Gainesville Personal Injury, Divorce and Alimony Attorney

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01/10/2014
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Mistake in the Order! Oral v. Written Orders in Florida

You leave court and realize, there is a mistake in the Order!  Clerks are people, what happens if the Clerk makes a mistake? For instance what happens if the judge orders one thing from the bench but the written order says something different? There is a mistake on the judgment, sentence or final order! This happens from time to time and if you have ever been to criminal or traffic court you know why. One hundred cases are handled within 120 minutes and there is simply a lot of paperwork moving really fast. Most of the orders are simply forms and the Clerk will check boxes as the judge speaks from the bench. Sometimes, the wrong box gets checked. 

For some reason I’ve been contacted a few times by attorneys and defendsnats in the past month in regards to this issue which usually only happens a few times a year. The issue is not complex and but does require a written motion from you or your attorney to be fixed. In Florida, the oral pronouncement from the bench will trump the written order. The oral ruling rules over the written order. Therefore if the judge says ABC from the bench but the written order says XYZ then what rules is ABC.

If there is a scrivener’s error or other mistake in your judgment, sentence or final order a written motion or request needs to be filed as soon as possible. If there is a mistake in the paperwork received from the court, then to get started click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Take a Notice of Violation of the Red Light Camera to Court

Many people contact me about the Dunnellon red light camera as soon as they receive a notice of violation. The red light camera system was put in place supposedly for traffic safety. A driver is not supposed to be issued a notice of violation of the red light if the driver was turning right at the time.  If you are to be accused of running a red light the first listed owner of the vehicle will get a notice of violation in the mail. 

If you have received a notice of violation issued by a red light camera, then the only way to challenge this violation is to take your case to court. According to the paperwork issued by American Traffic Solutions (“ATS”), the company responsible for maintaining the red light camera, the only way to do this is to do nothing. That is because in order to fight your red light camera notice of violation you have to do so in court, and in order to get to court you must have a uniform traffic citation. ATS states in their paperwork that they will not issue a citation unless you ignore their notice of violation. So to go to court, initially ignore the notice.

If you have received a notice of violation and wish to challenge the violation you must then ignore the notice from ATS and wait until you receive a traffic citation. Once you have a traffic citation your case will be forwarded to the Clerk of Court. The Clerk will assign a court case number. It is at this point that you can have your day in court. The documents ATS sends will inform you that the process of issuing a uniform traffic citation can take two (2) months.

If you have received a notice of violation at a red light camera and call into the firm, I will tell you that you have to ignore the notice of violation and wait to receive a uniform traffic citation in order to fight your case in court. Once your case is in the courthouse that is where an attorney can help fight your ticket. If you or a loved one has received a notice of violation or has ignored the notice and now has received a traffic citation click or call today to discuss your case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

What if You Forgot to Pay Your Traffic Ticket?

What happens when you forget to pay your traffic ticket? A new traffic law went into effect on January 1, 2013 that changed what can happen if a person forgets to pay or otherwise act upon the traffic ticket or citation. Under former law, once 30 days passed, the driver would be convicted or adjudicated, points were assessed and the license was suspended and that was it.

Just about the only way to do anything was to pay the citation and pay the reinstatement fee to have the license reinstated. A Motion to withhold or remove points could always be filed; however, whether to even address the case used to be exclusively at the discretion of the court. Whether a hearing was granted was somewhat by luck of the draw.

Now, so long as it is within 180 days from the citation, the driver can request a hearing. The Clerk has to set a hearing. This means that whether the accused gets their day in court is no longer up to the judge.  A person can request and get a hearing up to 180 days from the violation, regardless of whether the license was suspended for failure to pay a ticket. The final order still remains up to the judge but at least there is a chance by having a hearing that is required by statute. The late fee still has to be paid; however, there is a better chance at getting no points simply because of the entitlement to a hearing.  The driver gets to take their shot, instead of hoping to take a shot.

Ipon receiving a citation, the best course of action is to do something within 30 days. However, if the defendant forgot to pay or act upon the ticket, now the court has to provide a hearing. If you or a loved one forgot to pay a ticket and is asking “now what?” or you otherwise need help either to request or conduct a hearing click, call or fill out the form today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Blood Test or Blood Draw in DUI, DUI Serious Bodily Injury, DUI Manslaughter –

In Florida, when a person is suspected of DUI Manslaughter or DUI causing serious bodily injury the police can use reasonable force to obtain a blood sample to test. A blood test can only be obtained when there is probable cause to believe the driver is under the influence and caused a serious bodily injury or death. This includes serious bodily injury to the driver. Law enforcement DOES NOT have authority to force a blood test or blood draw in a plain DUI, DUI with property damage or DUI with bodily injury.

In 2013, the United States Supreme Court decided the case of Missouri v. McNeely.  The Court held that absent exigent circumstances, a warrant is required to pierce the skin.  In that DUI case, there were no injuries or death yet the State of Missouri forced a blood test. The Court suppressed the blood and the State appealed. Mr. McNeely had refused the breathalyzer. In Florida, refusing to provide a breath sample, means the license will be suspended but that can be challenged. In a case like McNeely, the blood test should be suppressed in Florida as well.

