Arrestable Offenses / Crimes under Fla. Stat. 327.35
S327.35 1 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 8694 - M: F
S327.35 1 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 8874 - M: S
S327.35 4 - DUI-UNLAW BLD ALCH - BUI 0.15 OR HIGHER OR PERSON UNDR 18 IN VESSEL - M: F
S327.35 - PUBLIC ORDER CRIMES - RENUMBERED. SEE REC # 6918 - M: S
S327.35 2a1b - PUBLIC ORDER CRIMES - RENUMBERED. SEE REC # 6919 - M: F
S327.35 3a - DUI-UNLAW BLD ALCH - BUI CAUSE SERIOUS BODILY INJURY TO ANOTHER - F: T
S327.35 3a3c - DUI-UNLAW BLD ALCH - BUI FAIL TO GIVE INFORMATION OR RENDER AID - F: F
S327.35 3c1 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 10748 - M: F
S327.35 3c2 - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 10747 - F: T
S327.35 3c3a - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 10745 - F: S
S327.35 3c3b - DUI-UNLAW BLD ALCH - RENUMBERED. SEE REC # 10744 - F: F
S327.35 3c3c - DUI-UNLAW BLD ALCH - BUI CAUSE DEATH OF HUMAN BEING PREV CONV - F: F
CopyCited 34 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 232, 2009 Fla. LEXIS 313, 2009 WL 465938
...had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath]. *579 3. As a result of operating the vessel, (defendant) caused or contributed to the cause of the death of (victim). Give if § 327.35(3)(a)(b)(c)3.b, Fla....
...( ) 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 §
327.354(2)(a), (2)(b), and (2)(c), Fla....
...However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable. Lesser Included Offenses *581 ----------------------------------------------------------------------------------------- BOATING UNDER THE INFLUENCE MANSLAUGHTER
327.35(3)(a)(b)(c)3 ----------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------------------- Boating under the influence
327.35 28.14 ----------------------------------------------------------------------------------------- Boating under the influence
327.35(3)(a)(b)(c)2 28.17 causing serious bodily injury ----------------------------------------------------------------------------------------- Boating under the influence
327.35(3)(a)(b)(c)1
28.15 causing damage to person or property ----------------------------------------------------------------------------------------- Comment This instruction was adopted in 2009....
...418.30 and the recreational facilities of which district are open to the general public. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2009.
28.14 BOATING UNDER THE INFLUENCE §
327.35(1), Fla....
...( ) 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 §
327.354(2)(a), (2)(b), and (2)(c), Fla....
...e waters of the state. However, it is not a defense if the defendant was boating *600 under the influence before the vessel became inoperable. Lesser Included Offenses ---------------------------------------------------- BOATING UNDER THE INFLUENCE327.35(1) ---------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....
...---------------------------------------------------- None ---------------------------------------------------- Attempt
77.04(1) 5.1 ---------------------------------------------------- Comment This instruction was adopted in 2009.
28.15 BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY §
327.35(3)(a)(b)(c)1, Fla....
...( ) 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 §
327.354(2)(a), (2)(b), and (2)(c), Fla....
...However, it is not a defense if the defendant was boating under the influence before the vessel became inoperable. *602 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.
28.16 FELONY BOATING UNDER THE INFLUENCE §
327.35(2)(b)1 or §
327.35(2)(b)3, Fla....
...*603 ( ) 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 §
327.354(2)(a), (2)(b), and (2)(c), Fla....
...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....
...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 ONE CATEGORY TWO FLA. STAT. INS. NO. ---------------------------------------------------------------------------------------- Boating under the influence
327.35(1) 28.14 ---------------------------------------------------------------------------------------- Attempt
777.04(1) 5.1 ---------------------------------------------------------------------------------------- Boating under the influence
327.35(3)(a)(b)(c)1
28.15 causing property damage or injury ---------------------------------------------------------------------------------------- Comment This instruction should be used for Felony Boating under the Influence based on prior convictions....
...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. 28.17 BOATING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY §
327.35(3)(a)(b)(c)2, Fla....
