         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-3793
                 _____________________________

MELVIN DOUGLAS HAWTHORNE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court for Santa Rosa County.
Ross M. Goodman, Judge.

                           June 13, 2018


B.L. THOMAS, C.J.

     Appellant was convicted of driving under the influence
causing death, driving under the influence causing serious
personal injury, and driving under the influence causing property
damage. Although Appellant was charged and found guilty of
vehicular homicide and driving without a valid license, the State
dismissed those counts. Appellant was sentenced to a lengthy
term of imprisonment. The charges were based on a traffic
accident in which the State’s expert witness testified Appellant
was driving approximately 79 miles per hour when he drove into
the victims’ car. The impact of the accident killed one 13-year-old
victim and seriously injured another young victim.

     The tragic events began twelve hours after Appellant was
released from the county jail. Appellant struck a vehicle but did
not stop, and the driver of that car pursued Appellant in an
attempt to obtain his tag number. Appellant then ran a stop
sign, hit a guard rail, and crashed into the victims’ car, causing
the death and injuries. Appellant’s blood test showed
.90 milligrams of methamphetamine and .10 milligrams of
amphetamine per liter of his blood.

    The State presented the expert testimony of Dr. Bruce
Goldberger, Director of Toxicology and Chief of the Division of
Forensic Medicine at the University of Florida College of
Medicine. The defense objected to Dr. Goldberger’s testimony,
arguing that the evidence was not admissible under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

     During the pretrial Daubert hearing, Dr. Goldberger testified
that methamphetamine impacts on human physiology have been
known for “more than a century,” but most studies analyzing
amphetamine and methamphetamine are “case-type” studies,
because doctors cannot ethically give human subjects impairing
doses of amphetamine or methamphetamine. He testified that
epidemiologic studies have been conducted of drug impacts on
traffic accidents. Dr. Goldberger published four books, including
the “Handbook of Workplace Drug Testing,” which contained a
chapter on methamphetamines. Dr. Goldberger testified that if
he is informed of details from before, during, and after a crash,
including any relevant blood samples tested for drug
consumption, he can form an accurate opinion on whether that
person was impaired. He further testified that he had utilized
this analytical method “maybe thousands of times,” and it is a
method commonly accepted in the field of forensic toxicology.

     Dr. Goldberger testified that there is no set amount of
amphetamine that would necessarily constitute impairment. He
testified that a person who had been incarcerated for “a period of
time” with no access to amphetamines would have no tolerance to
the substance upon leaving incarceration.

     Dr. Goldberger testified that he tested Appellant’s blood
sample and that “this concentration is a very significant . . .
[i]ndividuals will die as a consequence of ingesting this much
methamphetamine.” Based on his tests and studies of the effects

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of methamphetamine on the body and on a person’s driving,
many of the details of the episode – speeding, running a stop
sign, crashing into a guardrail, rear-ending a car, having dilated
pupils, glassy eyes, rambling speech, cottonmouth, being restless
and scratching himself in a hospital bed – were consistent with
someone      who     was     impaired     by    methamphetamine.
Dr. Goldberger testified that the method proposed by the State –
whereby the prosecutor would pose a hypothetical situation
identical to the facts of the present case, and he would testify as
to whether those facts were consistent with someone impaired by
methamphetamine – was a method that is generally accepted in
the field of forensic toxicology. The trial court found the
testimony proffered by the State was relevant and necessary to
assist the jury in understanding the issue, and that the method
proposed by Dr. Goldberger was admissible under Daubert.

     At trial, Dr. Goldberger testified that the facts in evidence
were consistent with impairment caused by the ingestion of
methamphetamine. He also testified that, because giving test
subjects impairing amounts of methamphetamine is “too
dangerous,” there is not a generally accepted method of
extrapolation      to   determine      time  of    ingestion   for
methamphetamine and the time within which impairment would
occur. On cross-examination, Dr. Goldberger testified that he
could not determine whether the ingestion of the drug occurred
two, five, or eight hours before the crash.

     The State submitted into evidence Appellant’s certified
driving record, to which Appellant objected, asserting the record
was prejudicial under section 90.403, Florida Statutes. The trial
court ruled that the record of active suspensions of Appellant’s
driver’s license (with previous convictions redacted) was relevant
to prove that Appellant drove while he knew his license was
suspended. The partially redacted driving record was admitted
into evidence over Appellant’s objection.

     Appellant asserts reversible errors based on the admission of
Dr. Goldberger’s testimony under Daubert, the admission of
Appellant’s redacted driving record, and the evidence of his
release from county detention shortly before the traffic accident.


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We hold that the trial court did not commit reversible error in
any of these three evidentiary decisions.

