Criminal Traffic Jury Instructions in Florida

Florida Criminal Traffic Jury Instructions

Introduction

I am W.F. Casey Ebsary, a Florida Bar Board Certified Criminal Trial Lawyer practicing in the Tampa Bay area. Since my days at the University of Florida in the 1970s and graduating cum laude from Stetson University College of Law, I have dedicated myself to fighting for my clients.

What Are Florida Criminal Traffic Jury Instructions?

As a trial lawyer, I use standard jury instructions in every case. They are the official, legally approved guidelines a judge reads to the jury before deliberations. We rely on these instructions to clearly define the charges, the required elements, and the prosecution’s strict burden of proof beyond reasonable doubt.

I have collected all criminal traffic jury instructions in this comprehensive guide. We know that facing charges like Driving Under the Influence or Boating Under the Influence is terrifying. The State must prove beyond a reasonable doubt that you were in actual physical control of a vehicle or vessel and that your normal faculties were impaired, or you had a blood alcohol level of .08 or higher. To learn more about me, visit https://dui2go.com/about/.

Defending Florida DUIs with these Jury Instructions

Refusals and Aggravating Factors

We meticulously challenge every detail. Did the officer have probable cause? Were you read your rights before refusing a breath test? A refusal can lead to a license suspension, but we challenge the legality of the underlying stop. Furthermore, felony charges can arise from leaving the scene of an accident, causing serious bodily injury, or having prior convictions within a decade. We fight these enhancements aggressively.

BUI and Waterway Offenses

Operating a vessel under the influence carries similar severe penalties. Whether on the road or the water, we stand by you.

Contact Us

You do not have to fight these complex jury instructions alone. Contact me immediately at https://dui2go.com/contact/ so we can begin building your solid defense today.

Comprehensive Listing of Florida Standard Jury Instructions

28.1 DRIVING UNDER THE INFLUENCE

§ 316.193(1), Fla. Stat.

To prove the crime of Driving Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the 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. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving Under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the Driving Under the Influence.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway [, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.1934(1), Fla. Stat.

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 mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01(2), 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.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat. 

1. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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
§ 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving Under the Influence if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle 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.

*§ 316.193(6)(b), Fla. Stat. and *§ 316.193(6)(c), Fla. Stat.

See Comments regarding issue of whether a jury finding is required. The following instruction is suggested if the judge determines a jury finding required. The State’s allegation of a prior conviction should not be read to the jury, and the trial must be bifurcated if a jury finding is required. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6), Fla. Stat.

Now that you have found the defendant guilty of Driving Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Driving Under the Influence] [(insert qualifying conviction(s))] and that the DUI for which you just found the defendant guilty was committed within [5 years] [10 years] after the date of a prior conviction.

Lesser Included Offense

DRIVING UNDER THE INFLUENCE — 316.193(1)

Comments

*The penalties for DUI are increased if the defendant has one or more prior DUI or otherwise qualifying convictions. Because some of the increased penalties apply only to the recidivism fact of prior conviction(s), it is possible that a jury finding is not required for the existence of those prior conviction(s). Therefore, a jury finding may not be necessary for the increased penalties based on prior conviction(s) in § 316.193(2)(a), Fla. Stat., or in § 316.193(2)(b)2., Fla. Stat.

However, the judge must impose a jail sentence of at least 10 days if the second DUI conviction occurred within 5 years, or of at least 30 days if the third DUI conviction occurred within 10 years, of the date of a prior DUI or otherwise qualifying conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the “within 5-year” or “within 10-year” requirement has been proven beyond a reasonable doubt in cases where the State is seeking the minimum mandatory jail sentence.

A misdemeanor instruction was adopted in 1981 as part of Standard Jury Instructions in Misdemeanor Cases. In 1992, a similar instruction was adopted for Florida Standard Jury Instructions in Criminal Cases. That instruction was amended in 1995 and 1998; both instructions were merged into a revised instruction in 2000, which was amended in 2009 [6 So. 3d 574], 2016 [192 So. 3d 1190], 2019 [262 So. 3d 59], October 2, 2020, and on December 12, 2025.

28.1(a) DRIVING UNDER THE INFLUENCE CAUSING [OR CONTRIBUTING TO CAUSING] PROPERTY DAMAGE OR INJURY

§ 316.193(3)(a)(b)(c)1, Fla. Stat.

To prove the crime of Driving Under the Influence Causing [or Contributing to Causing] [Property Damage] [Injury], the State must prove the following three elements beyond a reasonable doubt:

(Defendant) drove [or was in actual physical control of] a vehicle.

While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

As a result of operating the vehicle, (defendant) caused [or contributed to causing] [damage to the property of (victim)] [injury to the person of (victim)].

Give a. or b. or both if applicable. § 316.193(4), Fla. Stat. 

If you find the defendant guilty of Driving Under the Influence Causing [or Contributing to Causing] [Property Damage] [Injury], you must also determine whether the State proved beyond a reasonable doubt that:

the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control of] the vehicle.

the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the crime.

Definitions. Give as applicable.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions which should be given if necessary.

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.1934, Fla. Stat.

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 mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01, 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, Fla. Stat.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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         § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving Under the Influence Causing [or Contributing to Causing] [Property Damage] [Injury] if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle 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.

*§ 316.193(6)(b), Fla. Stat. and *§ 316.193(6)(c), Fla. Stat.

See Comments regarding issue of whether a jury finding is required. The following instruction is suggested if the judge determines a jury finding required. The State’s allegation of a prior conviction should not be read to the jury, and the trial must be bifurcated if a jury finding is required.  Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6), Fla. Stat.

Now that you have found the defendant guilty of Driving Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Driving Under the Influence] [(insert qualifying conviction(s))]  and that the DUI for which you just found the defendant guilty was committed within [5 years] [10 years] after the date of a prior conviction.

Lesser Included Offenses

DRIVING UNDER THE INFLUENCE CAUSING [OR CONTRIBUTING TO CAUSING] PROPERTY DAMAGE OR INJURY — 316.193(3)(a)(b)(c)1.

Comments

*The penalties for DUI are increased if the defendant has one or more prior DUI or otherwise qualifying convictions. Because some of the increased penalties apply only to the recidivism fact of prior conviction(s), it is possible that a jury finding is not required for the existence of those prior conviction(s). Therefore, a jury finding may not be necessary for the increased penalties based on prior conviction(s) in § 316.193(2)(a), Fla. Stat., or in § 316.193(2)(b)2., Fla. Stat. However, the judge must impose a jail sentence of at least 10 days if the second DUI conviction occurred within 5 years, or of at least 30 days if the third DUI conviction occurred within 10 years, of the date of a prior DUI or otherwise qualifying conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the “within 5-year” or “within 10-year” requirement is met in cases where the State is seeking the minimum mandatory jail sentence.

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2009 [18 So. 3d 523], 2016 [192 So. 3d 1190], 2019 [262 So. 3d 59], on October 2, 2020, on October 7, 2022, and on June 12, 2026. 

28.2 [FELONY] DRIVING UNDER THE INFLUENCE

§ 316.193(2)(b)1 or § 316.193(2)(b)3, Fla. Stat.

To prove the crime of Driving Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the 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 a. or b. or both if applicable. § 316.193(4), Fla. Stat. 

If you find the defendant guilty of Driving Under the Influence, you must also determine whether the State proved beyond a reasonable doubt that:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the crime.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.1934, Fla. Stat.

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 mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01, 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, Fla. Stat.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat. 

1. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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            § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Robertson v. State, 604 So. 2d 783, 792, n.14 (Fla. 1992); Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving Under the Influence if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle 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.

See Comments regarding the issue of whether a jury finding is required. The instruction in a. below is suggested if the judge determines a jury finding is required. The State’s allegation of prior convictions should not be read to the jury, and the trial must be bifurcated for jury findings on prior convictions. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6)(k), Fla. Stat. 

Now that you have found the defendant guilty of Driving Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that:

a. the defendant was previously convicted two times of [Driving Under the Influence] [(insert qualifying convictions)] and one of these prior convictions took place within 10 years of the Driving Under the Influence that you just found the defendant committed.

b. the defendant was previously convicted three times of [Driving Under the Influence] [(insert qualifying convictions)]. 

Give if applicable.  316.193(12), Fla. Stat.

If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of Driving Under the Influence, you may conclude that the State has established that prior Driving Under the Influence conviction.  However, such evidence may be contradicted or rebutted by other evidence.  Accordingly, this inference may be considered along with any other evidence in deciding whether the defendant has a prior Driving Under the Influence conviction.

Lesser Included Offenses

FELONY DRIVING UNDER THE INFLUENCE – [THIRD OFFENSE WITHIN 10 YEARS OF A PRIOR CONVICTION] [FOURTH OFFENSE] — 316.193(2)(b)1.
or 316.193(2)(b)3.

Comments

*It is a third degree felony if a person who commits a DUI has 3 prior DUIs or otherwise qualifying convictions. In State v. Harbaugh, 754 So. 2d 691 (Fla. 2000), the Florida Supreme Court indicated the 3 prior convictions for that type of felony DUI are questions of fact for the jury.

Another type of felony DUI occurs when a person commits a DUI, has two prior DUIs or otherwise qualifying convictions, and the third violation occurred within 10 years of a prior conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the 10-year requirement is met.

This instruction should be used for Felony Driving Under the Influence based on prior convictions. For Felony Driving Under the Influence based on prior convictions, it is error to inform the jury of prior convictions until the verdict on the underlying Driving Under the Influence charge is rendered. Therefore, if the information or indictment contains an allegation of prior convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Driving Under the Influence, the historical 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 [6 So. 3d 574] and amended in 2016 [192 So. 3d 1190], 2019 [262 So. 3d 59], on October 2, 2020, on October 7, 2022, and on June 12, 2026.

28.3 DRIVING UNDER THE INFLUENCE CAUSING [OR CONTRIBUTING TO CAUSING] SERIOUS BODILY INJURY

§ 316.193(3)(a)(b)(c)2., Fla. Stat.

To prove the crime of Driving Under the Influence Causing [or Contributing to Causing] Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the 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].

3. As a result of operating the vehicle, (defendant) caused or contributed to causing serious bodily injury to (victim).

Give a. or b. or both if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving Under the Influence Causing [or Contributing to Causing] Serious Bodily Injury, you must also determine whether the State proved beyond a reasonable doubt that:

a. the defendant had a [blood] [breath]-alcohol level of 0.15 or higher while driving [or in actual physical control of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the crime.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.1934, Fla. Stat.

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 mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01, 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, Fla. Stat., § 316.1933, Fla. Stat.

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.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat. 

1. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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         § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving Under the Influence Causing [or Contributing to Causing] Serious Bodily Injury if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle 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.

Lesser Included Offenses

DRIVING UNDER THE INFLUENCE CAUSING [OR CONTRIBUTING TO CAUSING] SERIOUS BODILY INJURY—316.193(3)(a)(b)(c)2.

Comments

This instruction was adopted in 1992 and amended in 1998 [723 So. 2d 123], 2009 [6 So. 3d 574], 2013 [131 So. 3d 720], 2016 [192 So. 3d 1190], 2019 [262 So. 3d 59], on October 2, 2020, on October 7, 2022, and on June 12, 2026.

28.4 LEAVING THE SCENE OF A CRASH INVOLVing [DEATH] [SERIOUS BODILY INJURY] [INJURY]

§ 316.027(2), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash occurring on public or private property resulting in [injury to] [the death of] (victim).

2. (Defendant) knew that [he] [she] was involved in a crash.

Give 3a if death is charged or 3b if injury or serious bodily injury is charged.

3. a. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash, of the injury to or death of (victim).

b. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash, of the injury to (victim).

See Comment section for cases involving death.

4. (Defendant) willfully failed to immediately stop at the scene of the crash or as close to the crash as possible and failed to remain until [he] [she] had completed two things:

a.        given identifying information to [(victim)] [the driver] [an occupant] [a person attending the vehicle] and to any police officer investigating the crash;  

and

b.       rendered reasonable assistance to (victim). 

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally, and purposely.

§ 316.062(1), Fla. Stat.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

“Reasonable assistance” includes carrying or making arrangements to carry an injured person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

A “vehicle” is any device in, upon, or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Give if serious bodily injury is charged. § 316.027(1)(a), Fla. Stat.

§ 316.027(2)(b), Fla. Stat.

If you find that (defendant) committed the crime of Leaving the Scene of a Crash Involving Injury, you must then determine whether the State proved beyond a reasonable doubt that the injury was a serious bodily injury.

 “Serious bodily injury” means an injury to a person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Give if it is alleged in the charging document that the defendant caused victim injury or death. § 921.0021(7)(e), Fla. Stat.  

If you find that (defendant) committed the crime of Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury], you must then determine whether the State proved beyond a reasonable doubt that [he] [she] caused [death] [or] [severe injury] [or] [moderate injury] [or] [slight injury] to (victim). 

Give when the State alleged the victim was a “vulnerable road user.” 

§ 316.027(2)(f), Fla. Stat.

If you find that (defendant) committed the crime of Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [or] [Injury], you must then determine whether the State proved beyond a reasonable doubt that (victim) was:

[a pedestrian].

[actually engaged in work upon a highway].

[actually engaged in work upon utility facilities along a highway].

[engaged in the provision of emergency services within the right-of-way].

[operating a [bicycle] [an electric bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway].

[riding an animal].

[lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the roadway]].

If the “vulnerable road user” enhancement is given, insert applicable definitions from § 316.003, Fla. Stat.

Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING DEATH — 316.027(2)(c)

LEAVING THE SCENE OF A CRASH INVOLVING SERIOUS BODILY INJURY — 316.027(2)(b)

Comments

Element #4 will need to be modified in cases where someone died because the deceased cannot receive information or assistance to which he or she is entitled under § 316.062(1), Fla. Stat. The revised instruction on element #4 will also depend on whether a police officer is present. In a case where someone died and no police officer was present, § 316.062(2), Fla. Stat., requires the driver of a vehicle involved in the crash to forthwith report the crash to the nearest office of a duly authorized police authority and provide the information specified in § 316.062(1), Fla. Stat.  

§ 921.0021(7)(e), Fla. Stat. states that if a defendant is convicted for violating       § 316.027, Fla. Stat., and if the court finds that the defendant caused victim injury, victim injury points may be assessed against the offender. Apprendi v. New Jersey, 530 U.S. 466 (2000) and Gaymon v. State, 288 So. 3d 1087 (Fla. 2020) will require a special instruction and a jury finding on the issue of causation of victim injury.   

*In Williams v. State, 732 So. 2d 431 (Fla. 2d DCA 1999), the court stated in dictum that Leaving the Scene of a Crash Involving Injury is a necessarily lesser-included offense of Leaving the Scene of a Crash Involving Death. In other areas, however, where there is no dispute that a person was killed as a result of an incident giving rise to criminal charges, non-death lessers are not appropriate. See, e.g., State v. Barritt, 531 So. 2d 338 (Fla. 1988); Humphrey v. State, 690 So. 2d 1351 (Fla. 3d DCA 1997).

This instruction was adopted in 1995 [665 So. 2d 212] and amended in 2008 [973 So. 2d 432], 2015 [166 So. 3d 161], 2016 [192 So. 3d 1190], 2018 [236 So. 2d 244], 2019 [262 So. 3d 59], on October 2, 2020, on April 1, 2022, and on December 15, 2023.

28.4(a) LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY 

§ 316.061(1), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended Property, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash.
2. The crash resulted only in damage to a vehicle or other property.
3. The [vehicle] [other property] was [driven] [attended] by (name of person).
4. (Defendant) failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given identifying information to (name of person in element #3) [and to any police officer at the scene of the crash or who is investigating the crash].

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

§ 316.062(1), Fla. Stat. 

“Identifying information” means the name, address, vehicle registration number, and if available and requested, the exhibition of the defendant’s license or permit to drive.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Lesser Included Offense

LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY—316.061(1)

Comments

As of August 2025, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage. Compare State v. Dorsett, 158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652 So. 2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

As of October 1, 2025, a driver convicted of violating § 316.061, Fla. Stat., who caused or otherwise contributed to the crash, may be ordered to pay restitution to the owner of a vehicle or other property damaged in the crash for any damage that was caused by the crash. As of October 1, 2025, it was undetermined if a jury finding on causation and an adjudication of guilt are required for restitution to be ordered. 

This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], on October 2, 2020, on April 1, 2022, on December 15, 2023, and on September 5, 2025.

28.4(b) LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY 

§ 316.063(1), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended Property, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or collision.

2. The crash or collision resulted in damage to another vehicle or other property.

3. The vehicle or other property was not driven or attended by any person.

4. (Defendant) failed to immediately stop at the scene of the crash or collision and then and there either

a. locate and notify the operator or owner of the vehicle or other property of [his] [her] name and address and the registration number of the vehicle [he] [she] was driving, or

b. attach securely in a conspicuous place in or on the vehicle or other property a written notice giving [his] [her] name and address and the registration number of the vehicle [he] [she] was driving, and, without unnecessary delay, notify the nearest office of a duly authorized police authority.

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Lesser Included Offense

LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY—316.063(1)

Comments

As of November 2023, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage. Compare State v. Dorsett, 158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652 So. 2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.063, Fla. Stat., contains an explicit willfulness requirement.

This instruction was adopted in 2016 [192 So. 3d 1190] and amended in 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], on October 2, 2020, on April 1, 2022, and on December 15, 2023.

28.5 RECKLESS DRIVING

§ 316.192(1)(a) and (1)(b), Fla. Stat.

To prove the crime of Reckless Driving, the State must prove the following beyond a reasonable doubt:

Give if § 316.192(1)(a), Fla. Stat. is charged. 

(Defendant) drove a vehicle in Florida with a willful or wanton disregard for the safety of persons or property.

Give if § 316.192(1)(b), Fla. Stat. is charged.

(Defendant), while driving a motor vehicle, fled from a law enforcement officer. 

Give if applicable. § 316.192(3), Fla. Stat.

If you find (defendant) guilty of Reckless Driving, you must also determine whether the State has proven beyond a reasonable doubt that [he] [she] caused [damage to the [property] [or] [person] of another] [or] [serious bodily injury to another] as a result of operating the vehicle recklessly. 

Definitions. Give if applicable. 

W.E.B. v. State, 553 So. 2d 323 (Fla. 1st DCA 1989).

“Willful” means intentionally, knowingly, and purposely.

“Wanton” means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

A “vehicle” is any device in, upon, or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.192(3)(c)2, Fla. Stat.

“Serious bodily injury” means an injury to another person which consists of 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.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

A “motor vehicle” is a self-propelled vehicle not operated upon rails or guideway[, but not including any bicycle, electric bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped]. 

Lesser Included Offenses

RECKLESS DRIVING CAUSING SERIOUS BODILY INJURY — 316.192(1); 316.192(3)(a)(b)(c)2

Comment

This instruction was adopted in 1981 and amended in 2013 [131 So. 3d 692], 2019 [262 So. 3d 59], on October 2, 2020, and on April 25, 2023.

28.5(a) [RACING ON A HIGHWAY] [STREET TAKEOVERS] [STUNT DRIVING]

§ 316.191(2), § 316.191(3)(c), and § 316.191(3)(f), Fla. Stat.

To prove the crime of [Racing on a Highway] [Street Takeovers] [Stunt Driving], the State must prove the following element beyond a reasonable doubt:

Give as applicable.

(Defendant) 

drove a motor vehicle in

[participated] [coordinated, through social media or otherwise] [facilitated] [collected monies] at any location for

knowingly rode as a passenger in

purposefully caused moving traffic, including pedestrian traffic, to slow, stop, or be impeded in any way for

operate a motor vehicle for the purpose of filming or recording the activities of participants in

operate a motor vehicle carrying any amount of fuel for the purposes of fueling a motor vehicle involved in 

[a race] [a drag race] [an acceleration contest involving a motor vehicle] [a street takeover] [any stunt driving] [a speed competition or contest involving a motor vehicle] [a test of physical endurance involving a motor vehicle] [an exhibition of speed or acceleration involving a motor vehicle] [an attempt, involving a motor vehicle, to make a speed record] on a highway or roadway or a parking lot.

Give only if § 316.191(3)(c), Fla. Stat. is charged.

If you find (defendant) guilty of [Racing on a Highway] [Street Takeover] [Stunt Driving], you must also determine whether the State proved beyond a reasonable doubt that in the course of committing the crime, [he] [she] knowingly impeded, obstructed, or interfered with an authorized emergency vehicle that was on call and that was responding to an emergency, other than the [Racing on a Highway] [Street Takeover] [Stunt Driving] that was alleged in this case.

Give only if § 316.191(2)(a) or(2)(d) or (2)(e) or (2)(f) Fla. Stat., and § 316.191(3)(f) is charged.

If you find (defendant) guilty of [Racing on a Highway] [Street Takeover] [Stunt Driving], you must also determine whether the State proved beyond a reasonable doubt that in the course of committing the crime, [he] [she] was engaged in a coordinated street takeover. 

Definitions. Give only if applicable.

§ 316.003, Fla. Stat. “Organ transport vehicle” has its own definition in               § 316.003, Fla. Stat.

“Authorized emergency vehicle” means vehicles of the fire department (fire patrol), police vehicles, emergency management vehicles, organ transport vehicles, such ambulances and emergency vehicles of municipal and county departments, volunteer ambulance services, public service corporations operated by private corporations, the Fish and Wildlife Conservation Commission, the Department of Environmental Protection, the Department of Health, the Department of Transportation, Department of Agriculture and Consumer Services, and the Department of Corrections as are designated or authorized by their respective departments or the chief of police of an incorporated city or any sheriff of any of the various counties.

“Drag race” means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.

§ 316.191(1), Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means a self-propelled vehicle not operated upon rails or guideway, including any motorcycle, autocycle, moped, all-terrain vehicle, off-road vehicle, or vehicle not licensed to operate on a highway or roadway, but not including a bicycle, electric bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, or swamp buggy. 

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway [, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.191(1), Fla. Stat.

“Race” means the use of one or more motor vehicles in competition, arising from a challenge to demonstrate superiority of a motor vehicle or driver and the acceptance or competitive response to that challenge, either through a prior arrangement or in immediate response, in which the competitor attempts to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes. A race may be prearranged or may occur through a competitive response to conduct on the part of one or more drivers which, under the totality of circumstances, can reasonably be interpreted as a challenge to race. 

§ 316.003, Fla. Stat.

“Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term roadway as used herein refers to any such roadway separately, but not to all such roadways collectively.

§ 316.003, Fla. Stat.

“Street or highway” means 

The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic; 

The entire width between the boundary lines of any privately owned way or place used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons, or any limited access road owned or controlled by a special district, whenever, by written agreement entered into under s. 316.006(2)(b) or (3)(b), a county or municipality exercises traffic control jurisdiction over said way or place; 

Any area, such as a runway, taxiway, ramp, clear zone, or parking lot, within the boundary of any airport owned by the state, a county, a municipality, or a political subdivision, which area is used for vehicular traffic but which is not open for vehicular operation by the general public; or 

Any way or place used for vehicular traffic on a controlled access basis within a mobile home park recreation district which has been created under s. 418.30 and the recreational facilities of which district are open to the general public. 

§ 316.191(1), Fla. Stat.

“Coordinated street takeover” means 10 or more vehicles operated in an organized manner to effect a street takeover.

§ 316.191(1), Fla. Stat.

“Street takeover” means the taking over of a portion of a highway, roadway, or parking lot by blocking or impeding the regular flow of traffic to perform a race, drag race, burnout, doughnut, drifting, wheelie, or other stunt driving.

§ 316.191(1), Fla. Stat.

“Burnout” means a maneuver performed while operating a motor vehicle whereby the motor vehicle is kept stationary, or is in motion, while the wheels are spun, resulting in friction which causes the motor vehicle’s tires to heat up and emit smoke.

§ 316.191(1), Fla. Stat.

“Doughnut” means a maneuver performed while operating a motor vehicle whereby the front or rear of the motor vehicle is rotated around the opposite set of wheels in a continuous motion which may cause a circular skid-mark pattern of rubber on the driving surface or the tires to heat up and emit smoke from friction, or both.

§ 316.191(1), Fla. Stat.

“Drifting” means a maneuver performed while operating a motor vehicle whereby the motor vehicle is steered so that it makes a controlled sideways skid through a turn with the front wheels pointed in a direction opposite to that of the turn.

§ 316.191(1), Fla. Stat.

“Stunt driving” means to perform or engage in any burnouts, doughnuts, drifting, wheelies, or other dangerous motor vehicle activity on a highway, roadway, or parking lot as part of a street takeover.

§ 316.191(1), Fla. Stat.

“Wheelie” means a maneuver performed while operating a motor vehicle whereby a motor vehicle is ridden for a distance with the front wheel or wheels raised off the ground.

Lesser Included Offenses

[RACING ON A HIGHWAY] [STREET TAKEOVERS] [STUNT DRIVING] — 316.191(3)(c) or (3)(f)

Comments

The filming or recording the activities of participants covered in element e. above does not apply to bona fide members of the news media. See § 316.191(2)(e), Fla. Stat.

Pursuant to § 316.191(3), Fla. Stat., repeat offenders of § 316.191(2), Fla. Stat., are subject to higher penalties. As of January 2025, it was unclear whether the facts related to prior(s) should be considered elements to be proven to the jury or sentencing factors to be proven to the judge. If treated as an element, do not read the allegation of prior(s) and do not send the charging document into the jury room. If the defendant is found guilty, the historical fact of a previous conviction, which includes withholds of adjudication, shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012 [95 So. 3d 868], 2013 [31 So. 3d 755], 2019 [262 So. 3d 59], on October 2, 2020, on December 21, 2022, and on February 21, 2025.

28.5(b) DANGEROUS EXCESSIVE SPEEDING

§ 316.1922, Fla. Stat.

To prove the crime of Dangerous, Excessive Speeding, the State must prove the following element beyond a reasonable doubt:

(Defendant) operated a motor vehicle [in excess of the speed limit by 50 miles per hour or more] [or] [at 100 miles per hour or more in a manner that threatened the safety of other persons or property or interferes with the operation of any vehicle].

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary. 

“Motor vehicle” means a self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, electric bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped. 

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks.

Lesser Included Offense

DANGEROUS EXCESSIVE SPEEDING — 316.1922

Comments

A person may be imprisoned for up to 90 days and may be fined up to $1,000 for a second or subsequent conviction of § 316.1922, Fla. Stat. If the second or subsequent conviction occurred within 5 years after the date of a prior conviction, the person’s driving privilege must be revoked for at least 180 days but for no more than 1 year. As of August 2025, it was unclear whether an adjudication of guilt is required for a conviction. It was also unclear whether the prior conviction and 5-year time period need to be found by a jury under the beyond a reasonable doubt standard. 

This instruction was adopted on September 5, 2025.

28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER

§ 316.1935(1), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:

5. (Defendant) was operating a vehicle upon a street or highway in Florida.
6. A duly authorized law enforcement officer ordered the defendant to stop or remain stopped.

Give 3a or 3b as applicable.

7. (Defendant), knowing [he] [she] had been ordered to stop by a duly authorized law enforcement officer,

1. willfully refused or failed to stop the vehicle in compliance with the order.
2. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.

§ 316.003, Fla. Stat.

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1)

Comments

*The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], 2020 [288 So. 3d 518], and on October 2, 2020.

28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated)

§ 316.1935(2), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:

8. (Defendant) was operating a vehicle upon a street or highway in Florida.
9. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
10. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.

§ 316.003, Fla. Stat.

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(2)

Comments

For an offense that occurred before October 1, 2025, the State was also required to prove the law enforcement patrol vehicle had agency insignia prominently displayed on the vehicle. 

*The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], 2020 [288 So. 3d 518], on October 2, 2020, and on November 13, 2025.

28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving)

§ 316.1935(3)(a), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt:

11. (Defendant) was operating a vehicle upon a street or highway in Florida.
12. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
13. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
14. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.

§ 316.003, Fla. Stat.

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —316.1935 (3)(a)

Comments

For an offense that occurred before October 1, 2025, the State was also required to prove the law enforcement patrol vehicle had agency insignia prominently displayed on the vehicle. 

*The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], 2020 [288 So. 3d 518], on October 2, 2020, and on November 13, 2025.

28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death)

§ 316.1935(3)(b), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following five elements beyond a reasonable doubt:

15. (Defendant) was operating a vehicle upon a street or highway in Florida.
16. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
17. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
18. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.
19. As a result of (defendant’s) fleeing or eluding at high speed or wanton disregard for safety, [he] [she] caused [the death of] [serious bodily injury to] [another person] [a law enforcement officer involved in pursuing or otherwise attempting to stop [his] [her] vehicle].

§ 316.003, Fla. Stat.

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(3)(b)

Comments

For an offense that occurred before October 1, 2025, the State was also required to prove the law enforcement patrol vehicle had agency insignia prominently displayed on the vehicle. 

*The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], 2020 [288 So. 3d 518], on October 2, 2020, and on November 13, 2025.

28.8(b) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Serious Bodily Injury, Injury, or Death then Causing Serious Bodily Injury or Death) 

§ 316.1935(4)(b) and § 316.027, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash occurring on public or private property resulting in [injury to] [death of] (victim).

2. (Defendant) knew that [he] [she] was involved in a crash.

Give 3a if death is charged or 3b if injury or serious bodily injury is charged.

3. a. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash, of the injury to or death of (victim).

b. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash, of the injury to (victim).

See Comment section for cases involving death.

4. (Defendant) willfully failed to immediately stop at the scene of the crash or as close to the crash as possible and failed to remain until [he] [she] had completed two things:

given identifying information to [(victim)] [the driver] [an occupant] [a person attending the vehicle] and to any police officer investigating the crash; 

and

rendered reasonable assistance to (victim). 

5. A duly authorized law enforcement officer ordered (defendant) to stop.

6. (Defendant), knowing [he][she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his][her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer.]

7. As a result of (defendant) fleeing or eluding, [he] [she] caused [serious bodily injury to] [the death of] (name of victim).

Give if it is alleged in the charging document that the defendant caused victim injury or death as part of violating § 316.027, Fla. Stat. § 921.0021(7)(e), Fla. Stat.  

If you find that (defendant) committed Aggravated Fleeing, you must then determine whether the State proved beyond a reasonable doubt that [he] [she] caused [death] [or] [severe injury] [or] [moderate injury] [or] [slight injury] to (victim).  

Give when the State alleged the victim was a “vulnerable road user.”                   § 316.027(2)(f), Fla. Stat. Insert applicable definitions from § 316.003, Fla. Stat.

If you find that the State proved beyond a reasonable doubt that (defendant) committed elements #1 – #4, you must then determine whether the State also proved beyond a reasonable doubt that (victim) in element #1 was:

[a pedestrian]. 

[actually engaged in work upon a highway]. 

[actually engaged in work upon utility facilities along a highway]. 

[engaged in the provision of emergency services within the right-of-way]. 

[operating a [bicycle] [electric bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway]. 

[riding an animal].

[lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the roadway]].

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

§ 316.062(1), Fla. Stat.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

“Reasonable assistance” includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary. 

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.027(1)(a), Fla. Stat.

“Serious bodily injury” means an injury to a person [including the driver,] which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Serious Injury Bodily Injury or Death) — 316.1935(4)(b) and 316.027(2)(c)

Comments

Element #4 will need to be modified in cases where someone died because the deceased cannot receive information or assistance to which he or she is entitled under § 316.062(1), Fla. Stat. The revised instruction on element #4 will also depend on whether a police officer is present. In a case where someone died and no police officer was present, § 316.062(2), Fla. Stat., requires the driver of a vehicle involved in the crash to forthwith report the crash to the nearest office of a duly authorized police authority and provide the information specified in § 316.062(1), Fla. Stat.  

*§ 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death, Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

**The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2016 [192 So. 3d 1190], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], on October 2, 2020, on April 1, 2022, and on December 15, 2023.

28.8(c) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death)

§ 316.1935(4)(b) and § 316.061, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash.

2. The crash resulted only in damage to a vehicle or other property.

3. The [vehicle] [other property] was [driven] [attended] by [a person] [(name of person)].

4. (Defendant) failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [driver or occupant of the damaged vehicle] [person attending the damaged vehicle or property] [and to any police officer at the scene of the crash or who is investigating the crash.]

5. A duly authorized law enforcement officer ordered (defendant) to stop.

6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].

7. As a result of (defendant) fleeing or eluding, [he] she] caused [serious bodily injury to] [the death of] (name of victim).

If the State proves beyond a reasonable doubt that the defendant failed to give any part of the “identifying information,” the State satisfies this element of the offense.

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means intentionally, knowingly, and purposely.

§ 316.062(1), Fla. Stat.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061

Comments

* § 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Damage to Attended Property. Therefore, if Leaving the Scene is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

As of November 2023, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage to violate this statute. Compare State v. Dorsett, 158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652 So. 2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

**The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2016 [192 So. 3d 1190], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], on October 2, 2020, and on December 15, 2023.

28.8(d) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Serious Bodily Injury, Injury, or Death then Causing Injury or Property Damage to Another)

§ 316.1935(4)(a) and § 316.027 Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash occurring on public or private property resulting in [injury to] [death of] (victim).

2. (Defendant) knew that [he] [she] was involved in a crash.

Give 3a if death is charged or 3b if injury or serious bodily injury is charged.

3. a. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash, of the injury to or death of (victim).

b. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash, of the injury to (victim).

See Comment section for cases involving death.

4. (Defendant) willfully failed to immediately stop at the scene of the crash or as close to the crash as possible and failed to remain until [he] [she] had completed two things:

given identifying information to [(victim)] [the driver] [an occupant] [a person attending the vehicle] and to any police officer investigating the crash;

and

rendered reasonable assistance to (victim). 

5. A duly authorized law enforcement officer ordered (defendant) to stop.

6. (Defendant) knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his][her]vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer.]

7. As a result of (defendant) fleeing or eluding, [he] [she] caused [an injury to] [damage to the property of] (name of victim).

Give if it is alleged in the charging document that the defendant caused victim injury or death as part of violating § 316.027, Fla. Stat. § 921.0021(7)(e), Fla. Stat.  

If you find that (defendant) committed Aggravated Fleeing, you must then determine whether the State proved beyond a reasonable doubt that [he] [she] caused [death] [or] [severe injury] [or] [moderate injury] [or] [slight injury] to (victim).  

Give when the State alleged the victim was a “vulnerable road user.” 

§ 316.027(2)(f), Fla. Stat. Insert applicable definitions from § 316.003, Fla. Stat.

If you find that the State proved beyond a reasonable doubt that (defendant) committed elements #1 – #4, you must then determine whether the State also proved beyond a reasonable doubt that (victim) in element #1 was:

[a pedestrian]. 

[actually engaged in work upon a highway]. 

[actually engaged in work upon utility facilities along a highway]. 

[engaged in the provision of emergency services within the right-of-way]. 

[operating a [bicycle] [electric bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway]. 

[riding an animal].

[lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way]

[crosswalk] [shoulder of the roadway]]. 

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

§ 316.062(1), Fla. Stat.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

“Reasonable assistance” includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.027(1)(a), Fla. Stat.

“Serious bodily injury” means an injury to a person [including the driver,] which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and § 316.027(2)(c)

Comments

Element #4 will need to be modified in cases where someone died because the deceased cannot receive information or assistance to which he or she is entitled under § 316.062(1), Fla. Stat. The revised instruction on element #4 will also depend on whether a police officer is present. In a case where someone died and no police officer was present, § 316.062(2), Fla. Stat., requires the driver of a vehicle involved in the crash to forthwith report the crash to the nearest office of a duly authorized police authority and provide the information specified in § 316.062(1), Fla. Stat.  

*§ 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death, Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

**The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2016 [192 So. 3d 1190], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], on October 2, 2020, on April 1, 2022, and on December 15, 2023.

28.8(e) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another)

§ 316.1935(4)(a) and § 316.061, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash.

2. The crash resulted only in damage to a vehicle or other property.

3. The [vehicle] [other property] was [driven] [attended] by [a person] [(name of person)].

4. (Defendant) failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [driver or occupant of the damaged vehicle] [person attending the damaged vehicle or property] [and to any police officer at the scene of the crash or who is investigating the crash].

5. A duly authorized law enforcement officer ordered (defendant) to stop.

6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].

7. As a result of (defendant) fleeing or eluding, [he] [she] caused [injury to] [damage to the property of] (name of victim).

If the State proves beyond a reasonable doubt that the defendant failed to give any part of the “identifying information,” the State satisfies this element of the offense.

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

For the defendant to be “involved in a crash,” a vehicle, though not necessarily the defendant’s vehicle, must collide with another vehicle, person, or object.

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007). 

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect.

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

§ 316.062(1), Fla. Stat. 

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061

Comments

*§ 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Damage to Attended Property. Therefore, if Leaving the Scene is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

As of November 2023, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage to violate this statute. Compare State v. Dorsett, 158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652 So. 2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

**The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2016 [192 So. 3d 1190], 2018 [236 So. 3d 244], 2019 [262 So. 3d 59], on October 2, 2020, and on December 15, 2023.

28.9 NO VALID DRIVER LICENSE

§ 322.03, Fla. Stat.

To prove the crime of No Valid Driver License, the State must prove the following two elements beyond a reasonable doubt:

20. (Defendant) drove a motor vehicle upon a highway in this state.
21. At the time, [he] [she] did not have a valid driver license recognized by the Department of Highway Safety and Motor Vehicles of the State of Florida.

§ 322.01, Fla. Stat.

“Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

“Valid driver license” means a driver license recognized by the Department of Highway Safety and Motor Vehicles that has not expired, been suspended, revoked, or canceled, or is not in “suspension or revocation equivalent status.”

§ 322.01, Fla. Stat.

“Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic.

§ 322.03, Fla. Stat.

“Expired” means the license was not renewed on or before the expiration date and more than 6 months have passed since the expiration date.

§ 322.01, Fla. Stat.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

“Canceled” means that a license has been declared void and terminated.

“Suspension or revocation equivalent status” is a designation for a person who does not have a driver license or driving privilege but would qualify for suspension or revocation of his or her driver license or driving privilege if licensed.

The option of “on a vehicle” pertains to a vehicle such as a motorcycle.

“Actual physical control” of a motor vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offense

NO VALID DRIVER LICENSE — 322.03

Comments

A person driving a moped upon a highway requires a driver license. Soto v. State, 711 So. 2d 1275 (Fla. 4th DCA 1998).

A special instruction will be needed for violations of § 322.03 Fla. Stat. in cases where the driver license was issued by another state exclusively to undocumented immigrants who were unable to prove lawful presence in the United States when the license was issued. See § 322.033, Fla. Stat. 

§ 322.03(1)(b), Fla. Stat., is bumped up from a second degree misdemeanor to a first degree misdemeanor if there were one prior conviction. A withhold of adjudication may qualify as a conviction because of Raulerson v. State, 763 So. 2d 285 (Fla. 2000), and § 322.01(11), Fla. Stat., although there was no case law directly on point as of June 2025. However, pursuant to Fla. R. Traf. Ct. 6.560 and Raulerson, a withhold of adjudication that was obtained pursuant to § 318.14(10), Fla. Stat., does not qualify as a conviction. 

Although there is no caselaw on point, it is possible that the existence of a prior conviction can be proven to the trial judge at sentencing as a recidivist factor and may not be an element of the crime that must be proven to the jury, based on State v. Haddix, 668 So.2d 1064 (Fla. 4th DCA 1996) and because of the recidivism exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998) and the language in Erlinger v. United States, 144 S. Ct. 1840 (2024). 

If the defendant has two or more prior convictions, § 322.03(1)(b), Fla. Stat., remains a first degree misdemeanor, but carries a mandatory minimum sentence of 10 days in jail. In that circumstance, unless a court determines the existence of the prior convictions is an element, it is unclear if a jury finding regarding the existence of a prior conviction would be needed for the judge to impose the mandatory jail sentence because of the recidivism exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998) and the language in Erlinger v. United States, 144 S. Ct. 1840 (2024).   

If a court determines, however, that a jury finding is required, it would be error to inform the jury of prior convictions. Therefore, if the charging document contains an allegation of prior convictions, do not read that allegation and do not send the charging document into the jury room. If the defendant is found guilty, the historical fact of previous convictions would then be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2007 [958 So. 2d 361], 2013 [131 So. 3d 692], on April 1, 2020, on October 2, 2020, on December 15, 2023, and on June 27, 2025.

28.9(a) NO VALID COMMERCIAL DRIVER LICENSE

§ 322.53, Fla. Stat.

To prove the crime of No Valid Commercial Driver License, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove a commercial motor vehicle in this state.

2. At the time, the defendant did not have a valid commercial driver license issued by the Department of Highway Safety and Motor Vehicles of the State of Florida.

§ 322.01, Fla. Stat.

To “drive a commercial motor vehicle” means to operate or be in actual physical control of a commercial motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01, Fla. Stat.

“Commercial motor vehicle” means any motor vehicle used on the streets or highways, which:

a. Has a gross vehicle weight rating of 26,001 pounds or more;

b. Is designed to transport more than 15 persons, including the driver, or;

c. Is transporting hazardous materials and is required to be placarded in accordance with 49 C.F.R. part 172, subpart F.

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

§ 322.01, Fla. Stat.

“Valid commercial driver license” means a Class A, Class B, or Class C driver license issued by the Department of Highway Safety and Motor Vehicles of the State of Florida that has not expired, been disqualified, suspended, revoked or canceled, or is not in “suspension or revocation equivalent status.”

§ 322.01, Fla. Stat.

“Street or Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic.

§ 322.03(3)(c), Fla. Stat.

“Expired” means the license was not renewed on or before the expiration date and that more than 30 days have passed since the expiration date.

§ 322.01, Fla. Stat. 

“Disqualification” means a prohibition, other than an out-of-service order, that precludes a person from driving a commercial motor vehicle.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

“Canceled” means that a license has been declared void and terminated.

“Suspension or revocation equivalent status” is a designation for a person who does not have a driver license or driving privilege but would qualify for suspension or revocation of his or her driver license or driving privilege if licensed.

The option of “on a vehicle” pertains to a vehicle such as a motorcycle.

 “Actual physical control” of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offense

NO VALID COMMERCIAL DRIVER’S LICENSE — 322. 53

Comments

If any of the exemptions set forth in § 322.53(2), Fla. Stat., may apply, a special instruction will be necessary. 

If the State is relying on the “transporting hazardous materials” alternative for the definition of “commercial motor vehicle,” a special instruction regarding 49 C.F.R. part 172, subpart F will be necessary.

This instruction was adopted in 2007 [958 So. 2d 361] and amended in 2013 [131 So. 3d 692], on April 1, 2020, and on October 2, 2020.

28.10 RESTRICTED LICENSE

§ 322.16, Fla. Stat.

To prove the crime of Operating a Motor Vehicle in Violation of the Restrictions Imposed in a Restricted License, the State must prove the following four elements beyond a reasonable doubt:

22. (Defendant) drove a motor vehicle upon a highway in this state.
23. The license was restricted by the Department of Highway Safety and Motor Vehicles of this state.
24. The restriction was noted upon the license.
25. The defendant operated the motor vehicle in violation of the restriction.

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

“Restricted operator’s or chauffeur’s license” means a license issued by the Department of Highway Safety and Motor Vehicles which is restricted in any manner.

“Highway” means the entire width between the boundary lines of a way or place if any part of that way or place is open to public use for purposes of vehicular traffic.

Lesser Included Offense

RESTRICTED LICENSE — 322.16

Comments

Under § 322.16(5), Fla. Stat., violation of a restriction imposed pursuant to           § 322.16(1)(c), Fla. Stat., is a second-degree misdemeanor. Under § 322.16(6), Fla. Stat., a violation of a restriction imposed pursuant to another subsection is a moving violation. 

This instruction was adopted in 1981 and amended in 2013 [131 So. 3d 692] and on October 2, 2020.

28.11 DRIVING [WHILE [LICENSE] [DRIVING PRIVILEGE] SUSPENDED, REVOKED OR CANCELED] [OR] [UNDER SUSPENSION OR REVOCATION EQUIVALENT STATUS] WITH KNOWLEDGE

§ 322.34(2), Fla. Stat.

To prove the crime of Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status], the State must prove the following three elements beyond a reasonable doubt:

26. (Defendant) drove a motor vehicle upon a highway in this state.

Give as applicable.

27. At that time, 

a. [his] [her] [license] [driving privilege] was [suspended] [revoked] [canceled].

b. [he] [she] was under suspension or revocation equivalent status.

Give as applicable.

28. At that time, (defendant) knew that 

a. [his] [her] [license] [driving privilege] was [suspended] [revoked] [canceled].

b. [he] [she] was under suspension or revocation equivalent status.

Whether (defendant) knew of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status] is a question to be determined by you from the evidence.

Give as applicable. See § 322.251(1), (2), and § 322.34(2),(3),(4), Fla. Stat.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was given by personal delivery is proof that such notice was given.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was deposited in United States mail, first class, postage prepaid, addressed to the licensee at [his] [her] last known mailing address furnished to the department, is proof that such notice was sent.

If you find that (defendant) had been previously cited for driving [while license [suspended] [revoked] [canceled] and [his] [her] license had not been reinstated, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) admitted to knowing of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status].

If you find that (defendant) had received a traffic citation that contained a provision notifying (defendant) that [his] [her] license [had been suspended, revoked, or canceled] [was under suspension or revocation equivalent status], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status].

Do not give if the suspension was for failure to pay a traffic fine or for a financial responsibility violation. See § 322.34(2) and § 322.251(1), (2), Fla. Stat.

If you find that (defendant) had received a [judgment] [order] rendered by [a court] [an adjudicatory body] which contained a provision notifying (defendant) that [his] [her] license had been [suspended] [revoked] [canceled], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that the records of the Department of Highway Safety and Motor Vehicles include a [judgment] [order] rendered by [a court] [an adjudicatory body] that contains a provision notifying (defendant) that [his] [her] license [had been [suspended] [revoked] [canceled]] [was under suspension or revocation equivalent status], you may conclude that (defendant) knew [his] [her] license was [suspended] [revoked] [canceled] [under suspension or revocation equivalent status].  You may accept or reject the inference depending upon the circumstances of the crime and the facts presented at trial.

§ 322.01, Fla. Stat.

“Drive” means to operate [or be in actual physical control of] a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

§ 322.01, Fla. Stat.; State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000).

“Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic. [A privately owned parking lot, that is open to public use by vehicles, is considered to be a highway.]

§ 322.251, Fla. Stat.

“Notice” means personal delivery or deposit in the United States mail, first class, postage prepaid, addressed to the defendant at [his] [her] last known address furnished to the Department of Highway Safety and Motor Vehicles.  Mailing by the department shall constitute notification.

§ 322.01, Fla. Stat.

“Suspension or revocation equivalent status” is a designation by the Florida Department of Highway Safety and Motor Vehicles for a person who does not have a driver license or driving privilege but would qualify for suspension or revocation of his or her driver license or driving privilege if licensed.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

“Canceled” means that a license has been declared void and terminated.

The option of “on a motor vehicle” pertains to motor vehicles such as motorcycles and mopeds.

“Actual physical control” of a motor vehicle means the defendant must be physically in [or on] the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he] [she] is actually operating the motor vehicle at the time.

See the Comment section below regarding recidivism issues that do not require any finding other than the fact of a prior conviction. 

Give if applicable in a bifurcated proceeding. § 322.34(2)(c), Fla. Stat. 

A third or subsequent conviction is a first degree misdemeanor and requires a minimum sentence of 10 days in jail. However, a third or subsequent conviction becomes a third degree felony if the current alleged violation or the most recent prior violation of  § 322.34(2), Fla. Stat., are related to and resulted from a violation of an enumerated crime. 

Now that you have found the defendant guilty of Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status], you must make two further findings.

First, you must determine whether the State proved beyond a reasonable doubt that the defendant has two prior convictions for Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status]. A “conviction” means a determination of guilt that was the result of a plea or a trial, regardless of whether adjudication was withheld or a plea of nolo contendere was entered.

Second, you must determine whether the State proved beyond a reasonable doubt that the current case or the most recent conviction are related to Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status] resulting from a violation of [Driving Under the Influence] [Refusal to Submit to a Urine, Breath-Alcohol, or Blood Alcohol test] [a traffic crime that caused death or serious bodily injury] [Fleeing or Eluding].

Lesser Included Offenses

DRIVING WHILE LICENSE SUSPENDED, REVOKED OR CANCELED OR DRIVING UNDER SUSPENSION OR REVOCATION EQUIVALENT STATUS, WITH KNOWLEDGE — 322.34(2)

Comments

This instruction should not be used for people who are alleged to have driven a motor vehicle while designated as a habitual traffic offender. For habitual traffic offenders, use instruction 28.11(a).

A person driving a moped upon a highway requires a valid driver license. Soto v. State, 711 So. 2d 1275 (Fla. 4th DCA 1998). 

Pursuant to § 322.251(1), Florida Statutes, failure to receive the mailed order shall not affect or stay the effective date or term of the cancellation, suspension, or revocation of the defendant’s driving privilege.

§ 322.34(2), Fla. Stat., is bumped up from a second degree misdemeanor to a first degree misdemeanor if there were one prior conviction. As of June 2025, a withhold of adjudication qualifies as a conviction because of Raulerson v. State, 763 So. 2d 285 (Fla. 2000), with one exception. Under Fla. R. Traf. Ct. 6.560 and Raulerson, a withhold of adjudication that was obtained pursuant to § 318.14(10), Fla. Stat., does not qualify as a conviction

Although there is no caselaw on point, it is possible that the existence of a prior conviction can be proven to the trial judge at sentencing as a recidivist factor and not as an element of the crime that must be proven to the jury, based on State v. Haddix, 668 So.2d 1064  (Fla. 4th DCA 1996) and because of the recidivism exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998) and the language in Erlinger v. United States, 144 S. Ct. 1840 (2024).

If the defendant has two or more prior convictions, § 322.34(2)(b)2., Fla. Stat., remains a first degree misdemeanor, but carries a mandatory minimum sentence of 10 days in jail. In that circumstance, unless a court determines the existence of the prior convictions is an element, it is unclear if a jury finding regarding the existence of a prior conviction would be needed for the judge to impose the mandatory jail sentence because of the recidivism exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998) and the language in Erlinger v. United States, 144 S. Ct. 1840 (2024).     

If the court determines, however, that a jury finding is required, then it would be error to inform the jury of prior convictions.  Therefore, if the charging document contains an allegation of prior convictions, do not read that allegation and do not send the charging document into the jury room. If the defendant is found guilty, the historical fact of previous convictions would then be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).  However, an exception to the foregoing may occur when a prior conviction is necessary to prove the knowledge requirement in element 3 above of the current suspension. 

This instruction was adopted in 1981 and amended in 2007 [958 So. 2d 361], 2013 [131 So. 3d 692], 2017 [231 So. 3d 384], on April 1, 2020, on October 2, 2020, and on June 27, 2025.

28.11(a) DRIVING WHILE DESIGNATED AS A HABITUAL TRAFFIC OFFENDER

§ 322.34(5), Fla. Stat.

To prove the crime of Driving While Designated as a Habitual Traffic Offender, the State must prove the following two elements beyond a reasonable doubt:

(Defendant) drove a motor vehicle upon a highway in this state.

At the time, [he] [she] was designated as a habitual traffic offender.

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power [, motorized wheelchairs, and electric bicycles].

State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000).

“Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic. [A privately owned parking lot, that is open to public use by vehicles, is considered to be a highway.]

“Habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that [he] [she] has been designated a Habitual Traffic Offender.

The option of “on a vehicle” pertains to a vehicle such as a motorcycle.

“Actual physical control” of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offenses

DRIVING WHILE DESIGNATED AS A HABITUAL TRAFFIC OFFENDER — 322.34(5) 

Comments

A person driving a moped upon a highway requires a driver license. Soto v. State, 711 So. 2d 1275 (Fla. 4th DCA 1998). 

§ 322.34(5), Fla. Stat. states that Driving While Designated as a Habitual Traffic Offender (HTO) is a third degree felony. However, § 322.34(10), Fla. Stat. creates the possibility that the crime could be a misdemeanor depending on whether the defendant has a prior forcible felony conviction and the reasons for the driver license suspensions that led to the HTO designation. As of June 2025, it was unclear whether a withhold of adjudication for a forcible felony qualifies as a conviction. 

If the charging document contains an allegation of one or more prior forcible felony convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty, and if the prior forcible felony conviction is determined by a judge or appellate court to be an element, the historical fact of a conviction shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

 If the defendant does not have a forcible felony conviction and if the HTO designation resulted from three driver license suspension cases that came about because of reasons listed in § 322.34(10)(a)1.-5., Fla. Stat., this crime will be a misdemeanor. However, if at least one of the three prior driver license suspensions that resulted in the HTO designation was for a reason other than a circumstance listed in § 322.34(10)(a)1.-5., Fla. Stat., this crime will be a felony, regardless of whether the defendant had a prior forcible felony conviction. See Wyrick v. State, 50 So.3d 674 (Fla. 5th DCA 2010).  

This instruction was adopted in 2007 [958 So. 2d 361] and amended in 2013 [131 So. 3d 692], on April 1, 2020, on October 2, 2020, on December 21, 2022, and on June 27, 2025.

28.11(b) DRIVING A COMMERCIAL MOTOR VEHICLE WHILE [[DRIVER LICENSE] [DRIVING PRIVILEGE] [CANCELED] [SUSPENDED] [REVOKED] [DISQUALIFIED]] [UNDER SUSPENSION OR REVOCATION EQUIVALENT STATUS]

§ 322.34(7), Fla. Stat.

To prove the crime of Driving a Commercial Motor Vehicle While [[Driver License] [Driving Privilege] [Canceled] [Suspended] [Revoked] [Disqualified]] [Under Suspension or Revocation Equivalent Status], the State must prove the following two elements beyond a reasonable doubt:

29. (Defendant) drove a commercial motor vehicle upon a highway in this state.

Give as applicable.

30. At that time, 

[his] [her] [license] [driving privilege] was [canceled] [suspended] [revoked] [disqualified].

[he] [she] was under suspension or revocation equivalent status].

§ 322.01, Fla. Stat.

To “drive a commercial motor vehicle” means to operate or be in actual physical control of a commercial motor vehicle in any place open to the general public for purposes of vehicular traffic.

“Commercial motor vehicle” means any motor vehicle used on the streets or highways, which:

a. Has a gross vehicle weight rating of 26,001 pounds or more;

b. Is designed to transport more than 15 persons, including the driver; or

c. Is transporting hazardous materials and is required to be placarded in accordance with 49 C.F.R. part 172, subpart F.

Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000).

“Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic. [A privately owned parking lot, that is open to public use by vehicles, is considered to be a highway.]

“Suspension or revocation equivalent status” is a designation by the Florida Department of Highway Safety and Motor Vehicles for a person who does not have a driver license or driving privilege but would qualify for suspension or revocation of his or her driver license or driving privilege if licensed.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

“Canceled” means that a license has been declared void and terminated.

“Disqualified” means a prohibition, other than an out-of-service order, that precludes a person from driving a commercial motor vehicle.

The option of “on a motor vehicle” pertains to motor vehicles such as motorcycles and mopeds.

“Actual physical control” of a motor vehicle means the defendant must be physically in [or on] the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he] [she] is actually operating the motor vehicle at the time.

Lesser Included Offenses

DRIVING A COMMERCIAL MOTOR VEHICLE WHILE [[DRIVER LICENSE] [DRIVING PRIVILEGE] [CANCELED] [SUSPENDED] [REVOKED] [DISQUALIFIED]] [UNDER SUSPENSION OR REVOCATION EQUIVALENT STATUS] — 322.34(7)

Comments

Pursuant to § 322.251(1), Fla. Stat., failure to receive the mailed order shall not affect or stay the effective date or term of the cancellation, suspension, or revocation of the defendant’s driving privilege.

The crime in § 322.34(7), Fla. Stat., is bumped up from a first degree misdemeanor to a third degree felony if the defendant had a prior conviction for           § 322.34(7), Fla. Stat. It is possible that a withhold of adjudication qualifies as a conviction because of Raulerson v. State, 763 So. 2d 285 (Fla. 2000), and § 322.01(11), Fla. Stat., although there was no case law directly on point as of June 2025. However, pursuant to Fla. R. Traf. Ct. 6.560 and Raulerson, a withhold of adjudication that was obtained pursuant to § 318.14(10), Fla. Stat., does not qualify as a conviction.

Although there is no caselaw on point, it is possible that the existence of the prior conviction can be proven to the trial judge at sentencing as a recidivist factor and not an element of the crime that must be proven to the jury, based on State v. Haddix, 668 So.2d 1064  (Fla. 4th DCA 1996) and because of the recidivism exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998) and the language in Erlinger v. United States, 144 S. Ct. 1840 (2024). 

If a court determines, however, that a jury finding is required, it would be error to inform the jury of prior convictions. Therefore, if the charging document contains an allegation of prior convictions, do not read that allegation and do not send the charging document into the jury room. If the defendant is found guilty, the historical fact of previous convictions would then be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

If any of the exemptions set forth in § 322.53(2), Fla. Stat., may apply, a special instruction will be necessary. 

If the State is relying on the “transporting hazardous materials” alternative for the definition of “commercial motor vehicle,” a special instruction regarding 49 C.F.R. part 172, subpart F will be necessary.

This instruction was adopted on April 1, 2020 and was amended on October 2, 2020, and on June 27, 2025.

28.12 OPERATING A MOTOR VEHICLE CARELESSLY OR NEGLIGENTLY CAUSING [SERIOUS BODILY INJURY] [DEATH] [WITHOUT HAVING A DRIVER LICENSE] [WHILE DRIVER LICENSE CANCELED, SUSPENDED, OR REVOKED FOR SPECIFIED REASON]

§ 322.34(6)(a) or (b), Fla. Stat.

To prove the crime of Operating a Motor Vehicle Carelessly or Negligently Causing [Serious Bodily Injury] [Death] [Without Having a Driver License] [While Driver License Suspended, Revoked, Canceled for Specified Reason], the State must prove the following four elements beyond a reasonable doubt:

3. (Defendant) operated a motor vehicle in a careless or negligent manner.
4. Give 2a or 2b or both as applicable. If 2a is applicable, the reason for the suspension, revocation, or cancellation must come from §§ 316.655, 322.26(8), 322.27(2), 322.28(2), or 322.28(4), Fla. Stats. 

31. At the time, [his] [her] [driver license] [driving privilege] was [suspended] [revoked] [canceled] for (insert specified reason). 
32.  At the time, [he] [she] did not have a driver license.

Give 3a or 3b or both as applicable. 

5. At the time, (defendant) knew

[his] [her]] [driver license] [driving privilege] was [suspended] [revoked] [canceled].

[he] [she] did not have a driver license.

6. As a result of the careless or negligent operation, (defendant) caused [the death of (victim)] [serious bodily injury to (victim)].

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

§ 316.1925, Fla. Stat. 

“Careless” means failing to operate a motor vehicle in a careful and prudent manner having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. 

“Negligent” means the failure to use reasonable care under the circumstances. 

Give as applicable. § 322.01, Fla. Stat. 

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

“Revoked” means the privilege to drive a motor vehicle has been terminated. 

“Canceled” means that a driver license has been declared void and terminated.

Lesser Included Offenses

28.12 OPERATING A MOTOR VEHICLE CARELESSLY OR NEGLIGENTLY CAUSING [SERIOUS BODILY INJURY] [DEATH] [WITHOUT HAVING A DRIVER LICENSE] [WHILE DRIVER LICENSE CANCELED, SUSPENDED, OR REVOKED FOR SPECIFIED REASON] — 322.34(6)(a) or (b)

Comments

Although the statute does not explicitly require knowledge of the invalidity of the license, the Supreme Court of Florida has recognized such a requirement. See State v. Smith, 638 So. 2d 509 (Fla. 1994). See also Waites v. State, 702 So. 2d 1373 (4th DCA 1997). 

A person driving a moped upon a highway requires a driver license. Soto v. State, 711 So. 2d 1275 (Fla. 4th DCA 1998). 

This instruction was adopted in 2013 [131 So. 3d 720] and amended on April 1, 2020, on October 2, 2020, and on September 5, 2025.

28.13 REFUSAL TO SUBMIT TO TESTING – DRIVING UNDER THE INFLUENCE

§ 316.1939, Fla. Stat.

To prove the crime of Refusal to Submit to Testing – Driving Under the Influence, the State must prove the following five elements beyond a reasonable doubt:

Give 1a or 1b or both as applicable.

1. A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control of] a motor vehicle in this state while 

a. under the influence of [an alcoholic beverage] [(a chemical substance listed in 877.111 Fla. Stat.)] [(a controlled substance listed in Chapter 893)] to the extent (Defendant’s) normal faculties were impaired.

b. [his] [her] [breath] [blood] alcohol level was .08 or higher.

2. The law enforcement officer lawfully arrested (defendant) for Driving Under the Influence.

3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine], [his] [her] privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.

4. (Defendant) was informed that a refusal to submit to a lawful test of [his] [her] [breath] [urine] is a misdemeanor of the second degree, or if either [his] [her] driving privilege had been previously suspended, or if [he] [she] was previously fined under s. 327.35215, for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine], is a misdemeanor in the first degree.

5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine] when requested to do so by a [law enforcement officer] [correctional officer].

BUI refusal

§ 327.35215 is the Florida statute that covers refusal to submit to testing after an arrest for Boating Under the Influence.  

Inference. § 316.1939(3), Fla. Stat. Give if applicable.

You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway[, but not including any bicycle, electric bicycle. motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped].

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Mathis v. Coats, 24 So. 3d 1284 (Fla. 2d DCA 2010).

“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer’s knowledge, training, and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed.

Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles.

“Actual physical control” means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offense

No lesser included crimes have been identified for this offense.

Comments

Where the lawfulness of the arrest is at issue, a special instruction will be necessary. 

This instruction was adopted in 2007 [965 So. 2d 811] and amended in 2013 [131 So. 3d 692], 2019 [262 So. 3d 59], on October 2, 2020, on January 7, 2022, and on June 12, 2026.

28.13(a) REFUSAL TO SUBMIT TO TESTING – BOATING UNDER THE INFLUENCE

§ 327.359, Fla. Stat.

To prove the crime of Refusal to Submit to Testing – Boating Under the Influence, the State must prove the following six elements beyond a reasonable doubt:

Give 1a or 1b or both as applicable.

1. A law enforcement officer had probable cause to believe (defendant) operated [or was in actual physical control of] a vessel in this state while 

a. under the influence of [an alcoholic beverage] [(a chemical substance listed in 877.111 Fla. Stat.)] [(a controlled substance listed in Chapter 893)] to the extent [his] [her] normal faculties were impaired.

b. [his] [her] [breath] [blood] alcohol level was .08 or higher.

2. The law enforcement officer lawfully arrested (defendant) for Boating Under the Influence.

3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine], [he] [she] would be subject to a fine of $500.

4. (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [urine], if either [he] [she] had been previously fined under s. 327.35215, or if [his] [her] driving privilege had been previously suspended, for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].

5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine] when requested to do so by a [law enforcement officer] [correctional officer].

6. (Defendant) had been previously fined under s. 327.35215 or [his] [her] driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].

BUI refusal

s. 327.35215 is the Florida statute that covers refusal to submit to testing after an arrest for Boating Under the Influence.  

Inference. § 316.1939(3), Fla. Stat. Give if applicable.

You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.

§ 327.02, Fla. Stat. Some of these terms have their own definitions in § 327.02, Fla. Stat., which should be given if necessary. See State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013) (holding that for a BUI prosecution, the state is not required to prove that the boat defendant was operating was subject to a license tax).

“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.

Mathis v. Coats, 24 So. 3d 1284 (Fla. 2d DCA 2010).

“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer’s knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed.

§ 327.02, Fla. Stat. Give if applicable. “Operate” means to be in charge of or in command of [or in actual physical control of] a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

“Actual physical control” means the defendant must be physically in or on the vessel and have the capability to operate the vessel, regardless of whether [he] [she] is actually operating the vessel at the time.

Lesser Included Offense

No lesser included crimes have been identified for this offense. 

Comments

Where the lawfulness of the arrest is at issue, a special instruction will be necessary. 

This instruction was adopted on January 7, 2022.

28.14 BOATING UNDER THE INFLUENCE

§ 327.35(1), Fla. Stat.

To prove the crime of Boating Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.

2. While operating the vessel, [he] [she]

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the 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. Stat.

If you find the defendant guilty of Boating Under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while operating the vessel.

b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the Boating Under the Influence.

§ 327.02, Fla. Stat.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

§ 327.02, Fla. Stat.; State v. 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, Fla. Stat.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

§ 322.01, 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, Fla. Stat.

Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.  In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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. Stat., if the State charged the defendant with boating with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant operated a vessel with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating Under the Influence if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel 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. 

*§ 327.35(6)(b), Fla. Stat. and § 327.35(6)(c), Fla. Stat. 

See Comments regarding issue of whether a jury finding is required. The following instruction is suggested if the judge determines a jury finding required. The State’s allegation of a prior conviction should not be read to the jury, and the trial must be bifurcated if a jury finding is required. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6), Fla. Stat.

Now that you have found the defendant guilty of Boating Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Boating Under the Influence] [(insert qualifying conviction(s)]  and that the BUI for which you just found the defendant guilty was committed within [5 years] [10 years] after the date of a prior conviction.

Lesser Included Offense

BOATING UNDER THE INFLUENCE — 327.35(1)

Comments

*The penalties for BUI are increased if the defendant has one or more prior BUI or otherwise qualifying convictions. Because some of the increased penalties apply only to the recidivism fact of prior conviction(s), it is possible that a jury finding is not required for the existence of those prior conviction(s). Therefore, a jury finding may not be necessary for the increased penalties based on prior conviction(s) in § 327.35(2)(a), Fla. Stat., or in § 327.35(2)(b)2., Fla. Stat. However, the judge must impose a jail sentence of at least 10 days if the second BUI conviction occurred within 5 years, or of at least 30 days if the third BUI conviction occurred within 10 years, of the date of a prior BUI or otherwise qualifying conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the “within 5-year” or “within 10-year” requirement has been proven beyond a reasonable doubt in cases where the State is seeking the minimum mandatory jail sentence.

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012 [87 So. 3d 679], 2014 [146 So. 3d 1110], 2016 [192 So. 3d 1190], and on June 12, 2026.

28.15 BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY

§ 327.35(3)(a)(b)(c)1, Fla. Stat.

To prove the crime of Boating Under the Influence Causing [Property Damage] [Injury], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.

2. While operating the vessel, [he] [she]

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the 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].

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. Stat.

If you find the defendant guilty of Boating Under the Influence Causing [Property Damage] [Injury], you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while operating the vessel.

b. the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the Boating Under the Influence.

§ 327.02, Fla. Stat.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

§ 327.02, Fla. Stat.; State v. 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, Fla. Stat.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

§ 322.01, 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, Fla. Stat.

Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.  In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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. Stat., if the State charged the defendant with boating with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant operated a vessel with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001). 

Give only if appropriate

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating Under the Influence Causing [Property Damage] [Injury] if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel 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.

*§ 327.35(6)(b), Fla. Stat. and § 327.35(6)(c), Fla. Stat. 

See Comments regarding issue of whether a jury finding is required. The following instruction is suggested if the judge determines a jury finding required. The State’s allegation of a prior conviction should not be read to the jury, and the trial must be bifurcated if a jury finding is required. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6), Fla. Stat.

Now that you have found the defendant guilty of Boating Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Boating Under the Influence] [(insert qualifying conviction(s)]  and that the BUI for which you just found the defendant guilty was committed within [5 years] [10 years] after the date of a prior conviction.

Lesser Included Offenses

BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY — 327.35(3)(a)(b)(c)1.

Comments

*The penalties for BUI are increased if the defendant has one or more prior BUI or otherwise qualifying convictions. Because some of the increased penalties apply only to the recidivism fact of prior conviction(s), it is possible that a jury finding is not required for the existence of those prior conviction(s). Therefore, a jury finding may not be necessary for the increased penalties based on prior conviction(s) in § 327.35(2)(a), Fla. Stat., or in § 327.35(2)(b)2., Fla. Stat. However, the judge must impose a jail sentence of at least 10 days if the second BUI conviction occurred within 5 years, or of at least 30 days if the third BUI conviction occurred within 10 years, of the date of a prior BUI or otherwise qualifying conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the “within 5-year” or “within 10-year” requirement has been proven beyond a reasonable doubt in cases where the State is seeking the minimum mandatory jail sentence.

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012 [87 So. 3d 679], 2014 [146 So. 3d 1110], 2016 [192 So. 3d 1190], and on June 12, 2026.

28.16 [FELONY] BOATING UNDER THE INFLUENCE

§ 327.35(2)(b)1. or § 327.35(2)(b)3., Fla. Stat.

To prove the crime of Boating Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

7. (Defendant) operated a vessel.
8. While operating the vessel, [he] [she]

Give 2a or 2b or both as applicable.

was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

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. Stat.

If you find the defendant guilty of Boating Under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

the defendant had a [blood] [breath]-alcohol level of .15 or higher while operating the vessel.

the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the Boating Under the Influence.

§ 327.02, Fla. Stat.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

§ 327.02, Fla. Stat.; State v. 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, Fla. Stat.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

§ 322.01, 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, Fla. Stat.

Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.  In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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. Stat., if the State charged the defendant with boating with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant operated a vessel with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating Under the Influence if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel 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. 

See Comments regarding the issue of whether a jury finding is required. The instruction in a. below is suggested if the judge determines a jury finding is required. The State’s allegation of prior convictions should not be read to the jury, and the trial must be bifurcated for jury findings on prior convictions Note: A BUI or a DUI/DWI conviction, whether in Florida or out-of-state, counts as a prior conviction. See § 327.35(6), Fla. Stat.

Since you have found the defendant guilty of Boating Under the Influence, you must now determine whether the State has proven beyond a reasonable doubt whether:

33. the defendant was previously convicted two times of [Boating Under the Influence] [(insert qualifying convictions)] and one of the prior convictions took place within 10 years of the Boating Under the Influence that you just found the defendant committed.
34. the defendant was previously convicted three times of [Boating Under the Influence] [(insert qualifying convictions)].

Lesser Included Offenses

[FELONY] BOATING UNDER THE INFLUENCE — PRIOR CONVICTIONS — 327.35(2)(b)1. or 327.35(2)(b)3.

Comments

*It is a third degree felony if a person who commits a BUI has 3 prior BUIs or otherwise qualifying convictions. In State v. Harbaugh, 754 So. 2d 691 (Fla. 2000), the Florida Supreme Court indicated the 3 prior convictions for that type of felony DUI are questions of fact for the jury to determine.

Another type of felony BUI occurs when a person commits a BUI, has two prior BUIs or otherwise qualifying convictions, and the third violation occurred within 10 years of a prior conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the 10-year requirement is met.

This instruction should be used for Felony BUI based on prior convictions. For Felony BUI based on prior convictions, it is error to inform the jury of prior convictions before the verdict on the underlying BUI charge is rendered.  Therefore, if the information or indictment contains an allegation of prior convictions, do not read that allegation and do not send the information or indictment into the jury room.  If the defendant is found guilty of BUI, the historical 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 [6 So. 3d 574] and amended in 2012 [87 So. 3d 679], 2014 [146 So. 3d 1110], 2016 [192 So. 3d 1190], and on June 12, 2026.

28.17 BOATING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY

§ 327.35(3)(a)(b)(c)2, Fla. Stat.

To prove the crime of Boating Under the Influence Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt:

9. (Defendant) operated a vessel.
10. While operating the vessel, [he] [she]

Give 2a or 2b or both as applicable.

was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

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. Stat.

If you find the defendant guilty of Boating Under the Influence Causing Serious Bodily Injury, you must also determine whether the State has proven beyond a reasonable doubt whether:

the defendant had a [blood] [breath]-alcohol level of .15 or higher while operating the vessel.

the defendant was accompanied in the vessel by a person under the age of 18 years at the time of the Boating Under the Influence.

§ 327.02, Fla. Stat.

“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

§ 327.02, Fla. Stat.; State v. 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, Fla. Stat.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

§ 322.01, 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, Fla. Stat.

§ 327.353(1)(b), Fla. Stat.

“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.

Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.  In such cases, you may consider that evidence along with other evidence in determining whether the defendant was 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. Stat., if the State charged the defendant with boating with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant operated a vessel with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001). 

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Boating Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Boating Under the Influence Causing Serious Bodily Injury if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel 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 CAUSING SERIOUS BODILY INJURY — 327.35(3)(a)(b)(c)2.

Comment

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012 [87 So. 3d 679], 2014 [146 So. 3d 1110], 2016 [192 So. 3d 1190], and on June 12, 2026.

28.18 FAILURE TO OBEY THE LAWFUL ORDER OF A [POLICE] [FIRE] [TRAFFIC] OFFICIAL

§ 316.072(3), Fla. Stat.

To prove the crime of Failure to Obey the Lawful Order of a (insert type of official from the list in § 316.072(3), Fla. Stat.), the State must prove the following five elements beyond a reasonable doubt:

1. (Defendant) was [operating a [vehicle] [bicycle]] [walking] upon [a state-maintained highway] [county-maintained highway] [municipal street or alley] [place where vehicles have the right to travel].

2. (Name of official) gave a lawful [order] [or] [direction] to (defendant) regarding the operation of a vehicle or bicycle or the movement of a pedestrian.

3. At the time, (name of official) was acting in [his] [her] capacity as a [law enforcement officer] [traffic crash investigation officer] [traffic infraction enforcement officer] [member of the fire department who was at the scene of a fire, rescue operation, or other emergency].

4. (Defendant) knew that [he] [she] had been given a[n] [order] [direction] by a [law enforcement officer] [traffic crash investigation officer] [traffic infraction enforcement officer] [member of the fire department who was at the scene of a fire, rescue operation, or other emergency].

5. (Defendant) willfully failed to obey [or] [willfully refused to comply] with the [order] [or] [direction] given.

Give as applicable.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

A “vehicle” is every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly, and purposely.

§ 316.003, Fla. Stat.

A “bicycle” is every vehicle propelled solely by human power having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. [The term does not include a scooter or similar device.]

§ 316.640, Fla. Stat.

A “traffic crash investigation officer” is an individual who successfully completed instruction in traffic accident investigation and court presentation through the Selective Traffic Enforcement Program as approved by the Criminal Justice Standards and Training Commission and funded through the National Highway Traffic Safety Administration or a similar program approved by the Criminal Justice Standards and Training Commission, and who is employed by (insert relevant agency listed in § 316.640, Fla. Stat.).

A “traffic infraction enforcement officer” is an individual who successfully completed instruction in traffic enforcement procedures and court presentation through the Selective Traffic Enforcement Program as approved by the Division of Criminal Justice Standards and Training of the Department of Law Enforcement, or through a similar program, and who is employed by (insert relevant agency listed in § 316.640, Fla. Stat.).

Lesser Included Offenses

FAILURE TO OBEY lawful order— 316.072(3)

Comments

A special instruction will be necessary in cases where the defense claims the order or direction was not lawful.

This instruction was adopted in 2015 [166 So. 3d 161] and amended in 2017 [211 So. 3d 995], 2019 [262 So. 3d 59], and on October 2, 2020.

28.19 RECKLESS [OPERATION OF A VESSEL] [MANIPULATION]

§ 327.33(1), Fla. Stat.

To prove the crime of Reckless [Operation of a Vessel] [Manipulation], the State must prove the following three elements beyond a reasonable doubt:

35. (Defendant) [operated a vessel] [manipulated any [water skis] [aquaplane or similar device]].
36. (Defendant) did so with a willful or wanton disregard for the safety of persons or property.
37. (Defendant) [operated the vessel] [manipulated the [water skis] [aquaplane or similar device]] at a speed or in a manner as to [endanger or that was likely to endanger life or limb] [or] [injure a person] [or] [damage the property of a person].

Give a. or b. or both as applicable. 

If you find the defendant guilty of Reckless [Operation of a Vessel] [Manipulation], you must also determine whether the State proved beyond a reasonable doubt that the defendant’s reckless [operation of a vessel] [manipulation]:

a. resulted in an accident that caused damage to the property or person of another.

b. resulted in an accident that caused serious bodily injury.

Give if applicable. § 316.192, Fla. Stat.

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.

Give if applicable. Reaves v. State, 979 So. 2d 1066 (Fla. 1st DCA 2008).

The conduct of [(victim)] [another] [another person] is a defense to this crime only when that conduct was the sole cause of the accident that resulted in [property damage] [injury] [serious bodily injury]. 

Give as applicable.

§ 327.02, Fla. Stat.

“Operate” means to be in charge of, in command of, or in actual physical control of a vessel upon the waters of this state, to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

§ 327.02, Fla. Stat.; State v. 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.

W.E.B. v. State, 553 So. 2d 323 (Fla. 1st DCA 1989).

“Willful” means intentionally, knowingly, and purposely.

“Wanton” means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.

§ 327.02, Fla. Stat.

“Person” means an individual, partnership, firm, corporation, association, or other entity.

Give if applicable and insert additional instructions from § 327.331, Fla. Stat. as necessary.

A vessel other than a law-enforcement or rescue vessel that approaches within [100 feet of a divers-down warning device on a river, inlet, or navigation channel] [or] [300 feet of a divers-down warning device on waters other than a river, inlet, or navigation channel] must proceed no faster than necessary to maintain headway and steerageway. A violation of this law constitutes Reckless Operation of a Vessel.  

Lesser Included Offense

RECKLESS [OPERATION OF A VESSEL] [MANIPULATION] — 327.33(1)

Comment

This instruction was adopted in 2018 [238 So. 3d 192] and amended on March 20, 2026.

28.20 IMPERSONATING A TRANSPORTATION NETWORK COMPANY DRIVER

§ 316.2021, Fla. Stat.

To prove the crime of Impersonating a Transportation Network Company Driver, the State must prove the following element beyond a reasonable doubt:

Give as applicable. 

(Defendant) willfully impersonated a transportation network company driver by:

making a false statement.

displaying counterfeit signage or emblems of a trade dress, trademark, brand, or logo of a transportation network company. 

engaging in an act that falsely represented that [he] [she] represented a transportation network company.

engaging in an act that falsely represented that [he] [she] was responding to a passenger ride request for a transportation network company.

“Transportation network company driver” means an individual who:

Receives connections to potential riders and related services from a transportation network company; and

In return for compensation, uses a transportation network company vehicle to offer or provide a prearranged ride to a rider upon connection through a digital network.

“Transportation network company” means an entity operating in Florida pursuant to Section 627.748 of Florida Statutes using a digital network to connect a rider to a transportation network company driver, who provides prearranged rides. A transportation network company does not include a taxicab association or an individual, corporation, partnership, sole proprietorship, or other entity that arranges medical transportation for individuals qualifying for Medicaid or Medicare pursuant to a contract with the state or a managed care organization.

“Digital network” means any online-enabled technology application service, website, or system offered or used by a transportation network company which enables the prearrangement of rides with transportation network company drivers.

Define “ridesharing” and “carpool” from § 341.031, Fla. Stat. and § 450.28, Fla. Stat. if necessary. 

“Prearranged ride” means the provision of transportation by a driver to a rider, beginning when a transportation network company driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the transportation network company driver transports the rider, and ending when the last rider exits from and is no longer occupying the transportation network company vehicle. The term does not include a taxicab or street hail service and does not include ridesharing, carpool, or any other type of service in which the driver receives a fee that does not exceed the driver’s cost to provide the ride.

“Rider” means an individual who uses a digital network to connect with a transportation network company driver in order to obtain a prearranged ride in the transportation network company driver’s transportation network company vehicle between points chosen by the rider. A person may use a digital network to request a prearranged ride on behalf of a rider.

“Street hail” means an immediate arrangement on a street with a driver by a person using any method other than a digital network to seek immediate transportation.

“Transportation network company vehicle” means a vehicle that is not a taxicab or jitney and that is:

Used by a transportation network company driver to offer or provide a prearranged ride; and

Owned, leased, or otherwise authorized to be used by the transportation network company driver.

A vehicle that is let or rented to another for consideration, or a motor vehicle that is compliant with the Americans with Disabilities Act and is owned and used by a company that uses a digital network to facilitate prearranged rides to persons with disabilities for compensation, may be used as a transportation network company vehicle.

Give only if § 316.2021(2)(b), Fla. Stat. is charged. 

If you find the defendant guilty of Impersonating a Transportation Network Company Driver, you must further determine whether the State proved beyond a reasonable doubt that the crime occurred [during the commission of a separate felony offense] [or] [to facilitate the commission of a separate felony offense].

The Court instructs you that the crime of (insert name of felony) is a felony offense.

The felony offense of (insert name of felony) is committed when the following occurs: (Insert elements of the felony offense but do not include a burden of proof). 

Lesser Included Offense

IMPERSONATING A TRANSPORTATION NETWORK COMPANY DRIVER — 316.2021  

Comment

This instruction was adopted on September 12, 2025.

28.21 USING A PROHIBITED LIGHT TO [STOP] [ATTEMPT TO STOP] ANOTHER VEHICLE

§ 316.2397, Fla. Stat.

To prove the crime of Using a Prohibited Light to [Stop] [Attempt to Stop] another vehicle, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [drove] [moved] [caused to be moved] any [vehicle] [equipment] upon any highway in Florida.

2. The [vehicle] [equipment] had a lamp or device on it [showing] [displaying] a [red] [red and white] [blue] light that was visible from directly in front of the [vehicle] [equipment].

3. By doing so, (defendant) [effected] [attempted to effect] the stop of another vehicle. 

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

A “vehicle” is every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.003, Fla. Stat. contains other definitions of “highway” that should be given if applicable. 

A “highway” means the entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.

Lesser Included Offenses

The Committee on Standard Jury Instructions in Criminal Cases identified no lesser included offenses. 

Comments

See Chapter 316 for vehicles that are exempted from this crime. 

This instruction was adopted on March 20, 2026. 

28.22 USING A LICENSE PLATE OBSCURING DEVICE

§ 320.262(4), Fla. Stat.

To prove the crime of Using a License Plate Obscuring Device, the State must prove the following two elements beyond a reasonable doubt:

(Defendant) used a license plate obscuring device. 

[He] [She] did so to assist in committing a crime or in escaping from or avoiding detection or arrest in connection with committing a crime.

A “license plate obscuring device” means a manual, electronic, or mechanical device designed or adapted to be installed on a motor vehicle for the purpose of: 

Switching between two or more license plates to permit a motor vehicle operator to change the license plate displayed on the motor vehicle; 

Hiding a license plate from view by flipping the license plate so that the license plate number is not visible; 

Covering, obscuring, or otherwise interfering with the legibility, angular visibility, or detectability of the primary features or details, including the license plate number or validation sticker, on the license plate;  

or

Interfering with the ability to record the primary features or details, including the license plate number or validation sticker, on the license plate.

§ 320.01, Fla. Stat. contains additional definitions of ‘motor vehicle” and exclusions which should be given if applicable.   

“Motor vehicle” means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power.

Lesser Included Offense

USING A LICENSE PLATE OBSCURING DEVICE— 320.262(4)

Comment

This instruction was adopted on March 20, 2026. 

28.23 LEAVING THE SCENE OF AN ACCIDENT INVOLVING [DEATH] [SERIOUS BODILY INJURY] [INJURY] [PROPERTY DAMAGE] WHILE OPERATING A VESSEL

§ 327.30(5), Fla. Stat.

To prove the crime of Leaving the Scene of an Accident Involving [Death] [Serious Bodily Injury] [Injury] [Property Damage] While Operating a Vessel, the State must prove the following four elements beyond a reasonable doubt:

(Defendant) was the operator of a vessel involved in an accident. 

(Defendant) knew that [he] [she] was involved in an accident.

The accident resulted in [property damage only] [injury to (victim)] [serious bodily injury to (victim)] [the death of (victim)] [death to an unborn child].

(Defendant) left the scene of the accident 

without giving all possible aid to persons involved; 

or 

without making a reasonable effort to locate the owner or persons affected; 

or

without subsequently giving notice of the accident to the appropriate law enforcement official as required by Florida law. 

Give only if applicable. § 327.30(5)(b), Fla. Stat.

If you find the defendant guilty of Leaving the Scene of an Accident Involving [Death] [the death of an unborn child], you must further determine whether the State proved beyond a reasonable doubt that the defendant knew of the death and intentionally and purposely left the scene of the accident. 

§ 327.02, Fla. Stat.

To be the “operator of a vessel” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of Florida.

§ 327.02, Fla. Stat.; State v. 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.

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

An “accident” requires that a vessel, though not necessarily the defendant’s vessel, must collide with another vessel, person, or object.

If the defendant’s vessel did not collide with another vessel, person, or object, you may find the defendant was involved in an accident if [he] [she] operated the vessel that caused or contributed to causing an accident. 

§ 327.30, Fla. Stat.

Florida law requires the operator of a vessel involved in an accident, by the quickest means available, and without delay, to give notice of the accident to one of the following agencies: 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 serious bodily injury is charged. § 327.30(5)(a)(3), Fla. Stat.

“Serious bodily injury” means an injury to a person, including the operator, which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Give if death of an unborn child is charged. 

An “unborn child” means a member of the species Homo sapiens, at any stage of development, who is carried in the womb.

Lesser Included Offense

LEAVING THE SCENE OF An accident INVOLVING DEATH — 327.30(5)(a)4.

LEAVING THE SCENE OF An accident INVOLVING SERIOUS BODILY INJURY — 327.30(5)(a)3.

Comments

Unlike § 316.027, Fla. Stat., § 327.30, Fla. Stat., does not criminalize a willful violation of the statute, except where a death occurred and where the State is seeking a 4-year minimum mandatory sentence. For that reason, the Committee on Standard Jury Instructions in Criminal Cases has not added an element for the State to prove that the defendant knew (or should have known) of an outcome (property damage, injury, serious bodily injury, or death). As of May 2026, the courts had not decided whether the statute needs a mens rea pertaining to a result of the accident.

*In Williams v. State, 732 So. 2d 431 (Fla. 2d DCA 1999), the court stated in dictum that Leaving the Scene of a Crash Involving Injury (for vehicle cases) is a necessarily lesser-included offense of Leaving the Scene of a Crash Involving Death. In other areas, however, where there is no dispute that a person was killed as a result of an incident giving rise to criminal charges, non-death lesser included crimes are not appropriate. See, e.g., State v. Barritt, 531 So. 2d 338 (Fla. 1988); Humphrey v. State, 690 So. 2d 1351 (Fla. 3d DCA 1997).

This instruction was adopted on June 12, 2026.

28.24 GIVING required INFORMATION CONCERNING A vessel involved in an accident that was false or believed
to be false

§ 327.3015, Fla. Stat.

To prove the crime of Giving Required Information Concerning a Vessel Involved in an Accident that was False or Believed to be False, the State must prove the following three elements beyond a reasonable doubt:

11. (Defendant) was [the operator of a vessel] [a witness to a vessel] [the owner of a vessel] [the person who leased, rented, or chartered a vessel] that was involved in an accident.
12. (Defendant) gave information [orally] [electronically] [in a written report] to [The Division of Law Enforcement of the Fish and Wildlife Conservation Commission] [the office of the sheriff] [an investigating police officer] about the boating accident that was required to be provided under Florida law. 
13. At the time (defendant) gave the information, [he] [she] either knew the information was false or [he] [she] had reason to believe the information was false.

§ 327.301, Fla. Stat.

Florida law requires the operator of a vessel that is in any manner involved in an accident resulting in bodily injury, death, or disappearance of any person or damage to any vessel or other property in an apparent aggregate amount of at least $2,000 to report to The Division of Law Enforcement of the Fish and Wildlife Conservation Commission or the office of the sheriff or an investigating police officer the cause and conditions existing at the time of the boating accident and the persons and vessels involved. The operator of the vessel may also be required to provide the policy numbers of liability insurance and the names of carriers covering any vessel involved in an accident.

Give if applicable.

The Division of Law Enforcement of the Fish and Wildlife Conservation Commission may require any witness to the accident to provide such a report.

Give if applicable. 

Whenever the operator of the vessel is incapable of making a written report, the owner of the vessel must make the report not made by the operator.

Give if applicable. 

If the vessel was leased, rented, or chartered at the time of the accident, the person who offered the vessel for lease, rental, or charter is responsible for making the report.

§ 327.02, Fla. Stat.

To be the “operator of a vessel” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of Florida.

§ 327.02, Fla. Stat.; State v. 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. 

Gaulden v. State, 195 So. 3d 1123 (Fla. 2016); State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).

To be “involved in an accident,” a vessel, though not necessarily the defendant’s vessel, must collide with another vessel, person, or object. 

Give if applicable. State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007).  

“Involved” means to draw in as a participant, to implicate, to relate closely, to connect, to have an effect on, to concern directly, or to affect. 

Lesser Included Offenses

No lesser included offenses have been identified for this offense.  

Comments

A special instruction will be necessary if the defendant is alleged to have given false information on a report other than the report required by § 327.301, Fla. Stat.

This instruction was adopted on March 20, 2026.

 28.25 FALSE REPORT OF REQUIRED MOTOR VEHICLE INFORMATION

§ 316.067, Fla. Stat.

To prove the crime of False Report of Required Motor Vehicle Information, the State must prove the following four elements beyond a reasonable doubt:

(Defendant) gave information [orally] [electronically] [in a written report] that was required under Chapter 316, Florida Statutes.

The information was given to (insert receiver of information).

The information was false. 

At the time that [he] [she] gave the information, (defendant) knew or had reason to believe that such information was false. 

Chapter 316, Florida Statutes, requires (insert the information required under Chapter 316).

Lesser Included Offenses

The Committee on Standard Instructions in Criminal Cases identified no lesser included offenses. 

Comments

This instruction was adopted on March 20, 2026.

TABLE OF CONTENTS

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