..."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 § 327.354(2)(a), (2)(b), and (2)(c), Fla....
...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 ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------------------- Boating under the influence
327.35(1) 28.14 ----------------------------------------------------------------------------------------- Boating under the influence
327.35(3)(a)(b)(c)1
28.15 causing property damage ----------------------------------------------------------------------------------------- Comment This instruction was adopted in 2009....
CopyCited 15 times | Published | Supreme Court of Florida | 2004 WL 351171
...mpaired; (b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath. §
316.193(1), Fla. Stat. (2003). Section
327.35, Florida Statutes, (1995), the BUI statute under which Cardenas was convicted, is identical to the DUI statute in regard to the alternative elements of impairment and unlawful blood-or breath-alcohol level....
...[4] A general verdict is one in which the jury determines guilt or innocence without making explicit findings. See Sullivan v. Louisiana,
508 U.S. 275, 283,
113 S.Ct. 2078,
124 L.Ed.2d 182 (1993). [5] At the time of Cardenas's convictions, sections
316.193 and
327.35 each contained a single subsection that addressed both unlawful blood-and breath-alcohol content. Specifically, sections
316.193(1)(b) and
327.35(1)(b), Florida Statutes (1995), provided that a person was guilty of driving and boating under the influence if the person "had a blood or breath alcohol level of .08 percent" or above....
CopyCited 11 times | Published | Court of Appeals for the Eleventh Circuit
...gers forward
and causing serious injuries. A blood sample drawn from Brock roughly three and
a half hours after the allision indicated his blood alcohol level (BAL) exceeded the
legal limit set forth under 33 C.F.R. § 95.020 and Florida Statutes § 327.35.6
On June 27, 2002, Superior, as the owner pro hac vice of the Barge and the
Tug, brought an admiralty action in federal district court for exoneration from or
limitation of liability, pursuant to the Limitation of Liability Act....
...On the night of the allision, however, the Barge was located on the Bridge’s
north end and Superior had not utilized light plants.
6
Under Florida and federal law, it is unlawful to operate a recreational boat while having
a BAL of 0.08 or more. Fla. Stat. § 327.35; 33 C.F.R....
...Superior countered with an expert witness who stated the 3.5-hour
time gap may have meant Brock’s BAL decreased between the allision and the blood draw.
Rather than expressly resolve this factual dispute, the district court assumed Brock violated 33
C.F.R. § 95.020 and Florida Statutes § 327.35, but nevertheless found Brock’s legal intoxication
was not a cause of the allision.
6
limitation of liability....
...then the Pennsylvania Rule shifts the burden to the stationary vessel.
Our overview of the applicable legal framework cannot end here, however,
because Superior contends that, given Brock’s legal intoxication, the Boat violated
33 C.F.R. § 95.020 and Florida Statutes § 327.35 (i.e., provisions intended to
prevent allisions), and, therefore, the Pennsylvania Rule should also apply to
Appellees.
When both vessels involved in the allision are operating in violation
of statutes designed to prevent suc...
...After applying the
Pennsylvania Rule to Superior and concluding Superior’s § 409 violation was a
cause of the allision, the district court considered Superior’s argument that the
Pennsylvania Rule also applied to Appellees. First, the district court assumed
Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, the Florida and
17
federal boating-under-the-influence (BUI) provisions,15 and applied the
Pennsylvania Rule against Appellees.16 Second, the district court found Appellees
nevertheless sati...
...evidentiary presumption created [under the Pennsylvania Rule] by Brock’s blood
alcohol level . . . is overcome and vanishes due to the overwhelming evidence to
the contrary.”
15
Appellees concede that 33 C.F.R. § 95.020 and Florida Statutes § 327.35 are “rule[s]
intended to prevent [allisions]” for purposes of the Pennsylvania Rule....
...conflicting opinions as to whether Brock’s BAL actually exceeded the Florida and federal limits
at the time of the allision. The district court did not expressly resolve this dispute. Instead, it
(1) assumed Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, and (2) found
Appellees nevertheless satisfied their burden under the Pennsylvania Rule of showing Brock’s
violation could not have been a cause of the allision....