     First, the trial court did not abuse its discretion in allowing
Dr. Goldberger to answer the hypothetical propounded by the
prosecuting attorney, as this expert testimony was not pure
opinion testimony under section 90.702, Florida Statutes. We
have previously noted that “‘[p]ure opinion’ testimony is based
only on clinical experience and training; in contrast, the
cornerstone of section 90.702 is relevance and reliability based on
scientific knowledge. See Daubert, 509 U.S. at 590, 113 S. Ct.
2786 (explaining that “the subject of an expert’s testimony must
be ‘scientific knowledge’”).” Booker v. Sumter Cty. Sheriff's
Office/N. Am. Risk Servs., 166 So. 3d 189, 194 (Fla. 1st DCA
2015). Section 90.702, Florida Statutes, requires that to admit
expert testimony involving “scientific, technical, or other
specialized knowledge” to help juries decide a “fact in issue,” the
trial court must determine if “(1) The testimony is based upon
sufficient facts or data; (2) The testimony is the product of
reliable principles and methods; and (3) The witness has applied
the principles and methods reliably to the facts of the case.”

    Here, we conclude that the expert witness relied on ample
data – “more than a century” of medical data and observation –
regarding the impact of methamphetamine on human beings;
thus, the first statutory factor was met. Further, the expert
witness’ opinion was based on sufficient facts or data, as the
blood tests, crash data, lay testimony, and other evidence
provided that foundation. Thus, the third statutory factor was
met, in our view.

    We must next determine whether the witness’ testimony was
the “product of reliable principles and methods,” the second
statutory factor. Frederick v. Swift Transp. Co. Inc., 591 F. Supp.
2d 1149, 1151-52 (D. Kan. 2008) (expert testimony of chief
medical    examiner     of   Georgia    regarding      amount    of
methamphetamine present in urine properly admitted, based on
witness’ methodology, reliance of toxicology analysis, “Drug
Abuse Handbook” and “Disposition of Toxic Drugs and Chemicals
in Man,” and underlying data, despite lack of information based
on amount in blood).         Dr. Goldberger testified that his

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methodology of determining whether a set of facts was consistent
with methamphetamine impairment was commonly accepted in
his field, and testified that this method was based on published
studies by him and other professionals in his field, and at trial he
applied those methods to the facts of this case. Therefore, we
conclude that his expert testimony was admissible under
Daubert, and the trial court did not abuse its discretion in
admitting his testimony.

     We now address the two other evidentiary rulings. A trial
court’s admission or exclusion of evidence generally is reviewed
for an abuse of discretion. San Martin v. State, 717 So. 2d 462,
470-71 (Fla. 1998). Florida Statutes provide further guidance:
“Relevant evidence is evidence tending to prove or disprove a
material fact.” § 90.401, Fla. Stat. (2016). “All relevant evidence
is admissible, except as provided by law.” § 90.402, Fla. Stat.
(2016). “Relevant evidence is inadmissible if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation
of cumulative evidence.” § 90.403, Fla. Stat. (2016). “‘Relevant
evidence is inherently prejudicial; however it is only unfair
prejudice, substantially outweighing probative value, which
permits exclusion of relevant matters.’” State v. Blackwell, 787
So. 2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres, 552
So. 2d 1151, 1153 (Fla. 3d DCA 1989)).

     Evidence of Appellant’s release from jail twelve hours before
the accident was relevant to prove a material fact – that he
recently ingested methamphetamine and was impaired when he
ran into the victim’s car at a high rate of speed. Ratushinak v.
State, 517 So. 2d 749, 751 (Fla. 4th DCA 1987) (evidence that
defendant stated he had been recently released from jail was
relevant, as sexual-battery victim testified perpetrator made this
comment during crime, thus, testimony tended to prove identity).
The time when Appellant ingested the methamphetamine was
relevant to proving that he was impaired when the accident
occurred, an element of DUI manslaughter. § 316.193(3), Fla.
Stat. (2016). The trial court correctly admitted this evidence.

    Appellant further argues that evidence of his driving record,
which contained multiple license suspensions, was not relevant to

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prove that he knowingly drove without a license on the day of the
accident. We disagree. A driving record showing a license
suspension is sufficient to prove that a defendant had notice that
his or her license was suspended. See Anderson v. State, 87
So. 3d 774, 780 (Fla. 2012) (stating “the State sufficiently proved
knowledge by verifying that the DHSMV sent notice of
Anderson's license suspension . . . . [The State] entered into
evidence the driving record of Anderson . . . .”). Appellant argues
that the record showing that his license was suspended “was
irrelevant as to whether on August 17th [2014], the date of the
offense, Appellant was driving without a valid license.” But the
driving record tended to prove a material fact to a charge of
driving while license suspended and that Appellant knew his
license was suspended. The trial court did not abuse its
discretion in admitting the partially redacted evidence.

    The judgment on appeal is AFFIRMED.

JAY and M.K. THOMAS, JJ., concur.

                   _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
                _____________________________


Andy Thomas, Public Defender, Maria Ines Suber, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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