Opinion
Case No. 5D17-1567
08-22-2019
Terry DINKINS, Appellant, v. STATE of Florida, Appellee.
William R. Ponall, of Ponall Law, Maitland, and Matthews R. Bark, of Matthews R. Bark, P.A., Altamonte Springs, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
William R. Ponall, of Ponall Law, Maitland, and Matthews R. Bark, of Matthews R. Bark, P.A., Altamonte Springs, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
Terry Dinkins appeals his convictions, following trial, on two counts of DUI manslaughter, in violation of section 316.193(3)(c)3.a., Florida Statutes (2014). Dinkins primarily argues that he is entitled to a new trial because the trial court erred in admitting his blood-alcohol test results into evidence when they had initially been obtained by the State in violation of his constitutional right of privacy. While we agree that the "constable blundered" by subpoenaing and obtaining Dinkins's medical records without providing him with notice, for the following reasons, we nevertheless affirm his convictions and sentences.
We borrow this phrase from an opinion authored by Judge Benjamin Cardozo in which he addressed whether under the exclusionary rule, "[t]he criminal is to go free because the constable has blundered." See People v. Defore , 242 N.Y. 13, 150 N.E. 585, 587 (1926). Judge Cardozo was later appointed an associate justice of the United States Supreme Court and served on that Court from 1932 until his death in 1938.
In the early morning hours of February 28, 2015, Dinkins drove his car the wrong way down a major thoroughfare in Seminole County, Florida, crashing into an oncoming vehicle and causing the deaths of the driver and passenger in that car. Dinkins, who by his own admission at the crash site "had had a lot [of alcohol]," was transported to Orlando Health South Seminole Hospital to be treated for injuries that he had just sustained. Shortly after his arrival at the hospital, Dinkins's blood was drawn and tested for its alcohol content.
Approximately one month later, an officer from the Casselberry Police Department tasked with investigating the case caused a subpoena to be issued on the hospital's records custodian to obtain a copy of Dinkins's medical records generated from his stay there. The subpoena was served, and Dinkins's medical records were provided to the police department, all without notice to Dinkins. The lab test results contained within these medical records would show that Dinkins's blood-alcohol level was approximately three times the legal limit for a driver operating a motor vehicle in this state. The acquisition of these medical records and the subsequent admissibility of the blood-alcohol test results at trial are the focus of this appeal.
Not long after obtaining the medical records, the State filed an information charging Dinkins with two counts of DUI manslaughter. The State specifically alleged that on or about February 28, 2015, Dinkins drove a motor vehicle while under the influence of alcohol to the extent that his normal faculties were impaired, or while having a blood-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood, and, as a result, caused the death of the two individuals identified in the information.
Six days after filing the information, the State presented a Seminole County judge with a proposed search warrant, together with a sworn affidavit, requesting authority to search and seize from the Records Department of the Orlando Health South Seminole Hospital the "medical records, medical questionnaires, receipts, medical insurance forms, nurses' notes, physicians' notes, and laboratory tests and results, in written or computerized form," regarding Dinkins's medical treatment starting on February 28, 2015, and continuing until his discharge. The State did not mention in its affidavit that the medical records had been previously subpoenaed, nor did it rely upon information contained in those records in its affidavit. Instead, based on the other facts detailed in the affidavit regarding the circumstances surrounding the crash and Dinkins's alcohol-related impairment at the time, the judge issued the search warrant, finding probable cause to believe that evidence relevant to prove the charged DUI manslaughter offenses was located at this hospital. The warrant was executed two days later, and the same medical records previously subpoenaed by the investigating officer were seized by the State.
The blood-alcohol lab test records became a significant topic leading up to and during the trial. The test results survived two separate pretrial motions to suppress, were admitted into evidence at trial, and were featured in the State's presentation of its case to the jury. As previously indicated, Dinkins was convicted, as charged, of the two counts of DUI manslaughter, and he received the maximum prison sentence that could have been imposed.