Missouri argued that a warrant should not be necessary because, the evidence is dissipating with every minute that passes.  In other words, the body is destroying evidence.

This ignores the fact that in most cases that are neither a DUI Manslaughter nor DUI serious bodily injury, there is not medical personnel on the scene. With serious injury or death there may be a paramedic team present. Therefore, when a case is not DUI manslaughter or DUI serious bodily injury, there is going to be some delay regardless. There would be a delay in collecting blood in either transporting a driver to a hospital or waiting for a paramedic. If a State is going to allow a warrant to be issued to force a blood test in a DUI, then that delay time should be used to apply for a warrant.

Any traffic case causing death or serious bodily injury is a serious case, if you or a loved one is accused of any traffic violation causing death or serious bodily injury including DUI manslaughter or DUI serious bodily injury, then click, call or fillout the form to hire a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Stop for Flashing Bright Lights.

In recent years, law enforcement began seizing people for flashing bright lights accusing people of supposedly warning drivers about the presence of police or troopers on the road ahead. The question was whether a driver could flash lights at another driver.

A new traffic law went into effect on January 1, 2013 that essentially says that drivers may now flash their lights to communicate to other drivers. You may have seen this while driving down the interstate the flashing is used to warn other drivers headed the opposite direction of law enforcement ahead. Of course, it is also used as a means of communication to let you know that the driver doing the flashing wants to pass, or that the driver ahead may move, or an acknowledgement of another driver, or it is done by accident.

Of course, law enforcement will always take the dimmest view of the intent behind the flashing of the bright lights. This law was actually needed because law enforcement was citing people for interfering with a legal duty which is a crime. The counter argument being that First Amendment rights should protect you from saying “hey watch out, there is an officer up there”. Now, it is codified in the Statue, so flash away if you are so inclined.

Many times a traffic stop will lead to a drug possession case or worse.  Therefore, these stops like all others could lead to more sever consequences. If you or a loved one has a criminal case from a stop for flashing bright lights or otherwise needs help with any traffic ticket or criminal case, then click, call or fill out the form today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

I Received a Traffic Ticket, Now What?

You received a traffic ticket for speeding, failure to yield, violation of a traffic control device, careless driving, or some other reason so now what? For some reason many people believe they must pay a citation within 30 days. While that is an option it is not necessarily a requirement.

Within 30 days of receiving the citation you must inform the court whether you want to A) pay the citation and then pay the ticket, B) elect school, if you qualify, to resolve the citation and still pay the amount on the ticket or C) take the traffic ticket to court. If you hire a traffic attorney you are making the election to fight your traffic citation in court. If you wait past 30 days, you cannot elect school to resolve your citation, despite what the police may have said roadside.  In addition, waiting past 30 days, will lead to the license being suspended.  A driver who failed to act can request a hearing if the citation was issued within180 days.

No all lawyers go to court, some will just enter a plea of no contest through the mail and never plan to appear at a hearing.  Hiring this firm menas that there will be an attorney to appear at court to argue. An appearance by the accused is not necessary and can actually hurt the case especially if there is an identity issue, such as in a crash case.  If you choose to fight your traffic ticket, your attorney should go to court for you.

At the hearing, if the officer fails to show then the person wins and the traffic citation case should be dismissed on those grounds. If the officer does appear, then they must prove that the speed measuring device, weather radar, laser, stop watch, or in a pacing stop their speedometer, has been properly maintained and calibrated.  If the officer is missing documentation or there is an error, then the defendant can win on those grounds.

Click, call or fill out the form to hire a traffic attorney to represent the accused in court.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Carrying a Concealed Firearm a Criminal Felony with Exceptions

Carrying a concealed firearm is a felony criminal offense in Florida with several exceptions that almost eat the rule. All of the exceptions, of course, require that the person is not otherwise prohibited from carrying a firearm concealed or otherwise. For example, the exceptions do not apply to people who have an active domestic violence injunction, are on probation, or are a convicted felon.

The most obvious exception is if you have a license to carry the concealed firearm. These are easy to get if you’re over 21 and if you are going to carry a concealed firearm it is a good idea to have one.

There is an exception that a citizen can carry a concealed firearm in their vehicle if they are at least 18 years old and the firearm is either securely encased or not readily accessible for immediate use. There is no requirement that the firearm be unloaded.  There is an urban myth about something called a two step rule. There is no such rule in Florida law. The best examples of securely encased are your glove box or gun case. The other major exception to the crime of carrying a concealed firearm is if you are in your home or place of business. Whether a location is a place of business has generated some case law as “place of business” is not defined in the statutes.

