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01/10/2014
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Alarming Rate of Auto Accidents involving Law Enforcement in Florida Raises Concerns 

The Gainesville Automobile Collision Attorneys of the Law Office of Alba & Straile, PLLC comment on the astounding number of traffic accidents connected to law enforcement officials which have occurred throughout Florida in recent years. As reported by the Ocala Star Banner, “[s]ince 2011, the FHP has recorded more than 1,200 accidents involving troopers across the state.” Because this figure accounts for all trooper-related accidents, regardless of whether the officer was at fault, there are two primary concerns raised—public safety and officer safety—each of which we will discuss in turn.

With regard to ‘public safety’ in trooper-related accidents, the term is intended as a reference to crashes in which the actions of a law enforcement official either caused or contributed to their occurrence. Often time, drivers operate their vehicles under the false misconception that the likelihood of being struck by a law enforcement officer is an improbability. However, we must remember that officers, too, are human, and therefore should be treated no differently than other types of motorists that share our roadways.

Despite the fact that officers must undergo special driver training, errors in driving can occur no matter how much skill, training, or experience a motorist has. In fact, what are the requirements to become an officer?-AND-how much training do officers actually receive?

Well according to FHP Recruitment information, the requirements are so limited that an individual can potentially become an FHP trooper, complete with their own patrol vehicle, within less than 2 years of having reached the age of majority. While the thought of a 19-year-old or 20-year-old law enforcement officer may sound quite shocking, Florida permits troopers of this age, so long as the recruit meets the requirements and completes training.

This is highly concerning to many, given that the primary purpose of FHP is to safeguard our roadways, and troopers that are very young in age, may lack the maturity and driving experience to safely manage the responsibility of being a patrol officer.  An example of this can perhaps be found in a May 18th accident along I-75 in Ocala, in which 20-year old FHP trooper, Raul Umana, lost control of his patrol car after improperly attempting to maneuver a U-turn, causing a head-on collision with a vehicle being driven by 28-year-old Christea Jones. As a result of the initial crash, Jones’ vehicle veered out of control and was struck by another vehicle, and then collided with a semi-tractor trailer before coming to a stop, at which point Jones’ car caught fire.

In the aftermath of this horrific sequence of events, three children, ages 2, 5, and 7, were critically injured, and had to be transported via helicopter to UF Health Shands hospital in Gainesville. FHP says that Jones was also seriously injured in the crash. In addition, the drivers of the other two vehicles and Trooper Umana also sustained minor injuries. While authorities say the trooper, who had been patrolling on his own since February, did pass all the requirements, his actions in causing this multiple-vehicle crash certainly give rise to concern over whether his age and lack of driving experience may have played a role.

In contrast to public safety issues associated with collisions involving law enforcement negligence, we must also not forget issues of officer safety, in accidents in which an officer is injured or killed, through no fault of their own, as they carry out their official duties. We recently discussed the concerns over officer-safety, following a May 3rd crash, which killed trooper Chelsea Richards, as she was investigating a collision that had previously occurred on I-75.

In summary, drivers are no more invincible from injury or fatality caused by the negligence of a law enforcement official, than they are with any other person that shares a roadway. Yet at the same time, drivers must also remain cognizant of the fact that officers are often placed in dangerous positions, and therefore risk their own lives, in order to protect the public.

Time-sharing Considerations during Summer Vacation

The Child Custody Attorneys of the Law Office of Alba & Straile, PLLC understand that time-sharing over the summer vacation can present a variety of challenges for parents, particularly when this period involves a deviation from the typical time-sharing schedule that the parents and child are accustomed to during non-summer months. For many parents, issues regarding summer time-sharing have already been clearly outlined within their parenting plan. For other parents, there may either be no parenting plan in place, or an existing plan is unclear or ambiguous. Regardless, we all know that circumstances can changes, and often times parents may realize that a previously agreed upon arrangement may be outdated, or otherwise unsuitable to meet the current needs of the parent or the child. When it comes to summer vacation separated or divorced parents should at a minimum consider the following:

Review the provisions of your Parenting Plan that address summer time-sharing. Often parents forget or make mistakes as to what their parenting plan provides for over summer vacation. Your plan may be years old and you may just forget what it says. Reviewing it well before summer will help ensure no misunderstandings arise with the other parent.

