Appendix — Baber v. Florida

ia

APPENDIX A — REVISED OPINION OF THE

SUPREME COURT OF FLORIDA

DATED AUGUST 31, 2000

SUPREME COURT OF FLORIDA

No. SC960I10

JAMES C. BABER, III,

bin» .

Petitioner.

STATE OF FLORIDA,

‘ 5

\ ruict 41 (00)

.

REVISED OPINION

We have for review a decision on the following question

certified to be of great public importance

DOES LOVE V. GARCIA, 634 So. 2d 158 (Fla

1995) APPLY IN CRIMINAL PROSECUTIONS

WHERE BLOOD ALCOHOL TEST RESULTS

ARE OFFERED AS PROOF TO ESTABLISH

\N ELEMENT OF THE OFFENSE, IF

THE BLOOD ALCOHOL TESTS WERE

ADMINISTERED BY HOSPITAL PERSONNEL

FOR MEDICAL TREATMENT PURPOSES?

Appendix A

Baber v. State, 738 So. 2d 379, 382 (Fla. 4th DCA 1999).

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We

answer the certified question affirmatively and approve the

district court's decision.

The State charged and the jury convicted petitioner of

DUI manslaughter. The dispositive facts are as follows:

In the early evening of November 11, 1995,

[petitioner] was observed driving erratically ina

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.

[Petitioner], who was seriously injured, was

taken to St. Mary’s Hospital in West Palm Beach

where his blood was tested for alcohol content

on the hospital’s DuPont ACA IV clinical

analyzer. [Petitioner] 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 alcoho!

level of .274 at the time of the accident. The blood

serum test result was then converted to a whole

blood result reflecting a blood alcohol level of

from .23 to .25.

3a

Appendix A

In order to introduce the blood alcohol report,

the state called the hospital’s medical records

custodian who laid the necessary foundation under

the business record hearsay exception, section

90.803(6)(a), Florida Statutes (1995). The state

also called the head of the chemistry department

of the hospital who controlled the laboratory. He

testified that he had copied [petitioner]’s blood

test results from the computer system, described

the manner in which the report was prepared, and

described how the machine, which the hospital

had been using since 1991, determines blood

alcohol levels based on blood serum testing. He

also explained the daily and weekly maintenance

performed on the machine according to the

manufacturer’s instructions.

Baber v. State, 738 So. 2d 379, 380 (Fla. 4th DCA 1999).

Petitioner objected to the submission of the record absent

testimony from the laboratory technician who performed the

test and chain of custody testimony. See id.

On appeal, petitioner raised, among other things, the

issue of the admission of the disputed record under Love v.

Garcia, 634 So. 2d 158 (Fla. 1994). The district court

observed:

In Love[,]... the Florida Supreme Court held

in a personal injury case that a blood alcohol test

report contained in a hospital record was

admissible with no testimony other than that of

the business record custodian of the hospital

4a

Appendix A

qualifying the report as a business record. The

court reasoned that if such a report is sufficiently

trustworthy to be relied on for medical treatment,

it is sufficiently trustworthy to be admissible in

evidence as a business record, unless the party

opposing the admission can show that it is

untrustworthy.

Id. at 380-81. Based on the foregoing, the court concluded

that this Court’s decision in Love applies in criminal cases

and, therefore, the report was properly admitted as a business

record through the testimony of the hospital’s records

custodian. See id. at 382. We agree.

The right of a defendant to confront his or her accusers

is a basic constitutional right protected by both the United

States and Florida constitutions.' The United States Supreme

Court has explained:

The primary object of the [Confrontation

Clause] was to prevent depositions or ex parte

affidavits, such as were sometimes admitted in

civil cases, being used against the prisoner in lieu

of a personal examination and cross-examination

of the witness, in which the accused has an

opportunity, not only of testing the recollection

and sifting the conscience of the witness, but of

1. See U.S. Const. amend. VI (“In all criminal prosecutions,

the accused shall enjoy the mght . . . to be confronted by the witnesses

against him ....”); art. 1, § 16(a), Fla. Const. (providing that an

“accused ... shall have the right ... to confront at trial adverse

witnesses ....”’).

53

Appendix A

compelling him to stand face to face with the jury

in order that they may lcok at him, and judge by

his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy

of belief.

Mattox v. United States, 156 U.S. 237, 242-43 (1895).

The exercise of a defendant’s right to confront his or

her accusers also implicates the defendant’s right to due

process since confronting one’s accusers is essential to a fair

trial. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

A defendant's right to notice “and an opportunity to be heard

in his defense — a right to his day in court — are basic in

our system of jurisprudence; and these rights include ...

