Gainesville Personal Injury, Divorce and Alimony Attorney

Violation of Probation – When does it end?

In defending violations of probation, a confusing issue for clients is when does the probation period end if there has been a violation affidavit or report filed and a warrant issued, or a warrantless arrest is made, or a notice to appear on the VOP is created. Until recently, the advice by a VOP defense attorney would be that the probationary period is tolled as soon as that warrant is issued, arrest is made or notice is issued. 

In a situation where there is no warrantless arrest or notice to appear both the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period. Recently, a point was made by an appellate court that has changed the once thought of rule that a VOP warrant tolls the period of probation. That Court in analyzing the Florida law that creates the great big pause button in the sky, noted that the statute referenced a specific statute under which the warrant had to be issued in order to toll, stop or pause the clock running on the probation term.

That other statute under which the warrant must be created specifically requires that a judge be satisfied that probable cause exists for the issuance of an arrest warrant for any crime committed. Therefore, the law requires that the warrant be for a crime. Therefore if the warrants issued were for violations of probation based on other technical not substantive violation such as the failure to make restitution payments, failing a drug test, missing a drug screen, failing to pay for a drug test, missing an appointment etc., then these are not crimes. Warrants for technical VOPs are therefore not issued under that specific section of Florida law and the probation is not tolled.  (click for more on technical and substantive violations)

No legal case including a violation of probation should be handled alone.  Please click, call or fill out the form to see how we can help in a horrendous situation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Mobley 4D14-3673 and 4D14-3818

Clearing Traffic Suspensions

Part of the traffic ticket practice is clearing suspensions in the best possible way. Common reasons for suspensions are for failing to address the citation within thirty (30) days, failing to pay, failing to complete traffic school, failing to appear in Court in a criminal case, warrants, child support etc. Of course there are many other reasons a driver’s license can be suspended and each case is unique. 

If the suspension is for a criminal case or warrant you may or may not be able to resolve your case without returning to Florida. Whether you have to return is up to your judge. At least one judge in Ocala, Marion County, Florida will absolutely NOT allow you to resolve your case without personally appearing in court. Depending on the judge assigned there may be no choice but to surrender if you want the case resolved and suspension lifted. This office will not make guarantees or promises that the case will resolve without court attendance because it is completely at the judge’s discretion. If you speak to a lawyer who promises or guarantees what the judge would decide without asking the judge, you should reconsider hiring that other office.

The criminal suspension will clear automatically upon your surrender. In regards to civil traffic cases, there are three options.

(1) Ignore the problem. Do not do this; the license will remain suspended and knowingly driving on a suspended license is a criminal offense that can be charged as a felony in Florida.

(2) Pay the money to the courthouse; this is the same as admitting guilt and will be recorded as a conviction. A conviction will mean that you will have points assessed to your license. These points can lead to suspension, higher insurance rates and loss of employment. Furthermore, some states will keep a conviction on your license for the rest your natural life while allowing a non-conviction, also known as a withhold of adjudication, to be unreported or removed from your license in as little as three years. A conviction can be much worse than a withhold of adjudication. If the suspension was for failure to complete a traffic school elected, then the lifetime traffic school election has been wasted. Florida will still count your election as used AND assess points.

(3) Hire a traffic lawyer to assist you with keeping the points off of your license. We will try and keep all points off of your record which while not perfect can be a lot better than being convicted with points. Depending on the age of your case you may or may not be able to request a hearing. If you are still eligible to request a hearing, then there is always a chance that the citation will be dismissed completely from your record. If the suspension is for failure to complete the traffic school after an election, then you may still have to complete the class.

The next big issue after clearing a suspension is what effect the criminal charge will have on the license. No lawyer can know this without being retained in the case and the Court is notified of the case because filing the notice will act as a key to access your information that is otherwise not public.

Traffic warrants and suspensions can destroy lives by making otherwise good people criminals and unemployable for the act of driving to work. The State and the Court views a suspension as punishment. Do not drive on a suspended license. If you are dealing with a warrant or suspended license, click, call or fill out the form to learn how we can help.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Traffic Crash, DUI and the Accident Report Privilege

A car accident leads to a traffic crash investigation which often time leads to criminal charges such as drunk driving or DUI. Floridians should be aware that the law requires them to cooperate with a traffic crash investigation. The intent behind the reporting requirement is to encourage true and uninhibited reporting of accidents, with the ultimate goal of making highways safer. 

