Smith v. State

OPINION OF THE COURT

RICHARD A. LAZZARA, Circuit Judge.

Did the Trial Court’s instruction to the jury based on Section 316.1934(2)(c), Florida Statutes, create an unconstitutional mandatory rebuttable presumption on the issue of impairment?1 It did. Wilhelm v State, 544 So.2d 1144 (Fla. 2d DCA 1989).

*89Was the error in giving this instruction harmless or reversible within the meaning of State of DiGuilio, 491 So.2d 1129 (Fla. 1988)? It was harmless error.

The Court finds beyond a reasonable doubt that there was overwhelming evidence before the jury that the Appellant was driving a motor vehicle…