Gainesville Personal Injury, Divorce and Alimony Attorney

Criminal & Traffic – Mistakes on Citations or Reports

In criminal and traffic defense, a common complaint from an accused individual or their family is that the arrest affidavit, arrest report, accident report or citation contains one or more errors. For example, if there is a DUI accusation with a child in the car but the officer marks on the DUI citation that there were no passengers under the age of 18 or marking “no injury” on a traffic ticket in a case involving a near fatality. (actual examples). The ugly truth is that the police, deputies and troopers filling out these documents are people too, and they make mistakes.  Unfortunately, typographical or similar errors will usually not lead to a case being dismissed.

In general, mistakes on an arrest report or citation, while indicative of a lack of attention to detail, do not win the case. This is because these documents are not evidence; they are memorialization of the witnesses’ statements and information. Arrest or accident reports are a memory tool for the prosecution of a case.

A crash, accident or arrest report can in fact be hearsay and any diagrams are usually based on hearsay or privileged communications and therefore these can be excluded from evidence. These documents rarely come into play at an actual trial or hearing.  In addition, traffic infraction citations can be amended at any time until the hearing begins and any charging document in a criminal case will supersede the criminal traffic citation. An amendment or superseding document ends the error.

Mistakes can be indicative of a problem or weakness but could also simply be a typographical error. Mistakes in reports that are completed at or near the time of an incident whether an accident or arrest report, will rarely be the reason a case is won or dismissed. This is because what really matters is the evidence presented in court at a trial or hearing where a case is to be defended. Usually you will have to wait until an error is presented to the fact finder in a trial or hearing, to take advantage in your litigation. (see the just arrested blog for more)

These comments are aimed at incident reports, accident reports, arrest reports, and traffic infraction citations made at or near the time of an incident because, these documents can be amended and are generally not evidence. There are other documents in criminal and civil cases where mistakes can matter a great deal. However, that still depends on the error and the extent to which your opposition will rely on the mistake. There really is no way to know until the witness is speaking on the stand.

Trial strategy and preparation are tricky and time consuming. Whether the error in the case is meaningful or meaningless can turn on a single word in trial or hearing. Please click, call or fill out the form to see how we can help form a strategy in your case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Racing, a Criminal Traffic offense in Florida

The criminal traffic offense of “Racing on Highways” is not limited to just what most people think of as a highway, street or road. Parking lots are specifically mentioned in Florida Statutes section 316.191, the racing statute and a violation of chapter 316 can be enforced on any road and even parking lots. Racing can be in any motor vehicle not just passenger cars and trucks. 

The charge includes any competition such as a typical race, any speed competition or contest, drag race or acceleration contest, test of physical endurance, attempts to make a speed record etc. Furthermore, the mere exhibition of speed or acceleration can land a person accused of street racing. Actually, driving is not required because, coordinating, facilitating, or collecting moneys anywhere for any such race is deemed participation in a race under Florida law. Knowingly riding as a passenger or causing a traffic disruption such as the movement of traffic to slow or stop for the purpose of a competition or exhibition can also lead to criminal charges. Being a spectator at any drag race (two or more motor vehicles side by side) is a noncriminal traffic infraction but it is punishable as a moving violation which means points can be assessed to a driver’s license record or MVR.

The penalties for racing get more severe for each subsequent accusation. A first offense is a first degree misdemeanor punishable by up to one year in jail and a fine between $500 and $1,000. A second citation, within 5 years, while still a first-degree misdemeanor carries a fine between $1,000 and $3,000. A third or subsequent racing ticket, within 5 years of a prior violation, is still a first degree misdemeanor but the mandatory fine is between $2,000 and $5,000.

The worst part of the racing sanctions for many people will be what happens to the insurance rates and/or coverage and the required driver’s license revocation. The first racing citation carries a required 1 year revocation, a second within 5 years a required 2 year revocation and a third within 5 years a required 4 year revocation of the driving privilege. A driver’s license revocation upon a sentence for racing is mandatory which means the judge has no discretion.  In addition, racing is one of the charges that counts towards an HTO suspension.

A person accused of racing should not face a court alone. Because racing is a criminal case the public defender can be assigned, if the accused qualifies. Otherwise, please click or call to begin to form a strategy for defending the case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Restoration of the Right to Possess Firearms

There are several reasons why a person may have their gun rights taken away. In some circumstances, the right to possess firearms can be restored. A Risk Protection (red flag) Order can expire naturally.  Even if the prohibition from possessing weapons or firearms is due to an involuntary commitment, placement or hospitalization such as an adjudication of incompetence to consent to treatment then, there is a process in Florida to have gun rights restored. When somebody has their right to possess guns taken away, the law describes that as having a disability from possessing firearms or weapons.

Until recently, the process for the restoration of firearm rights or removing the disability was automatic in Florida. By presenting a certificate from a psychiatrist that there was no mental infirmity or disability for the last 5 years, a person could simply request and have the prohibition from possessing firearms removed. Today, the law is more restrictive because it requires judicial oversight and a hearing. Furthermore, there is no longer a bright line rule for what must be proven in order to remove the prohibition

This means that now a judge has to decide whether a person gets their rights back by having a hearing. There are factors the court has to consider and every case is different. Some factors are the circumstances surrounding the involuntary placement, the mental health of the individual, criminal history, and of course the catch all whatever other evidence has been presented. Other evidence can be if the disability was just recently discovered or updated in the system. For example, if a concealed carry license had previously been issued or firearms had previously been purchased.

Even if a Petition to Remove Firearms Disability is denied then, under current Florida law, the petition can be brought again after one year. Therefore, even if there has been a denial in the past, there is a new shot that can be taken on a yearly basis. Just as every person is different, every case is different.

Cases dealing with mental health issues are generally closed to the public. Furthermore, this requirement to have a hearing is new law. There is no case law that I found over the last year interpreting or giving guidance to the courts. This makes the process more challenging. Please click, call or fill out the form to get help removing the ban on possessing firearms.

Gainesville: (352) 371-9141

Ocala: (352) 694-4529