Gainesville Personal Injury, Divorce and Alimony Attorney

Criminal Self-Defense Immunity a.k.a. Stand Your Ground

Self Defense has been an available affirmative defense to criminal cases since the dawn of society. Florida also has long acknowledged the fundamental right to use force in defense of self or others. The essential elements of self-defense have stayed about the same. A person may use deadly force when it is reasonably necessary to prevent imminent death or great bodily harm to the person or to another person. The procedure and burden of proof required to make a self-defense argument has changed.

Prior to 2005, a self-defense claim was made at only at a jury trial and it can still be raised at trial. At a trial, the person asserting self-defense is required to establish a prima facie case of the elements of the self-defense claim. The burden then rests on the State to establish that the claim is not justified beyond a reasonable doubt.

Florida’s Stand Your Ground law has strengthened the right to self-defense and provided a way to avoid a trial. The law eliminated the duty to retreat when attacked outside the home before using lawful deadly force, it created a presumption that a person had a reasonable fear if the person was attacked in the home or vehicle, and it provided immunity from arrest, detention, charging or prosecuting. In 2017, the burden applicable to the State in a claim for immunity from criminal prosecution were also added.

In a Stand Your Ground or Self-Defense Immunity claim, the burden is first upon the Defendant to present some evidence of entitlement to self-defense immunity. Then, the party seeking to overcome the immunity, in criminal cases, the State of Florida, must overcome the immunity by clear and convincing evidence. Cases still pending that were alleged to have been committed prior to the 2017 amendment may or may not be able to use this burden of proof depending on what the Florida Supreme Court decides in Love v. State SC18-747 that was still pending at the time this was written.

Clear and convincing evidence is not as high a burden as beyond a reasonable doubt. Losing a self-defense immunity or stand your ground hearing does not mean a person is convicted but that they should file for a writ of prohibition. Winning an immunity hearing means that the Defendant is immune from prosecution. Even if an immunity hearing is lost, self-defense can still be argued to the jury at the trial.

To get help presenting a self-defense immunity claim with a private lawyer, please click, call or fill out the form today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Child Abuse & Neglect – Combining Criminal & Family Law

Allegations of child abuse or neglect can generate criminal or family cases against the accused. In many cases a parent accused of child abuse or neglect by the State of Florida in a criminal case will also find themselves defending against a Supplemental Petition to Modify a parenting plan or custody. Sometimes a third case of an injunction for protection against domestic violence could also be brought.

Criminal cases of child abuse or child neglect are always a felony ranging from third to first degree felonies. Therefore, maximum punishments range from 5 to 30 years in prison based upon the injury to the child.   Abuse and neglect of children are completely separate concepts. Child abuse generally requires an intentional act or active encouragement of a person to commit an act. Abuse requires action. On the other hand, neglect of a child is a failure to act, failure to protect a child from abuse, or an omission by a caregiver to the child. Neglect is taking no action. Neglect of a child may be based on a pattern or a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.  Any caregiver to a child can be charged with the crime of abuse or neglect of a child.

Parenting and disciplining styles differ; but, when one parent is accused of child abuse or child neglect and the co-parent is not involved, then the uninvolved co-parent may file a Supplemental Petition to Modify the time sharing or custody arrangement. Even if there is no formal arrest and the DCF investigation found nothing, the uninvolved parent may try to change things. A Petition can be filed before the resolution of the criminal case, and that puts the accused parent in the awkward position of having to defend themselves in family court while attempting to remain silent for the benefit of the criminal case. Incarceration of a parent is one definite reason courts will modify timesharing and child support.

Being accused of child abuse or neglect or suspecting a co-parent of abuse or neglect towards a child in common can wreak havoc on the soul. Unmarried parents who stand accused face a real possibility of two lawsuits against them at the same time. Understanding the interplay between the criminal and family systems can lead to better results. Whether the family needs help because of an accusation directed towards them or the family needs help making an accusation, we can help. To start the process of hiring a child abuse and neglect lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Divorce, Retirement Pension – Purchase of Premarital Years.

In divorces, a large asset for most people is their retirement or pension. A pension or retirement account is likely a marital asset that has to be divided by the divorce court. If a spouse began saving for retirement before the marriage, or if it is a second or subsequent divorce, then all of the pension may not be a part of the marital estate.

In a recent case, the Husband attempted to argue that a portion of his civil service retirement was nonmarital. Unfortunately, he had cashed out his retirement benefits and then began contributing to retirement savings again. That means that the he made the asset marital. The husband then purchased the rights to have past years counted but did so using marital funds. The couple utilized “marital funds based on the parties’ joint decision to make 8 years of installment payments because it would be better for the couple financially in the future.”