Confirm details prior to planning vacations. Planning for a vacation, in and of itself, can be an arduous task. No parent wants to find themselves in the position of having already planned for a trip, only to find that it conflicts with a parenting plan, or overlaps with a previously scheduled event or activity which requires your child’s attendance. Be sure to check with your parenting plan and confirm with the other parent that you have timesharing during the period you plan to vacation before confirming travel arrangements and accommodations, particularly with non-refundable purchases.

Notify other parent of extended vacations by deadline (if parenting plan requires). When your parenting plan requires notification of deviations from the normal summer time-sharing by a specified deadline, be sure to adhere to the deadline. You never know if the other parent may have relied on the notification deadline in making other plans for your child. Further, the other parent may be unwilling to be flexible for whatever reason in consenting to requests once the deadline has passed.

Provide other parent with trip itinerary for out-of-state travel. In addition to confirming travel details prior to planning for a vacation, it is equally important to provide the other parent with the trip itinerary once the trip is planned. Corresponding with the other parent via email, can serve as an effective means of communication, and also provides each parent with documentation of the details of the trip.

Contact your attorney early, if you have any questions or concerns. When in doubt, contact your attorney. The attorney that assisted in establishing your current parenting plan, or an experienced family law attorney can explain the effect of an existing order, discuss your legal options in cases where no plan is in place, and provide general clarification regarding your legal rights as they pertain to entitlement and access to your child. Remember, a problem with summer time-sharing that may be resolvable early with court intervention likely will not be treated as an emergency by the court and will thus not be addressed in time.

Perhaps the most significant guiding principles that can be taken from this discussion, is the importance of planning ahead. While engaging a qualified attorney to assist in developing an appropriate parenting plan (i.e. a plan that is mutually beneficial, clearly defined, and suitable to the interests of each child) is the more desirable approach, the Law Office of Alba & Straile, PLLC have decades of experience working through problems with Parenting Plans and can help you with all your custody issues.

Aggravated Battery with a Deadly Weapon using a Vehicle, and Reckless Driving

When someone is accused of the criminal charge of aggravated battery with a deadly weapon, the deadly weapon can be almost anything.  For example, a table, chair, baseball bat, firearm, or even a car or other vehicle can become a deadly weapon if used in a certain manner.

Aggravated battery with a deadly weapon requires intent to commit a battery with the weapon.  When an accused strikes an alleged victim with a car or truck, the accused may want to make a defense that there was no intent to hit the victim, or they did not mean to strike the person.  In other words it was an accident.  In this situation a person can still be guilty or accused of reckless driving which is defined as the operating of a motor vehicle with a willful and wanton disregard for the safety of persons or property.  Reckless driving does not require the intent to hit a person or property and reckless driving can be charged when there is no crash, personal injury or property damage.  Reckless driving is different than careless driving. 

I offer free consultations in all criminal, criminal traffic and traffic matters.  If you or a loved one is accused, then fill out the form to the right, click or call to speak to a lawyer before you go to court.

Recently the Fourth District joined other District Courts and acknowledged that the criminal traffic offense of reckless driving is a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon is an automobile.  The Court went on to say “the lesser included offense of reckless driving cannot help but be perpetrated once the greater offense of aggravated battery with a deadly weapon has been committed when the alleged deadly weapon is an automobile”.  Furthermore, the Court quoted another District that wrote “aggravated assault by intentionally driving a vehicle in a threatening manner subsumes the elements of reckless driving”.  To me, this sounds more like a necessarily included lesser offense, but that legal nuance is for another blog or perhaps a conversation with other lawyers who get excited over legal nuances.

The lesson for lawyers is to ask for the lesser included instruction. The lesson for defendants is that you need a lawyer, so click or call for a free consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Read the opinion cited here.

Child pornography

Recent headlines regarding sex crimes and child pornography charges brought on 71 people in a state other than Florida reminds us that sex offenders come from all walks of life. All but one of those people arrested on charges of trading child pornography were men. The overwhelming majority of sex offenders are men, there is no other pattern. In that case there was a rabbi, a police chief, a police officer, a paramedic and a Boy Scout leader/little league coach. 

The case, like so many others, involved an investigation on peer to peer sites where individuals can share files similar to Napster or Dropbox. Because many of these cases involve using the internet to trade child pornography, the successful defense and prosecution of cases of possession, distribution, or sharing of child pornography may require a computer expert. To prove the crime of possession of child pornography in Florida, the state is required to prove that the pornographic images were knowingly possessed.  Transmitting child pornography only requires that the accused reasonably should have known that he or she was transmitting child pornography.

