One Florida DUI trial. Two ways the State may try to prove it.

A Florida DUI defendant can reach the end of a jury trial and hear two different legal paths inside the judge's instructions. One path asks whether the State proved that the defendant's normal faculties were impaired. The other asks whether the State proved that the defendant drove or was in actual physical control of a vehicle with a breath-alcohol level of .08 or more.

It is not simply: “Was the defendant intoxicated?”

“Intoxicated” is a common everyday word, but it is not the complete legal question in Florida's basic DUI statute. Under Florida Statute section 316.193(1), the State must prove that the defendant drove or was in actual physical control of a vehicle and that one of the listed DUI conditions existed.

For an alcohol case involving a breath result, the two most important alternatives are:

Florida's current Standard Criminal Jury Instruction 28.1 says to give the impairment alternative, the unlawful-level alternative, or both, as applicable. The instruction also states that the State must prove the elements beyond a reasonable doubt. See the Florida Bar's Florida Standard Jury Instructions in Criminal Cases, Instruction 28.1.

What the judge may tell the jury near the end of trial

After the evidence has been presented and the attorneys have addressed the jury, the judge gives the law that controls deliberations. In a breath-test DUI case, the second element of Instruction 28.1 may contain both alternatives if both are applicable to the case.

In plain language, the jurors may be asked to decide whether the State proved:

• the defendant drove or was in actual physical control of the vehicle; and
• the defendant's normal faculties were impaired, or the defendant's breath-alcohol level was .08 or more.

That distinction matters. A juror could have doubts about how impaired the defendant appeared but still evaluate the unlawful-level theory. Another juror could question the breath evidence but still evaluate the testimony, video, driving pattern, field exercises, statements, and other admitted evidence under the impairment theory.

One instruction can contain two alternatives

People sometimes describe this as the jury receiving “two separate instructions.” Technically, Florida's standard basic-DUI instruction places the two alternatives within the same second element and directs the judge to give one or both as applicable.

For a basic DUI count, that does not automatically mean two trials or two separate DUI convictions. It means the State may have more than one legal theory for trying to prove the DUI element. The charging document, rulings on the evidence, discussions between the judge and attorneys, the instructions actually read, and the verdict form used in that courtroom determine what the jury will decide in a particular case.

A breath sample does not automatically settle the case

The existence of a breath sample is not the same as a jury finding that the .08-or-more theory has been proved. Jurors decide the case from the evidence admitted at trial and under the instructions given by the judge. Questions about whether a result is admitted, what the result proves, and which instruction applies are legal and evidentiary issues for the particular case.

Florida law also addresses how alcohol-test evidence may be considered. Under Florida Statute section 316.1934:

• A level of .05 or less creates a rebuttable presumption that normal faculties were not impaired.
• A level above .05 but below .08 creates no presumption either way, although the evidence may be considered with the other evidence.
• A level of .08 or more is prima facie evidence of impairment and is also the level used for the unlawful-alcohol-level DUI theory.

The same statute says test results are admissible when the test was substantially performed under approved methods and by a qualified person. Whether those requirements and other evidentiary rules have been satisfied is case-specific; this article cannot evaluate an individual breath test.

Why the difference matters before closing arguments

A defendant should not wait until the judge begins reading instructions to learn which theories the jury may consider. Before closing arguments, counsel normally addresses the proposed instructions with the court. That is the time to understand exactly what the State says it proved and what legal route or routes remain available.

The questions to ask defense counsel include:

1. What does the charging document allege? Does it rely on impairment, an unlawful breath-alcohol level, or both?
2. Which parts of Instruction 28.1 will the judge give? Ask to see the proposed written instruction, not only a summary.
3. Was the breath result admitted for the jury to consider? If so, what testimony and exhibits explain it?
4. What evidence supports each theory? Keep the impairment evidence separate from the numerical breath-alcohol evidence when reviewing the case.
5. What will the verdict form ask? The form and the oral instructions should be reviewed together.
6. Are any additional instructions applicable? The answer can depend on the breath level, the evidence, and the issues preserved during trial.

The practical takeaway for an accused person

If a breath sample exists, do not assume the jury's only question will be whether you “looked drunk.” Florida law may permit the State to present an impairment theory, a separate .08-or-more theory, or both within the DUI instruction. At the same time, do not assume that merely producing a breath-test number ends the jury's work. The State still has the burden of proving the applicable elements beyond a reasonable doubt using admitted evidence.

The most useful step is to ask counsel for the exact final instruction and verdict form expected in the case. Those documents show the legal questions the jury will actually take into deliberations.

Official sources

• Florida Statute § 316.193 — Driving under the influence
• Florida Statute § 316.1934 — Presumption of impairment; testing methods
• Florida Standard Jury Instructions in Criminal Cases — Instruction 28.1
• Supreme Court of Florida — Jury Instructions

For more background on the trial decision itself, read Jury Trial vs. Bench Trial for a DWI. If a DUI has also affected your driving privilege, start with the Florida license reinstatement guide.