...pply the Pennsylvania Rule against Appellees.
18
Superior forwards two primary challenges to the district court’s finding that
Brock’s violation of 33 C.F.R. § 95.020 and Florida Statutes § 327.35 could not
have been a cause of the allision....
...den of showing its violation could
not have been a cause of the allision. Nor did the district court clearly err when it
found Appellees met their Pennsylvania Rule burden of showing Brock’s violation
of 33 C.F.R. § 95.020 and Florida Statutes § 327.35 could not have been a cause
of the allision....
CopyCited 10 times | Published | District Court, S.D. Florida | 1989 U.S. Dist. LEXIS 16833, 1989 WL 184843
...Parenthetically, the Court observes that Florida has addressed the problem of drunk driving in the context of motorboats by passing a statute for "vessels" that tracks the language of the statute covering other "vehicles." Compare Fla.Stat. §
316.193(1)(a) ("vehicles"), with Fla.Stat. §
327.35 ("vessels")....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2001 WL 803716
...5th DCA), review denied,
649 So.2d 233 (Fla.1994). This case is distinguishable. Here rather than a patient's hospital records, the police simply asked the hospital staff for a vessel operator's blood sample, as they are clearly allowed to do under section
327.352(3)....
...r the presence of chemical substances or controlled substances in the blood obtained pursuant to this section shall be released to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of s.
327.35 upon request for such information." [e.s.] Section
395.3025(4), the statute at issue in Rutherford, is clearly one of the other provisions of law "pertaining to the confidentiality of hospital records" mentioned in the introductory clause in section
327.352(3). In contrast to Rutherford 's section
395.3025(4), the boating consent statute, section
327.352(3), allows the police and prosecutor to have blood alcohol samples merely upon the asking, so long as the *342 request is "in connection with an alleged violation of s.
327.35." No notice to a defendant of a police request under section
327.352(3) was required because he had already consented to it, and the police clearly had probable cause at the time of the request to arrest and charge defendant with a section
327.35 violation....
...While the hospital personnel in this case gave blood from a sample actually drawn upon defendant's arrival at the hospital and before the police request was made, it is still a sample to which defendant is deemed to have consented by operating his vessel. See § 327.352(1)(e)1, Fla....
...As regards these charges only, it was error for the trial court to instruct the jury on the statutory presumptions of impairment. [4] Because the state did not opt to adduce blood alcohol test results complying with the testing procedures set forth in section 327.354(3), that statutory presumption was not available. [5] Where the state elects to adduce blood sample test results drawn by hospital personnel and given to police under section 327.352(3) and which do not comply with 327.354(3), a trial court may not instruct the jury as to the statutory presumptions of impairment....
...The scoresheet will have to be *345 redone at a new sentencing to reflect only the surviving convictions and, of course, any convictions that might result from a new trial. As for all of defendant's other arguments, we affirm. STEVENSON and SHAHOOD, JJ., concur. NOTES [1] See § 327.352(1)(c), Fla....
...tration of a breath or urine test is impractical or impossible.... Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test."); see also § 327.353(1), Fla. Stat. (1997) ("Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 327.352 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a vessel operated by a person under the influence of alcoholic beverages, any chemical substances, or any...
...As we shall discuss presently, after the jury returned a verdict of guilty on all counts, the state asked for a vacatur of the guilty verdict as to 3 of the six BUI manslaughter counts, 3 of the six UBAL manslaughter counts, the UBAL bodily injury count, and the UBAL property damage count. [3] Section
327.352(3) is a carbon copy of section
316.1933(4), applicable to motor vehicle operators. [4] See §
327.354(2)(c), Fla....
...her normal faculties were impaired. Any person who operates a vessel and who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of operating a vessel with an unlawful blood-alcohol level or breath-alcohol level."). [5] See § 327.354(3), Fla....
...See §
775.082(8)(b), Fla. Stat. (1997) ("The 1995 sentencing guidelines that were effective October 1, 1995, and any revisions thereto, apply to all felonies, except capital felonies, committed on or after October 1, 1995, and before October 1, 1998."). [8] See §
327.35(2)(c)3.a and §
775.082(3)(c), Fla....