The safety goal must be balanced against the right to remain silent or the right to be free from self-incrimination. Therefore, there is what lawyers refer to as a savings clause that statements made during a crash investigation are to be considered without prejudice reporting person and the statements may not be used as evidence at trial in a prosecution for driving while impaired, DUI or in any trial, civil or criminal. Statements obtained from the driver pursuant to an automobile accident report requirement imposed by law cannot later be used later or any other criminal or civil case. This is how the firm defends against citations for careless driving when there are no witnesses or evidence other than that evidence protected by the accident report privilege.

The accident report privilege extends beyond statements at the scene of the accident. The privilege can protect statements made to an investigating officer at a hospital by the driver of an automobile. In order for law enforcement to use statements by the defendant for a criminal investigation the defendant’s Miranda warnings must be given. Statements made during a criminal investigation are inadmissible unless the person is advised that the criminal investigation has begun and the person has been informed of his or her constitutional rights.

Knowing the traffic law and the interplay with the evidence code and the constitution comes in handy in defending a DUI, traffic citations or any other criminal case stemming from a traffic crash. Lawyers could rebuild transmissions or perform brain surgery and you could handle your own case, it is just not the way to get the best results possible. Instead, you should at least talk to a lawyer about your case. Please click, call or fill out the form to hire a lawyer to help with the case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Obscured Tag – Traffic Stops Leading to Criminal Cases

In the drug defense subset of criminal defense an amazing number of cases begin at a traffic stop. One example is issues with the license plate or tag, whether it is the infamous tag light, expired tag or an obscured tag. These stops are difficult to defend without a video showing the cops to be incorrect (or worse). 

The issue of an obscured tag has actually reached the Florida Supreme Court. While the legal issue was the obstruction of the tag, the real issue for the Defendant in that case was not the citation for faulty equipment or obscuring a tag; it was instead the several drug and criminal charges that resulted.

In that case, the tag light on the vehicle, along with its attached wires, was hanging down in front of the license plate obstructing the officers’ view of the plate and rendering at least one letter on it unreadable. The tag became readable, only momentarily, when the vehicle turned and caused the wires to shift. However, after the turn, when the wires shifted back, the view of the tag was obstructed again. A seizure of evidence during the course of the traffic stop resulted in criminal charges.

The Supreme Court cleared up the issue in favor of allowing more traffic stops by ruling that the statute does not suggest that matter external to the license plate may constitute a permissible obstruction. Therefore, that section of the traffic law does not distinguish between obscuring matter that is on the tag or external to the license plate and the stop was held to be valid. This holding possibly exposes all Floridians to a stop for almost anything obscuring a tag.

The law on traffic stops matters greatly. There are no such things as random stops. In order to legally stop a driver, the officer must have an objective reason such as a violation of the traffic or criminal law. If your case began with a seemingly simple traffic stop and then escalated into a drug case or other criminal case, then the stop itself must be analyzed. Please click, call or fill out the form to see how we can help you to get the best results possible in your case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

New York DWAI & Enhancement of Florida DUI

There are all kinds of urban myths in DUI / DWI law. In the context of a Florida DUI, a Florida appellate court has interpreted Florida law as allowing a conviction to a New York charge of driving while alcohol impaired (DWAI), section 1192 (1), to be used to enhance a Florida DUI. In addition, a conviction to a New York DWAI can be used for purposes of suspending a Florida driver’s license. This strikes many as odd since the New York offense of DWAI is specifically not a DUI pursuant to New York law. Many people are surprised to learn that what one state does not consider a DUI is treated as such in Florida.

Both Florida cases that stand for this proposition came from the 4th District Court of Appeal (DCA). Unfortunately, there are two Districts that agree with the logic. Due to a conflict of interest, a Florida driver’s license case was assigned to the 3rd DCA. The 3rd DCA, upheld the Department of Highway Safety and Motor Vehicle’s (DHSMV) decision to equate a New York DWAI to a Florida DUI for purposes of suspending a Florida driver’s license. This means that the 3rd agrees with the 4th. The lack of an inter-district conflict of opinion means that this law binds trial courts in all of Florida’s 67 counties.

How any out of state (not Florida) prior alcohol related traffic offense will be viewed by the Florida courts is a question of law. The first step is to compare the elements and the second to research the case law. However, all is not what it seems; do not be misinformed or proceed without having the issue researched independently. Click, call or fill out the form to hire a Florida DUI Defense Attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Dawson v. State 19 So. 3d 1001 (3d acting as 4th DCA 2009).

Dipietro v. State 992 So. 2d 880 (4th DCA 2008).