Dinkins raises three grounds for relief in this appeal, which we will address in order. His first argument is that the trial court erred in denying his first motion to suppress his medical records and thereafter allowing his blood-alcohol lab test results into evidence at trial because they were obtained by law enforcement without notice to him, in violation of his constitutional right of privacy. See State v. Johnson , 814 So. 2d 390, 393 (Fla. 2002) ("A patient's medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, and any attempt on the part of the government to obtain such records must first meet constitutional muster."). Section 395.3025(4), Florida Statutes (2014), also provides that a patient's medical records are confidential and must not be disclosed without the consent of the patient or his or her legal representative. There are, however, exceptions contained within this statute that would allow for the disclosure of a patient's medical records without his or her consent. Pertinent here, section 395.3025(4)(d) permits release of the records without consent
Article I, section 23 of the Florida Constitution, titled "Right of Privacy," provides, in pertinent part, that "[e]very natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein."
Section 395.3025, Florida Statutes, has been observed to be the "legislative attempt to balance a patient's privacy rights against legitimate access to medical records." Johnson , 814 So. 2d at 393.
[i]n any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.
Dinkins did not consent to the release of his medical records; nor, as indicated, was he given notice prior to his records being subpoenaed. Relying on Johnson and this court's opinion in Frank v. State , 912 So. 2d 329 (Fla. 5th DCA 2005), Dinkins argued below that when the State, or its agents, makes no effort to comply with the notice requirements of section 395.3025(4)(d), the remedy for violating his constitutional and statutory right of privacy in these records is to exclude them from use at trial. See Johnson , 814 So. 2d at 394 ; Frank , 912 So. 2d at 330–31 (reversing for a new trial based on Johnson when the trial court erred in denying defendant's motion to suppress blood-alcohol test results that were later admitted into evidence without the State having complied with the notice requirements of section 395.3025 ).
The State conceded at the suppression hearing that it was not entitled to the medical records obtained through the subpoena because the investigating officer did not comply with the notice requirement of section 395.3025 when he first subpoenaed the records. Nevertheless, it argued that because Dinkins's constitutional right of privacy under article I, section 23 is not absolute, see Johnson , 814 So. 2d at 393 (recognizing that a person's constitutional right of privacy in his or her medical records is not absolute and will yield to the State's compelling interest in the control and prosecution of criminal activity), his motion to suppress should still be denied because Dinkins's medical records were later separately seized under a valid search warrant issued in compliance with article I, section 12 of the Florida Constitution, see Limbaugh v. State , 887 So. 2d 387, 392 (Fla. 4th DCA 2004) (citing State v. Hume , 512 So. 2d 185, 188 (Fla. 1987) ), rev. denied , 903 So. 2d 189 (Fla. 2005).
In Limbaugh , the State had obtained the petitioner's medical records without notice by separate search warrants. Id. at 390. Upon becoming aware that his records were seized, the petitioner filed a petition asking the trial court to quash the warrants, arguing that his constitutional right of privacy was violated by the State acquiring his medical records through the use of the search warrants without notice to him and without an adversarial hearing to address whether the warrants should have been issued. Id. at 391. The circuit court denied relief, and the petitioner sought certiorari review. Id.
The Fourth District Court of Appeal denied the petition for writ of certiorari. Id. at 398. Addressing the petitioner's first argument, the court noted that there was nothing within the search warrant statutes that precluded the State from using the warrants to seize medical records. Id. at 394–95. It also held that an individual's constitutional right of privacy is not implicated by the State's seizure of medical records under a valid warrant without prior notice or hearing. Id. at 398. The court reasoned that before a search warrant can be issued, the State must establish probable cause to the satisfaction of a judge that the records to be seized contain evidence that a felony was committed. Id. at 395. The court concluded that this probable cause threshold afforded even greater protection to an individual's right of privacy than when his or her medical records were obtained by subpoena. Id. The Fourth District Court also distinguished the supreme court's decision in Johnson , noting that the precise issue in that case was whether the exclusionary rule should prohibit the State from issuing a new subpoena for the medical records to correct its earlier failure to comply with section 395.3025(4) when it first subpoenaed the medical records. Id. at 397. The court observed that nothing in Johnson either suggested or implied that its holding would also apply to records obtained through search warrants. Id.
