WEST PALM BEACH — Rush Limbaugh’s lawyers pulled a “gotcha!” out of their hat Thursday, pointing an appeals court to one of its own decisions forbidding the seizure of medical information without due process.
Attorneys for the conservative talk-show icon wrote in a brief before the 4th District Court of Appeal that the same court ruled two years ago that a DUI suspects’ blood test could not be used in a criminal case against him because a state consent law had not been followed.
Prosecutors have argued before the court that the federal Fourth Amendment guaranteed their right to seize Limbaugh’s records and that they did not have to follow state law procedures.
Prosecutors made that same argument in the DUI case — and were flatly rejected, wrote Limbaugh’s attorneys Roy Black and Jackie Perczek in Thursday’s response. Prosecutors omitted that fact in their current argument before the appeals court, Limbaugh’s attorneys wrote.
Prosecutors seized Limbaugh’s medical records from four doctors late last year, saying they had valid reason to believe Limbaugh had “doctor-shopped.” Doctor shopping — seeking overlapping prescriptions for drugs from multiple doctors — is a third-degree felony in Florida.
The office of State Attorney Barry Krischer maintains that it has scrupulously protected Limbaugh’s rights, including not viewing his seized medical records until a judge gave permission to do so. In those medical records and other pharmacy records is evidence to support at least 10 counts of doctor-shopping, prosecutors have said.
The appeals court eventually will rule whether Krischer’s office can use the medical records. One of Limbaugh’s most unlikely allies, the ACLU, and doctors groups have joined Limbaugh in the fight to keep them private.
On his radio show Thursday, Limbaugh, saying he had shown restraint from doing so for five months, poked fun at Krischer. Limbaugh though, has constantly complained on his show that the investigation is a political witch-hunt conducted by Krischer, a Democrat.
“Let him charge me with making fun of him,” Limbaugh said on his show. “I’m sure he can find a statute.”
A spokesman for the state attorney’s office, Mike Edmondson, declined comment. “We don’t respond to what suspects say,” Edmondson said.