# Appendix — Baber v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1022

## Text

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

---

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