Gainesville Personal Injury, Divorce and Alimony Attorney

Traffic Stops and Vehicle Searches

In criminal cases, searches resulting from vehicle stops have been hotly litigated since the automobile became available to the public in mass. Since cars are mobile and not as private as your home, the Supreme Court has interpreted the constitution to give vehicle searches and seizures less protection.

For example, an officer can run the tag of a vehicle because there is an expectation that your tag can be read by anyone behind you. Of course, not every driver out there has the capability to look up your picture, address, driving history, license status and warrant information. But since the driver in the next vehicle can see if your tag is expired, read your tag and can presumably see the driver of the vehicle, then your expectation of privacy is deemed less and you are not as protected from searches in your passenger vehicle. Most people’s interaction with law enforcement begins at a traffic stop, or by the police arriving in a vehicle and activating their lights. Until 2009 I would have called this a seizure.

Imagine a scenario where a person is seated in their car in a park, an officer pulls up behind and activates their take down lights. Presumably, 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 the Court acknowledged it would be dangerous for them to advise that people could walk away from that scene, they still held that a juvenile was NOT seized. This is true even though the officer in that case testified that in his opinion, the detainees were seized and 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 to be seized.  Thus a person who runs and throws drugs is said to abandon the drugs and is not seized for purposes of fourth amendment analysis.

It sounds as if though, cops are not guilty of violating the constitution if they are not found out. The thinking is that a fish is not caught just because you are fishing and the fish is caught, so long as the fish does not know it.  Do not try this logic in other scenarios because it flat does not work for people, this logic only works for the government. The issue of whether a seizure has happened is important because the fourth amendment protects from unreasonable searches and seizures, and 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 more 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).

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, search or seizure is valid. Therefore, the State should also have the burden of showing evidence of what a person was thinking. In any criminal case which began as a traffic stop or other warrantless search or seizure click, call or fill out the form to schedule a session with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

How to avoid a DUI and what happens next?

In DUI defense a common questions is “how do I avoid a DUI?” The answer is easy. If you drink don’t drive and if you drive don’t drink. The best way is to simply not drive to a drinking event. A taxi costs a heck of a lot less than a DUI attorney; it actually will cost you less than the court reporter. Depending on where you live, a taxi will run you less than the $25 is costs to file a request for a formal review hearing before the Department of Highway Safety and Motor Vehicles. The best way to avoid a DUI is to hire a taxi or ride share.

The traffic stop can be challenged, but at the roadside is NOT the place for this. There is no such thing as a valid “random” stop. The Fourth Amendment to the United States Constitution prohibits random stops. Even upon arrest, a search of the interior of the vehicle is not always allowed. In Florida, an officer must have reasonable suspicion to request you take field sobriety exercises (“FSE”). The exercises are subjective and voluntary. It is the driver’s 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 a refusal to participate in roadside FSE’s. Anything said, even the manner in which it is said (slurred speech) will be used against an accused.

The words used or failed to be used by law enforcement to convince a person to participate in the arrest process can also be challenged. Once in custody, Miranda rights attach. If the person arrested for DUI asks for a lawyer, then how and when that request for a DUI lawyer was made can also be used to benefit the defense. Upon the request to speak to a lawyer, all questioning is supposed to cease. A license cannot be suspended for refusing FSE’s, though many officers will tell those arrested otherwise. A license can be suspended for refusal to submit a breath sample, or if the person refuses to blow into the breathalyzer. A refusal will also be used against the person arrested for DUI, unless the words used in requesting the breath sample were incorrect.

Blowing over.08 will lead to an automatic suspension of the driver’s license while providing a breath sample under a .08 does not mean that the person will be un-arrested, released or that the State will drop the DUI case. This writer was forced to take a DUI to trial in Ocala where the client’s sample measured .045. Fortunately, the case resulted in a not guilty verdict. However, the client who blew approximately half the presumed impairment limit was still subjected to hiring an attorney, an expert, a private investigator, court reporters and subjected to the stress of having to watch the jury go back hoping for a not guilty. 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.

In short, to avoid a DUI hire a driver and not a DUI lawyer. However, if there has already been a DUI arrest, click, fill out the form or call to hire a DUI attorney today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

What is the difference between reckless driving and careless driving?

In Florida criminal and traffic law there is an enormous difference between reckless driving and careless driving. While some people use the terms “reckless driving” and “careless driving” interchangeably, a traffic attorney or criminal defense lawyer should never do so. The terms do not mean the same thing and are separate and distinct criminal or civil traffic offenses.

Reckless driving is a criminal traffic offense while careless driving is a civil traffic infraction, commonly referred to as a traffic ticket. 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 person accused of a crash resulting in property damage when driving recklessly can be punished up to one year in jail and a $1,000 fine. A crash resulting in serious bodily injury is a felony offense punishable by up to 5 years prison and a $5,000 fine. If there is a death resulting from a crash due to reckless driving, 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”. If 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 serious bodily injury or death will result in a suspension of driving privileges. (more on careless)

With penalties so vastly different, be sure of whether the charge is the civil traffic infraction of careless driving or the criminal violation of reckless driving.  The firm handles all traffic matters.  Click, call or fill out the form to hire a criminal and traffic lawyer for the case.

Gainesville (352) 371-9141

Ocala (352) 694-4529