[the] right to examine the witnesses against him.” /n re

Oliver, 333 U.S. 257, 273 (1948), cited in Chambers, 410

U.S. at 294.

Federal and Florida courts have recognized, however,

that the right to confront one’s accusers is not absolute. The

Supreme Court has stated that exceptions to the

Confrontation Clause are “not. . . static, but may be enlarged

from time to time if there is no material departure from the

reason of the general rule.” Snyder v. Massachusetts, 291

U.S. 97, 107 (1934), overruled on other grounds, Malloy v.

Hogan, 378 U.S. 1 (1964). This Court has said that hearsay

may be admissible in a criminal trial where the testimony is

2. See U.S. Const. amend. XIV, § 1 (“No State shall. . . deprive

any person of life, liberty, or property, without due process of law

....); art. 1, § 9, Fla. Const. (“No person shall be deprived of life,

liberty or property without due process of law... .”).

6a

Appendix A

such that “adversarial testing would add little to its

reliability.” Conner v. State, 748 So. 2d 950, 956 (Fla. 1999)

(quoting /danhe v. Wright, 497 U.S. 805, 821 (1990)).

The statute establishing the admissibility of business

records as an exception to the hearsay rule provides, in

pertinent part:

(6) RECORDS OF REGULARLY CON-

DUCTED BUSINESS ACTIVITY. —

(a) A memorandum, report, record, or data

compilation, in any form, of acts, events,

conditions, opinion, or diagnosis, made at or near

the time by, or from information transmitted by.

a person with knowledge, if kept in the course of

a regularly conducted business activity and if it

was the regular practice of that business activity

‘to make such memorandum, report, record, or data

compilation, all as shown by the testimony of the

custodian or other qualified witness, unless the

sources of information or other circumstances

show lack of trustworthiness.

§ 90.803(6)(a), Fla. Stat. (1995). This Court has held that

medical records are properly admitted under this exception

as long as the evidence satisfies the requirements contained

in the subsection. See Love, 634 So. 2d at 160. This Court

further explained:

Once this predicate is laid, the burden is on the

party opposing the introduction to prove the

7a

Appendix A

untrustworthiness of the records. If the opposing

party 1s unable to carry this burden, then the record

will be allowed into evidence as a business

a

Under the business record exception, the

trustworthiness of medical records is presumed.

Philips v. Ficarra, 618 So. 2d 312, 313 (Fla. 4th

DCA 1993). Such trustworthiness 1s based on the

test's general acceptance in the medical field and

the fact that the test in question is relied upon in

the scientific discipline involved. Andres vy.

Gilberti, 592 So. 2d 1250, 1252 (Fla. 4th DCA

1992). Actual reliance on the test in each course

of treatment is not required.

Love, 634 So. 2d at 160.

The Fourth District’s application of Love to criminal

Cases 1s supported by federal precedent and the majority of

states.’ The United States Supreme Court has held that if

hearsay is admitted under an exception “firmly rooted” in

our jurisprudence, then the “[rJeliability can be inferred

without more” and the prosecutor need not prove the

unavailability of the declarant. Ohio v. Roberts, 448 U.S.

56, 66 (1980). To that end, the Court stated that “business

and public records exceptions would seem to be among the

3. With respect to federal precedent, it should be noted that section

90.803(6) 1s based on Federal Rule of Evidence 803(6). See Love v.

Garcia, 611 So. 2d 1270, 1280 (Fla. 4th DCA 1992) (Warner, J.,

dissenting), quashed on other grounds, 634 So. 2d 158 (Fla. 1994);

Davis v. State, 562 So. 2d 431, 433 n.1 (Fla. lst DCA 1990).

8a

Appendix A

safest of the hearsay exceptions.” /d. at 66 n.8 (quoting J.

Broocks Greer, II], Comment, Hearsay, the Confrontation

Guarantee and Related Problems, 30 La. L. Rev. 651, 668

(1970)); see White v. Illinois, 502 U.S. 346, 356-57 (1992);

Bourjaily vy. United States, 483 U.S. 171, 183 (1987). Federal

circuit courts of appeal have held that hospital drug tests

may be admitted under the business records exception in

criminal cases and that application of the exception in this

circumstance does not violate the Confrontation Clause.

