If it is too late for that, then there are some important things to remember. First you can challenge the stop of your vehicle but at the roadside is NOT the place for this. Being polite and courteous to the officer may actually help you. Remember there is a good chance that you are being recorded. Also, the officer does not know you and therefore does not know you are a good person so keep your hands in sight and let them know before you reach for things like the registration in the glove box.
There is no such thing as a valid "random" stop. The fourth amendment to the United States Constitution prohibits random stops. Even if you are being arrested, a search of the interior of your vehicle is not always allowed. The answer to "Can I search your car?" is NO! The answer to "If you had nothing to hide you would let me search your car..." is nothing because they are not asking you a question. Do not take the bait. Have you been with your car since the day it rolled off the line? What if the person installing the carpet dropped his marijuana in your car at the assembly line and you did not know it? What if this officer is a bad apple who will plant evidence to secure a conviction? Do you know the officer?
In Florida an officer must have reasonable suspicion to request you take field sobriety exercises ("FSE"). Please note that words mean things and I used "request" and "exercises" NOT "make you" or "tests". The exercises are subjective and voluntary. It is your choice to take them or not. The only true thing about TV and movies is that ANYTHING you say or do will be used against you in court. Yes, this includes your refusal to participate in FSE's. Anything you say even the manner in which you say it (slurred speech) will be used against you. You cannot lose your license for refusing FSE's.
However, you license can be suspended if you refuse to blow into the breathalizer. If you refuse, this will also be used against you in court. You cannot be unarrested and if you blow over .08 then your license will also be suspended. No they do not have to drop your case if you blow under .08. In fact I conducted a DUI trial conducted where the client blew .045. Yes the client was found not guilty in less than ten minutes of jury deliberation (long enough to pick a foreperson) and yes it was Ocala. So even this client who blew approximately half the presumed impairment limit was still subjected to hiring an attorney, an expert, a private investigator, court reporters and watching the jury go back hoping for a not guilty.
Why did your government choose to spend your money in this fashion? In fairness to the government, there was an anti-inflammatory arthritis medication in the urine. Unfortunately, even the government expert testified that the medication would have very little impairment effects. How do they get away with this? You elected them.
Once you are in custody, and sometimes when they order you to get out of the car, Miranda rights attach. If the officer asks you to perform FSE, ask for a lawyer. When they arrest you ask for a lawyer. You must ask for a lawyer constantly because there is a relatively new US Supreme Court case out there that makes this a good idea. Once you ask for a lawyer all questioning must stop. You should be quiet; just shut up. Keep in mind that even if you are talking about the NFL draft, your speech pattern is being evaluated.
After you blow over .08 or refuse, your license is automatically suspended. Your citation will operate as a ten (10) day temporary driving permit. Within ten (10) days of your citation you must request a hearing before the DHSMV to challenge the automatic suspension. Currently this costs $25 (which can be more than the taxi ride). At the hearing the lawfulness of the arrest including the stop can be challenged.
A Florida Supreme Court case from 2011 specifically held the lawfulness of a stop or arrest can be challenged in a refusal case. Although I see no distinction as to the lawfulness of the arrest or stop in a blow case, my colleagues have warned that the general counsel of the DHSMV will argue differently.
In short, to avoid a DUI hire a taxi and not me. If you are arrested or cited for anything remember to be polite and courteous or you will make the situation worse. If you would like more information visit my DUI page, or for a free consulation in your DUI or traffic case click or call today. I offer free consultations in all criminal and traffic cases.
]]>Imagine a scenario where you are in a park, an officer pulls up behind you and activates their take down lights. I would argue anyone who tried leaving that scenario would be met with a forced seizure. Indeed one of the officers involved stated he would have prevented anyone from leaving the scene and another stated he believed the subjects were not free to leave. The courts disagreed. Somehow, the result of the police action depends on the person being detained and not the actions of the officers. Unfortunately that case entitled G.M. v. State decided by the Florida Supreme Court in 2009 stands for the proposition that the activation of lights does not actually mean a person is seized unless that person is aware of the lights.
Everyone I talked with about this case agreed with me except a particular government attorney and the judges she helped convince otherwise. Unfortunately, the Florida Supreme Court, whose opinion matters more than mine, disagreed with me and agreed with her. While they acknowledged it would be dangerous for them to advise that people could walk away from that scene, they still held that juvenile was NOT seized. This is true even though the officer in that case testified that in his opinion, the detainees were NOT free to leave. If you are not free to leave then you are seized.
