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01/10/2014
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Waldo, Florida Traffic Ticket Quotas

The top was blown off an illegal traffic ticket quota requirement at the city of Waldo, Florida just days after I issued a blog about traffic ticket quotas. According to a presentation by several officers to the city council, Waldo, long designated a speed trap, did in fact maintain an illegal traffic ticket quota. While this traffic citation quota allegation remains under investigation, two officers have been suspended. Obviously, those officers failed to appear in court this morning. 

My guess is that while the investigation continues, the suspended officers will continue failing to appear in court. Because I actually take traffic infractions to court, the officer’s appearance is required. When the officer fails to appear, then the traffic ticket case should be dismissed.

I have yet to see a smoking gun on the allegations, however, several officers claimed that the Waldo Police Chief said that the officers should be writing a citation per hour. The problem with quotas is that it creates an incentive or motivation to issue citations that are questionable. If an officer can lose their job for failing to write tickets, then that officer is motivated by self preservation and not law enforcement. Traffic ticket quotas have been illegal in Florida since 1992.

If you or a loved one received a ticket for any traffic violation in Florida then click, call or fill out the form at the top right of the page to hire a lawyer today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Traffic Ticket Quotas

When it comes to traffic tickets, several people claim to ‘know’ that officers have quotas on how many tickets they are supposed to write in any given month. If you ask any Florida local law enforcement officer, they will assure you that there are no quotas in their department. At least that is what they all tell me. The fear of traffic infraction quotas is that the officers are writing to meet quotas and not for the traffic violation itself. 

I am also told, however, that officers designated as traffic enforcement officers, like all other police or employees are reviewed.  At those reviews, the number of tickets the cop writes is tracked. This means that the departments are tracking the numbers. Essentially at a traffic enforcement officer’s review the supervisor will know how many tickets the officer wrote and can compare that number to other officers. Cops with low traffic ticket numbers are apparently given lower performance reviews. What is the officer doing out there if not writing traffic tickets? While Gainesville, Waldo, Lawtey, Ocala and Florida Highway Patrol have all denied to me that quotas exist, they do admit the number of traffic citations are kept and reviewed.

In at least one state, the fear of quotas was so great that the governor recently signed a bill into law banning ticket quotas. According to the article I read, Illinois’ Governor said the move was to boost public trust and prevent motorists from facing unnecessary anxiety when they encounter a police vehicle. Quotas are bad but if the officers are needing that to motivate them to enforce the laws, then maybe we should reexamine why they are officers to begin with.

Anybody traveling in Bradford or Alachua County should know that towns like Waldo and Lawtey have no issues writing a high volume of tickets. Honestly all you have to do is observe traffic on I-75 in Marion, Alachua or Columbia County to see that no quotas are needed and that the troopers can write speeding tickets all day long.

If you or a loved one received a ticket in Alachua, Bradford, Columbia or Marion County, then please click, call or fill out the form at the top right for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Solicitation of Prostitution – Excessive Fine

The criminal offense of Solicitation of Prostitution is a second degree misdemeanor. Normally, a second degree misdemeanor is punishable by a maximum of sixty (60) days and a five hundred dollar ($500) fine. However, effective 2013, the Florida legislature changed the fine for soliciting a prostitute to a mandatory five thousand dollar ($5,000) fine. According to this relatively new law, a judge has no discretion.  The fine that is required to be imposed is five thousand dollars ($5,000). 

To put things into perspective, five thousand dollars ($5,000) is the maximum and not required fine for offenses such as Battery on a Law Enforcement Officer, Robbery by Sudden Snatching, Grand Theft, Possession of Child Pornography, Aggravated Stalking, Fleeing or Attempting to Elude a Law Enforcement Officer, Child Abuse and Battery Causing Great Bodily Harm. Most would consider the aforementioned list of criminal offenses as more serious than Solicitation of Prostitution.

Recently, a court in Florida agreed. That Court found the mandatory fine of five thousand dollars ($5,000) as unreasonable and excessive when considering the nature of the underlying criminal offense of hiring a hooker. The Court declared the mandatory fine unconstitutional. This finding, that the predetermined fine for solicitation is unconstitutionally disproportionate, will be appealed; in fact the Court requested that the appeals court reexamine the matter via a certified question.