...(1), and that the state may prove that single offense by a showing of either DUI or UBAL. We ourselves have recognized this distinction. See Dejerez v. State,
580 So.2d 656 (Fla. 4th DCA 1991); Parrish v. State,
561 So.2d 685 (Fla. 4th DCA 1990). As section
327.35(1) is identical in structure and text to section
316.193(1), Rolle applies to it as well.
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1997 WL 268229
...Rodriguez raises five points on appeal that he contends require reversal. We address the only point we find meritorious and reject Rodriguez' arguments as to the remaining points. In count 2 of an amended information, the state charged Rodriguez with a violation of section 327.351(1)-(2), Florida Statutes (1995)....
...and by reason of the operation of said vessel did cause serious bodily injury.... (emphasis added). We of course look only to the language of the statute to determine the essential elements of the crime charged. The elements making up a violation of section
327.351(1)(2) are: 1) that the defendant operated a vessel on the waters of this state; 2) that the defendant was in an intoxicated condition, under the influence of alcoholic beverages, any chemical substance set forth in section
877.111, or...
...In sum, we affirm the judgment of conviction and sentence as to count 1, but reverse and remand for a new trial as to count 2. Affirmed in part, reversed in part, and remanded for a new trial as discussed herein. NOTES [1] We note that effective July 1, 1996, section 327.351 was repealed and replaced by section 327.35, Florida Statutes (Supp.1996)....
CopyCited 3 times | Published | Court of Appeals for the Eleventh Circuit | 2006 A.M.C. 1038, 66 A.L.R. 6th 717, 2006 U.S. App. LEXIS 9498, 2006 WL 964105
...Consequently, the Boat slammed into the Barge, throwing the passengers forward and causing serious injuries. A blood sample drawn from Brock roughly three and a half hours after the allision indicated his blood alcohol level (BAL) exceeded the legal limit set forth under 33 C.F.R. § 95.020 and Florida Statutes § 327.35....
...Rule shifts the burden to the stationary vessel. Our overview of the applicable legal framework cannot end here, however, because Superior contends that, given Brock’s legal intoxication, the Boat violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35 (i.e., provisions intended to prevent allisions), and, therefore, the Pennsylvania Rule should also apply to Appellees....
...After applying the PennsylvaniaRule to Superior and concluding Superior’s § 409 violation was a cause of the allision, the district court considered Superior’s argument that the Pennsylvania Rule also applied to Appellees. First, the district court assumed Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, the Florida and federal boating-under-the-influence (BUI) provisions, 15 and applied the Pennsylvania Rule against Appellees....
...s blood alcohol level ... is overcome and vanishes due to the overwhelming evidence to the contrary.” Superior forwards two primary challenges to the district court’s finding that Brock’s violation of 33 C.F.R. § 95.020 and Florida Statutes § 327.35 could not have been a cause of the allision....
...burden of showing its violation could not have been a cause of the allision. Nor did the district court clearly err when it found Appellees met their Pennsylvania Rule burden of showing Brock’s violation of 33 C.F.R. § 95.020 and Florida Statutes § 327.35 could not have been a cause of the allision....
...On the night of the allision, however, the Barge was located on the Bridge’s north end and Superior had not utilized light plants. . Under Florida and federal law, it is unlawful to operate a recreational boat while having a BAL of 0.08 or more. Fla. Stat. § 327.35 ; 33 C.F.R....
...Superior countered with an expert witness who stated the 3.5-hour time gap may have meant Brock's BAL decreased between the allision and the blood draw. Rather than expressly resolve this factual dispute, the district court assumed Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, but nevertheless found Brock’s legal intoxication was not a cause of the allision....
...perior warranting sanctions,” it neither expressly held Superior acted in bad faith nor expressly drew adverse inferences regarding the quality of the relevant Barge and Tug lights. . Appellees concede that 33 C.F.R. § 95.020 and Florida Statutes § 327.35 are "rule[s] intended to prevent [allisions]” for purposes of the Pennsylvania Rule....