Instead of a per se rule that lights equal seizure the Court instructed that the trial courts must consider the totality of the circumstances, not what the police officer was thinking but somehow what the defendant was thinking. Essentially for a valid stop and then search the law "requires that the display of police authority be the cause of or produce the submission before it can be said that a seizure has occurred". A person must submit before being seized. Thus a person who runs and throws drugs, abandons the drugs and is not seized for purposes of fourth amendment analysis.
Do not try this logic in other scenarios because it flat does not work for people, this logic only works for the government. Imagine that you do not cheat on a test unless your teacher is aware. The thinking is that a fish is not caught just because you are fishing. In other words when the police are interacting with you and you did not call them for help, or even if you did, then the police are gathering evidence to support a conviction. You are the fish.
The issue of whether a seizure has happened is important because the fourth amendment protects from unreasonable searches and seizures, not pushy sales people. Since the GM case, the State will argue that lights alone do not indicate a seizure and the officer was seeking to have a consensual encounter with the detainee.
In a recent case the trial court found that an officer parked "catty corner" to the driver's vehicle, activated the lights and shined a spotlight on the driver, this was NOT a seizure. Fortunately the appellate court disagreed and reversed stating that no reasonable person would have felt free to drive away after an officer activated his emergency lights and used a spotlight to illuminate the person's parked vehicle. Smith v. State (4th DCA 2012). However this shows the danger of having to make the analysis.
Now a trial court has to attempt to determine what the person was thinking. It is almost as if though the legality of the seizure and resulting search depends upon the subjective actual awareness or knowledge of the arrestee. Fortunately there is a concurring opinion in the GM case that attempts to make clear that the burden of proof is on the State. If there is no warrant then the State has the burden to show that a stop is valid. Therefore the State should also have the burden of showing evidence of what a person was thinking. If you or a loved one has a criminal case which began as a traffic stop or other warrantless search or seizure click or call today for a free consultation.
]]>Reckless driving is a criminal traffic offense while careless driving is a civil traffic infraction. A person convicted of reckless driving the first time is subject to a maximum sentence of 90 days or by fine of not less than $25 nor more than $500, or by both. For a second conviction of reckless driving, a person can receive up to 6 months jail time or a fine of not less than $50 nor more than $1,000, or by both.
A crash resulting in property damage when driving recklessly is accused is punishable by up to one year in jail and a $1,000 fine. A crash resulting in serious bodily injury is a felony offense punishable buy upr to 5 years prison and a $5,000 fine. If there is a death resulting from the crash, then a person may be charged with vehicular homicide.
Reckless driving is a component which must be proved when a person is accused of vehicular homicide. Vehicular homicide can be either a second degree felony punishable by 15 years and a $10,000 fine or if a person is also accused of leaving the scene, then a first degree felony punishable by up to 30 years and a $10,000 fine. In addition if racing is alleged and proven, then that will qualify as the reckless component of vehicular homicide
Sometimes a person charged with driving under the influence or DUI will be looking for or offered what is referred to as a "wet reckless". Basically is alcohol or drugs are suspected, then the court will order a DUI program substance abuse education course and evaluation in addition to other penalties. When alcohol is involved the term of probation may be up to one year even if nobody is hurt and it is a first time reckless driving.
In addition to the penalties above, a conviction for reckless driving will add four points to your driving history. Careless driving is either 3 or 4 points and the maximum fines are either $500 to $1,000. Careless driving with death will result in a suspension of driving privileges. Visit my careless driving blog to learn more.
With penalties so vastly different you need to be sure of whether you or your family member is charges with the civil traffic violation of careless driving or the criminal violation of reckless driving. For a free consultation in your Florida traffic case call 877-219-1875 or click today.
]]>Therefore, if you have a traffic citation in the municipalities of Lawtey, Hampton or Starke, your traffic ticket case will be heard by the county judge of Bradford County in Starke, which is the county seat. If you have a traffic ticket in Belleview, Dunnellon, Reddick, Ocala, Silver Springs or Summerfield, then your case will be heard in the Marion County Courthouse. In Marion County traffic ticket court, most cases are heard by the hearing officer. If your traffic violation case was issued in the towns of Alachua, Archer, Gainesville, Hawthorne, or Waldo then your traffic violation matter will be heard in Alachua County court in Gainesville, Florida. The courthouse locations for the Eighth and Fifth Judicial Circuits can be found on the resources page of the website under the Local and General heading.
While the small towns of Hampton, Lawtey and Starke, and Waldo issue many traffic tickets, the towns themselves do not have to expend the monies to support traffic court. However, the officers do have to travel into the county seats of Gainesville, Ocala and Starke. Sometimes this creates a situation where the officers cannot show. The only way to take advantage of this and have your traffic citation dismissed is to fight it by choosing to have a hearing. You must choose to have a hearing within 30 days of the issue date of the traffic ticket.
