Baber v. StateBaber v. State
Appellant was convicted of DUI manslaughter and DUI with personal injury. He asserts thаt the trial court erred in allowing into evidence a blood alcohol report prepared for medical purposes at the hospital where he was treated for injuries after the accident. More specifically, he argues that the court should not have allowed the report in as a business record of the hospital, whеre the technician who performed the test did not testify. He recognizes that the report would have been admissible as a business record in a civil case under Love v. Garcia, 634 So.2d 158 (Fla. 1994), but argues that Love does not apply in criminal cases. We disagree and affirm.
In the early evening of November 11, 1995, appellant was observed driving erratically in a northerly direction on Military Trail in Palm Beach County. He then turned left to go west, but went into the east bound lane of 45th Street. He struck an oncoming vehicle, killing the driver and injuring the passenger.
Appellant, who was seriously injured, was taken to St. Mary‘s Hospital in West Palm Beach where his bloоd was tested for alcohol content on the hospital‘s DuPont ACA IV clinical analyzer. Appellant represents in his brief, and the parties agreed at oral argument, that this was done for purposes of medical treatment. This test, which uses blood serum, reflected a blood alcohol level of .274 at the time of the accident. The blood sеrum test result was then converted to a whole blood result reflecting a blood alcohol level of from .23 to .25.
In the trial court, appellant attacked the admission intо evidence of the blood alcohol report as a business record on two grounds. He contended that the court should have conducted a Frye1 hearing in regard to thе testing machine and that the report was not admissible as a business record of the hospital. Although appellant raised the Frye issue in his brief, he conceded that it was without merit at oral argument, and we need not address it.
In order to introduce the blood alcohol report, the state called the hospital‘s medical records custodian whо laid the necessary foundation under the business record hearsay exception,
The state also presented the testimony of the chief of forensic toxicology at the Palm Beach County Sheriff‘s Office, who testified as to the accuracy of the testing machine used in this case. He had reviewеd the hospital‘s testing procedures and results, and rendered an opinion that tests made during the period of time when this test was made were reliable.
Appellant objeсted that the report was inadmissible without the testimony of the laboratory technician who administered the blood test and chain of custody testimony, but the trial court overruled thе objection.
In Love v. Garcia, 634 So.2d 158 (Fla. 1994), the Florida Supreme Court held in a personal injury case that a blood alcohol test report contained in a hospital record was admissible with nо testimony other than that of the business record custodian of the hospital qualifying the report as a business record. The court reasoned that if such a report is sufficiently trustworthy
Appellant argues that Love applies only in civil cases, relying on earlier DUI cases such as State v. Strong, 504 So.2d 758, 760 (Fla.1987), which held that blood test evidence may be “admitted on establishing the traditional predicates for admissibility, including tеst reliability, the technician‘s qualifications, and the test results’ meaning,” citing State v. Bender, 382 So.2d 697 (Fla.1980).
In Robertson v. State, 604 So.2d 783 (Fla.1992), our supreme court was asked to answer the certified question of whether the test results of blood samples taken at the request of law enforcement are admissible where the requirements of
The above DUI cases all predated Love, which recognized confusion surrounding the issue. 634 So.2d at 159. After Love came Brock v. State, 676 So.2d 991 (Fla. 1st DCA 1996), which held that Love applied in a criminal case. In Brock the issue was whether the defendant could get the blood alcohol test report in as a business record, not whether the state could.
Before Love, in Davis v. State, 562 So.2d 431 (Fla. 1st DCA 1990), thе first district held that a laboratory report from an independent laboratory showing cocaine in urine was admissible as a business record of the laboratory in a probаtion revocation proceeding.3 Noting that the business records rule contained in the Federal Rules of Evidence,
The trend in other states is to admit blood alcohol tests into evidence in сriminal cases as business records. Dixon v. State, 227 Ga.App. 533, 489 S.E.2d 532 (1997); State v. Todd, 935 S.W.2d 55 (Mo. Ct.App.1996); State v. Yates, 574 So.2d 566 (La.Ct.App.1991); State v. Christian, 119 N.M. 776, 895 P.2d 676 (Ct.App.1995); State v. Garlick, 313 Md. 209, 545 A.2d 27 (1988); State v. Martorelli, 136 N.J.Super. 449, 346 A.2d 618 (App.Div.1975).
Appellant argues that the admission of the report under the business records exception to the hearsay rule, in a criminal casе, violates the Confrontation
Nor do we agree with the appellant that our decision in State v. Sclafani, 704 So.2d 128 (Fla. 4th DCA 1997) is applicable. In Sclafani we stated in dicta that blood taken for medicаl purposes was admissible in a DUI manslaughter case where the “traditional predicate” of Strong is laid. It does not appear from our opinion in Sclafani, however, that the issue of whether the blood alcohol report was аdmissible as a business record was raised or considered.
We conclude that the supreme court‘s decision in Love does apply in criminal cases, and that the trial court properly admitted the blood alcohol repоrt as a business record through the testimony of the hospital medical records custodian. Although we are reasonably confident that our holding is a logical applicаtion of Love, we believe it would be best for the Florida Supreme Court to determine whether we are correct, because of the possible impact of our decisiоn on the manner in which DUI cases are tried throughout the state. We say “possible,” because county courts, where most of these cases are tried as misdemeanors, may be applying Love, but we have no way of knowing. We therefore certify the following question as one of great public importance:
DOES LOVE V. GARCIA, 634 So.2d 158 (Fla.1994) APPLY IN CRIMINAL PROSECUTIONS WHERE BLOOD ALCOHOL TEST RESULTS ARE OFFERED AS PROOF TO ESTABLISH AN ELEMENT OF THE OFFENSE, IF THE BLOOD ALCOHOL TESTS WERE ADMINISTERED BY HOSPITAL PERSONNEL FOR MEDICAL TREATMENT PURPOSES?4
We have considered the other issuеs raised by appellant, and find them to be without merit. We therefore affirm.
TAYLOR, J., and WHITE, ALICE BLACKWELL, Associate Judge, concur.