See United States v. Garnett, 122 F.3d 1016, 1018-19 (11th

Cir. 1997) (affirming district court’s decision to admit drug

test results under the business records exception); United

States v. Norton, 867 F.2d 1354, 1364 (11th Cir. 1989) (holding

that business records are admissible in criminal cases under

Federal Rule of Evidence 803(6) based on Bourjaily and

Roberts), United States v. Baker, 855 F.2d 1353, 1359 (8th

Cir. 1988) (“When made on a routine basis, laboratory

analyses of controlled substances are admissible as business

records under Federal Rule of Evidence 803(6).”).*

The majority rule among state courts is that drug or

alcohol tests performed in the usual course of business of a

4. Federal courts have noted the practical reality that cross-

examination of technicians who perform these tests 1s unlikely to

yield meaningful information since the tests are routine and

repeatedly performed, such that it is unlikely that a technician would

specifically remember the performance of one among many identical

tests performed months (if not years) before trial. See Reardon v.

Manson, 806 F.2d 39, 41-42 (2d Cir. 1986); United States v. Bell,

785 F.2d 640, 643 (8th Cir. 1986) (stating that producing the

technicians who perform such tests “rarely leads to any admissions

helpful to the party challenging the evidence”).

9a

Appendix A

hospital are admissible in criminal cases under the business

records exception. See, e.g., Kreck v. Spalding, 721 F.2d

1229, 1245-46 (9th Cir. 1983) (upholding admission of drug

test as business record in murder case under Washington

law): State v. Russo, 485 A.2d 1335, 1339-40 (Conn. Ct.

App. 1985) (holding that trial court properly admitted

hospital records under hospital/business record exception

absent testimony from the physician who conducted the test,

and thus defendant’s confrontation right was not violated);

McLean v. State, 482 A.2d 101, 104-05 (Del. 1984); Dixon

v. State, 489 S.E.2d 532, 535, 537 (Ga. Ct. App. 1997); State

v. Garlick, 545 A.2d 27, 35 (Md. 1988); State v. Todd, 935

S.W.2d 55, 60-61 (Mo. Ct. App. 1996). As the Maryland

Court of Appeals stated:

The blood sample was not taken for the purpose

of litigation. The testing was performed in the

hospital and not by a police laboratory. And there

were no discrepancies apparent on the face of the

record. Thus no extensive foundation needs to be

laid before this hospital report is admissible under

the business record exception... .

... Many hospital tests and procedures are

performed routinely and their results are relied

upon to make life and death decisions. The

examining doctor relied on these objective

scientific findings for Garlick’s treatment and

never doubted their trustworthiness. Neither do

we. This high degree of reliability, as we

explained early on, permits introduction of the test

results contained in the hospital records presented

10a

Appendix A

in this case without any need for showing

unavailability of the technician and without

producing the technician. Under these circumstances

the constitutional right of confrontation is not

offended.

Garlick, 545 A.2d at 34-35 (citations and footnotes omitted).

Amicus Curiae Florida Association of Criminal Defense

Lawyers cites to only one state with a directly contrary view-

5. Quoting an earlier case, the Maryland court further observed:

Itis difficult to conceive why this record should not be

reliable. There 1s no motive for the person whose duty

it is to make the entries, to do other than record them

correctly and accurately. On the other hand, there 1s the

strongest reason why he should: First, because of the

great responsibility, he knowing that the treatment of

the patient depends largely upon this record, and, if it

be incorrect it may result, and probably will result, in

the patient's failure to receive proper surgical or medical

treatment, which failure might be followed by serious

consequence or even death. Second, the entrant must

realize and appreciate that his position is dependent

upon the accuracy with which the record 1s made. Third,

as was Stated by Tindall, C. J., in Poole v. Dicas, 1 Bing.

[(N.C.) 649, 653, 131 Eng. Rep. 1267, 1269 (1835)};:

“It 1s easier to state what is true than what 1s false; the

process of invention implies trouble, in such a case

unnecessarily incurred.”

Garlick, 545 A.2d at 31 (emphasis added) (quoting Globe Indem.

Co. v. Reinhart, 137 A. 43, 46 (Md. 1927)).

lla

Appendix A

Mississippi. See Kettle v. State, 641 So. 2d 746 (Miss. 1994),

In Kettle, the Mississippi Supreme Court expressed its view

thusly:

An evidentiary rule can rise no higher in

meeting constitutional standards than an

evidentiary statute. While it is true that a custodian

under the rule could introduce the records in his

care and custody, he cannot satisfy the right to

confront witnesses when properly invoked:

The subdivision only gives authenticity

to the certificate being used as

substantive evidence of the facts stated

therein. To be used as the evidence of

these facts without the accompanying

testimony of the analyst who prepared

the certificate, constitutional require-

ments must be met. This means there

must be a pre-trial agreement by the

defendant with the prosecuting attorney

consenting to such and waiving the right

to confront and cross-examine that

witness.

ld. at 749-50 (quoting Barnette y. State, 481 So. 2d 788.

