County Criminal Court: CRIMINAL PROCEDURE – Jurors – Trial court’s questioning of juror who appeared, during polling, to dispute verdict, was done to ascertain whether or not juror disagreed with verdict and was, therefore, not improper or a violation of Fla. R. Crim.P. 3.450. Judgment and sentence affirmed. Bortolini v. State, No. CRC 04-12 APANO, (Fla. 6th Cir.App.Ct. April 15, 2005).










v.                                                                                                                                           Appeal No. CRC 04-00013 APANO








Opinion filed __________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Dorothy Vaccaro


Eilam Isaak, Esq.

Attorney for appellant


Chaila Restall, Esq.

Assistant State Attorney




            THIS MATTER is before the Court on Ronald Bortolini’s appeal from a judgment and sentence entered against him following a jury trial in which he was convicted of DUI. After reviewing the briefs and record, the judgment and sentence are affirmed.

            The defendant raises two issues in his appeal. First, he claims there was reversible error committed when, while the jury was being polled and one of the jurors stated that she did not agree with the verdict, the trial judge questioned the juror before sending the panel back for more deliberations. The defendant claims that under the strict language of Fla.R.Crim. P. 3.450 (“If a juror dissents, the court must direct that the jury be sent back for further deliberations.”), the trial judge was only permitted to order the jury panel back for more deliberations, and was not permitted to question the dissenting juror. A review of the transcript, however, reveals that the trial judge was faced with a situation where it was unclear at first what the juror was saying. It was only after a couple of questions from the judge that it became apparent that the juror did not at that time believe the defendant was impaired. Upon finding out that the juror did not agree with the verdict, the trial judge sent the jury panel back for further deliberations.

Even if this Court were to conclude that the trial judge technically strayed from the requirements of Fla.R.Crim. P. 3.450, it cannot conclude that the trial judge committed reversible error. The trial judge’s conduct is completely different from the court’s conduct in the primary case cited by the defendant as support for his contention that there was reversible error --- Brutton v. State, 632 So.2d 1080 (Fla. 4th DCA 1994).

    In Brutton, the appellate court found that the trial judge had engaged in an argument with the dissenting juror about the merits of the case before sending the jury back to deliberate. It was the possibility that the dissenting juror was coerced by the judge into acquiescing in the final verdict that the appellate court found improper. In contrast,  there was no evidence in the case at bar to indicate that the judge’s questions possibly coerced the dissenting juror. Any questioning from the trial judge was to clarify the situation, and there was no argument or even discussion between the trial judge and the dissenting juror about the merits of the case.

In the second issue raised in his appeal, the defendant claims a particular jury instruction should not have been given. Specifically, the defendant objects to the instruction that allows the members of the jury to presume the defendant was impaired if they find the breath test result was .08 or above. The defendant argues that this instruction should not have been given because the results of the two breath tests were .077 and .087. The defendant argues that because only one result was over .08, the trial judge should not have given the jury instruction on the presumption of impairment. This Court does not agree.

The jury was instructed that if the evidence showed the defendant’s breath alcohol level was .08 or more then it could presume the defendant was impaired. The jury was also instructed that if the defendant’s breath alcohol level was above .05 but below .08 then the jury could find the defendant was impaired by considering other evidence of impairment. The jury could have interpreted the results as showing the defendant had a breath alcohol level of over .08, or they could have interpreted the results as showing the defendant’s breath alcohol level was above .05 but below .08. Either way there was sufficient evidence to support the jury’s conclusion. Either determination would have supported the jury’s finding of guilt. The instructions, taken as a whole, properly allowed the jury to determine the defendant’s breath alcohol level based upon the evidence presented.

The defendant has not pointed to any case law requiring as a matter of law that before the presumption instruction can be given there must be two breath test results both over .08. We believe that in such circumstances the court should give the presumption instruction. It is then for the jury to choose, based upon the evidence, whether or not it wants to rely on the presumption of impairment to reach its decision.

            IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.   DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of March, 2005.





                                                                                    Nancy Moate Ley

                                                                                    Circuit Judge





                                                                                    Timothy R. Peters

                                                                                    Circuit Judge





                                                                                    John A. Schaefer

                                                                                    Circuit Judge


cc:   State Attorney


        Eilam Isaak, Esq.


        Judge Vaccaro