MARK ALLEN ALBERT, PETITIONER,
v.
NICHOLAS SALCE AND ANNA SALCE, HIS WIFE, RESPONDENTS
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Mark Allen Albert sought certiorari to review a trial court order compelling him to answer deposition questions about his drug use in the 24 hours before a car accident, despite his self-incrimination claim. The Florida appellate court granted the petition and vacated the portion of the order requiring him to answer questions about non-prescription drugs, finding that such answers could incriminate him under Florida drug possession statutes.
The court granted the petition and vacated the portion of the trial court's order compelling Albert to answer questions about his use of other-than-legally-prescribed drugs. The court held that such answers could incriminate him under Florida drug possession statutes and therefore cannot be compelled.
[1] A witness may refuse to answer deposition questions if the answers may tend to incriminate them.
[2] An admission of using non-legally prescribed drugs can furnish a link in the chain of evidence supporting a prosecution for possession of controlled substances.
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Join FLexlaw to unlock all legal intelligence“This refusal could be overridden only if the trial court determined that the answers could not possibly have any tendency to incriminate or the witness was clearly mistaken in his apprehension about the possibility of prosecution.”
Establishes the legal standard for when a Fifth Amendment privilege claim can be overcome in discovery
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Join FLexlaw to unlock all legal intelligenceAn accident occurred on February 8, 1980. At his deposition, Albert was asked whether he had consumed medication, pills, hallucinogens, or any other d…
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DANIEL S. PEARSON, Judge.
Mark Allen Albert, the defendant below, petitions this court for a writ of certiorari to review a trial court order which, inter alia, compels him, despite his claim that such answers may tend to incriminate him, “to answer the questions propounded to him at his deposition relating to his ingestion of drugs, prescription or otherwise, within twenty-four (24) hours preceding the accident which is the gravamen of this action.” Finding that this portion of the order departs from the essential requirements of the law, we grant the petition and vacate the offending portion insofar as it compels the petitioner to answer questions concerning his ingestion of other-than-legally-prescribed drugs.
The accident in question occurred on February 8, 1980. At his deposition, petitioner was asked by plaintiffs’ counsel whether in the twenty-four hours prior to the accident he had any medication, pills, hallucinogens, or any other drugs of any nature, with or without a doctor’s prescription. The petitioner refused to answer on self-incrimination grounds. This refusal could be overridden only if the trial court determined that the answers could not possibly have any tendency to incriminate or the witness was clearly mistaken in his apprehension about the possibility of prosecution. Lewis v. First American Bank of Palm Beach County, 405 So. 2d 300 (Fla. 4th DCA 1981). See Town v. Reno, 395 So. 2d 602 (Fla. 3d DCA 1981).
It is plain that an admission of use of other-than-legally-prescribed drugs, if not directly tending to incriminate, most certainly furnishes a link in the chain of evidence which could support a prosecution for the possession, at least, of such drugs. It is no less obvious that the possibility of prosecution (even putting aside the possibility of federal, out-of-state and foreign prosecutions, or sophisticated ongoing conspiracies) is not merely imaginary. Section 893.-13(l)(b), Florida Statutes (1979), provides, inter alia, that any person who possesses in excess of ten grams of certain controlled substances described in Section 893.03(l)(a) or (b) is guilty of a first-degree felony for which the statute of limitations is four years. See § 775.15(2)(a), Fla.Stat. (1979). Thus, without looking beyond the confines of Florida, where the accident and presumably the asked-about drug use occurred, we can readily see that the possibility of prosecution exists in this state at least until February 7 or 8, 1984.
Accordingly, the order under review is vacated insofar as it compels the petitioner to answer questions concerning his use of other-than-legally-prescribed drugs during the time in question.
Certiorari granted; order vacated in part.
JORGENSON, Judge,
specially concurring.
The respondent has not favored this court with a response to the Petition for Writ of Certiorari. On the basis of this limited record I agree that certiorari is appropriate. But see Lund v. Lund, 161 So. 2d 873 (Fla. 2d DCA 1964), approving the statement in Annest v. Annest, 49 Wash.2d 62, 298 P. 2d 483 (1956), that “when a party claims the privilege of not answering a proper question, the court may dismiss his action or strike his testimony,” Lund at 875. See generally Annot., 4 A.L.R.3d 545 (1965).
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M.S.S. v. Robert J. DeMAIO, M.D., 503 So. 2d 1384 (Fla. 5th DCA 1987)…The trial court has the ultimate responsibility to determine whether a witness’s refusal to answer a question is in fact justifiable under the privilege against self-incrimination. See Lorenzo v. Blackburn, 74 So. 2d 289 (Fla.1954); Albert v. Salce, 439 So. 2d 339 (Fla. 3d DCA 1983). If a self-incriminating response is not clear from the face of the question, a witness may be required to provide sufficient information on which a trial court may find that a reasonable danger of incrimination exists. McCormick…
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Hernandez v. Roth, 890 So. 2d 1173 (Fla. 3d DCA 2004)…rity is wrong. I know of no law that would be violated by testing positive for drugs. At most, it could provide "a link in the chain of evidence which could support a prosecution for the possession, at least, of such drugs.” [*1178] Albert v. Salce, 439 So. 2d 339, 340 (Fla. 3d DCA 1983). See also Jefferson v. State, 549 So. 2d 222 (Fla. 1st DCA 1989) (upholding a conviction of possession of cocaine where the defendant sampled the illegal substance by using a playing card to dip it into a larger bag of cocain…
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State v. Wellington Precious Metals, Inc., 510 So. 2d 902 (Fla. 1987)…iction, but is privileged if it merely may support a conviction when linked with evidence supplied from other sources. State ex rel. Benemovsky v. Sullivan, 37 So. 2d 907 (Fla.1948); Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Albert v. Salce, 439 So. 2d 339 (Fla. 3d DCA 1983); Lewis v. First American Bank of Palm Beach County, 405 So. 2d 300 (Fla. 4th DCA 1981); Brizzie v. State, 120 So. 2d 27 (Fla. 2d DCA 1960). Based on my reading of Florida case law and the rationale of Doe, I therefore conclude th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lewis v. First Am. Bank OF Palm Beach Cnty., 405 So. 2d 300 (Fla. 4th DCA 1981)
- Lund v. Lund, 161 So. 2d 873 (Fla. 2d DCA 1964)
- Jacquelyn Renee Town v. Reno, 395 So. 2d 602 (Fla. 3d DCA 1981)