The Florida Supreme Court has reversed a criminal contempt charge against a Florida man who was drunk when he reported for jury duty.
According to court records, Noel Plank appeared for jury duty at the Leon County Courthouse in 2013. In response to general biographical questioning, Plank advised the trial judge that he had various issues that would make it difficult for him to serve on the jury.
“I work a full day. I work 13 hours on Thursdays, and I have no time or money to sit in court waiting for all of y’all,” Plank said. “First of all, I’m going to tell you straight out. I’m antiwar, Vietnam draft card burner, and avoided the Vietnam war. I’m also 4F.”
When the judge inquired about the meaning of “4F,” Plank responded:
“Unqualified for military. Another thing is I’m anti-government. I have not voted since Ronald Reagan was president. I’m not even registered to vote. And I’m also, to tell you the truth, I’m a drunk.”
The trial judge did not excuse Plank based on those reasons, and jury selection continued.
In response to later general questions pertaining to his background, Plank said, “… And as far as victim of crime, yes, I have been a victim of several crimes, identity theft, theft of over a thousand dollars’ worth of professional camera equipment, theft of cell phone, and I’ve been burglarized a couple of times, nothing serious taken except a six-pack of beer, which I was kind of teed off at, because I was looking forward to having a beer after work, when I got home after work. And the police officer says—the sheriff’s asking me, “Did you check the fridge?” I said, “I never thought of that.”
At some point during jury selection, Plank apparently fell asleep. The other jurors complained that Plank smelled of alcohol and was difficult to awaken at a break in jury selection at about 2:55 p.m. as the other jurors tried to pass by Plank. At the trial judge’s direction, a Leon County Probation Officer, Ceressa Haney, then administered a breathalyzer test to Plank around 3 p.m., which was performed outside the presence of the trial judge.
An hour later, at approximately 4 p.m., the trial judge held a contempt hearing regarding Plank’s conduct during jury selection. At the hearing, Officer Haney testified that the results from the breathalyzer test demonstrated Plank had a blood-alcohol level of 0.111, and that it is illegal to drive with a blood-alcohol level over 0.08. In addition, Officer Haney testified that she smelled alcohol on Plank’s “general person” but could not determine if the smell came from his clothes or his breath.
When Plank was given the opportunity to question Officer Haney, he asked only, “What I’d like to know is how I got the smell of beer on my clothes when I never spilt one drop on my clothing.”
At that point, the trial judge asked Plank to come to the microphone. Plank, who apparently was handcuffed by that time, replied that he was having a hard time getting out of the chair himself, especially with “bracelets.” The trial judge then informed Plank that although he arrived for jury duty at 11:30 a.m., his blood alcohol content was still 0.111 more than three hours later, indicating that his blood-alcohol level was even higher when he first arrived at the courthouse.
In addition, the trial judge stated that she believed that Plank may have driven to the courthouse, and Plank confirmed that he had. The judge later found Plank in direct criminal contempt.
“All right. I’m going to find that you’re in direct criminal contempt for not only coming to the courthouse drunk but it was also—in doing that, you disrupted the jury selection here this afternoon and distracted other jurors,” said the trial judge. “Other jurors obviously noticed that you smelled of alcohol, were drunk. So I am finding you in contempt.”
“I can’t ignore this behavior that, that you’re here, you’re over the legal limit, you’re acting disruptive during jury selection,” the judge continued. “You tell me that you’re a drunk and that you’ve refused to follow the law. I mean, that’s what you said during the jury selection. And then it turns out that your blood alcohol level is significantly over the legal limit after you’ve been here for three and a half hours. So certainly your blood alcohol level has come down during that past three and a half hours. And you drove here.”
“So, I mean, the driving itself, of course, wasn’t in my presence and wasn’t part of direct criminal contempt, but I certainly think it’s a legitimate factor for me to consider, and I think 30 days is reasonable. So that’s my ruling and I’m required to do a written order, so I’ll do that, as well.”
Plank’s sentence was later reduced to 17 days and he was released from jail, but his attorneys appealed the direct contempt charge which ultimately reached the Florida Supreme Court.
“In order to be considered direct criminal contempt, all of the acts underlying the contemptuous conduct must be committed in open court in the presence of the judge, where all of the essential elements of the misconduct are under the eye of the court and are actually observed by the court,” the Supreme Court held in a 7-0 decision.
“Applying these principles to the facts presented here, it becomes clear that this is not a case of direct criminal contempt. In determining whether Plank committed criminal contempt, the trial judge took testimony from a probation officer regarding Plank’s blood-alcohol level after the officer administered a breathalyzer test. In addition, the trial judge relied on off-the-record statements from the jurors that Plank smelled of alcohol and Plank’s own admissions that he drank before attending jury duty and that he drove to the courthouse.”
“While the trial judge may have seen that Plank was asleep or that he had to be awakened by the other jurors, the order supporting the contempt conviction fails to specify which acts the trial judge personally observed or whether this information was presented to the judge from other jurors, who attempted to wake Plank during a break so they could pass by his seat. If the only act personally observed by the trial judge was a prospective juror who fell asleep during voir dire, this is not the type of willful misconduct that would typically require a court to use its “unique power.”