Each image of child pornography possessed is a separate offense. This means that an individual possessing several images of child pornography can be charged separately for each image. Possession of each image depicting sexual conduct by a child is a third degree felony punishable by 5 years in prison and a $5,000 fine. In some circumstances, the crime of possession of child pornography can be reclassified as a second degree felony punishable by up to 15 years and a $10,000 fine for each image.

The possession of one image depicting a sexual act by a child is very serious and can have life long consequences. Anyone under investigation or accused of any sex offense including possession or distribution of or trading child pornography must consult with a lawyer. Click or call for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Read the article here.

Staying Safe on the Road over Memorial Day Weekend

For many, Memorial Day weekend is a time to celebrate in honor of our military veterans. For others, the long weekend is simply a means of kicking off our summer festivities. Whether you intend on partaking in any holiday events, or you plan on spending the weekend, just as you would any other, it is important for all motorists to remain aware of the dangers that exist along our roadways during busy holiday weekends like Memorial Day. The Automobile Collision Attorneys of the Law Office of Alba & Straile, PLLC remind drivers to use caution as they travel, and offer some tips to drivers to increase safety.

Tip #1 – Leave Early. The earlier in the day you leave, the more likely you are to avoid heavy traffic and congestion. Departing before 9 am can assist in avoiding traffic. Also, studies have shown that drivers are less likely to encounter impaired drivers if they travel between 7 am and noon, than they are later in the day.

Tip #2 – Plan Ahead. Know where you are going before you depart. Although many of us often rely on GPS or mobile devices to route our trips, it is helpful to have a printed version of your trip, as a back-up. If you must use a device to route or re-route your trip, have a non-driver vehicle occupant assist you. If you are traveling alone and need to use a mapping device, safely pull off the roadway, and reassess your location before proceeding.

Tip #3 – Don’t speed. If you have taken the time to leave early and plan ahead, there is no need to speed. Speeding not only increases the risk of being involved in an accident, but can put you at higher risk of sustaining more serious injuries, or even fatality, in the event a collision occurs. If safety concerns aren’t enough to motivate you to drive within posted speed limits, perhaps the increased presence of enforcement officials, and the risk of a traffic infraction, may be more persuade you to drive safely.

Tip #4 – Always use a Designated Driver. If you intend on drinking alcohol, be sure to designate a person ahead of time, who will remain sober and can safely transport others home. If you find yourself impaired, and without a safe ride home, call a friend, family or cab. Also, services such as AAA’s ‘Tow to Go,’ offers a safe ride home (within a 10 mile radius) for both you and your car. This service is available free of charge, to both AAA members and non-members, and can be requested by calling 855-2-TOW-2-GO, or 855-286-9246.

Tip #5 – Wear a Seatbelt. The use of safety-restraint devices is always encouraged, however, their use becomes even more important when the presence of more drivers (and more impaired drivers) increases the likelihood of an accident. While we can’t control the actions of other drivers, we can take measures to ensure our own safety, by wearing a seat-belt at all times, and also making sure that any children in the vehicle are properly secured.

Tip #6 – Be aware of others. Maintain constant awareness of your surroundings, particularly with other motorists that may be speeding, driving aggressively, and driving while impaired. According to the NHTSA, nearly 400 automobile accident-related fatalities occurred in 2010, and 40% of these were attributed to alcohol impairment.

The Gainesville Accident & Injury Attorneys of the Law Office of Alba & Straile, PLLC, hope that all motorists will drive in a safe and responsible manner this weekend, and wish you all a Happy Memorial Day.

Hit and Run – Leaving the Scene of an Accident

In Florida, the criminal offense of Hit and Run is called Leaving the Scene of an Accident. The severity of this crime sometimes referred to as LSA, as do so many other criminal traffic charges, depends upon the nature and the extent of the damage.

Leaving the Scene of an Accident or LSA is always a criminal case. When only property is damaged, then Leaving the Scene is a misdemeanor. The law only requires that property be damaged, not that a vehicle is damaged. Therefore, if a driver hits a fence or a tree, and flees the scene, then the State of Florida will attempt to charge the crime of hit and run. Leaving the scene of an accident with injuries or death is a felony. 

