The 2023 Florida Statutes (including Special Session C)

Title XXIV
VESSELS

Chapter 327
VESSEL SAFETY

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F.S. 327.354

327.354 Presumption of impairment; testing methods.—

(1) It is unlawful and punishable as provided in s. 327.35 for any person who is under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person’s normal faculties are impaired or to the extent that the person is deprived of full possession of normal faculties, to operate any vessel within this state. Such normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life.

(2) At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while operating a vessel while under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person’s normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 327.352 or s. 327.353 and this section are admissible into evidence when otherwise admissible, and the amount of alcohol in the person’s blood or breath at the time alleged, as shown by chemical analysis of the person’s blood, or by chemical or physical test of the person’s breath, gives rise to the following presumptions:

(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or 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.

The presumptions provided in this subsection do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(3) A chemical analysis of a person’s blood to determine alcoholic content or a chemical or physical test of a person’s breath, in order to be considered valid under this section, must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. Insubstantial differences between approved techniques and actual testing procedures or insubstantial defects concerning the permit issued by the department, in any individual case, do not render the test or test results invalid. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits subject to termination or revocation in accordance with rules adopted by the department.

(4) Any person charged with a violation of s. 327.35 is entitled to trial by jury according to the Florida Rules of Criminal Procedure.

(5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s. 327.352 or s. 327.353, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. The affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:

(a) The type of test administered and the procedures followed;

(b) The time of the collection of the blood or breath sample analyzed;

(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and

(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.

The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.

History.—s. 4, ch. 84-188; s. 4, ch. 88-82; s. 9, ch. 91-255; s. 24, ch. 92-58; s. 10, ch. 93-124; s. 461, ch. 95-148; s. 23, ch. 96-330.

F.S. 327.354 on Google Scholar

F.S. 327.354 on Casetext

Amendments to 327.354

Arrestable Offenses / Crimes under Fla. Stat. 327.354

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 327.354.

Annotations, Discussions, Cases:

Cases from cite.case.law:

IN RE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 211 So. 3d 995 (Fla. 2017)

. . . . § 327.354(1), Fla. Stat. . . . give one or more of the following instructions on the presumptions of impairment established by §§ 327.354 . . . Stat.Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat. 1. . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 192 So. 3d 1190 (Fla. 2016)

. . . . § 327.354(1), Fla, Stat. . . . It is not necessary to instruct on the “prima, facie evidence of impairment” in § 327.354(2)(c), Fla. . . . than a seaplane, on the water used or capable of being used as a means of transportation on water. § 327.354 . . . following instmcUms■■ on the--“pve~ swwptions~of-4mpairment”-established by Give if appropriate. § 327.354 . . . the — f^wmg-AmtmeHQns.on ■■the “presumptions -of impairment” established-by Give if appropriate. § 327.354 . . .

AMERICAN HERITAGE LIFE INSURANCE COMPANY, v. MORALES,, 159 So. 3d 160 (Fla. Dist. Ct. App. 2015)

. . . . § 327.354(2)(c), Fla. Stat. (2013). . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES REPORT NO., 146 So. 3d 1110 (Fla. 2014)

. . . give one or more of the following instructions on the “presumptions of impairment” established by § 327.354 . . .

BENJAMIN, v. TANDEM HEALTHCARE, INC. a d b a a, 93 So. 3d 1076 (Fla. Dist. Ct. App. 2012)