See §§ 933.02(3), 933.07(1), Fla. Stat. (2003).
Six weeks after its opinion in Limbaugh , the Fourth District Court again addressed the propriety of the State's seizure of a defendant's medical records without notice by search warrant. In Farrall v. State , 902 So. 2d 820, 820 (Fla. 4th DCA 2004), the defendant was charged with two counts of DUI manslaughter, two counts of UBAL manslaughter, and two counts of vehicular homicide. The defendant's blood was drawn while he was at the hospital, and the State subsequently provided him with the requisite ten-day notice of its intent to subpoena these hospital records. Id. at 821. However, prior to the expiration of the ten days, the State instead seized the same records by way of a search warrant. Id.
Unlawful Blood-Alcohol Level.
The defendant moved to suppress his hospital records, arguing that after having given notice of its intent to subpoena the records, the State thereafter improperly disregarded its own notice and instead seized the defendant's medical records "prematurely" by search warrant. Id. The motion was denied. Id. Following his convictions at trial of the lesser included offenses of DUI and driving with an unlawful blood-alcohol level, the defendant appealed, challenging the admissibility at trial of his blood-alcohol test results. Id. The Fourth District Court affirmed, concluding that although the State had initially sought the blood test hospital records by subpoena, the subsequently-issued valid search warrant for the records, for which there is a higher threshold of proof to obtain than a subpoena, "negated the need for a subpoena as well as any argument that notice was deficient." Id. at 821–22. It further held that "[b]ecause the [S]tate abandoned the subpoena in favor of a validly obtained search warrant, the trial court correctly denied [the] motion to suppress." Id.
Returning to the present case, the State argued at the suppression hearing that the dispositive question was whether Dinkins's medical records were properly obtained through the search warrant. The trial court found the reasoning in Limbaugh to be persuasive and denied Dinkins's motion to suppress. The court determined that the State had properly obtained his medical records from the hospital via the later search warrant, irrespective of its earlier failure to comply with section 395.3025 when the medical records were first obtained without notice through the subpoena.
Dinkins argues here that the trial court's reliance on Limbaugh was misplaced. He contends that under the present factual circumstances, when the State admittedly made no effort to provide him with notice prior to subpoenaing his medical records, both Johnson and Frank dictate that his medical records should have been suppressed under the exclusionary rule. In Frank , our court ruled that when law enforcement had made no effort to comply with the notice requirements of section 395.3025(4)(d) prior to obtaining the defendant's medical records, under Johnson , the records were inadmissible, even if the State later subpoenaed the records with notice in compliance with this statute. 912 So. 2d at 330–31. We did, however, recognize the Fourth District Court's holding in Limbaugh allowing medical records to be seized by search warrant without prior notice when we specifically noted that, "[c]onsequently, the State has an available alternative if for some reason it is unwilling, or, unable, to comply with the requirements of section 395.3025(4)(d)." Id. at 330 n.2.
Dinkins understandably does not dispute that his blood-alcohol test results were relevant to the issues at trial. Nor has he challenged the trial court's finding of probable cause for the issuance of the search warrant. Additionally, Dinkins does not suggest that his medical records could not have been first obtained by the State without notice to him by the use of a search warrant. His position essentially is that the exclusionary rule commands that his medical records, even if subsequently acquired by a lawful search warrant, must be suppressed if the police officer violated his constitutional right of privacy when he first subpoenaed the records without notice. For the following reasons, we disagree. The exclusionary rule is a "judicially created remedy designed to safeguard [constitutional] rights generally through its deterrent effect," Shadler v. State , 761 So. 2d 279, 284 (Fla. 2000) (quoting United States v. Calandra , 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ), by preventing the State from taking advantage of evidence obtained through a constitutional violation by excluding the use of such evidence at trial, Johnson , 814 So. 2d at 392 n.3 (citing Craig v. State , 510 So. 2d 857 (Fla. 1987) ). It is premised on the concept "that the challenged evidence is in some sense the product of illegal governmental activity." United States v. Crews , 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).