These towns seem to depend on drivers merely paying the citations and not electing a contested hearing. This makes some citizens feel that Hampton, Lawtey and Waldo are speed traps. If you were issued a citation in either of the counties or towns mentioned here, then I will handle your case. Please call or email me for a free initial consultation into your traffic ticket case or if you prefer visit my traffic page for more information.
]]>A citation for careless driving is a moving violation that carries three (3) points unless there is an allegation of a crash. A conviction for careless driving causing a crash will result in four (4) points. Many times the charge for careless driving will only involve one vehicle, that of the driver who received the citation. In almost all cases the officer that issued the citation for careless driving will not have witnessed the accident. In those instances you should always hire an attorney to fight your traffic ticket.
In addition to mandatory fines and driver's license suspension, a violation of careless driving resulting in a death can also result in one hundred and twenty (120) community service hours, which is more than required for a DUI!!!
Careless driving whether involving serious bodily injury or death or just a crash where thankfully no person is hurt is a serious traffic offense with potential long term consequences not only to your record but to your insurance. Visit the traffic page of my website or for a free consultation in your traffic ticket or citation, please call or e-mail.
]]>The main reason for the drastic reduction in fees and costs is that in order to enter into the program, a citizen accused of DUI, usually must agree to the program within thirty (30) days. Sometimes arraignment is not scheduled for weeks. Furthermore, the time to choose the program usually comes prior to the DHSMV hearing. Less litigation means less in fees and costs. A person arrested for a first DUI in Gainesville still has the right to challenge the automatic suspension of their driver's license at the DHSMV hearing. My advice is to always request a hearing because a formal review hearing must be requested within ten (10) days from the arrest. The DHSMV has a $25 filing fee to request a hearing but if later the decision is made to accept a deferment, then you can always cancel the hearing. Furthermore, requesting a DHMSV hearing may allow you to see the evidence of DUI sooner than through the normal DUI discovery process.
The main disqualifiers for the DUI DP are if there is an allegation of DUI with property damage or injury or if the person accused of DUI has a significant traffic history. If you are accused of DUI with property damage or injury then you need to have representation by a DUI lawyer. An arrest for driving under the influence in Florida has time limitations. If you or someone you know has been arrested for a DUI in Gainesville do not wait for your case to go back to court to take action rights may be lost by the time a case returns to court.
]]>The article notes a few interesting facts. First some of these red light traffic tickets are being thrown out by the courts. Right now, Florida courts are split on whether citations issued due to red light cameras are constitutional notwithstanding the calibration and maintenance issues. Second it costs too much if citizens fight. That is government admitting what I always say, that if more of us stood up and fought these things then more of us would win. The trouble is that if you find yourself having to appeal a traffic citation, the costs outweigh the individual victory.
Are these red light cameras really deterrents? What is more of a deterrent, the marked cruiser or the camera that a driver may or may not know is present? At the intersection of Archer Road and 34th Street by the University of Florida in Gainesville, the city has installed motion sensors. They look an awful lot like cameras, has that deterred anything?
One example of how this law may be found unconstitutional is if you imagine the owner of the vehicle, if the owner claims they were not the driver, has to swear to an affidavit who was driving the car. What if the owner committed the crime of knowingly permitting an unauthorized operator to drive? This is a violation of Florida Statutes section 322.36 and is a misdemeanor. Then presumably the fifth amendment would protect that owner from swearing anything? Also note how the law shifts the burden of proof to the owner away from the government. This runs afoul to our founding principles. What if we are gathering for the holidays and 12 drivers had access and the owner does not know? All 12 have to be turned in?
If you are cited for any traffic matter, criminal or civil, you should at least speak with a traffic lawyer. Please call 877-219-1875 or email me.
]]>One of the most confusing things for ordinary citizens is that in a VOP proceeding, the State's burden is that of preponderance of the evidence and not beyond a reasonable doubt. I spend more time repeating this than anything else in probation violation proceedings. My example for preponderance of the evidence standard is that if you imagine two piles of grains of sand, each with exactly the same amount of grains, then you take one grain of sand and remove it from one pile adding it to the other, then the pile with that one additional grain of sand would meet the burden. It is also referred to as more likely than not.
Whether the alleged violation of conditions of probation is technical or substantive, the answer to the question "what can they do?" is the same in Florida. Under current Florida law, a violation of probation is a resentencing and the judge can impose any legal sentence including the statutory maximum. Therefore if a probationer is on probation for possession of cocaine and screens dirty, then the judge could legally sentence that probationer to five (5) years.
Remember that if your loved one is facing a probation violation, you should not walk into court alone. I provide free consultations in VOP matters.