791-92 (Miss. 1985)).

The Kettle court relied, in part, on United States v. Oates.

560 F.2d 45 (2d Cir. 1977). The court's reliance on Oates.

however, is misplaced because there the Second Circuit held

that a drug test performed by law enforcement officials could

12a

Appendix A

not be admitted in a criminal trial as a public record since

the report was made pursuant to an investigation against the

accused. See id. at 84 (relying on Federal Rule of Evidence

803(8)(C), which prohibited admission of public records

regarding “factual findings resulting from investigations

made pursuant to authority granted by law”). In contrast,

the alcohol test result being admitted in the instant case was

performed by a hospital, which did not have an interest in

the outcome of the future criminal case lodged against the

defendant. Thus, we disagree with Kert/e to the »xtent it is

contrary to the majority view and, to the extent it relies on

Oates, we find it distinguishable from the instant case.

Finally, petitioner argues that Love should not be applied

in criminal cases based on Strate v. Strong, 504 So. 2d 758

(Fla. 1987), wherein we held that “the state or the defendant

may have ... blood test evidence admitted [in a criminal

case pursuant to] establishing the traditional predicates for

admissibility, including test reliability, the technician's

qualifications, and the test results’ meaning.” /d. at 760. We

find that petitioner’s reliance on Strong is unavailing because

it preceded our decision in Love; therefore, Love is

controlling in the instant case.

Based on federal and state precedent, this Court holds

that a hospital record of a blood test made for medical

purposes, which is maintained by the hospital as a medical

or business record, may be admitted in criminal cases

pursuant to the business record exception to the hearsay rule.

We emphasize, however, that defendants must be given a

full and fair opportunity to contest the trustworthiness of

l3a

Appendix A

such records before they are submitted into evidence. Thus,

the certified question is answered in the affirmative and the

decision below is approved.

It is so ordered.°

WELLS, C.J., and HARDING, ANSTEAD and QUINCE,

JJ., concur.

PARIENTE and LEWIS, JJ., concur in result only.

6. We decline to address the additional issues raised by

petitioner since they are outside the scope of the certified question

and the decision below.

l4a

APPENDIX B — OPINION OF THE DISTRICT

COURT OF APPEAL OF THE STATE OF FLORIDA

FOR THE FOURTH DISTRICT DATED

AND FILED JUNE 23, 1999

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FOURTH DISTRICT

JANUARY TERM 1999

CASE NO. 98-1531

JAMES C. BABER, III,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Opinion filed June 23, 1999

Appeal from the Circuit Court for the Fifteenth Judicial

Circuit, Palm Beach County; Edward A. Garrison, Judge:

L.T. Case No. 95-12337 CFAO2.

*“ * *

KLEIN, J.

Appellant was convicted of DUI manslaughter and DUI

with personal injury. He asserts that the trial court erred in

allowing into evidence a blood alcohol report prepared for

iSa

Appendix B

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, where 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

lrail in Palm Beach County. He then tumed left to go west, but

went into the east bound lane of 45th Street. He struck an

oncoming vehicle, killing the dnver and injuring the passenger.

Appellant, who was seriously injured, was taken to

St. Mary’s Hospital in West Palm Beach where his blood

was tested for alcohol content on the hospital's DuPont

ACA IN 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 serum 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 into

evidence of the blood alcohol report as a business record on

two grounds. He contended that the court should have

conducted a Frve' hearing in regard to the testing machine

1. Frve v. United States, 293 F. 1013 (D.C. Cir. 1923)

loa

Appendix B

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 who laid the

necessary foundation under the business record hearsay

exception, section 90.803(6)(a), Florida Statutes (1995). The

state also called the head of the chemistry department of the

hospital who controlled the laboratory. He testified that he

had copied appellant’s blood test results from the computer

system, described the manner in which the report was

prepared, and described how the machine, which the hospital

had been using since 1991, determines blood alcohol levels

based on blood serum testing. He also explained the daily

and weekly maintenance performed on the machine

according to the manufacturer’s instructions.

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 1n this case. He had reviewed 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 objected 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 the objection.

In Love v. Garcia, 634 So. 2d 158 (Fla. 1994), the Florida

Supreme Court held in a personal injury case that a blood

17a

Appendix B

alcohol test report contained in a hospital record was

admissible with no 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 1s

sufficiently trustworthy to be relied on for medical treatment,

it 1s sufficiently trustworthy to be admissible in evidence as

a business record, unless the party opposing the admission

can show that it is untrustworthy.