Without going into detail, the record amply demonstrates significant evidence, both at the crime scene and through the witness interviews provided to law enforcement, as outlined in the supporting affidavit to the warrant, establishing probable cause for the issuance of the search warrant and that Dinkins had committed the charged offenses. See Schmitt v. State , 590 So. 2d 404, 409 (Fla. 1991) (defining probable cause as "a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged").
In his second argument on appeal, Dinkins argues that the search warrant was not valid. For reasons later discussed, we find no merit to this argument.
The United States Supreme Court has nevertheless recognized that evidence that may have been illegally obtained need not be automatically suppressed under the exclusionary rule. For example, the exclusionary rule does not preclude the admissibility of evidence at trial if the evidence would have been inevitably discovered by lawful means or otherwise obtained from a source wholly independent from any constitutional violation. Nix v. Williams , 467 U.S. 431, 441–42, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (quoting Wong Sun v. United States , 371 U.S. 471, 485, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). These exceptions recognize that the exclusionary rule is properly applied in circumstances when the evidence would not have otherwise been obtained from an independent source or inevitably discovered, and is thus necessary to prevent the prosecution from being placed in a better position than it would have been if there had been no illegality in the State's obtaining of the inculpatory evidence. Id. at 442–43, 104 S.Ct. 2501. Conversely, these exceptions preclude the application of the exclusionary rule and the later inadmissibility of the evidence at trial if the prosecution would be placed in a worse condition by the exclusion of evidence that would have otherwise been independently obtained or inevitably discovered but for some earlier police error or misconduct. Id. at 443, 104 S.Ct. 2501. The Court reasoned that, in such circumstances, the exceptions to the exclusionary rule are justified to avoid the high societal cost of excluding relevant evidence from the jury in its search for a truthful and fair result to the trial. Id. ; see also Defore , 150 N.E. at 588 (recognizing the adverse societal effects if "[t]he pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious").
We acknowledge that the State has not argued in this appeal that the blood-alcohol test results were properly admitted under either the inevitable discovery or independent source exceptions to the exclusionary rule. As a general rule, a claim not raised in the trial court will not be considered on appeal. Robertson v. State , 829 So. 2d 901, 906 (Fla. 2002). Nonetheless, an appellate court has the authority under what is known as the "tipsy coachman" doctrine to affirm a trial court's ruling that "reaches the right result but for the wrong reasons," provided that there is any record basis to support the lower court's decision. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So. 2d 638, 644–45 (Fla. 1999).
At first blush, the tipsy coachman doctrine seemingly would allow us to apply the inevitable discovery exception to affirm the trial court's denial of Dinkins's first motion to suppress. It is folly to think that Dinkins's blood-alcohol test results would not have been discovered and obtained by law enforcement during a continuing investigation of the case absent the initial flawed subpoena. See Nix , 467 U.S. at 444, 104 S.Ct. 2501 (stating that the inevitable discovery exception requires the prosecution to prove "by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means"). From shortly after the inception of the investigation, the State would have known of the existence of the blood-alcohol test results such that it would have taken steps to obtain them. The test results were, in fact, later obtained by lawful means—the search warrant. Further, when determining whether to apply the inevitable discovery exception to the exclusionary rule, there is no requirement, at least in the federal courts, that the prosecution must prove the absence of bad faith by law enforcement when it first improperly obtained the subject evidence. Id. at 445, 104 S.Ct. 2501.
