McBride v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSEPH McBRIDE,
)
)
Appellant,
)
)
v.
)
)
STATE OF FLORIDA,
)
)
Appellee.
)
)
_____________________________________ )
Case No. 2D99-2629
Opinion filed October 10, 2001.
Appeal from the Circuit Court for
Hillsborough County, J. Rogers Padgett,
Judge.
James Marion Moorman, Public Defender,
Bartow, and Joseph N. D'Achille, Jr., Assistant
Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.
DAVIS, Judge.
This case is before us on remand from the Florida Supreme Court. Joseph
McBride challenges his conviction for DUI manslaughter that arose out of an incident in
which he drove his car into oncoming traffic and hit the victim's car head on.
McBride originally argued before this court that the trial court improperly
instructed the jury on the statutory presumptions of impairment and erred in excluding
evidence of the victim's impairment. We affirmed McBride's conviction, see McBride v.
State, 744 So. 2d 698 (Fla. 2d DCA 2000), based on our holding in State v. Townsend,
746 So. 2d 495 (Fla. 2d DCA 1999), that the State is entitled to the legislatively created
presumptions of impairment once the predicate established in Robertson v. State, 604 So.
2d 783 (Fla. 1992), is laid. However, the supreme court has overturned in part this court's
decision in Townsend, see Townsend v. State, 774 So. 2d 693, 693 (Fla. 2000), and
quashed our holding in the instant case, "only to the extent it is inconsistent with . . .
Townsend."
Although pursuant to Townsend, 774 So. 2d 693, it was clear error for the
trial court to instruct the jury on the statutory presumptions of impairment, we conclude that
the error was harmless and affirm McBride's conviction.
Error is harmless only "if it can be said beyond a reasonable doubt that the
verdict could not have been affected by the error." State v. DiGuillo, 491 So. 2d 1129,
1135 (Fla. 1986). Here, the State charged McBride with DUI manslaughter, in violation of
section 316.193(3), Florida Statutes (1997), alleging that he
did drive or was in actual physical control of a
vehicle while under the influence of alcoholic
beverages . . . to the extent that his normal
faculties were impaired or while having a bloodalcohol level of 0.08 or more grams of alcohol
per 100 milliliters of blood . . . and did operate
said vehicle and did by reason of such operation
cause the death of a human being.
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At trial, the State presented evidence that McBride drove at approximately
seventy miles an hour, swerved in and out of lanes, nearly rear-ended a minivan, just
missed hitting a bicyclist, hit a bridge's metal grating, and swerved into oncoming traffic,
where he hit the victim's car head on. Additionally, the State presented testimony that,
while still at the scene of the accident, McBride's breath smelled of alcohol, and McBride
told police he had been drinking all day.
Furthermore, the State properly laid the Robertson predicate. So, although
the State was not entitled to jury instructions that included the statutory presumptions of
impairment, the State was entitled to the admission of the results of McBride's bloodalcohol tests, which showed he had a blood-alcohol level of .306, well over the limit
specified in the charging document. See ยง 316.1934(2)(C), Fla. Stat. (1997); Tyner v.
State, 26 Fla. L. Weekly D2203 (Fla. 2d DCA Sept. 12, 2001). Additionally, the medical
examiner's chief toxicologist testified as to the effects such a level could have on a person.
Due to the overwhelming evidence presented by the State, we conclude that
the error of instructing the jury on the statutory presumptions was harmless. Accordingly,
we affirm McBride's conviction.
Affirmed.
CASANUEVA, A.C.J., and CAMPBELL, MONTEREY, Associate (Senior) Judge, Concur.
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