Appeals court to consider second blood-alcohol test in former teacher's DUI manslaughter case

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A battle over blood-alcohol test results in the DUI manslaughter case against former middle school teacher Andrea Kidder is scheduled to reach an appeals court today.

Lawyers for Kidder, charged in the November 2009 highway crash that killed 22-year-old Bree Kelly, are expected to argue this morning in Tampa to keep results of a second BAC test out of the hands of prosecutors. In June, a Collier County judge ruled the results, which Kidder's lawyers have after requesting the second test, should be handed over to prosecutors as part of the evidence-sharing process.

An initial blood sample showed a BAC of .196, about two-and-a-half times the legal driving limit. Kidder's trial lawyer, Jerry Berry, argued the sample might have been mishandled.

The state's rules of criminal procedure clearly state that results of "scientific tests, experiments, or comparisons" must be disclosed. But Kidder's lawyer, Keith Upson, said that rule has previously been interpreted to exclude results from witnesses not expected to be called at trial. Kidder's lawyers have said they don't intend to call any witnesses related to the second blood test.

Requiring a defendant to disclose reports from experts and witnesses who won't be called at trial would "cripple the defendant's preparation for trial," Upson, wrote in a petition to the appeals court.

"If that became the law, you're essentially having to pre-try things in your head," Upson said in an interview Monday. His sentiment is echoed by the Florida Association of Criminal Defense Lawyers, which, in a short brief supporting Kidder's argument, wrote that requiring such disclosures would "have a chilling effect" on lawyers.

In arguing for the test results before Collier Circuit Judge Fred Hardt earlier this year, prosecutors said they were concerned Kidder's lawyer might use some of the information from the results for the defense. They also argued the results would show whether the initial sample, which was tested at a Florida Department of Law Enforcement lab, was correct.

In his ruling, Hardt cited two parts of the criminal procedure rules — the scientific test section and a section that exempts the disclosure of documents that contain "opinions, theories, or conclusions" of those connected to the case.

Blood test results have been a point of contention since the 2009 crash. The afternoon of the crash, Kidder met co-workers from Oakridge Middle School at a nearby bar, where witnesses said she drank no more than two beers. At the Interstate 75 crash scene, where troopers said Kidder rear-ended Kelly and a passenger, flipping them into a median, Kidder told investigators she had consumed two beers.

But blood tests revealed a high BAC, leading to a dispute about the accuracy of the results. A passenger in Kelly's pick-up told investigators he saw Kidder bearing down on their vehicle, and a witnesses put Kidder's speed on the highway at about 90 mph.

No trial date has been set in the case. A case management conference is tentatively scheduled for Jan. 7, but it's possible the appeals court doesn't issue a decision by that time.

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