...ions as to whether Brock’s BAL actually exceeded the Florida and federal limits at the time of the allision. The district court did not expressly resolve this dispute. Instead, it (1) assumed Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, and (2) found Appellees nevertheless satisfied their burden under the Pennsylvania Rule of showing Brock’s violation could not have been a cause of the allision....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2001 WL 418716
...Chapman, 625 *
614 So.2d 838, 839 (Fla.1993); Houser v. State,
474 So.2d 1193, 1196 (Fla.1985). The defendant challenges his BUI manslaughter conviction on several grounds. He contends, first, that the conviction cannot stand because he was charged in the information with violating a repealed statute, section
327.351(2), Florida Statutes (1995), "Operation of a Vessel While Intoxicated," and convicted of violating the successor statute, section
327.35(3)(c)3, Florida Statutes (1997), "Boating Under the Influence." Because the defendant failed to object at the trial level, he argues on appeal that it was fundamental error....
...ror or omission did not mislead the defendant to the defendant's prejudice".). The language in the body of the information was nearly identical to the language in the jury instruction, and both tracked the language of the proper statutory provision, section 327.35....
CopyCited 1 times | Published | Supreme Court of Florida | 2016 WL 2757011
...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....
...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....
...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....
...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....
...owed 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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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....
...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.
“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....
...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....
...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....
...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....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 692648, 2013 Fla. App. LEXIS 3176
...2d DCA 2002) (involving appeal from an order granting a motion for judgment notwithstanding the verdict). III. The State was not required to prove that the boat was subject to a license tax in order to prove the crime of BUI. The relevant portions of section 327.35(l)(a) and (c) provide that a person commits the crime of BUI when they are operating a vessel within this state and: (a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s....
...as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.” State v. Anderson,
764 So.2d 848, 849 (Fla. 3d DCA 2000). The first part of the title of section
327.35 is “Boating under the influence.” And section
327.35(10) provides that “[i]t is *31 the intent of the Legislature to encourage boaters to have a ‘designated driver’ who does not consume alcoholic beverages.” 4 Thus neither the title nor the statement of legislative intent (i.e., the statement addressing the evil to be corrected) refer to a boat’s being subject to a license tax. The language of section
327.35 is also silent on any such requirement....
...5 However, the definition has consistently included the phrase “used or capable of being used for transportation on water.” 6 Consequently, it is the vessel’s use for transportation on water that is necessary to establishing that a person was operating a vessel within the meaning of section 327.35....
...Further, accepting Davis’s interpretation of the statute would lead to absurd results. For example, section
328.48(2), Florida Statutes (2008), lists certain excepted types of vessels which are not subject to a license tax for operation such as United States government vessels or lifeboats. 8 Davis’s interpretation of section
327.35 would mean that persons operating any of the excepted vessels in section
328.48(2) would be immune from prosecution for BUI....
...We do not believe that the legislature intended for such persons to escape prosecution for BUI merely because they were operating one of the vessels excepted from registration requirements listed in section
328.48(2). 9 Accordingly we reject Davis’s *33 argument that the legislature intended for section
327.35 to apply only where the boat in question is subject to a license tax, and we construe that phrase in the jury instruction to be mere surplusage....
...We take this opportunity to suggest that the Standard Jury Instructions in Criminal Cases Committee revise the definition of vessel as used in the BUI jury instruction by omitting the reference to a boat being subject to a license tax for operation. Such a revision would be in accordance with section 327.35, and we believe it would more accurately reflect the legislative intent to discourage boating under the influence without regard to boating registration requirements. Reversed and remanded for proceedings in accordance with this opinion. VILLANTI and WALLACE, JJ., Concur. . Pursuant to section 327.35(2)(b), Florida Statutes (2008), a conviction for a third violation of this section which occurs within ten years after a prior conviction for a violation of this section elevates the charge to a third-degree felony. Section 327.35(6)(i) provides that any conviction for a DUI is also considered a previous conviction for purposes of *29 establishing prior violations of section 327.35....
