The facts below are taken directly from the Florida’s First District Court of Appeal’s opinion in case # 1D14-5812 (which you can see by clicking here… but to summarize: A female lawyer believed she was done with court for the day and enjoyed adult beverages at lunch. She was called back into court for an unexpected afternoon plea hearing. The Court was advised that she reeked of booze, asked her to take a breath test and she blew .082, .087, and .076. The Judge did not let her conduct the hearing, ordered her detained and scheduled a contempt of court hearing after which she was held in direct criminal contempt and sentenced to a suspended sentence of 5 months, 29 days in county jail with 6 months of probation.)
“On the morning of November 14, 2014, the Appellant finished a volunteer activity and believed she was off of work for the day. However, in the early afternoon, she learned that one of her clients had a plea hearing that day, which she then attended. During the plea hearing, the trial judge asked the Appellant and the prosecutor to approach the bench. The judge stated that he had been told by two court employees that the Appellant smelled like alcohol. The judge asked her if she had been drinking, and she responded that she drank at lunch, but was not impaired. The judge asked her to take a breathalyzer test, to which she submitted. After the Appellant returned, the trial judge resumed the hearing and told those in the courtroom what had just transpired. The results of the breathalyzer were .082, .087, and .076 grams/100 milliliter BAL. The judge stated that the Appellant would not be permitted to represent the defendant. The judge then ordered her to be held in the county jail until she blew less than .08 g/100 ml. The bailiff informed the judge that if the appellant were booked in to the county jail, she would be required to stay a minimum of eight hours. The court scheduled a direct criminal contempt hearing for the following Monday, which was continued. The Appellant moved to dismiss the contempt charge on the ground that direct criminal contempt requires that an intentional act be committed in the presence of the court, and this requirement was not met under the facts of this case. At a hearing on the motion, two witnesses testified that they had seen the Appellant immediately prior to the hearing on the day in question and neither had smelled any alcohol on the Appellant nor did the Appellant seemed impaired in any way. After hearing argument, the trial court found that the Appellant’s decision to come to court despite drinking at lunch was an intentional act that provided the grounds for a direct criminal contempt charge. The court denied the motion to dismiss, found the Appellant guilty of direct criminal contempt, and sentenced her to a suspended sentence of five months, 29 days in county jail with six months of probation.”
Well the First District Court of Appeals Court bitch slapped Judge John Simon Jr. for abusing his discretion on a variety of fronts, proving that not all Judges know, much less, follow the law. In a nutshell in this case the Appeals Court held that:
1) There was no “direct criminal contempt” in this case because in order to have “direct criminal contempt” a criminal act must occur in the presence of the Court.
2) There was no “indirect criminal contempt either” because in order to have “indirect criminal contempt” there must be some “willful act or omission calculated to hinder the orderly functions of the court” and in this case there was no contemptuous act at all (the trial judge did not smell alcohol on the lawyer, he did not observe any inappropriate behavior or deficient representation and, in addition, two witnesses for the lawyer testified that she was not impaired).
3) The Judge had no authority to order a lawyer to take a breathalyzer test and, as there was no lawful arrest or probable cause that a crime had been committed the Judge had no authority to have the lawyer placed in protective custody. Both of these actions were deemed to have been improper and violations of due process.
Memo to Judge John Simon Jr.: For your actions in this case I hereby adjudicate you GUILTY and as a sentence pronounce that….
Memo to the Folks (and the Judiciary).: It is important that people both “behave” in and respect the Court (and the Judge’s authority). But – just as criminals do not, by definition, abide by the law yet law enforcement must – so too must Judge’s judge with cool heads, fairness and 100% by the book. In this case Judge John Simon Jr. was not wrong, in theory (lawyer’s should not, and Judge’s should not suffer lawyer’s to, appear in Court under the influence… even if they are not necessarily hammered); but in practice he blew it, big time. Begging forgiveness for playing Monday morning quarterback but it seems to me that the Judge could have, sidebar, expressed his concerns – even his displeasure – and then simply reset the sentencing for the following day. Taking it to the level that he did, however, provided a definitive answer to the age old question…
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