Do you need an attorney?

BY BUDDY NEVINS

Circuit Judge Lynn Rosenthal pleaded no contest on Wednesday to reckless driving, ending the case against her stemming from her driving under the influence charges from May.

Rosenthal was not in the Broward courtroom. Brian Silber, her attorney, entered her plea.

Her sentence: Three months of probation, 25 hours of community service and restitution, which was not set.

Below is a news release issued by Silber’s office.

Although the release states that the case is over, it is not over for Rosenthal, who was appointed by Gov. Rick Scott.  

1.  Lynn Rosenthal is facing challenger Franz “Jahra” McLawrence, a criminal defense attorney, in the August 26 primary.  The arrest will surely continue to figure in the campaign, especially questions about her judgement: If she hadn’t been arrested for DIU, she would have taken the bench and presided over cases impaired. And was she hiding anything by refusing to take a urine test?
2. The Judicial Qualifications Commission has not spoken yet and they will probably address those questions among others.  This is the group that polices judges.  They surely are examining this case.

The news release below concludes: “As a public servant, Rosenthal knows she must live by a more stringent standard than the one imposed on the people she serves. As such, she has chosen to take responsibility for what happened on May 27, 2014 so that the judiciary and the public can put this matter to rest once and for all.”

The news release is wrong.

This matter won’t be put to rest until the voting ends August 26.  And until the JQC has spoken.

Here is the news release. You decide.

Press Release

Date: July 23, 2014
By: Brian Silber, Esq.
RE: State v. Lynn Feig (Rosenthal)

This was a case of an involuntary overdose of Ambien CR due to prescription error.

It had nothing to do with any other substance or medication, whatsoever.

After a careful review of the evidence and controlling law, the Palm Beach State Attorney’s Office has decided not to file any DUI charges against Lynn Rosenthal. Instead, they have opted to file one single count of reckless driving, a misdemeanor traffic offense.

As was recognized in court today by the prosecutor, their decision to decline all DUI charges was based strictly on the evidence and not in exchange for any plea bargain.

“I have entered a no-contest plea today and sincerely regret the auto accident I was involved in on May 27, 2014. Thankfully no one was injured. It is important for the public to know this accident was the result of an involuntary overdose and adverse drug reaction I had to Zolpidem Tartrate ER (extended release), the generic form of Ambien CR. This involuntary overdose was caused because my doctor mistakenly prescribed me twice the amount of Ambien CR recommended by the FDA” said Lynn Rosenthal.

Today, the Honorable William Altfield withheld adjudication (meaning there was no conviction) and imposed payment of court costs and restitution, and three months of non-reporting, administrative probation. That probation was summarily terminated when Rosenthal presented proof that she completed all special conditions of her probation: 25 hours of community service, a basic victim impact panel, and a forensic evaluation that confirmed the absence of any substance abuse by her.

Rosenthal’s case is now closed and her sentence is complete.

What Happened?

A few days prior to her arrest, Rosenthal’s physician prescribed her 12.5 mg of Ambien CR to treat insomnia. While Ambien CR was certainly an appropriate medication to treat insomnia, her doctor erred in the amount of Ambien CR he prescribed. Instead of prescribing 12.5 mg of Ambien CR, the doctor should have only prescribed 6.25 mg.

In January 2013, the U.S. Food and Drug Administration (“FDA”) reduced dosage guidelines for Ambien CR by 50%. It specifically reduced the 12.5 mg prescription to 6.25 mg. This drastic change in dosage was ordered by the FDA in response to the countless reports it had received of adverse drug reactions effecting patient consciousness – including sleep driving and next-morning impairment.

In making its change, the FDA noted that women and people who take the extended release formulation of Ambien were at particular risk. According to Dr. Ellis Unger, MD, director of the office of drug evaluation at the FDA Center for Drug Evaluation and Research, “women are more susceptible to next-morning impairment because they eliminate zolpidem from their bodies more slowly than men.”

In an article published in the New England Journal of Medicine, Dr. Unger stated that a variety of new data shows that people adversely effected by Ambien frequently do not recognize their impaired state and that “patient self-perception is not an adequate gauge of impairment.” See article below.

This is exactly what happened to Rosenthal in this case.

At approximately 10:00 p.m. on May 26, 2014 (the night before her arrest), Rosenthal took 12.5 mg of Zolpidem Tartrate ER (extended release), the generic form of Ambien CR, in accordance with her doctor’s prescription.

This was the very first time she ever took this medication.

The combined effects of being female, of the extended release formulation, and the fact that she took a double-dose pursuant to a mistaken prescription, caused her to experience next-morning side-effects.

As has been well documented in the medical literature provided below, Ambien interferes with self-perception and consciousness. Like the many patients studied by the FDA, Rosenthal was not able to realize she was still experiencing the effects of Ambien the following morning. Regrettably, this also prevented her from realizing she was not safe to drive.

The following links contain the above referenced information:

FDA Safety Warning (01/10/2013)
FDA Safety Warning (05/14/2013)
Dr. Ellis Unger, MD 
New England Journal of Medicine (Ambien CR)

THERE WAS NO UNLAWFUL REFUSAL TO SUBMIT TO TESTING

As published in police reports, there was an allegation that Rosenthal unlawfully refused to submit to sobriety testing.

Let the record be clear – this allegation is false.

When asked to submit to field sobriety exercises and breath testing, Rosenthal agreed and performed as instructed. However, when the arresting officer unlawfully requested that she provide both a urine and blood sample, Rosenthal lawfully refused the blood draw.

Pursuant to Fl. Stat. §316.1933, a blood draw may only be performed in cases that involve death or serious bodily injury. Since this case did not involve either instance, the officer’s request for a blood test was illegal and Rosenthal properly refused it. Moreover, it was unlawful for the officer to bundle the urine and blood test together. At a minimum, he should have permitted her to take the urine test by itself.

On July 2, 2014, Rosenthal successfully challenged the officer’s request at a formal review hearing conducted by the Florida Dept. of Highway Safety and Motor Vehicles. As a result, the driver’s license suspension that normally follows a refusal to submit to testing was invalidated.

In summary, Rosenthal violated no laws regarding sobriety testing and fully cooperated with law enforcement as required by Florida Statutes.

CONCLUSION

Until now, Rosenthal remained silent about her case because she wanted it to be decided on its merits. Now that the case is resolved, she has chosen to speak publically about her experience to warn others about the real dangers of Ambien and its side effects, particularly for female patients and those who take its extended release formulation.

Rosenthal has also chosen to put an end to this case in an effort to reinforce the public’s belief in our system of justice and to mend any questions about its integrity. As a public servant, Rosenthal knows she must live by a more stringent standard than the one imposed on the people she serves. As such, she has chosen to take responsibility for what happened on May 27, 2014 so that the judiciary and the public can put this matter to rest once and for all.

Closed.