...angerous, such as a nonmotorized sailboat. Although many Floridians enjoy the privilege of boating, that privilege comes with the responsibility to refrain from operating the vessel while under the influence in the same way operating a vehicle does. Section 327.35 does not limit its scope to only those vessels subject to registration requirements, and we decline to adopt any interpretation which would circumscribe the legislative intent....
CopyCited 1 times | Published | Supreme Court of Florida
...2d 985],
1987 [
508 So. 2d 1221], 1992 [
603 So. 2d 1175], 1995 [
665 So. 2d 212], 1998
[
723 So. 2d 123], 2006 [
946 So. 2d 1061], 2009 [
6 So. 3d 574], and 2016 [
190 So.
3d 1055], and 2017.
7.8(a) BOATING UNDER THE INFLUENCE MANSLAUGHTER
§§
327.35(3)(a), (3)(b), and (3)(c)3., Fla....
...alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vessel, (defendant) caused or
contributed to the cause of the death of [(victim)] [an unborn
child].
Give if §§ 327.35(3)(a), (3)(b), and (3)(c)3.b., Fla....
...s: the Division of Law Enforcement of
the Fish and Wildlife Conservation Commission; the sheriff of the county
within which the accident occurred; or the police chief of the municipality
within which the accident occurred.
Give if applicable. § 327.35(4), Fla....
...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....
...prove that the defendant knew or should have known that (victim) was
pregnant or that the defendant intended to cause the death of the unborn
child.
When appropriate, give one or more of the following instructions on the
presumptions of impairment established by §§ 327.354(2)(a), (2)(b), and (2)(c),
Fla. Stat.Give if appropriate. § 327.354(2)(a) and (2)(b), Fla....
...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....
...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 MANSLAUGHTER —
327.35(3)(A),
(3)(B), AND (3)(C)3.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Boating under the
327.35 28.14
influence
Boating under the
327.35(3)(a), 28.17
influence causing (3)(b), and
serious bodily injury (3)(c)2.
Boating under the
327.35(3)(a),
28.15
- 13 -
influence causing (3)(b), and
damage to person or (3)(c)1.
property
Comment
This instruction was adopted in 2009 [6 So....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 1787, 1990 WL 29580
PER CURIAM. This is an appeal from an order of the county court declaring section 327.35, Florida Statutes (1987) to be unconstitutional and dismissing the action against the defendant/appellee, Tom Kolacia. Section 327.35(l)(a) provides: It is unlawful for ......
...ve October 1, 1988 to define “operate” to mean that a person is in the actual physical control of a vessel. On July 16, 1988 (before the statute was amended) Kolacia was alleged to have operated a vessel while under the influence in violation of section 327.35(l)(a). Kolacia filed a motion to dismiss the action and to declare section 327.35 unconstitutional on grounds of vagueness and overbreadth....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 1793, 1990 WL 29574
PER CURIAM. This is an appeal from an order of the county court declaring section 327.35, Florida Statutes (1987) unconstitutional and dismissing an action against the defendant/appellee, Richard Corley. Section 327.35(l)(a) provides: It is unlawful for ......
...1, 1988 to define “operate” to mean that a person is in the actual physical control of a vessel. On October 24, 1987 (before, the statute was amended) Richard Corley was alleged to have operated a vessel while under the influence in violation of section 327.35(l)(a)....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1401, 1988 Fla. App. LEXIS 2490, 1988 WL 59452
...Her complaint alleged that Krstic had negligently operated his motorboat, that his intoxication had rendered him unable to operate the boat safely, that he had operated the boat at an excessive rate of speed, and that his operation of the boat while under the influence of alcohol violated section 327.35, Florida Statutes (1981)....
...Krstic’s counsel moved for a directed verdict which the trial court granted on the ground that there was no evidence upon which a jury could find that Krstic was negligent. The trial court entered final judgment in favor of Krstic. Estock contends, and we agree, that the allegation concerning Krstic’s violation of section 327.35 posed a jury issue as to Krstic’s negligence in consuming alcohol and operating his boat....
