IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
Appellant,
vs. CRC
01-12974CFANO
STATE
OF
Appellee.
____________________________________/
Opinion
filed ________________________
Appeal
from verdict, judgment and sentence,
County
Judge Patrick K. Caddell
Joy
Goodyear, Esq.
Assistant
Public Defender
Attorney
for Appellant
Heather
Brooke Quick, Esq.
Assistant
State Attorney
Attorney
for Appellee
THIS MATTER is before the Court on the defendant’s appeal of a jury-trial verdict, judgment and sentence that the defendant argues was the result of the trial court’s refusal to allow a defense witness to testify. After reviewing the briefs and the record, this Court affirms the trial court’s ruling.
Officer Pippin with the Florida Highway
Patrol testified that he was on routine patrol on the evening of
The defendant sought to introduce the testimony of Ronald Adams. The trial court allowed the defendant to proffer the testimony of Mr. Adams outside the presence of the jury. Mr. Adams testified that he is a 25-year veteran with the St. Petersburg Police Department and had been certified as a breath test operator on the Smith and Wesson Breathalyzer and the Intoxolizer 5000 in 1978. Mr. Adams testified that he continued with his certification as a breath test operator until 1998, but he had not been trained on the intoxolizers that are currently used by the Pinellas County Sheriff’s Department and regulated by the Florida Department of Law Enforcement (FDLE). Mr. Adams testified that he had been trained by fellow officers to allow individuals with dentures either to remove the dentures or to rinse their mouths with water prior to conducting the breath test in order to ensure there was no alcohol residue in their mouths’ that might result in a higher reading on the breath test. Mr. Adams stated this procedure was a result of training he had received in the 1970’s and from experience in conducting breath tests. Mr. Adams did not offer any scientific evidence or knowledge of any studies or experiments that would support the theory that alcohol residue from dentures might result in a higher breath test reading. The trial court denied the defendant’s request to allow Mr. Adams to testify before the jury finding that the witness did not qualify as an expert.
The
standard of review for determining if the trial court erred in refusing to
accept a witness as an expert is abuse of discretion. Jones v. State, 748 So.2d 1012 (
This Court finds that the trial court did not abuse its discretion in refusing to accept Mr. Adams as an expert witness. The trial court proffered Mr. Adams’ testimony outside the presence of the jury to determine the probative value of his testimony and the basis for his expertise. The trial court found that in order for Mr. Adams to offer opinion testimony, he would have to qualify as an expert, as the subject was beyond the common layman’s knowledge. However, the trial court found that the nature of the testimony, if allowed, would be misleading to the jury. The court found that the scope of Mr. Adams’ knowledge was limited to the outdated procedures from HRS and to the Smith and Wesson manually operated machines. The trial court found that because Mr. Adams did not qualify as an expert, his testimony would be subject to hearsay objections.
The
defendant argues that the trial court committed reversible error by not allowing
Mr. Adams to testify before the jury. Defendant
argues he is entitled to the compulsory process of witnesses and to bring
any material evidence shown to be available and capable of being used by him
in aid of his defense. The defendant’s
argument is misplaced. In this case,
the witness did not qualify as an expert and as a lay person, he could not
offer his opinion on the subject. Opinion
testimony of a lay witness is only permitted if it is based on what the witness
has personally observed. Fla.Stat§90.701
(
The
defendant also argues that he was not permitted to impeach the State’s witness
on the effects of dentures on breath readings.
The defendant misses the critical distinction that Mr. Adams had to
be qualified as an expert before his testimony could be anything other than
hearsay. Huff v. State, 495
So.2d 145 (
It is therefore
ORDERED AND ADJUDGED that the verdict, judgment and sentence are affirmed.
DONE
AND ORDERED in chambers at
____________________________________
NANCY
MOATE LEY
Circuit
Judge
Primary
Appellate Judge
____________________________________
W.
DOUGLAS BAIRD
Circuit
Judge
____________________________________
TIMOTHY
R. PETERS
Circuit
Judge
Copies furnished to:
Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellant
Heather Brooke Quick, Esq.
Assistant State Attorney
Attorney for Appellee