Gainesville Personal Injury, Divorce and Alimony Attorney

Carrying of Concealed Weapons or Firearms in a State of Emergency.

In criminal cases, this writer has said, “firearm equals felony”. In violations of 790.01, Florida’s law that criminalizes the carrying of concealed firearms or weapons, the unlicensed carrying on the person of a weapon is a misdemeanor while unlicensed carrying on the person of a firearm is a felony.

In recent years there has been a push in the law to make exceptions for special circumstances such as an impending hurricane. Today, when the Governor declares a State of Emergency, plus orders an evacuation, 790.01 provides an exception to the felony of carrying a concealed firearm. So long as a person may otherwise lawfully possess a firearm the law allows for an evacuee to carry “a concealed firearm, on or about their person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor….”. The phrase “in the act of evacuating means the immediate, urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered.” §790.01(3)(a).

While some may wish that the law contained a provision for returning from the evacuation, there is no such exception. However, there are other general exceptions to carrying a concealed firearm that may allow a person to return with their firearms after evacuating. For example, “a person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition…” is excused from the felony. §790.25(3)h). In addition, any “person traveling by private conveyance when the weapon is securely encased . . . and not in the person’s manual possession…” is also exempted. §790.25(3)(l). “Securely encased means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. §790.001(17).

Failure to adhere to a proper method of carrying a weapon or firearm can result in facing criminal charges. Any person accused should not face the government alone. To begin building strategies for a defense please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Refusal What You Don’t Say or Do Gets Held Against You Too

If a person accused of DUI refuses to submit to field sobriety exercises or to submit a breath sample a common concern is whether the refusal can be used against the DUI Defendant in Court. As to the driver’s license, being deemed to have refused will cause an automatic suspension unless a review hearing is requested and won at the Department of Highway Safety & Motor Vehicles (DHSMV).

The Implied Consent law states that “[t]he refusal to submit to a . . . breath test upon the request of a law enforcement officer . . . is admissible into evidence in any criminal proceeding”. Notwithstanding that, whether the State can use the evidence of refusing to submit to a breath sample in a DUI trial, is not absolute. Whether the State can use the refusal or whether the law enforcement officer’s accusation of refusal is proper can be challenged by seeking to exclude evidence in the criminal case and at a review hearing at the DHSMV.

In DUI defense, every word spoken or read to the accused matters.  Omitting words or phrases can have devastating effects on the State’s case, which means it is a good thing for the DUI Defendant. In a recent case, a person accused of Leaving the Scene of an Accident with a Death, DUI Property Damage and DUI Manslaughter and failure to render aid had DUI convictions reversed because the Highway Patrol Trooper completely failed to read the implied consent warning. The entire trial is a do-over, but the State will not be able to use the evidence of refusal in the new trial.

The Implied Consent law, states that any person who accepts the privilege of driving within Florida, by so operating a vehicle, is deemed to have given consent to submit to an approved test, if the person is lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages. Then the law provides for what is known as the Implied Consent Warning. The law requires that the accused be told that failure to submit to any lawful breath test will result in a driver’s license suspension and the accused must be told that if the person’s license has been previously suspended as a result of a refusal to submit to lawful breath, urine, or blood test, then a refusal is a misdemeanor criminal offense. If these warnings are properly given, then absent other reasons to suppress the evidence, such as an unlawful stop, a Court should allow the refusal to be used against the accused at the DUI trial.

Having a refusal on the record can cause significant restrictions to a driver license in the future. DUI defense is highly technical and there a many pitfalls. To hire a lawyer to help defend a DUI, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Injunction for Stalking – Enough is Enough, or is it?

In Florida, there is a legal action called an Injunction for Protection against Stalking. Injunctions are also called orders for protection or stay away orders in other jurisdictions.  Stalking is defined as whent an accused “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” Harass means to “engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.

Obviously, any Petitioner (the person seeking the injunction) can claim that the alleged conduct caused substantial emotional distress. However, the Court’s do not just accept every person’s version of being emotionally distressed. The Court will measure the distress against the “reasonable person standard”. In other words, if the claimed emotional distress is itself an unreasonable reaction, then a stalking injunction will not be granted.  Each case should be decided upon the totality of the circumstances.

