Claris Law Legal Blogging Community

Editor: Will Hanlon & Charlie Lambert
Profession: Tampa Defense Attorneys

Category: Legal Updates

The First District Court of Appeals cited the Bender case to support its decision to find fundamental error in Leveritt v. State. Leveritt v. State, 31 FLW D424, (Fla. 1st DCA 2006). "For evidence of a person's blood alcohol level to be admitted outside of the impled consent law and regulations promulgated thereunder, the party seeking the introduction of the evidece must satisfy the three-pronged common law test set forth in State v. Bender, 382 So.2d 697, 699 (Fla. 1980)". The proper predicate to admit scientific evidence of impairment requires that: (1) the test was reliable, (2) the test was performed by a qualified operator with proper equipment, and (3) expert testimony was presented concerning the meaning of the test.

The First District cited the Cardenas case decided by the Florida Supreme Court which ruled that no fundamental error occurs when the jury is instructed on the "driving w/ unlawful blood alcohol level" (DUBAL)method where there is no evidence that the State failed to carry its burden of laying the common law predicate for blood alcohol evidence OR that the evidence was improperly admitted. Cardenas v. State, 867 So.2d 384 (Fla. 2004). Ultimately, the first district concluded that Cardenas created a requirement that, "where the statutory presumption is not available pursuant to Miles,((Miles v. State, 775 So.2d 950, (Fla. 2000)), to rely on the DUBAL provision for a DUI conviction, the state must introduce blood alcohol evidence under the Bender case". In other words, where the trial court instructs the jury on DUBAL there must be evidence that the blood results were introduced under the scientific test set out in Bender. If the proper predicate is not laid it is fundamental error to give the DUBAL instruction to the jury.