Don’t Be Afraid to Invoke Your Fifth Amendment Rights: Why You Should

Thursday, July 2, 2015
By: Vivionne N. Barker, J.D., George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
  




During a criminal proceeding, an accused individual has the right to remain silent or "plead the Fifth.” This theory has been commonly referred to as an individual's right to not be compelled to be a witness against himself or to avoid self-incrimination. It follows the accused from the inception of the case through any criminal proceeding or trial.

This right is extremely important for physicians, dentists, nurses, pharmacists and other licensed health care professionals. A criminal conviction could cause the loss of your license and your professional career.


Know Your Rights.

Historically, the right to remain silent is based on the Fifth Amendment to the U.S. Constitution and the court cases that have interpreted it. Many states, including Florida, have similar rights that are also included in their state constitutions. For example, in Florida, Article 1, Section 9, of the Florida Constitution prohibits a person from being compelled in any criminal case to be a witness against himself or herself.

Click here to read the Fifth Amendment to the U.S. Constitution.
Click here to read Article 1, Section 9 of the Florida Constitution.


What Are Miranda Rights?

The U.S. Supreme Court in Miranda v. Arizona issued a decision that effectively secured the Fifth Amendment privilege against self-incrimination. This is such a powerful, fundamental right, the court ruled, that law enforcement officials must actually inform a person taken into custody that he/she has the right to remain silent. Statements made by suspects may not be introduced into evidence at a criminal trial unless they have been informed (prior to interrogation) that they have the right to remain silent. If they decide not to exercise that right, their statements can and will be used against them and they have the right to an attorney. Click here to find out more information on Miranda v. Arizona.


What You Should Know.

The right to remain silent that is embodied in the United States and Florida Constitutions has also been extended to administrative investigations that may affect a health professional's license.
The difference in an administrative investigation is that Miranda does not apply and investigators are not required to advise you of this right. In administrative proceedings, agency investigators may make an effort to obtain statements from health care practitioners or anyone with a professional license, in the hopes that they will be incriminating themselves.


To Whom Does This Apply?

The right to remain silent does apply to an individual who holds a professional license, including health care professionals.  Respondents in administrative proceedings can not be compelled to file sworn answers to complaints, testify against themselves, or comply with discovery procedures that would be equal to testifying against themselves.  

In the case of State ex rel. Vining v. Fla Real Estate Com'n, The Division of Administrative Hearings held that the right to remain silent applies not only to the traditional criminal case, but to any proceeding that can be considered ‘penal’ in nature. Courts have defined penal cases as those that “tend to degrade the individual's professional standing, professional reputation or livelihood." Click here for more information on the case.


What to Do if Your Professional License is Threatened by a Criminal Conviction?

It is important to note that in some cases, administrative law judges have determined that if a licensee or health care practitioner has previously refused to give a deposition based on his or her right to remain silent and then chooses to testify on his or her own behalf, the regulating board may request a recess of the hearing.

A professional health care licensee should not be compelled to discuss the pending charges with any licensing agency official. If the charges are discussed, however, what is said may be used against the licensee. Often, the regulating board will request that the professional make certain records available. Anyone facing administrative sanctions should not submit any records or reports without first seeking expert legal advice. Professional heath care licensees are discouraged from providing information directly to the regulating board. A carefully drafted written response by an attorney may be persuasive in assisting the regulating board in comprehending the licensee's interpretation of the events. To read one of our past blogs on the Fifth Amendment, click here.


Yes, It Applies to the DEA, Too.

The right to remain silent and the right to consult with your attorney prior to answering questions also applies to interrogations by the Drug Enforcement Administration (DEA). We have had first hand experience with cases where DEA agents have informed our clients that they do not have this right when speaking to agents. This is totally false. Always demand to consult with your attorney prior to answering any questions from the DEA.


 
 
 Comments?
 
 
Can police question a person without reading them their Miranda rights? Does Miranda apply to all incriminating statements made to police? At what point are police required to inform a suspect of their Miranda rights? What happens if the police don't advise you of your Miranda rights? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Representing Health Care Professionals in Criminal Matters and Professional Licensing Matters.
    
If you have been arrested, it is strongly recommended that you retain an experienced attorney who can advise you on the criminal proceeding, your rights and how it may affect you. Most important to a physician, dentist, nurse, pharmacist or other health professional are what consequences may follow this. Consequences may include loss or suspension of hospital privileges, loss or suspension of your professional license, exclusion from the Medicare Program, termination from the state Medicaid Program, termination from health care insurance panels and other severe consequences.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in criminal defense matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Sources:

Miranda v. Arizona, 384 U.S. 436 (1966).

State ex rel. Vining v. Fla. Real Estate Com'n, 281 So. 2d 487 (Fla. 1973).

Department of Financial Services v. Jones, 2008, WL 83859 (Fla. Div. Admin. Hrgs., case no. 07-3951PL, Rec. Order Jan. 7, 2008).

"Facts and Case Summary - Miranda v. Arizona." United States Courts. From:
http://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-miranda-v-arizona

"State ex rel. Vining v. Fla. Real Estate Com'n." Leagle. From:
http://www.leagle.com/decision/1973768281So2d487_1496.xml/STATE%20EX%20REL.%20VINING%20v.%20FLORIDA%20REAL%20ESTATE%20COM'N
 
"Fifth Amendment - U.S. Constitution." FindLaw. From:
http://constitution.findlaw.com/amendment5.html

"Constitution of the State of Florida." Online Sunshine. From:
http://www.leg.state.fl.us/Statutes/Index.cfm?Mode=Constitution&Submenu=3&Tab=statutes


About the Authors:
 
 
 
Vivionne N. Barker is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.
 
 
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area.
 
 
 
 
 
KeyWords: Right to remain silent, Miranda rights, criminal law, defense attorney, health law, health care attorney, health care lawyers, conviction, physician, physician criminal charges, health attorney, criminal trial, criminal case, defense lawyer, criminal proceeding, Fifth Amendment, plead the Fifth, Miranda v. Arizona, professional license, Department of Financial Services, Florida Real Estate Commission, administrative sanctions, administrative law judges, administrative hearing, administrative trial, administrative proceedings, U.S. Constitution, The Health Law Firm reviews
   
                    
 

"The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.
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7/2/2015

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