In Florida, there is a presumption that assets acquired during the marriage are marital assets and subject to equitable distribution. A party claiming that an asset acquired during the marriage is nonmarital, bears the burden of overcoming the presumption. Property acquired during a marriage is considered marital property until proven otherwise.

According to the Court, there was no Florida divorce case law on the specific point of purchasing credit for premarital retirement years, using marital funds. The Court wrote, like most states having considered the issue, that when marital funds are used to purchase credit for premarital years of employment, the enhanced value to the pension plan is marital. Using marital funds to purchase any item, including retirement benefit, makes that item a marital asset. According to the Court, New York and California have reached the opposite result.

In any divorce, a lawyer can help guide through the process. If assistance is needed determining how to split retirement assets, then please click, call or fill out the form to start or continue the process with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Changes to Criminal Driving on a Suspended License

Driving on a suspended license can be a criminal or civil case in Florida. Too many charges of driving while suspended can result in a 5-year revocation of a driver’s license as a habitual offender.

Until recently, a third or subsequent criminal violation of driving under suspension could have been a third-degree felony. A third-degree felony is punishable by up to 5 years in prison.  People have been sentenced to prison for the offense of driving to work with a suspended license.

Effective October 2019, part of the criminal justice reform, the driving on suspended law changed. Now, a second offense of driving while suspended will be a first-degree misdemeanor. In many instances, a third offense will also be a first degree misdemanor.  A first-degree misdemeanor is punishable by up to one year in the county jail.  However, for third or subsequent offenses, the law now requires the judge to sentence to a minimum mandatory ten (10) days in jail.  A third offense of driving while suspended where the suspension is for, or if the second was for, DUI, Refusal, causing death, or causing serious bodily injury, are still felonies.  Driving while designated a Habitual Traffic Offender is a felony. punishable by up to five (5) years in prison.

While the criminal justice system reform was meant to lessen the possibilities of sending people to prison for driving, that does not mean that the courts will completely stop incarcerating people. For example, someone that has several prior offenses that may have received a couple years in prison under the old law, will likely still face jail time today, especially with the new minimum. However, the maximum exposure has been radically reduced.

Facing the government on criminal or traffic charges alone can be riskier that it seems. The government will gladly accept money and create a permanent criminal record for anybody appearing before it with a willingness to have a record. Unfortunately, the long-term consequences are not always made clear to unrepresented persons. To hire a lawyer to help in a criminal or civil driving on suspended charge, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Blood Testing the Unconscious Driver No Warrant Needed…Usually

In a DUI arrest, when a breath test is not available or feasible, or if the circumstances allow, law enforcement may seek a sample of the accused driver’s blood to determine a blood alcohol concentration or content (BAC). The question of whether and how the police may take the accused DUI driver’s blood has been considered by the United States Supreme Court in the last few years.

In those past cases, the Court held that an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest. The Court has also has upheld the implied consent statutory scheme, warrants to secure a blood sample and warrantless blood draws in urgent situations but never considered a blood draw from an unconscious person.

Recently, the US Supreme Court considered the narrow question of whether a blood sample can be obtained when the driver is unconscious and therefore cannot be given a breath test, cannot refuse a breath test or withdraw their implied consent. Though an unconscious person cannot respond, it is not unusual in these cases that the officer does read implied consent to the knocked-out driver and the officer did in the case under consideration. The Court held that in cases of unconscious drivers, the exigent circumstances rule almost always permits a blood test without a warrant. The general rule for unconscious drivers is then that a warrant is not needed to take blood. 

The Court noted that drivers in an unconscious state are likely to be taken for medical attention and will have blood taken for diagnostic purposes.  Furthermore, the Court speculated that dispensing with the warrant requirement would lessen intrusions into the body by assuming that a second injection would be needed to get a separate legal blood test.

In the end the Court did not decide if, in fact the blood drawn in this case was appropriate, and sent the case back for further consideration. Things to consider regarding blood taken from a driver knocked unconscious now include whether the blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably believed that applying for a warrant would interfere with other pressing needs or duties such as traffic control after an accident.

As Justice Thomas pointed out, the Court gave us an ruling that says exigent circumstances are generally present except when they aren’t. We now have a general rule with exceptions that can be litigated to properly defend the DUI case. To begin strategizing with a lawyer about a DUI matter, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529