]]>What can you do if you were issued a traffic ticket in Waldo? In every traffic violation case you have three options. First you could just pay the citation, you will receive points on your license, your insurance may increase for years and some states will suspend your license if you were driving fast enough.
Second, if you qualify you may elect traffic to take traffic school, which will guarantee no points on your license but you will still have to pay the citation in full. A few years ago our legislature removed the discount which used to apply; now you must pay the traffic citation in full when you elect traffic school. You do not qualify if you have a commercial driver's license or CDL.You may only make the traffic school election once every year and only five (5) times in your lifetime. There are schools online and in person. You may follow the links from my website's resources page. (Of course, I have an interest in the link meaning the company will pay me if you pay them.) You can find links to the Clerk's office on the same resources page cited above. (No, the government does not pay me if you pay them.) You can find out online when the last time you elected traffic school and a surprising amount of information online. Just follow the Driver License Check link from my resources page.
Third you can hire a traffic ticket lawyer to represent you in court. I practice traffic ticket defense in Gainesville, Ocala and the surrounding areas. The court for traffic tickets issued in Waldo, Florida is in Gainesville. During my interactions with law enforcement officers along the US 301 corridor, including Lawtey, Starke, and Waldo they have divulged that their municipal statistics showed that in any given month, 80-90% of people just pay their traffic ticket or in the alternative elect traffic school which requires payment of the citation. Why do an overwhelming majority of citizens just roll over and pay the traffic ticket?
I think the first reason people pay or take traffic school and pay a traffic citation is that if you elect to take the traffic school you may do so online. Therefore, the school is more convenient than it was even ten years ago. Second, perhaps most people feel that if you fight your traffic ticket you will lose when it is the law enforcement's word against the citizen. Unfortunately this can seem true. What can you do? I say fight your Waldo, Lawtey or Starke traffic ticket citation. Make them prove their case. Even in North Florida sometimes the officer does not show. When they do show they sometimes do not have their documents in order.
You should always fight a single car accident case in which you are charged with careless driving. In that instance you are most likely cited with careless driving because there was an accident and for no other reason. In single car accident careless driving citations, you are likely the only witness to the accident. The State has to prove you guilty, the officer or trooper did not witness the accident over 90% of the time. If you hire me, or another lawyer we go to court for you. What evidence can they present? None. If you go on your own, they may ask you questions and you may have to admit you were driving. Hiring a traffic ticket defense lawyer will save you points, and fine and court costs association with the traffic citation for careless driving because without evidence, the State cannot meet their burden of proof which is beyond a reasonable doubt.
No attorney I know charges for traffic matters consultations. Contact someone; hopefully if you are reading this you will Contact an attorney Attorney Christian A. Straile for you free consultation regarding your traffic ticket.
In a speeding ticket case if the officer shows with documents in order, then the speed measuring device result will be presumed accurate. These defenses are difficult; however most of the time an attorney can help you to avoid points and traffic school. If you do not take your shot you will always miss. If you fight your traffic ticket case, you may win. If you contact my office and mention this blog, I will offer you no points or your money back.
In short most people do not fight their traffic ticket case. More people should. Just about all attorneys will talk to you about your criminal or traffic case for free over the telephone. Contact an attorney. Please consider my services by calling 352-371-9141 from Alachua and Levy Counties or 352-694-4529 from Marion County or emailing for a free consultation in your traffic violation case whether it is criminal or civil, I handle all traffic matters.
My resources page: http://www.acaslaw.com/Resources.shtml
Contact my office: http://www.acaslaw.com/Contact.shtml
At the office of Attorney Christian A. Straile, LLC, we assist clients throughout Gainesville and Ocala who have been arrested or are under investigation for criminal activity. We understand that every case is unique, and take the time to get to know you and understand the specific details of your situation.
Our firm believes that effective criminal defense starts with thorough preparation. We are committed to putting in the time to be more prepared than the prosecution. We will bring in forensic experts if necessary to help us put together the most compelling arguments in your defense.
Contact our office by e-mail or call us at 352-371-9141 (toll free at 877-219-1875) to discuss your situation with an attorney.
Our criminal law blog
We established this blog to provide valuable information to individuals throughout Gainesville and Ocala in Florida who face criminal charges or have questions or concerns about their rights in a criminal prosecution. We will regularly update this blog, posting on a wide range of criminal law topics, including drunk driving, traffic tickets, drug charges and domestic violence.
We welcome your participation in the discussions on this blog. Feel free to comment on posts that interest you.
Contact our office
Contact us online or call us at 352-371-9141 (toll free at 877-219-1875) for more information.
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