Just like in any other single car crash with no witnesses, the evidence can be lacking without the driver’s admission. As mentioned in a careless driving blog, in almost all cases, the police did not witness the event and you should always hire a lawyer to protect yourself and not give the government the rope it needs to hang the suspect. Any person under investigation for any criminal offense, LSA, traffic or otherwise should call an attorney immediately before answering any questions to law enforcement. If there are witnesses to a hit and run or leaving the scene, it will be any bystanders and the alleged victims. Even if a vehicle is captured on video leaving the scene of an accident or crash with injuries, the video may not show the driver. Therefore, oftentimes, the police will still be seeking an admission from the owner.  Then the only thing that media has correct is that anything said will be used against the accused.

If you or a loved one is charged or under investigation then, please click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Unusual Child Support Order

In family law, there are several consequences for not paying child support. An unusual sentence, at least in my opinion, was handed down and appealed in another state not Florida. The individual was actually sentenced on a crime and the court took the liberty of addressing back child support in the criminal case. 

Usual consequences of having an arrearage, or owing back child support is the suspension of a driver’s license, the suspension of a professional license or the seizure of assets. This person had a special condition of his probation that he could not have any more children until his back child support was paid. According to the internet post I read, he owed over $100,000. He probably should have requested a modification of his child support order. While I believe this order to be unconstitutional, the appeals court did not actually decide that and requested more information from the trial court.

Whatever your situation with child support, if you need it, or need to modify it, do not let it get out of hand without at least reaching out to a lawyer first. Please click or call today for a consultation in your child support or other family law matter.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Marijuana or other drug sale and purchase

Practicing criminal law or being involved in the criminal justice system is never boring. Recently a caller to 911 asked “where can I buy some marijuana this morning?” This call looking to buy pot from the police almost sounds like a joke. 

This call was from another state. In Florida, possession of, sale of and purchase of marijuana is a criminal offense. Possession of less than twenty (20) grams of marijuana is the only misdemeanor drug possession charge. Possession can be actual or constructive.  I hear that some states have misdemeanor possession of cocaine, but in Florida possession of cocaine, no matter the amount is a felony. Possession of a prescription medicine or narcotic without a prescription is also a felony. Sale or delivery of marijuana, prescriptions or narcotics is also a felony.

My bet is the call seeking to buy marijuana was a joke. If you or a loved one have been arrested for possession, purchase, trafficking, or sale of marijuana, cocaine, prescriptions or other narcotic, then that is no joking matter and an attorney should be contacted immediately. If you have any drug case, simple possession to trafficking, then please click or call today for a free consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Truck Collides with Motorcycle in Putnam County, causing Serious Injuries

The Gainesville Motorcycle Collision Attorneys of the Law Office of Alba & Straile take note of a visibility-related accident, that left a motorcyclist seriously injured. The crash occurred on Friday, May 9th, at approximately 7:18 a.m, in Putnam County.

On this morning, 32-year-old Adam Sanford was riding 2001 Kawasaki ZX900, headed southbound on County Road 315. At this same time, 16-year-old Michael Mathes, along with a passenger, were headed east on Dogwood Street in a 1997 Ford F150. As Sanford approached the intersection at Dogwood Street, Mathes attempted to make a left turn, and in doing so turned directly into Sanford’s pathway. FHP says that Mathes failed to see the motorcyclist due to the fog present at the time of the incident.

Shortly thereafter, another truck, a 1998 Ford Ranger, being operated by 21-year-old Sara Soini, of Interlachen, encountered the initial T-bone collision. Although Soini swerved to avoid the motorcyclist, the two collided in a subsequent collision. As a result of this tragic incident, the motorcyclist sustained severe injuries, and, according to a press release from FHP, was transported to UF Health Shands in Jacksonville in serious condition. Officials say that Sanford was not wearing a helmet.

Before delving into, what our Gainesville attorneys feel is part of our moral duty—informing the public of our concerns over safety issues, accident causation, and injury compensation—we must take a moment to reflect on the serious nature of the injuries suffered by the victim. Sanford was catastrophically injured as he rode his motorcycle in not one, but two, consecutive crashes. Our injury team at the law firm of Alba & Straile send our well wishes to Mr. Sanford, as he recovers from the injuries sustained in this awful incident.

In regard to safety issues, this accident brings forth several key concerns. First, this incident demonstrates how visibility issues can greatly impact a motorist’s ability to operate their vehicle in a reasonable manner. As our attorneys previously discussed in Florida Specific Factors in Auto Accidents, smoke and fog-induced accidents are huge concern in our state. As provided by the national weather service, drivers should adhere to the following safety rules when driving in smoke and dense fog:

    • Drive with lights on low beam.
    • Reduce speed. Allow for plenty of room between you and other cars.
    • Avoid crossing traffic unless absolutely necessary.
    • Listen for traffic you cannot see.
    • Use wipers and defroster as necessary for maximum vision.
    • Be patient! Don’t pass lines of traffic.
    • Unless absolutely necessary, don’t stop on any freeway or other heavily traveled road.
    • If your car is disabled or you can’t continue, pull well onto the shoulder and turn off lights. Move away from your vehicle.
    • Consider postponing your trip until the fog clears.
    • Be especially cautious in and near school zones. Watch for flashing yellow or red signals on school buses. Watch for children waiting for buses in the fog.
    • Also, be aware that smoke from grass and forest fires along roadways can combine with fog to rapidly drop visibilities to zero.

Another safety concern that this accident compels us to reflect upon is the age of the driver that struck the motorcyclist. Given that the motorist responsible for the collision was only 16 years of age, and therefore newly licensed, our attorneys can’t help but wonder whether his lack of driving experience played a role in the incident. In Preventing Teen Crashes: Contributions from the Behavioral and Social Sciences, Workshop Report, Jim Hedlund discussed risk factors for teen drivers by identifying five critical elements:

    • skills—which include the capacity to operate the vehicle and to recognize hazards, as well as the capacity to react appropriately to the unexpected;
    • knowledge—of traffic rules and operating procedures, as well as understanding of risks and their potential consequences;
    • experience—including both sufficient practice, as well as the familiarity with the consequences of bad judgment that fosters good judgment;
    • maturity—or developed capacity for reasoning, judgment, and decision making; and
    • environment—or safe surroundings in which to learn to drive.

In addition to visibility issues and driver experience, this incident also serves as an example of the dangers faced by motorcyclists and other vulnerable road users, such as bicyclists and pedestrians. Because vulnerable road users lack the protection that a motor vehicle can provide, they are not only more susceptible to serious injuries in an initial collision, but they are also at risk for subsequent injury, or even fatality, as a result of being struck by other motorists that comes upon the accident, as was the case with Sanford. Furthermore, the victim was not wearing protective head gear,  which studies show can significantly reduce the risk of serious injury or fatality in an accident.

Aside from the various safety concerns evidenced by this motorcycle accident, the incident also presents unique issues of liability and injury causation, given that there were two consecutive accidents. As a general rule, the driver responsible for causing the initial accident, will typically be held liable for concurrent or subsequent injuries extending from the same incident. However, it is also necessary to fully investigate the matter to determine if there was any negligence on the part of the second driver.

Consequently, it is imperative that accident victims consult with an attorney that has prior experience in handling similar claims. The Motorcycle Collision Attorneys of the Law Office of Alba & Straile, PLLC have successfully recovered compensation on behalf of numerous clients in a diverse range of cases involving complex legal issues, and would like to do the same for you.

Celebrity Disorderly Conduct and Resisting

Yesterday I posted a blog regarding celebrity battery, today another celebrity, Alec Baldwin, provides the launching point for this blog about disorderly conduct and resisting. Mr. Baldwin was arrested in New York for disorderly conduct, even though, according to the article I read, he claims it was for violating a traffic control device. Perhaps a creative prosecutor could also find grounds to charge Resisting an Officer Without Violence or Obstruction of Justice although I am not advocating for those charges. 

In Florida, the criminal offense of “Disorderly Conduct” is also called “Breach of the Peace”. Here, the definition of the crime is “such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct….” Note that the legislature chose to use the words themselves in the definition which begs the question of whether this statute is unconstitutionally vague.

Resisting Without Violence merely requires that a person resist, obstruct, or oppose an officer. The officer must be in the execution of legal process or in the lawful execution of any legal duty. Whether the officer is involved in a legal duty can be the crux of any resisting prosecution.

Disorder, Resisting or Obstruction are all misdemeanors. Resisting with Violence is a felony. All are criminal offenses in Florida and you should at the very least consult with an attorney if accused. If you or a loved one are accused of any criminal offense including disorderly, resisting or obstruction, then please click or call today for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529