Dennis Wayne SERVIS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D00-2957.
District Court of Appeal of Florida, Fifth District.
October 26, 2001.James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee.
PETERSON, J.
Dennis Wayne Servis appeals his conviction for DUI manslaughter pursuant to section 316.193(3)(a)(b)(c)(3), Florida Statutes (1999). He was convicted after a trial in which instructions were given to the jury over his objection regarding statutory presumptions of impairment pursuant to section 316.1934(2), Florida Statutes (1999).
We must vacate the judgment of guilt and sentence because the Florida Supreme Court in State v. Miles, 732 So. 2d 350 (Fla. 1st DCA), rev. granted, 740 So. 2d 529 (Fla. 1999), approved in part, quashed in part, 775 So. 2d 950 (Fla.2000), held that Florida Administrative Code Rule 11D-8.012,[1] fails to adequately provide for the preservation of blood samples taken for blood-alcohol analysis. Therefore, the impairment presumptions associated with the implied consent statutes[2] are not available to the State.
The State argues that the instructions on statutory presumption given to the jury were harmless error because of the overwhelming evidence of guilt and because the instructions allowed the jury to find Servis guilty either under a theory of being impaired without the statutory presumptions or that he had a blood-alcohol *360 level of .08 or higher. Unfortunately, however, there is no way of analyzing the jury's verdict to determine the theory upon which it relied in rendering its verdict, and if it relied upon the statutory presumptions it was error under Miles.
We vacate the judgment and sentence and remand for a new trial.
JUDGMENT AND SENTENCE VACATED; REMANDED.
THOMPSON, C.J., and PLEUS, J., concur.
NOTES
[1] Rule 11D-8012 was subsequently revised on July 29, 2001 to prescribe specific procedures for the collection and preservation of the blood sample.
[2] Fla. Stat. §§ 316.1932-316.1934 (1999).