County Criminal Court: CRIMINAL LAW – DUI – Confrontation clause not violated where witness, a medical technician who drew blood, testified he did not remember the particular incident. Witness was able to testify he signed the certificate and testify about what his normal procedures were. Judgment and sentence affirmed. Medina v. State, No. CRC 07-33 APANO, (Fla. 6th Cir. App. Ct. Feb. 15, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

FRANCISCO MEDINA

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 07-33 APANO

                                                                               UCN522007AP00033XXXXCR

STATE OF FLORIDA

 

            Appellee.

______________________________/

 

 

Opinion filed ____________________.

 

Appeal from an order entered by

the Pinellas County Court

County Judge William H. Overton

 

Marc Pelletier, Esquire

Attorney for appellant

 

Blair Clarke, Esquire

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the defendant’s appeal from a judgment and sentence entered by the Pinellas County Court following the defendant’s DUI conviction by a jury. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The defendant was involved in an automobile accident and was transported to a hospital for treatment. Law enforcement requested a blood draw, and it was performed by a medical technologist at the hospital. The defendant was eventually convicted of DUI. He is appealing that judgment and sentence, claiming the trial court erred in admitting into evidence the results of his blood draw.

            At trial the medical technician appeared in court and testified that he signed the certificate at the time he took the blood draw. He testified the handwriting and signature on the certificate were his. He also testified about his normal routine and procedures for drawing blood. The witness testified that he “must have” followed the same routine and procedures in this case, but also stated he had no recollection of the incident because it had happened three years before. The law enforcement officer who was at the hospital also testified that he saw the medical technician sign and date the certificate.

            The defendant argues that he was deprived of his Sixth Amendment right to confront witnesses because the medical technician was unable to specifically remember the incident. He claims this effectively rendered the witness unavailable for cross-examination.

            The resolution of the case at bar is controlled by State v. Miller, 918 So.2d 350 (Fla. 1st DCA 2006). In Miller, a witness testified that he gave a prior statement under oath, and that he would have made an effort to tell the truth at the time he made the statement. He also testified that he could not remember the basis for the prior statement because he had been subsequently hit in the head with a barbell.

            The appellate court reversed the trial court’s order granting the defendant a new trial. It found that the Confrontation Clause guarantees only the opportunity for effective cross-examination, not cross-examination that satisfies the defendant. The court noted: “the mere fact that a witness has a faulty memory does not result in a Confrontation Clause violation.” Id. at 919. As long as the defendant has an opportunity to bring out the fact that the defendant has a faulty memory, the Confrontation Clause is satisfied. Id.

            This Court finds the Miller case is dispositive. As in Miller, the defendant in the case at bar had the opportunity to confront the witness. The witness testified about the general procedures used in similar situations, but admitted to not remembering this particular case. Although the defense was free to argue that the weight of this testimony was reduced because of the failure of the witness to remember the incident, the failure to remember did not render the evidence inadmissible. Accordingly, the trial court did not err in admitting the evidence into trial. The judgment and sentence is affirmed.          

            IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.

            DONE AND ORDERED in Clearwater, Pinellas County, this _____ day of February, 2008.

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Court Judge

 

 

                                                                        ____________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

 

 

                                                                        _____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

 

            Honorable William H. Overton

 

                        Marc Pelletier, Esq.