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State v. Kutik11/4/2005
The State appeals an order granting exclusion of Matthew Donald Kutik's ("Kutik") medical records, which contained his blood alcohol test results. Kutik was in an automobile accident resulting in a death. During Kutik's treatment, hospital personnel tested his blood and determined his blood alcohol level. A police officer obtained Kutik's blood alcohol level from his medical records, but did not get his permission to review the medical records and did not request that blood be drawn and tested pursuant to section 316.1933(1), Florida Statutes (2002). Fourteen months after the accident, the State sought a subpoena for Kutik's medical records, with notice of the request to his lawyer, pursuant to section 395.3025, Florida Statutes (2002). Kutik's lawyer objected to the subpoena and sought to exclude Kutik's medical records because the State obtained the records in derogation of the statute; this misconduct precluded application of a good faith exception. After a hearing, the trial court granted the motion to exclude the medical records without recourse for the State to seek a future subpoena. We affirm, finding that the police made no good faith effort to comply with the subpoena and notice requirements of section 395.3025(4)(d). Thus, the State is precluded from issuing a future subpoena for Kutik's medical records. See State v. Johnson, 814 So. 2d. 390 (Fla. 2002).
St. Cloud police officer Brian Demeulenaere ("Demeulenaere"), a traffic homicide investigator, testified during the hearing to exclude medical records that, at approximately 2:00 a.m. on Saturday, 14 December 2002, he investigated a traffic homicide involving Kutik. Two vehicles were involved in the accident. Demeulenaere smelled alcohol coming from Kutik's vehicle and observed beer bottles inside the vehicle. After speaking with Dawn Bays, an accident eyewitness, Demeulenaere determined that Kutik turned in front of a pickup truck, which caused the truck to strike the passenger side of Kutik's car. As a result of the accident, Kutik's front seat passenger was killed and the other occupants in both vehicles were injured. Kutik and one of his passengers were transported to the Orlando Regional Medical Center Orlando ("ORMC"). The other injured parties were taken to ORMC St. Cloud.
Demeulenaere went to ORMC approximately 15 hours after the accident to obtain Kutik's medical records. Kutik was still in the emergency room, but Demeulenaere did not attempt to speak with him. Demeulenaere explained that he could not obtain the records from ORMC until the records department opened on the following Monday. Demeulenaere testified that he had probable cause to believe that Kutik was under the influence of alcohol at the time of the accident because he observed bottles of alcohol in Kutik's vehicle, detected the odor of alcohol emanating from the vehicle, and learned from Kutik's backseat passenger, Tracy Barrett, that Kutik visited two bars before the accident. Yet, Demeulenaere did not request a blood draw.
On cross examination, Demeulenaere testified that no one reported that Kutik smelled of alcohol when Kutik was taken from his vehicle. Demeulenaere testified that the deceased passenger had a blood alcohol level, and the State stipulated that the truck passengers had alcohol in their blood. Demeulenaere left ORMC after he could not obtain Kutik's medical records. On the Monday after the accident, he went to ORMC St. Cloud, where he obtained the medical records and the blood alcohol test results. To obtain the records, Demeulenaere spoke with the records clerk and gave the clerk a form provided by the St. Cloud Police Department that requested Kutik's blood alcohol records and stated that Kutik had been involved in an automobile
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