Most recently, the Fourth District held that a union hall can be a place of business for someone who was essentially working there. The person was responsible for security, the parking lot, dispatch, patrolling the docks, keeping money, and serving as the union’s business agent. Obviously the police officers that arrested him and the State Attorney’s Office that prosecuted him did not think this amounted to a person’s place of business. Probably, the citizen had no idea that he was doing all that work but was not in his place of business. The State after losing the argument at the trial court appealed and argued again on appeal that a union hall could not be a place of business. Fortunately the courts showed some common sense. Unfortunately this person had to be arrested, post a bond or sit in jail, hire an attorney and hope for the best.

If you or a loved one has a case of carrying a concealed firearm or any other criminal charge and are looking to hire an attorney click or call today to see if you case can meet some of the exceptions. For another defense see the blog Granny’s Got a Gun.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Pre-Trial Release and Violations

A violation of pre-trial release in a criminal case can lead to having a bond revoked. According to numerous sources, comedian Katt Williams was arrested on Tuesday January 8, 2013 for failing to appear in court while out on bond. His bond was revoked and re-set. Several of my clients have missed court or otherwise had their bond revoked while out on bond. Not all of my client’s bonds were re-set.

Under current Florida law, most people charged with new criminal offenses are entitled to a reasonable bond. Even non-monetary release is frequently given with conditions. Sometimes, these conditions of pretrial release can feel as though there has already been a conviction and sentence to probation. Special conditions of pretrial release include do not possess or consume alcohol, no contact with the victim or a person may be released to report as if though on probation. Standard conditions of pretrial release are that you appear in court, not violate any additional laws, provide notice of an address change etcetera.

Unfortunately, as Mr. Williams has found out if you miss court you’re likely to be arrested as soon as possible. However, what many people fail to realize, is violating any condition of your pretrial release can lead to having your bond revoked. For example, if a condition of pretrial release is do not drive and a person caught driving could have the bond be revoked.

In Florida, the bond can be revoked by the judge on its own motion or the state can ask the court to revoke the bond. Technically the court can revoke a bond for a violation of pretrial release without a hearing.

Anyone having trouble meeting or abiding by the conditions of pretrial release should ask their lawyer to file a motion to modify the conditions of release. A lawyer may have valid reasons for not doing so; however, a Defendant has the right to ask. For more information or a consultation in a criminal case click, call or fill out the form today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Red Light Camera Violations

Red light cameras and traffic tickets for red light camera violations are becoming more prevalent. It seems that every month there are more phone calls from people who receive a notice of violation on a red light camera.

Sometimes, people call claiming that they were turning right at the red light. Although there is a general requirement to stop at all red lights, after stopping you may make a right hand turn, unless otherwise prohibited by a sign or other traffic control device at the intersection. That is why the law allowing for red light cameras specifically says that “a traffic citation may not be issued for failure to stop at a red light if the driver is making a right hand turn.”

A driver who has been issued a notice of violation from a red light camera and wants to fight it, must take it to court. To have a day in court, follow the instructions on the notice. Most of the notices instruct to do nothing. After doing nothing, the government will mail the accused a citation. The potential fine will be increased. However, upon the issuance of a citation, the case can be argued in court. However, as stated in the Dunnellon red light camera blog, in court there have been problems with the evidence needed to impose a fine and red light camera cases are being dismissed across the state. This of course does not mean that the government will not eventually fix the problem.

Once the citation is received, please click, call or fill out the form today to hire a traffic ticket lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Reckless Driving and Vehicular Homicide – preseve evidence

Recently I took a Reckless Driving with Property Damage case to trial. Reckless Driving is a criminal traffic offense. Recklessness requires the State to prove a willful and wanton driving pattern likely to cause damage. Furthermore, Reckless Driving is needed to prove Vehicular Homicide, but not DUI Manslaughter.  Careless driving is a civil citation, see the blog on the difference between reckless driving and careless driving for more.

The difference between being criminally prosecuted for a Vehicular Homicide or just Reckless Driving is a death. Sometimes, this difference can literally be a fraction of a second and several years in prison. Fortunately for my client, nobody got hurt and the accident reconstruction expert and I were on site documenting the scene within days of the crash. Furthermore, photographs were taken by his friend the night of the crash and then a few hours later when the sun came up. This early work before the attorney for the state even knew the case existed was the difference in the trial which ended in a not guilty verdict.

If a person has been arrested for Reckless Driving or worse, Vehicular Homicide, or even worse DUI Manslaughter, then it is important to begin work the morning after the crash. You cannot wait for blood results or anything else. Have friends or family take pictures if you cannot afford to pay someone to be on the scene immediately. It is a good idea to have friends or family take the pictures anyway, just in case. In court, when they ask you why you took the trouble to protect yourself, feel free to mention this blog. Make sure your photographs show a clear progression of the road and include landmarks for the jury.

For a consultation in any traffic matter including Reckless Driving, Vehicular Homicide, DUI Manslaughter or just a traffic ticket click, call or fill out the form today.

Gainesville (352) 371-9141

Ocala (352) 694-4529