whether the State has proven beyond a
reasonable doubt whether:

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

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

                             Lesser Included Offenses

                 FELONY BOATING UNDER THE INFLUENCE —
               PRIOR CONVICTIONS — 327.35(2)(b)1. or 327.35(2)(b)3.
 CATEGORY          CATEGORY         FLA. STAT.           INS. NO.
 ONE               TWO
 Boating under                      327.35(1)            28.14
 the influence
                   Attempt          777.04(1)            5.1
                   Boating under    327.35(3)(a)(b)(c)1. 28.15
                   the influence
                   causing property
                   damage or injury

                                     Comments

      This instruction should be used for Felony Boating under the Influence
based on prior convictions. For Felony Boating under the Influence based on prior
convictions, it is error to inform the jury of prior Boating or Driving under the


                                        - 49 -
Influence convictions before the verdict is rendered. Therefore, if the information
or indictment contains an allegation of prior Boating or Driving 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 Boating 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).

      This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.


                 28.17 BOATING UNDER THE INFLUENCE
                   CAUSING SERIOUS BODILY INJURY
                         § 327.35(3)(a)(b)(c)2, Fla. Stat.
      To prove the crime of Boating under the Influence Causing Serious
Bodily Injury, the State must prove the following three elements beyond a
reasonable doubt:

      1.     (Defendant) operated a vessel.

      2.     While operating the vessel, (defendant)

      Give 2a or 2b 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].

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

      Give if applicable. § 327.35(4), Fla. Stat.
      If you find the defendant guilty of Boating under the Influence Causing
Serious Bodily Injury, you must also determine whether the State has proven
beyond a reasonable doubt whether:




                                        - 50 -
              a.   the defendant had a [blood] [breath]-alcohol level of
                   .15 or higher while operating the vessel.

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

      Definitions. Give as applicable.
      State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
      “Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.

      § 327.354(1), Fla. Stat.
      “Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

      § 327.02(30), Fla. Stat.
      “Operate” means to be in charge of or in command of [or in actual
physical control of] a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.

      Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
      Impaired means diminished in some material respect.

      § 322.01(2), Fla. Stat.
      “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.

      § 327.353(1)(b), Fla. Stat.



                                      - 51 -
      “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.

      When appropriate, give one or more of the following instructions on the
“presumptions of impairment” established by Give if appropriate. § 327.354(2)(a),
and (2)(b), and (2)(c), Fla. Stat.
      1.     If you find from the evidence that while operating or in
             actual physical control of the vessel, the defendant had a
             [blood] [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 operating or in
            actual physical control of the vessel, the defendant had a
            [blood] [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 operating or in
            actual physical control of the vessel, the defendant had a
            [blood] [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.




                                     - 52 -
       It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

      Defense of inoperability; give if applicable.
      It is a defense to the charge of Boating under the Influence Causing
Serious Bodily Injury if the vessel was inoperable at the time of the alleged
offense, unless the defendant was controlling or steering the vessel while it was
being towed by another vessel upon the waters of the state. However, it is not
a defense if the defendant was boating under the influence before the vessel
became inoperable.

                             Lesser Included Offenses

             BOATING UNDER THE INFLUENCE CAUSING
            SERIOUS BODILY INJURY — 327.35(3)(a)(b)(c)2.
CATEGORY          CATEGORY         FLA. STAT.           INS. NO.
ONE               TWO
Boating under the                  327.35(3)(a)(b)(c)1. 28.15
Influence
Causing Injury
Boating under the                  327.35(1)            28.14
influence
                  Attempt          777.04(1)            5.1
                  Boating under    327.35(3)(a)(b)(c)1. 28.15
                  the influence
                  causing property
                  damage

                                      Comment

      This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012
[87 So. 3d 679], and 2014 [146 So. 3d 1110], and 2016.




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