Gainesville Personal Injury, Divorce and Alimony Attorney

Criminal Cases of Domestic Battery – Can the Victim Drop the Charges?

In the context of criminal domestic battery or domestic violence, a question often asked is whether a victim can drop the charges. The short answer is No. Only a prosecutor has the discretion whether to charge a person with a crime. The victim to a domestic battery can request that the State not press charges, however it is simply a request.

Recently a case wherein the victim requested to have charges dropped was litigated and the defendant was convicted. Not only did the State prosecute notwithstanding the victim’s request to drop the charges, the State had the alleged victim declared a hostile witness and then sought to introduce her written statement as an exception to hearsay. The live testimony in that case was “I do not recall”.

The government’s theory was that the written statement MUST be true because it was written closer to the time of the alleged event. Obviously, it could also be that the witness chose “I do not recall” because the written statement was a lie. The written statement was shown to the jury and the defendant was convicted. The defendant appealed that the jury saw the victim’s written statement and lost that too.

Just because the alleged victim says that they will ask to have charges dropped or not filed, that does not mean the Defendant should proceede without a lawyer.  A criminal domestic lawyer may still be required to assist in a domestic violence or battery. In criminal cases, if a person cannot afford a lawyer, then a lawyer should be appointed.  Domestic battery can be a felony or misdemeanor, and either way has far reaching consequences. Nobody should fight against the government alone. If you or a loved one has been accused or arrested in a case regarding domestic violence or battery then click, call or fill out the form to hire a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Failure to Yield to a Pedestrian in Florida

Failure to yield to pedestrian is a moving violation in Florida. section 316.130. A recent article in the Gainesville Sun detailed the Pedestrian High Visibility Enforcement program conducted by the Gainesville Police Department.

Essentially two plain clothes police officers acting in 5 to 10 minute intervals step onto the crosswalk. If the driver fails to yield then an officer ahead is radioed and told which vehicle to stop. The officer will direct the driver to a staging area where the driver will be cited for violation of failure to yield to pedestrians. According to the article, Gainesville Police will conduct several more enforcement programs or stings (my word) near area schools. Given that I just blogged about a similar “education” operation regarding the Move Over Law, I guess we can expect more of these actions from our government. 

I am sure that eventually arrests will be made from stops generated by this enforcement program. Many traffic stops generate arrests for drugs, marijuana cocaine, driving while under the influence or DUI, suspended licenses etc. In other words, this is a way for the police to not only “educate” the public but to arrest people for drugs, license issues or DUI. The City of Gainesville also receives 50.8% of the total amount collected minus $2.00. Florida Statutes section 318.21.

To require a driver to yield, the law requires that the pedestrian be in the same half of the roadway as the vehicle or so close so as to be in danger. The law also specifically states that “[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.” The last time Gainesville, or Gainesville Police, conducted a similar enforcement program several people called my office claiming the officers were suddenly leaving the curb making it impossible to yield. If you cannot come to court to testify the rules allow you to submit an affidavit.  The burden of proof of beyond a reasonable doubt is still on the government.

If you or a loved one has been caught up in this or any other enforcement program or arrested from a traffic stop and want to hire an attorney then please click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

The Move Over Law Traffic Tickets

The Florida Move Over Law requires that a driver move over or slow down to 20 miles per hour under the speed limit when approaching an authorized emergency vehicle that is using any visual signals and is parked on the side of the road, or a wrecker displaying amber or flashing lights that is performing a recovery or loading on the roadside, or sanitation vehcile peforming its function.

Currently, the law does not require that officers be engaged in a traffic stop or any other job function, only wreckers have to be loading. What the Florida Highway Patrol did in South Florida was place an SUV inside of a state park with lights on. When drivers failed to either move over or decrease their speed as the law requires, the drivers were pulled into a staging area and cited. This pattern was repeated here in North Florida, according to people cited for a move over violation that hired the firm to defend their their traffic tickets.

The Highway Patrol refers to this as driver awareness or education. Obviously, if law enforcement are not engaged in a traffic stop and merely parking a vehicle on the side of the road with lights on, then they are trying to cite people for a violation of the Move Over Law. This is what the government calls law enforcement or education and some citizens call entrapment. What most people do not realize is that a trooper does not have to be engaged in any job function for the Move Over Law to apply.