All criminal offenses are serious and you should not fight the government alone. If you or a loved one are charged with Solicitation, or any other criminal or traffic matter, then click, call or fill out the form at the top right of the page for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

State v. Cotton, FLWSUPP 2109COTT

Updated blog regarding the $5,000 civil penalty

Gainesville – Ocala Attorneys Discuss Fault Following Death of 5-year-old child in Rear-end Collision 

Due to a recent tragedy involving the death of a 5-year-old child, the Gainesville Automobile Collision Attorneys of the Law Office of Alba & Straile, PLLC revisit a previous topic in which we discussed common misconceptions regarding the presumption of fault in rear-end collisions.

While often time we use hypothetical scenarios, here we discuss an actual real-life scenario involving the heartbreaking death of a 5-year-old child. The facts of the accident, reported by the Gainesville Sun, are as follows:

On Thursday, July 24, 2014, a 2014 Kia occupied by 4 out of state residents, including two adults, 32-year-old Joseph Paul and 24-year-old Cassandra C. Montimaire, as well as two children, 8-year-old Sebastien G. Montimaire and 5-year-old Annabel Jeanine Montimaire, pulled over to the side of Waldo Road near Gainesville, in order to enter information into their GPS. According to FHP, the Kia was stopped, but was partially blocking the outside lane. Thereafter, a 2009 Ford Expedition, driven by a 32-year-old resident of Starke, Tabitha Morris, failed to see the stationary vehicle, and as a result struck the Kia from behind. As a result of the collision, the 5-year-old was fatally injured, the 8-year-old suffered serious injuries, and the rest of the parties involved sustained minor injuries.

So, given these facts, let’s examine this accident in terms of fault and liability…*

In Florida, case law provides that, in rear-end collisions, the rear-driver shall be presumed to be the sole and proximate cause of the accident, unless the front-vehicle is able to ‘rebut the presumption.’  In other words, they must present evidence sufficient to demonstrate that the rear driver’s negligence contributed to (or caused) the accident. This is referred to as the Rear-end Collision Rule.

And applying this rule to the facts…

The front vehicle (the Kia), was pulled over to the side of the road, and the rear-vehicle (the Ford), struck the Kia from behind. Therefore, according to the rule, a presumption of fault will arise over the driver of the Ford. However, keep in mind that the presumption is rebuttable, and according to FHP, the Kia was ‘partially blocking the roadway.’ As such, the driver of the Ford may attempt to rebut the presumption by asserting that the Kia was illegally stopped, unlawfully parked, or otherwise obstructing the roadway.

Our assessment of fault does not end here, though…

While, at a quick glance, one may be inclined to think that the position of the Kia is sufficient to overcome the presumption, this is not necessarily true. It is important to remember that Florida adheres to principles of comparative negligence. Consequently, if the driver of the Kia (front vehicle) is able to present sufficient evidence showing that the negligence of the driver of the Ford (rear vehicle) contributed to the accident, the presumption is eliminated.

As automobile collision attorneys, we understand the need to thoroughly examine accident circumstances, as well as identify, gather and preserve all relevant evidence, in order to properly assess fault. For example, while FHP stated that the Kia was blocking the roadway, further investigation, such as accident reconstruction or witness statements, could possibly reveal otherwise. In addition, evidence of distracted driving, such as cell-phone records showing that the rear-driver was talking on a cell phone, or texting while driving, can also support an assertion of comparative negligence. The examples provided represent just a few potential scenarios, and there are a number of additional factors that should be taken into consideration in examining fault.

So, given the foregoing, let’s say there is sufficient evidence of comparative fault….

Generally speaking, there are two things likely to occur in the event either party asserts an auto negligence claim. First, evidence of comparative fault may be used during the negotiation process, in an attempt to reach a settlement with the opposing party.  Second, if the parties are unable to settle, the matter may proceed to trial. At trial, evidence will be presented for the purposes of assigning percentages of fault, which is then used to offset each party’s damages. This process is referred to as apportionment of damages.