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 test 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 section 316.1933, Florida Statutes are not met. If a blood

alcohol test 1s taken pursuant to the statute, there is a

presumption of impairment if the blood alcohol content is .10 or

more. The court held that blood alcohol reports are admissible

even though they do not comply with the statute, but under

those circumstances the statutory presumption would not

exist. The court noted that a predicate would have to be laid

for admission of the blood alcohol test as set forth in Bender.

2. Love also held that a different blood alcohol test run by an

independent laboratory was also admissible into evidence as a business

record through the testimony of the records custodian of the laboratory.

18a

Appendix B

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. Ist DCA

1996), which held that Love applied 1n 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. Ist

DCA 1990), the 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

probation revocation proceeding.’ Noting that the business

records rule contained in the Federal Rules of Evidence, rule

803(6), 1s similar to section 90.803(6), Florida-Statutes, the

court relied on federal court decisions allowing laboratory

reports identifying controlled substances to be admitted into

evidence in criminal cases as business records. United States

v. Baker, 855 F.2d 1353 (8th Cir. 1988); United States vy.

Scholle, 553 F.2d 1109 (8th Cir. 1988); Sherman v. Scott,

62 F.3d 136 (Sth Cir. 1995): United States v. Garnett, 122

F.3d 1016 (11th Cir. 1997). As one federal court observed,

itis highly unlikely tha: the person who performed the test

would have any independent recollection of it. Reardon v.

Manson, 806 F.2d 39, 41-42 (2d Cir. 1986).

3. In Williams v. State, 24 Fla. L. Weekly D1267 (Fla. Sth DCA

May 28, 1999) the fifth district affirmed a conviction based on a

Florida Department of Law Enforcement Laboratory report, admitted

through a records custodian, showing that a substance defendant

sold was cocaine. The court relied on Davis. It appears that the only

issue preserved was whether the report had been qualified as a business

record, and that the issue involved in this case, whether the laboratory

report is admissible in lieu of live testimony, was not preserved.

| —

19a

Appendix B

The trend in other states is to admit blood alcohol tests

into evidence in criminal cases as business records. Dickson

v. State, 489 S.E.2d 532 (Ga. App. 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, 895 P.2d 676 (N.M.

Ct. App. 1995); State v. Garlick, 545 A.2d 27 (Md. 1988);

State v. Martorelli, 346 A.2d 618 (N.J. App. Div. 1975).

Appellant argues that the admission of the report under

the business records exception to the hearsay rule, in a

criminal case, violates the Confrontation Clause of the United

States Constitution. That argument has been rejected by the

federal courts. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.

2531, 2538 n.8 (1980); United States v. Norton, 867 F.2d

1354, 1363 (11th Cir. 1989).

Nor do we agree with the appellant that our decision in

State v. Sclafani, 704 So. 2d 128 (Fla. 4th DCA 1997) ts

applicable. In Sclafani we stated in dicta that blood taken

for medical 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 admissible

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 report as a business record

through the testimony of the hospital medical records

custodian. Although we are reasonably confident that our

holding 1s a logical application of Love, we believe it would

be best for the Florida Supreme Court to determine whether

20a

Appendix B

we are correct, because of the possible impact of our decision

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 ADMINI-

STERED BY HOSPITAL PERSONNEL FOR

MEDICAL TREATMENT PURPOSES”

We have considered the other issues raised by appellant,

and find them to be without merit. We therefore affirm.

TAYLOR, J., and WHITE, ALICE BLACKWELL.

Associate Judge, concur.

4+. Ifour supreme court answers this question in the affirmative.

the distinction made by Strong, acknowledged in Robertson, between

medical and legal blood may warrant reconsideration. Under Love

the more important distinction may be whether the blood was tested

by law enforcement or independently of law enforcement. Otherwise

a report will be admitted as a business record where the test was

done by the hospital for medical reasons, but not where the same

test was done by the hospital only because law enforcement

requested it.

Zia

APPENDIX C — ORDER OF THE SUPREME COURT

OF FLORIDA DENYING MOTION FOR REHEARING

DATED JANUARY 4, 2001

SUPREME COURT OF FLORIDA

THURSDAY, JANUARY 4, 2001

CASE NO.: SC96010

JAMES C. BABER, IIl

Petitioner(s)

STATE OF FLORIDA

Respondent(s)

In light of the revised opinion, the Petitioner's Motion

for Rehearing is hereby denied.

WELLS. C.J... and SHAW, HARDING. ANSTEAD,

PARIENTE and QUINCE, JJ.. concur.

LEWIS, J.. dissents.

A True Copy

Teste:

s Thomas D. Hall

Thomas D. Hall

Clerk, Supreme Court