Judge wrong to submit lawyer to breath test, appellate court finds


An appellate court has reversed a contempt finding against a lawyer whom a judge had asked to take a breath analyzer test and then shamed in open court because others said she “smelled like alcohol.”

One of the 1st District Court of Appeal judges even wrote a 10-page concurring opinion in which he compared the judge’s over-the-top response to the classic animated short, “Bambi Meets Godzilla.”

Amanda Edge-Gougeon was held in “direct criminal contempt” last November by Circuit Judge John F. Simon Jr., who sits in Santa Rosa County, according to the opinion.

Edge-Gougeon, who works for the Office of Criminal Conflict Counsel in Pensacola, had been off for the day but was called back in to represent a client at a plea hearing, the opinion said. The judge soon called her and the prosecutor to the bench.

“The judge stated that he had been told by two court employees that (she) smelled like alcohol,” according to the opinion. “The judge asked her if she had been drinking, and she responded that she drank at lunch, but was not impaired.”

He ordered a breath test and later announced the results: .082, .087, and .076 percent – Florida’s threshold for drunk driving is .080 percent. She was then held in “protective custody.”

Edge-Gougeon sought to have the contempt charge dismissed because it wasn’t “an intentional act … committed in the presence of the court,” the opinion said.

Her Florida Bar listing shows she has no prior disciplinary record; she was admitted to practice law in Florida in 2008.

Chief Judge Clay Roberts and Judges Scott Makar and Simone Marstiller agreed that the contempt judgment should be reversed.

Their 8-page opinion said “the trial court abused its discretion” by holding her and the “request (to) submit to a Breathalyzer was unlawful … and violated her due process rights.”

Makar also wrote separately to hammer home the point that judges should use contempt charges sparingly.

“Judiciousness … counsels that a circumspect and restrained approach be followed, criminal contempt being a trump card to be played only when absolutely necessary and all else fails; we’re taught that at new judges’ college,” he wrote in a concurring opinion.

The “sanction of criminal contempt is a tool of last resort, reserved for only the most egregious cases where contemptuous intent is evident,” he said, mentioning a Miami-Dade case in which an attorney passed out in court after using cocaine.

“Perhaps she could have called in to tell the judge that she’d ‘had a drink at lunch’ so that the hearing could be reset, a suggestion the trial judge made; but, doing so could have been viewed by the trial judge as contemptuous because it caused ‘disruption’ of the proceedings,” Makar wrote.

“A quiet sidebar, followed by a continuance, concluding with private judicial words spoken to the attorney’s employer may save a career,” he added. “Breathalyzing attorneys in court, holding them in ‘protective custody,’ and imposing criminal contempt sanctions is a surefire way to ruin one.”

Jim Rosica

Jim Rosica is the Tallahassee-based Senior Editor for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at [email protected].


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