Again, hypothetically speaking, let’s say it is determined that each party was 50% at fault for the accident…

While one might think that equal fault would leave both parties emptied handed, this would only be true if they had an equal amount of damages. Just as the percentages of fault must be determined, so must the amount of damages. In the accident at hand, the only occupant in the Ford, the driver, suffered minor injuries, and therefore it is necessary to determine whether that party’s injuries are sufficient enough to meet the permanency threshold.  However, the Kia had 4 occupants, and as a result of the collision, one child was killed, the other sustained severe injuries, and the two adults suffered minor injuries. Clearly the death of the child is permanent in nature, but more information would be needed to determine the extent of injury suffered by the others.

Now, applying fault to damages (hypothetically)…

Keep in mind that it is also necessary to consider each party’s insurance coverage, including PIP coverage, as well as Bodily Injury and Underinsured/ Uninsured Motorist coverage. Therefore, for explanatory purposes, and without taking into consideration insurance coverage, deductibles, other factors pertaining to damages, and crossclaims or counterclaims, let’s say it is determined that damages on one side total $20,000, and on the other side, $100,000. If this were a simple case involving only two parties, the assignment of 50% fault to each would result in a reduction in damages to $10,000 and $50,000, respectively. However this accident is a bit more complex, in that it involves several injured parties, multiple potential claims, as well as a possible wrongful death action.

What can be taken from the foregoing?

As a general rule, accident victims should never rely on a police officer’s finding, the contents of the police report, or their own assumptions regarding fault and liability. It is far more beneficial to discuss the matter with an experienced attorney who will investigate the accident and potential fault, gather evidence, and explain your legal rights and options regarding entitlement to financial compensation. Not only is consultation free in personal injury matters, but representation is provided on a contingency basis, which means if you don’t recover financially, neither will your attorney. If you or a loved one were injured or killed in an accident that occurred in Starke, Waldo, Melrose, Gainesville, or a surrounding area in Alachua or Bradford counties, the Gainesville Automobile Collision Attorneys of the Law Office of Alba & Straile, PLLC want to help you.

*Please note that this discussion should not be construed as legal advice nor determinative of the outcome of any claims associated with this particular matter.

Early Termination of Probation in Criminal Cases

One option in Criminal sentencing is probation. Some people are not aware that there is an option to request to terminate or get off of probation early by filing a motion for early termination of probation. A probationer does have to file a written motion in the court and request a court hearing. Most judges will consider the motion to terminate probation early after half the time is served and all conditions are completed. 

A person sentenced to probation usually is ordered to complete conditions of probation.  All standard and special conditions have to be followed. These conditions include drug screens, restrictions on travel, etc.  A person on probation has the hammer of the maximum sentence and likely incarceration hanging over their head. Sometimes people who have no reason to be on probation are then accused of another offense. (Substantive v. Technical Violations). Being on probation makes things worse. A person accused of violating probation is not entitled to a bond while awaiting a hearing and the court can legally sentence the person to the maximum allowed by law.  However, not all violations will disqualify a probationer from applying to terminate probation early.

Being off of probation can be the difference from going to prison or not and being out while awaiting trial or incarcerated instead. Having had clients in those situations inspired this blog. Several times an early termination is granted only find the person arrested within a few months. This means the difference between having a bond and not having a bond. The advice given to clients is simple and consistent. Finish the conditions of probation as soon as possible, borrow money to pay your fines and court costs if necessary because a credit card provider cannot incarcerate anyone, then get off of probation as soon as you can.

For help filing a motion, click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Child Abuse and Child Neglect Cases

Criminal child abuse or neglect cases can be difficult to handle because of the raw emotions that usually accompany the alleged victim. An alleged child abuse victim is usually assigned a victim advocate by the state. The child abuse victim is also regularly removed from the home if the alleged abuse or neglect took place at the hands of a caregiver such as a parent or other adult household member. 

Words do mean things.  In Florida, child abuse and child neglect have different meanings. According to the AP, a woman was charged with contributing to the delinquency of a minor for helping her son with a video in which he set himself on fire as part of the “fire challenge” trend on social media. Why this was not thought to be abuse or neglect is beyond me and perhaps the reporter is incorrect.