...s of her cause of action in order to establish actionable negligence. Accordingly, the directed verdict and final judgment are reversed and the cause remanded for trial on the merits. Reversed and remanded. SCHWARTZ, C.J., and NESBITT, J., concur. . Section 327.35, Florida Statutes (1981), provides: 327.35 Operating vessel while under Influence of intoxicating liquor or controlled substance....
CopyPublished | Supreme Court of Florida | 2012 WL 399879
...“Morbid interest” means diseased, dwelling on the gruesome, or sick. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 1981 and amended in 2011.
28.14 BOATING UNDER THE INFLUENCE §
327.35(1), Fla....
...*691 (_) 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 §
327.35i(2)(a), (2)(b), and (2)(c), Fla....
...ssel 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 *692 Comment This instruction was adopted in 2009 and amended in 2011.
28.15 BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY §
327.35(3)(a)(b)(c)l, Fla....
...(_) 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 *693 §
327.354.(2)(a), (2)(b), and (2)(c), Fla....
...nother 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 PROPERTY DAMAGE OR INJURY —
327.35(3)(a)(b)(c)l CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Boating under the
327.35(1) 28.14 Influence Attempt
777.04(1) 5.1 *694 Comment This instruction was adopted in 2009 and amended in 2011.
28.16 FELONY BOATING UNDER THE INFLUENCE §
327.35(2)(b)l or §
327.35(2)(b)3, Fla....
...(_) 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 §
327.35í(2)(a), (2)(b), and (2)(c), Fla....
...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....
...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 *696 FELONY BOATING UNDER THE INFLUENCE — PRIOR _CONVICTIONS —
327.35(2)(b)l or 327,35(2)(b)3_. CATEGORY ONE CATEGORY TWO_FLA. STAT._INS. NO. Boating under the
327.35(1) 28.14 influence Attempt_777.04(1)5.1 Boating under the
327.35(3)(a)(b)(c)l
28.15 influence causing property damage or injury Comment This instruction should be used for Felony Boating under the Influence based on prior convictions....
...ictions 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 and amended in 2011. 28.17 BOATING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY §
327.35(3)(a)(b)(c)2, Fla....
...al 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 § 327.35h(2)(a), (2)(b), and (2)(e), Fla....
...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 ONE CATEGORY TWO FLA. STAT. INS. NO. Boating under the
327.35(3)(a)(b)(c)l
28.15 influence Causing Injury Boating under the
327.35(1) 28.14 influence Attempt
777.04(1) 51 Boating under the
327.35(3)(a)(b)(c)l 28.154 influence causing property damage Comment This instruction was adopted in 2009 and amended in 2011....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 531, 2014 Fla. LEXIS 2582, 2014 WL 4251210
...for the notice that is required in the leasing
agreement which is a prerequisite to prosecution.
This instruction was adopted in 2014.
- 42 -
28.14 BOATING UNDER THE INFLUENCE
§
327.35(1), Fla....
...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 §
327.354(2)(a), (2)(b), and (2)(c),
Fla....
...ther 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....
...This instruction was adopted in 2009 [
6 So. 3d 574], and amended in 2012
[
87 So. 3d 679], and 2014.
- 45 -
28.15 BOATING UNDER THE INFLUENCE CAUSING
PROPERTY DAMAGE OR INJURY
§
327.35(3)(a)(b)(c)1, Fla....
...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 §
327.354(2)(a), (2)(b), and (2)(c),
Fla....
...ing under the influence
before the vessel became inoperable.
- 48 -
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.
- 49 -
28.16 FELONY BOATING UNDER THE INFLUENCE
§
327.35(2)(b)1 or §
327.35(2)(b)3, Fla....
...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 §
327.354(2)(a), (2)(b), and (2)(c),
Fla....
...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....
...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....
...2000).
This instruction was adopted in 2009 [
6 So. 3d 574] and amended in 2012
[
87 So. 3d 679] and 2014.
- 53 -
28.17 BOATING UNDER THE INFLUENCE
CAUSING SERIOUS BODILY INJURY
§
327.35(3)(a)(b)(c)2, Fla....
...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 § 327.354(2)(a), (2)(b), and (2)(c),
Fla....
...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
- 56 -
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....