However, the Florida Supreme Court has ruled that in order to rely on this exception, the State must show that the law enforcement officers were in the process of obtaining a search warrant prior to the police misconduct that resulted in the evidence being seized. See Rodriguez v. State , 187 So. 3d 841, 849–50 (Fla. 2015). Nevertheless, as previously indicated, the State did not argue below that Dinkins's motion to suppress should be denied based on the inevitable discovery exception, nor has it argued here the inevitable discovery doctrine as a ground for affirmance through tipsy coachman. Consequently, because the trial court was not asked to, nor did it, make any factual findings on the inevitable discovery exception, we believe it not appropriate to affirm under tipsy coachman. See Salazar v. Hometeam Pest Def., Inc. , 230 So. 3d 619, 622 (Fla. 2d DCA 2017). Thus, we specifically decline to address Rodriguez and whether the limitations on the scope of the inevitable discovery doctrine described therein are applicable here.
At oral argument, this court essentially asked the State whether the inevitable discovery exception should apply to the facts of this case and the appeal should be affirmed on that basis. In response, the State suggested that this exception was not necessary for an affirmance.
As to the independent source exception, this rule applies "when evidence is discovered as a result of unlawful police activity but is also discovered independently through a lawful investigation that occurs either before or after the illegal activity, so long as the independent investigation itself is ‘untainted by the initial activity.’ " O'Hare v. State , 263 So. 3d 255, 259–60 (Fla. 5th DCA 2019) (quoting State v. Ojeda , 147 So. 3d 53, 65 (Fla. 3d DCA 2014) ). Here, Dinkins's blood-alcohol test results were later obtained through a valid search warrant through the continuing police investigation. However, we are reluctant to state that this investigation was untainted by the initial activity, because the State was aware of the contents of the hospital records through the earlier subpoena when it subsequently requested and obtained the records via the search warrant, even though it did not mention these records in the affidavit it submitted for the issuance of the warrant.
Thus, the question before us remains whether, as argued by Dinkins, the exclusionary rule demands the suppression of the medical records improperly subpoenaed without notice or if the trial court properly determined that under Limbaugh , the exclusionary rule did not justify the suppression of the same medical records later obtained by search warrant. While we do not condone the actions of the police officer in the first instance, we are reminded that "to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States , 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (emphasis added). Furthermore, the application of the rule should typically be only as a "last resort," such that the deterrence of suppression must outweigh the heavy costs that society sustains in many cases where a defendant is ultimately turned loose without punishment. See Davis v. United States , 564 U.S. 229, 237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
Applying these principles, we conclude that this is not a "last resort" case due to the likely-significant societal costs that would be incurred in suppressing this evidence on a retrial. Here, following Dinkins's criminal actions that caused the deaths of two people, the records were generated at a hospital during the course of Dinkins's medical care and treatment and are likely still accessible from the same hospital. It is not reasonable to assume that, under the facts of this case, the State would not have pursued and obtained these records from the hospital. It is likewise neither appropriate nor consistent with the intent of the exclusionary rule for the State to be placed in a worse position at trial, due solely to the indiscretion or improper zeal of the police officer who first subpoenaed Dinkins's medical records without notice. Although Dinkins relies on our earlier decision in Frank for reversal, we find Frank to be distinguishable from the instant case as Frank did not involve or address the State's subsequent acquisition of a defendant's medical records under the higher evidentiary standard required in obtaining a search warrant. See Limbaugh , 887 So. 2d at 395. We therefore affirm the trial court's denial of Dinkins's first motion to suppress.
Dinkins's next argument is that the trial court erred in denying his second motion to suppress his medical records because the search warrant did not contain the requisite level of particularity or specificity regarding the items to be seized by law enforcement. We find no merit to this argument.
