Judge wrongly required lawyer to take breath test, appeals court says in tossing contempt conviction
A Florida appeals court has reversed a direct contempt conviction against a lawyer who mistakenly believed she was finished with work for the day when she had some drinks at lunch.
In a Dec. 28 decision (PDF), the appeals court said Judge John Simon Jr. abused his discretion when he required Amanda Edge-Gougeon to take a Breathalyzer test and ordered her into protective custody. Florida Politics and the Pensacola News Journal covered the decision.
Edge-Gougeon appeared in court after lunch when she learned that one of her clients had a plea hearing. Simon, a judge in Florida’s First Judicial Circuit Court, told Edge-Gougeon that two court employees said she smelled of alcohol. He asked her to take the Breathalyzer test and she agreed. Her blood alcohol level registered at .082, .087, and .076.
Simon ordered Edge-Gougeon to be held in protective custody until her blood-alcohol level fell to within the legal limit. At a later hearing, Simon found Edge-Gougeon guilty of direct criminal contempt.
The court said Simon didn’t have the authority to order the breath test because there had been no probable cause for arrest and no indication Edge-Gougeon had violated any laws. Nor was the lawyer told that submitting to the test would subject her to a possible finding of criminal contempt.
In a separate opinion, Judge Scott Makar warned that criminal contempt is “a hand that should not be overplayed.”
In the instant case, Makar said, “the record is bereft of any evidence that the attorney was contemptuous. The attorney appeared respectful, compliant, truthful, and prepared to proceed with the hearing.”
Makar said judges could use “a spectrum of intermediate methods” to address alcohol-on-the-breath situations. “The judicial tool cabinet is adequately stocked to address almost all courtroom situations without pulling out the sledge hammer precipitously; doing so has the feel of the classic animation film Bambi Meets Godzilla,” Makar wrote.
“A quiet sidebar, followed by a continuance, concluding with private judicial words spoken to the attorney’s employer may save a career; breathalyzing attorneys in court, holding them in ‘protective custody,’ and imposing criminal contempt sanctions is a surefire way to ruin one,” Makar said.