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Influential conservative radio show host Rush Limbaugh plans to appeal a Florida appeals court ruling that Palm Beach County prosecutors acted properly when they seized his medical records during a drug investigation. “We strongly disagree with the decision of the court majority, because it does not recognize a patient’s right to medical privacy that Congress, the Florida Legislature and the citizens of Florida have granted to patients such as Mr. Limbaugh,” Miami criminal defense attorney Roy Black said after the ruling by a three-judge panel of the 4th District Court of Appeal in West Palm Beach was announced Wednesday. “Mr. Limbaugh should not have to give up his right to privacy to prove his innocence.” “There are four things we can do and we’re going to do them all,” he said. Black said he would ask the panel to rehear the matter, ask the full court for an en banc hearing and ask the DCA to certify the issue to the Florida Supreme Court as one “of great public importance.” If all of those fail, he will appeal directly to the state Supreme Court. Authorities have yet to charge Limbaugh with any crime. A further appeal by Black, however, would appear likely to forestall any decision by West Palm Beach State Attorney Barry Krischer on whether to charge Limbaugh. Krischer, a Democrat who has been accused by Limbaugh and others of having a political agenda, indicated in a prepared statement that the stalled investigation was back on track, at least temporarily. “To date, Mr. Limbaugh has not been charged with any crime. Such a determination awaits the outcome of the investigation. Accordingly, Mr. Limbaugh continues to enjoy the presumption of innocence at this time,” the statement said. “Because today’s ruling permits the investigation to move forward, there will be no further comment made.” News that Limbaugh, now 53, was the focus of a criminal investigation by Krischer’s office surfaced last fall after the Boca Raton-based National Enquirer accused Limbaugh of illegally buying hundreds of thousands of dollars worth of powerful prescription pain pills. The report prompted Limbaugh to admit he’d become addicted to pain medication prescribed to treat a back problem. He took a five-week leave of absence from his radio show to receive treatment. On Nov. 25, investigators armed with court-approved searched warrants seized Limbaugh’s medical records from the offices of three unidentified physicians and a clinic where he had received medical care and prescriptions within a five-month period. According to a notice later sent to Limbaugh, the records were immediately sealed without any of the contents being viewed by authorities. According to court records, authorities were probing whether Limbaugh had violated Florida’s “doctor shopping” statute, which makes it unlawful for anyone to seek a prescription for a controlled substance from one doctor without disclosing that they had obtained drugs from another within the previous 30 days. The probe was placed on hold, however, after Black objected to the records seizure and any review by law enforcement of his client’s medical records. In court arguments seeking to quash search warrants and keep the records sealed, Black asserted Limbaugh’s right of privacy in personal medical affairs. Palm Beach Circuit Court Judge Jeffrey Winikoff turned aside Limbaugh’s initial court challenge. Black then appealed to the 4th DCA. The American Civil Liberties Union of Florida, which in February filed a friend-of-the-court brief in partial support of Limbaugh, issued a statement expressing its disappointment with the 4th District’s ruling. The ACLU had argued that law enforcement officers violated state law by using the more intrusive search warrant process to seize Limbaugh’s medical records, rather than by obtaining a subpoena. Under Florida law, police using a subpoena must notify the person whose medical records they seek to obtain and give that person the opportunity to object before the records are seized. “Rush Limbaugh’s celebrity status is secondary to the fundamental privacy issues that arise in this case,” said Florida ACLU legal director Randall Marshall of Miami. “What is at stake here is the medical privacy of millions of people in Florida and the need to protect people against unnecessary government intrusion into their medical records.” The ACLU’s lead counsel in the case, Fort Lauderdale attorney Jon May, said, “We intend to do everything we can to vigorously argue in favor of strengthening privacy protections for every person in Florida.” The investigation apparently began with accusations made by Limbaugh’s former housekeeper at his Palm Beach estate, Wilma Cline, and her husband, David. The Enquirer reported that the Clines told the paper that Limbaugh purchased more than 30,000 painkillers including OxyContin from them in 2001 and 2002. Under Florida law, oxycodone, the active substance in OxyContin,, along with cocaine, is a Schedule II substance, and simple possession is a second-degree felony punishable by up to 15 years in prison. The Daily Business Review previously reported the Clines talked to Krischer’s office, and received immunity, before selling their story to the tabloid. The 4th DCA ruling upholding the state’s authority to seize medical records regardless of any right of privacy was written by Chief Judge Gary M. Farmer. Judge Carole Y. Taylor concurred, and Judge Melanie G. May concurred in part and dissented in part. “We are asked to decide whether the authority of the state to seize medical records in a criminal investigation by search warrant is limited by a patient’s right of privacy. We conclude that the state’s authority to seize such records … is not affected by any right of privacy,” Farmer wrote. Judge May said in her partial dissent that while she agreed with the majority that the state may use a search warrant to search for and seize a person’s medical records, she thought they had turned a “blind eye” to Section 21, Article I of Florida’s Constitution that provides “age-old” privacy protections it affords to medical records. “Unlike the majority, I see a distinction between the right to search and seize medical records … and the ‘disclosure’ of those records,” May wrote. In a footnote, she suggested that when medical records are the subject of a warrant, the state should keep both the warrant and an accompanying affidavit under seal until “an impartial magistrate is able to determine relevancy.”

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