To be sure, a search warrant that fails to adequately specify the material to be seized, thus leaving the scope of the seizure to the discretion of the executing officer, is constitutionally overbroad. Russ v. State , 185 So. 3d 622, 626 (Fla. 5th DCA 2016) (citing State v. Nelson , 542 So. 2d 1043, 1045 (Fla. 5th DCA 1989) ); see also § 933.05, Fla. Stat. (2014). Thus, the warrant must be sufficiently specific to allow "any document, found and examined by an officer executing the search warrant, to have been readily recognized as being, or not being, a document described in the warrant." Polakoff v. State , 586 So. 2d 385, 392 (Fla. 5th DCA 1991). The search warrant issued in this case authorized the Sheriff of Seminole County and his lawful deputies to seize from the hospital's records department "medical records, medical questionnaires, receipts, medical insurance forms, nurses' notes, physicians' notes and laboratory tests and results, in written or computerized form, pertaining only to Dinkins, for medical treatments starting on February 28, 2015 and continuing until his discharge." As such, the warrant was limited to Dinkins's hospitalization beginning the day of the fatal crash until his discharge, identified where the records were located, and sufficiently described the specific records to be seized from the records custodian.
Dinkins conflates the issue of the relevancy of some of the seized records with whether the warrant sufficiently described the items to be seized. Here, the scope of the seizure was not left solely to the discretion of the officer. Admittedly, at a later in camera hearing, the State advised the court that, at trial, it was planning only to use the blood-alcohol lab test results contained within the seized medical records, which led to the court directing the State to return the other seized documents to Dinkins. This, in our view, did not invalidate the entire warrant or otherwise require the blood-alcohol test results to be suppressed. See State v. Nuckolls , 617 So. 2d 724, 728 (Fla. 5th DCA 1993) (holding that "the invalidation of a portion of a [search] warrant does not invalidate the entire warrant" (citing United States v. Gomez-Soto , 723 F.2d 649, 654 (9th Cir. 1984) )). We see no reversible error in the trial court's ruling or its handling of this motion to suppress.
In his third and final argument for reversal, Dinkins asserts that the trial court violated his right to due process under the Federal and Florida Constitutions in admitting his blood-alcohol test results at trial without requiring testimony from the individuals who drew and tested his blood. Dinkins argues that, absent this testimony, he had no meaningful opportunity to contest the trustworthiness of the results of his blood-alcohol test because he was prevented from exploring or examining the qualifications of the individuals who drew and tested his blood. We disagree.
Notably, Dinkins does not appear to challenge the admissibility of his blood-alcohol test result as violating the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.
In Baber v. State , 775 So. 2d 258, 259–60 (Fla. 2000), the Florida Supreme Court, while recognizing that a defendant's right to confront his or her accusers is a basic constitutional right provided under the Sixth Amendment to the United States Constitution and article I, section 16(a) of the Florida Constitution that also implicates a defendant's right to due process, nevertheless held that a hospital record of a blood test administered for medical purposes, which is maintained by the hospital as a medical or business record, may be admitted in evidence in criminal cases under the business records exception to the hearsay rule as proof to establish an element of the offense. In so holding, the court observed that both the federal and Florida courts have held that a defendant's right to confront witnesses is not absolute and "that hearsay [evidence] may be admissible in a criminal trial where the testimony is such that ‘adversarial testing would add little to its reliability.’ " Id. at 260 (quoting Conner v. State , 748 So. 2d 950, 956 (Fla. 1999) ). Applying this principle to hospital records that were created and maintained for medical purposes, the court concluded that the reliability and trustworthiness of such medical records is presumed and that they are therefore admissible under the business records exception to the hearsay rule, id. (citing Love v. Garcia , 634 So. 2d 158, 160 (Fla. 1994) ), but cautioned trial courts that a defendant still "must be given a full and fair opportunity to contest the trustworthiness of such [medical] records before they are submitted into evidence," id. at 263.
Florida's business records exception to the hearsay rule is codified at section 90.803(6), Florida Statutes (2015).
In the present case, outside the presence of the jury, the State called the hospital's laboratory operations manager who, under oath, sufficiently explained his familiarity with the hospital's present record keeping system used to create and maintain blood-alcohol test results from samples taken from the hospital's patients. He further testified that this same system was in use on February 28, 2015, the date of Dinkins's blood-alcohol test. Dinkins's counsel thereafter conducted a detailed voir dire of this witness, establishing, among other things, that the witness was not employed by the hospital when the subject test was conducted and thus could not confirm whether the lab technician refrained from rubbing the injection site with an alcohol swab, which counsel argued could have artificially raised Dinkins's blood-alcohol test result. On re-direct examination, the witness testified that hospital policy provides that if a blood-alcohol test is requested, no rubbing alcohol is to be used on the injection site at the time of collection.