Violation of Probation – First Time Observation

Recently, for the first time in this firm’s history of defending violations of probation, a violation of probation report or affidavit included a speeding ticket as an alleged new law or substantive violation. Then, the judge then issued a warrant with no bond, presumably after reading this report or affidavit of violation of probation. They call it criminal defense practice for a reason, everday there is something new. I’ve been involved in the system since 2001 and this was a new one on me. 

This case was in Ocala, Marion County Florida. There were other technical violations on the report or affidavit submitted by the probation officer. Therefore, it is still true that this writer has never seen anybody violated just for a traffic ticket. All interactions with law enforcement have to be reported to the probation officer supervising the probationer. Failure to report an interaction is considered a violation and warrants have been issued to clients in my violation of probation practice. merely for not reporting an interaction with the cops.  People do a significant amount of prison time as a result of what a VOP attorney should argue are seemingly minor technical violations of probation.

Some people consider probation a trap because of issues like the one that inspired this blog. Having a loved one arrested for a VOP, then finding out the judge issued the warrant with no bond can be extremely scary especially if the incarcerated individual provides significant support to the family or household. Do not go unrepresented thereby letting the government do whatever it wants. Fill out the form, click or call to hire a probation lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Traffic Ticket Defense and Court Continuances

In the traffic ticket defense practice clients often ask for a continuance of the case. There seems to be some urban myth that if the court date or hearing is rescheduled, then it might make it more likely to conflict with schedules. Both the State via the officer and the driver or defendant can ask the court to change the trial date in a traffic citation case just like the opposing party in any other case be it criminal, injunction, family law or other civil case. 

When you hire a traffic lawyer or otherwise choose to fight your ticket in court, the Clerk will set a court date. If you file a motion to continue, then depending on the law enforcement agency, there is just as equal a chance that the schedule is coordinated with the officer’s agency. If that happens, then the defendant may have caused a greater chance that the officer would appear. If the first date conflicts with the traffic cop’s, then the request to continue may actually hurt the chances to have your ticket dismissed.  There also has to be a valid reason to ask the court to continue the case beyond hoping to create a scheduling conflict.

The inner workings of the courthouse can be just as confusing to the accused as a surgery would be to a carpenter or framing would be to the surgeon. We all have our jobs to do. Our pricing in civil traffic infraction defense competes with the cost of time off of work or in traffic school. Fill out the form to the right, click or call to hire a traffic lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Tampering With Evidence – Hard to Swallow

Tampering with evidence is a criminal offense in Florida. Tampering with evidence is a third degree felony; the maximum penalty is five (5) years in prison and/or a $5,000 fine. To prove tampering, the State has to prove that a person while knowing that a criminal trial, proceeding or an investigation has begun or is about to be started, then alters, destroys, conceals or removes anything with the intent to impair its credibility, availability or use-ability in trial.  Many times tampering is not what is shown by the entertainment industry like fabrication or threatening a witness; instead several tampering cases begin at the all important traffic stop and escalates when an officer thinks that evidence is tossed, thrown or eaten. 

In a recent case, the subject of a traffic stop was allegedly attempting to flee and when captured, the officer supposedly noticed the person to be chewing something. The officer ordered him to spit it out, but he refused and pulled his head away from the officer while continuing to chew the unknown substance until he swallowed it. According to the officer a field test on residue in the mouth tested positive for cocaine, however, the crime lab came back as “insufficient sample for identification”.

The argument of the defense was that it was not known if the substance was already in the mouth at the time of the traffic stop. They argued that the State could not prove that the alleged drugs were not already being chewed. This was all supposed to mean that the State could not prove the needed intent to impair the object’s availability for a police investigation. The trial judge agreed and dismissed the case!

The appeals court did not agree and sent the case back so that prosecution could be reinstituted. The Court of Appeal relied on the fact that the arrestee turned his head and continued to chew the object until he swallowed it, refusing to comply with the officer’s order to spit out the object. That is a little hard to swallow unless you believe everything the officer has to say which is exactly what a court is bound to do at a hearing regarding a motion to dismiss.

While every person is innocent until proven guilty, that is only at a trial, not at arrest or as here in a motion to dismiss.  Trial can be months from an arrest and there is a lot of procedure in between arrest and a jury trial. Understanding the complexity of the criminal justice system can be difficult unless you have an attorney at your side. Please click, call or fill out the form to the upper right to speak to a lawyer about your case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Tampering statute

State v. Barnes 1D15-3292