NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
FRANCISCO
Appellant,
v. Appeal No. CRC 07-33 APANO
UCN522007AP00033XXXXCR
STATE OF
Appellee.
______________________________/
Opinion filed ____________________.
Appeal from an order entered by
the
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 (
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.”
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
___________________________
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.