Essentially ,the difference between child abuse and child neglect is that child abuse is the intentional infliction of a mental or physical injury to a child while child neglect is a caregiver’s omission to provide things necessary to maintain the child’s well being. Child abuse is the act and child neglect is the failure to act. In Florida, child abuse includes encouragement of any person to commit an act of abuse. A creative prosecutor could argue that encouraging your child by filming the act of setting oneself on fire fits the definition of child abuse. I would think the government could also argue that the act of filming the act is failing to properly supervise the child.

There is no misdemeanor child abuse or child neglect charge in Florida. Child abuse and child neglect are always a felony. The maximum sentence or punishment varies depending upon the level of injury. If this mother were in Florida and if it could be argued that in abusing the child she caused great bodily harm, permanent disability, or permanent disfigurement, then that is called aggravated child abuse which is punishable by up to thirty (30) years in prison.

All felonies are serious and you should speak to a lawyer before going to court. For a free consultation in any criminal case click, call or fill out the form at the upper right hand side of the page.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Read the story here

Traffic Crashes Involving a Death

Tony Stewart’s crash that killed another driver, Kevin Ward Jr., will be investigated by law enforcement. A few minutes into the business day and I am already being asked “for what?” While some feel this is an incident for which Mr. Ward waived any civil actions by assuming the risk of death when he exited his vehicle and tried to confront a race car,, there are others that want our government to investigate all incidents of death with an eye towards prosecution. 

What then could be the outcome of said investigation of Tony Stewart? A close look at the video shows that the vehicle fishtailed. If there were evidence of intent to strike the pedestrian, then Mr. Stewart could be charged with Aggravated Battery with a Deadly Weapon. Some people are surprised to learn that vehicles are deadly weapons when used as a weapon. Aggravated Battery with a Deadly Weapon is a second degree felony in Florida.

Another possible charge would be Vehicular Homicide. Vehicular Homicide is when a person operates a vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another and then does cause a death in a traffic crash. While it may be true that racing is reckless per se in Florida, I do not think the fact that the death occurred in this race will meet the reckless requirement. However, if there is evidence of intent then that could meet the reckless requirements.

We have to also consider that this could have been an accident and Mr. Stewart was trying to avoid the fatal impact. If there was no intent, then the State could charge a civil traffic ticket case of careless driving with a death. While there would be no incarceration possible in a traffic ticket case, there would be a mandatory driver license suspension.

All death cases are serious cases but just because somebody died does not mean the government can prove guilt. The question is always causation and not the resulting death because the result is always death in death cases. No person should face the government alone. If you or a loved one is under investigation or has been accused of any traffic accident causing a death, then please click call or fill out the form for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Cases Involving an Auto accident

Auto accidents frequently give rise to criminal cases in addition to civil lawsuits and traffic tickets. For example law enforcement may charge a driver in a car crash with Reckless Driving with Property Damage, Vehicular Manslaughter, DUI Manslaughter, DUI with Serious Bodily Injury, DUI with Property Damage, Leaving the Scene of an Accident, Failure to Render Aid, etc. Vehicular Manslaughter is essentially Reckless Driving with a Death. If law enforcement does not believe a crime was committed, then the driver will be charged with careless driving. (More on the difference between Careless Driving and Reckless Driving) 

There are several legal concepts that go into the defense of any criminal car crash case and the facts are much more technical than an average person thinks. This is because of the science behind accident reconstruction. Accident reconstruction involves the technical concepts of physics. The State will have the accident scene reconstructed in most cases involving an accident with property damage and you should too. If the State fails to do so, then your reconstruction will be the only one the jury gets to hear. You should never go it alone.

In defending criminal traffic cases with a wreck, having a lawyer that can and has worked with an accident reconstructionist is absolutely necessary. These cases can be fought with the proper preparation. click, call or fill out the form at the top right of the page for a free consultation in your criminal traffic case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Investigation Search of Cell Phone

After over a decade of criminal law experience, one thing I have learned is that the police will try anything unless and until a court tells them different. Along these lines, most law enforcement (in my non-scientific opinion) would have told you a couple years ago that they get to search your cellular upon arrest for no reason other than you are arrested. The Constitution mentions papers and effects and not cellular telephones is a reasoning I actually heard. 

Thankfully, earlier this year the United States Supreme Court held that a warrant is generally required before officers can search a cell phone even when a cell phone is seized incident to an arrest. The Florida Supreme Court held in 2011 that a warrantless search of a cell phone incident to a lawful arrest is not a proper search of a person incident to a lawful arrest in the absence of a reasonable belief that the cell phone contains evidence of a crime. This seems to allow a search if the officer can search if they reasonably think there is evidence on the phone.

This week the Third District Court of Appeal in applying the United States Supreme Court decision and a Florida Supreme Court decision from 2011 stated that because, there was no evidence that the cell phone was going to be used to endanger the officer or resist arrest, or that evidence contained in the cell phone was going to be destroyed the officers were required to obtain a warrant before they searched the contents of the cell phone. Apparently then if an officer can enunciate a reason like I thought he was going to remotely destroy the evidence of child pornography or the grow house operational manual, that could be upheld.

If this sounds confusing to you, it should. If you or a loved one has any criminal case resulting from any stop, seizure and search then click, call or fill out the form at the top of the page for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Sharing our Roadways: Is Gainesville Doing Enough to Improve Safety and Prevent Bicycle Accidents?

As our nation becomes more environmentally friendly and health cautious, the use of bicycles—both as a means of recreation and transportation—is at an all-time high. Along with this increased use, however, has come a simultaneous rise in injury and death caused by bicycle accidents.

This problem is particularly concerning in Florida, which, according to the NHTSA, has more bicycling-related fatalities than any other state in the nation. The Gainesville Personal Injury Attorneys of the Law Office of Alba & Straile, PLLC wonder if enough is being done to address the safety issues that continue to plague the cyclists with whom we share our roadways.

The need to improve safety, through bike infrastructure, planning, and similar initiatives is a concept that has long been recognized in many of our nation’s large cities. However, many argue that bike safety efforts in Florida have failed to keep up with those in place and/or underway in cities in other states with comparable bike usage rates.

Consider Gainesville as an example.

According the 2012 American Community Survey, Gainesville ranks 12th in the nation, amongst cities with populations of 65,000 or more, for its percentage of people that commute to work by bicycle. Further, the city considers itself to be a bicycle-friendly city, and as stated in local media reports, has even been listed within the top 50 bike-friendly cities in the nation. Yet if Gainesville is so ‘bike-friendly,’ the statistics appear to say otherwise.

According to crash data, Gainesville has one of the highest rates of bicycle injury/death per 100,000 in the state. While it is also necessary to factor in the area’s increased level of ridership, the figures are still alarming. Despite millions of dollars in funding, and the city’s purported goal to “invest in community infrastructure and continue to enhance the transportation network and systems,” many residents remain concerned over the dangers of cycling in their communities.

While large-scale projects aimed at improving safety and networking along some of Gainesville’s busiest roadways are certainly a step in the right direction, the City also needs to consider the benefits of incorporating more small scale-projects to address the needs of cyclists in other areas as well. For example, many argue that there are simply not enough crosswalks throughout Gainesville to allow bicyclists and pedestrians to safely commute.

Concerns over the city’s lack of crosswalks heightened recently, following a tragic bicycle accident, in which a 49-year old Gainesville man, William Leon Bailey III, was struck and killed by a motorist while attempting to cross a street in an area that had no crosswalk. To view more information regarding this incident.

Just a few days following this incident, a Gainesville woman was seriously injured when a dump that was pulling out of a job site struck the victim, and then ran over her leg. Details on this incident can be accessed. While certainly in either of these accidents, it cannot be said that ‘through tragedy comes triumph,’ what can be hoped for is progress—and in the very least awareness.

Quite simply, we all must keep in mind that bicyclists and pedestrians are in a far more vulnerable position than any other type of road user. The Gainesville Personal Injury Attorneys of the Law Office of Alba & Straile, PLLC hope that this recent bicycle accident fatality, and others similar to it, serve not only as an impetus for the city to make a more concerted effort to strive for improvement, but also as a reminder to motorists of the importance of sharing our roadways.