28.2 FELONY DUI - PRIOR CONVICTIONS 316.193(2)(b), Fla. Stat. To prove the crime of DUI, the State must prove the following two elements beyond a reasonable doubt: 1. [Name of defendant] drove or was in actual physical control of a vehicle. 2. While driving or in actual physical control of the vehicle, me of defendant] Give 2a or 2b as applicable: a . ical substance] [a controlled substance]e of to the extent that [name of es were impaired.] level of 0.08 percent or higher.] Definitions: Give as applicable. F.S. 316.003(75) "Vehicle" is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. "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, to normally perform the many mal and physical acts of our daily lives. ent Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehice, regardless of whether the ldefendant is actually operating the vehicle at the time. Alcoholic beverages are considered to be substances of any kind and description which contain alcohol. ( ) is a chemical substance under Florida law. ( ) is a controlled substance under Florida law. NOTE TO JUDGE: In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant >>>> 2 was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. (2)(b) If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with othcoer mpetent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired; or, (2)(c) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his or her normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether [name of defendant] was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Defense of inoperability; give if applicable. arge of driving or being inIt is a defense to the ch actual physical control of a vehicle while under the influence if, at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt.