28.2 [FELONY] DRIVING UNDER THE INFLUENCE
Official jury instruction text reproduced for information. It is not legal advice; the instruction given in a case depends on the facts and the court.
- Instruction
- 28.2
- Statute
- § 316.193(2)(b)1 or § 316.193(2)(b)3, Fla. Stat.
- Edition
- Florida Standard Jury Instructions in Criminal Cases, complete set published by The Florida Bar, updated October 9, 2026
- Official source
- The Florida Bar: criminal jury instructions
Elements
Quoted word for word from the official text. Florida Standard Jury Instructions in Criminal Cases, complete set published by The Florida Bar, updated October 9, 2026.
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].
Further findings
Special findings, enhancements, inferences and exceptions the instruction gives when they apply, word for word.
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.
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)].
Lesser-included offenses
As the instruction lists them, word for word.
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.
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
|---|---|---|---|
| Driving under the influence | 316.193(1) | 28.1 | |
| Attempt | 777.04(1) | 5.1 | |
| Driving under the influence causing or contributing to causing property damage or injury | 316.193(3)(a), (3)(b), (3)(c)1. | 28.1(a) |
Related practice page
Criminal defense in Miami. State or federal.
Official source: The Florida Bar: criminal jury instructions
Official jury instruction text reproduced for information. It is not legal advice; the instruction given in a case depends on the facts and the court.