Upon conclusion of this proffered testimony, Dinkins's trial counsel submitted to the court an eleven-page memorandum to preclude the admissibility of this blood-alcohol test result. Dinkins argued in his memorandum that the test result should be excluded because the witness was not employed by the hospital at the time of the testing nor was he qualified to provide testimony under section 90.803(6) to admit these records. He also argued that the witness was not an expert and therefore should not be allowed to provide opinion testimony as to the blood-alcohol test results.
The trial court recessed to review and research the memorandum in chambers. Upon returning to the courtroom, the court announced that it found that the witness was qualified to testify and that Dinkins's blood-alcohol test results could be admitted into evidence through this witness under the business records exception to the hearsay rule. The court also concluded that the witness's testimony did not constitute expert opinion testimony. The witness then proceeded to testify before the jury consistently with his earlier proffer, and the court admitted the blood-alcohol test result records into evidence, over objection.
"Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion." White v. State , 817 So. 2d 799, 806 (Fla. 2002) (quoting Ray v. State , 755 So. 2d 604, 610 (Fla. 2000) ). We find no abuse of that discretion. As the Florida Supreme Court in Baber explicitly stated, "no testimony other than that of the business record custodian of the hospital qualifying the report as a business record" is required. 775 So. 2d at 259 (quoting Baber v. State , 738 So. 2d 379, 380–81 (Fla. 4th DCA 1999) ). Contrary to Dinkins's argument below, there is no statutory or other requirement that, as a prerequisite to testifying, the records custodian or other qualified witness must have been employed at the hospital at the time the medical record being admitted into evidence was generated. It is clear in this case that the blood-alcohol test performed on Dinkins was done for medical purposes, and the State laid a sufficient predicate for the admission of this business record. Once the State did so, the burden shifted to Dinkins, as the party opposing the introduction of this record, to prove its untrustworthiness. See id. (quoting Love , 634 So. 2d at 160 ). We conclude that Dinkins was provided with appropriate due process to contest the trustworthiness of the blood-alcohol test result and failed to show that this record was untrustworthy.
Accordingly, we affirm Dinkins's convictions and sentences, but we certify the following two questions of great public importance to the Florida Supreme Court:
1. DOES THE FAILURE OF THE INVESTIGATING LAW ENFORCEMENT OFFICER TO PROVIDE ANY NOTICE PRIOR TO SUBPOENAING A DEFENDANT'S MEDICAL RECORDS UNDER SECTION 395.3025(4)(d), FLORIDA STATUTES, FOREVER PRECLUDE THE ADMISSIBILITY OF THESE RECORDS
AT TRIAL, EVEN IF THEY ARE SUBSEQUENTLY OBTAINED THROUGH THE ISSUANCE AND EXECUTION OF A VALID SEARCH WARRANT WITHOUT THE ASSISTANCE OF ANY INFORMATION GLEANED FROM THE PREVIOUSLY-SUBPOENAED RECORDS?
2. DOES THE INEVITABLE DISCOVERY EXCEPTION TO THE EXCLUSIONARY RULE PERMIT THE ADMISSIBILITY OF A DEFENDANT'S HOSPITAL RECORDS LATER OBTAINED BY THE STATE THROUGH A VALID SEARCH WARRANT WHEN THE RECORDS WERE FIRST ACQUIRED BY THE STATE BY SUBPOENA WITHOUT NOTICE TO THE DEFENDANT IN VIOLATION OF SECTION 395.3025(4)(d), FLORIDA STATUES?
AFFIRMED; QUESTIONS CERTIFIED.
EISNAUGLE, J., and MOORE-STENS, D.M., Associate Judge, concur.