Many times a citation of the Move Over Law can be defended and even if it cannot, a lawyer familiar with the procedure and rules of evidence can achieve a good result.  Obviously, the best bet is to move over or slow down, as the law requires upon approaching an emergency vehicle such as an ambulance, tow truck or law enforcement.  However, if it is too late for that and a citation for failure to move over has been issued then click, call or fill out the form to hire a traffic defense attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Drug Cases From Traffic Stops and Dog Sniffs

Many criminal drug cases begin at a traffic stop sometimes with a dog sniff leading to a search. Another case of a traffic stop leading to drugs being found has made it all the way to United State Supreme Court. This particular traffic stop led to a dog sniff which when the dog supposedly alerted caused the police to search the vehicle, of course drugs were found. 

Whether an alert by a dog provides law enforcement with probable cause to search a vehicle has been the source of a lot of litigation. This dog sniff case was out of Florida. The Florida Supreme Court had held that performance records of the dogs are required along with several other records in order for probable cause to search to be had. The United States Supreme Court disagreed and reversed.

Specifically the High Court held that because training records established the drug dog’s reliability in detecting drugs and the defendant failed to undermine that showing, law enforcement had probable cause to search the vehicle. They did not want there to be strict requirements but fell back onto what is referred to as a totality of the circumstances approach. They specifically cited the potential pit falls of relying on field performance as what could be a false positive could also be an alert to residual odors.

This is going to make it more difficult to challenge a search due to a drug dog alert but as with everything, if you or your loved one can afford to, then hire a legal team including an expert to review these training records.

The reason traffic ticket cases are important is because if you can beat the stop then you can have evidence thrown out suppressed or not used in court. That means that you would never have to get to the dog sniff or alert if the stop is bad. At least that would be my argument to the court.

If you or a loved one has any kind of drug case, traffic case or criminal case please click or call today to discuss putting together a legal team to defend your case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Leaving the Scene of an Accident – Did you know or should you know?

The law on Leaving the Scene of an Accident (LSA),  aka Hit and Run, with injury or death had been interpreted to require that the accused knew or should have known that an injury occurred. There is a knowledge requirement to LSA with injury or death because they are a criminal traffic offenses that are felonies.  LSA with property damage is a misdemeanor. The requirement of knew or should have known has been applied to the injury element of the offense even if there is a death. However, the Florida Supreme Court had said in the opinion that led to the standard jury instructions that “knowledge of the accident is an essential element of the offense”. State v. Mancuso, 652 So. 2d 370 (Fla. 1995). In addition, the court wrote that “one cannot ‘willfully’ leave an accident without awareness that an accident has occurred”. Id.

In State v. Dorsett, the trial court was reversed after a defendant had requested a special jury instruction requiring actual knowledge of the crash before he could be convicted of leaving the scene of an accident with injuries.  Actual knowledge is different that “should have known”. The trial court refused the instruction and the defendant was convicted. The Florida Supreme Court later ruled that actual knowledge is required.  The issue is one of splitting hairs, technicalities or to some constitutional protections.

If you are reading this and find it confusing, then you know why if you are facing criminal charges you should not go it alone. If you or a loved one has been accused of any criminal or traffic offense, and want to hire a criminal and traffic defense lawyer, then click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Texting and driving still legal in Florida but beware

Texting and driving is not a direct violation of the law in Florida. However, I have had several prosecutors argue to me that texting was, could be or should be considered reckless driving per se. This all may change with the introduction of senate bill 2013-0052. 

This bill would make texting and driving a moving violation punishable by points, presumably with a driving school option and increased points if it leads to a crash. While I believe you should pay attention while driving, on of my problems with this bill is that, as many texting while driving bills has several exceptions.

These exceptions include all law enforcement, fire, or medical emergency vehicle operators while performing duties. Remember your government can do it but not you. Also, navigation devices, such as your phone, sending or reporting emergency information to law enforcement, receiving “safety-related information, including emergency, traffic or weather alerts”. So it is okay if you are checking the weather app or traffic app. Another exception to the texting while driving bill are activation or deactivation of a function etc. So the exceptions eat the rule.

My big problem with the texting while driving bill is section 3(c). It states that your billing records are admissible. If this bill does become law, I will use the lack of your billing statements in evidence as a reason to dismiss the citation. However, the big brother aspect is chilling. Imagine every time you get a traffic ticket for this, an officer will be able to subpoena your cell phone bills! Wow, hello big brother.

If you or a loved one has any kind of traffic case, please click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529