In a recent case of workplace sexual advancement, the parties had been co-workers for nearly three years. The Petitioner alleged that the Respondent (Person accused) made frequent sexually-oriented comments, asked for help with errands outside of work, asked for rides, asked to meet for lunch and once was caught looking through phone messages. The Respondent denied having sexually harassed, admitting some interactions did occur but those that did happen were not intended in that way. The Petitioner testified that she had sought counseling and the help of a sexual harassment advocate as a result, and that she had twice reported the Respondent to management at work and the Respondent was eventually fired.

Even though the Petitioner ended up in counseling, the Court held that the incidents did not rise to the level of justifying a stalking injunction. The Court went on to point out that to justify this kind of injunction, the conduct must be bad enough to produce substantial emotional distress in a reasonable person. It is not enough to be weirded out or uncomfortable. According to the Court, the allegations fell short of the standards to justify a stalking injunction and the collateral consequences that flow from it. Unintended or unknown consequences of having a judgment of injunction are good reasons to defend injunctions and why there is an objective standard such as the reasonable person standard.

The firm represents people in injunctions, and other family or criminal matters. We will have to perform a conflict check before we can consult with either party in a civil case. While there are some community resources available to Petitioners, a lawyer will not be appointed to any Respondent because, these are civil cases (violating an injunction is criminal). Please click, call or fill out the form to hire a lawyer to help with a stalking injunction.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Failure to stop for school bus, a traffic infraction in Florida

In Florida, a traffic ticket for failing to come to a stop for a school is a civil traffic infraction and not a criminal charge. The traffic law states that any driver “shall, upon approaching any school bus which displays a stop signal, bring such vehicle to a full stop while the bus is stopped, and the vehicle shall not pass the school bus until the signal has been withdrawn.” Failing to stop for a school bus is always a moving violation. Then it gets more confusing.

There is an exception and enhancements. When driving on a divided highway with an unpaved space of at least 5 feet, or a raised median, or a physical barrier, a driver travelling in the opposite direction of a school bus is not required to stop. If the driver is accused of passing the school bus on the side that children enter and exit while the school bus displays a stop signal, then the citation requires a mandatory hearing. The hearing is mandatory, but a driver with a lawyer does not have to attend court.

Upon a second or subsequent offense within a period of 5 years, the department of highway safety and motor vehicles is required to suspend the driver license of the person for not less than 90 days and not more than 6 months. Upon a second or subsequent offense of passing or failing to stop for a school bus on the side that children enter and exit that is within a period of 5 years, the department is required to suspend the driver license of the person for not less than 180 days and not more than 1 year. The 5 years is from the conviction date. Finally, if there was a crash that resulted in serious bodily injury to or death of another, then the Court is required to impose an additional civil penalty of $1,500 and the department is required to suspend the driver license of the person for not less than 1 year. Furthermore, taking an approved traffic school is required by law even if the Court withholds points. A lawyer can request the citation to be amended, but only at the hearing.

No driver accused only of a civil traffic ticket is required to appear in court, even if a hearing is required. A lawyer can save time and/or school elections and may be able to defend the case or obtain a good result regardless of the facts. Sometimes, the charge can be amended. Of course, every case is different. However, if a hearing is required, then the choices are to (1) go alone, (2) go with a lawyer or (3) let the lawyer attend on behalf of the driver. Hiring a lawyer familiar with the Court, the rules of procedure and evidence is better than being alone. Please call, click or fill out the contact form to hire a traffic lawyer.

Gainesville: (352) 371-9141

Ocala: (352) 694-4529

Settling Criminal Cases – Open Plea & the Mercy of the Court

In criminal cases, it is not uncommon for people to call the office after their current lawyer has failed to reach an acceptable agreement with the prosecutors or the caller does not like the offer received. Sometimes, the unfortunate circumstance of the case is that the prosecutor will not make a deal. Sometimes just having a lawyer who answers to the Defendant for their paycheck instead of the government makes a big difference to the Defendant. Sometimes there are things that can be done to present the case in a better light.

There are only three options when resolving any kind of case (1) the party who brings the lawsuit can drop the case. In criminal cases, the ‘lawsuit’ is the filing of criminal charges by Information or the filing of a criminal traffic ticket. (2) The case can be settled. In criminal cases, the settlement is done through a plea agreement. If the case is not dropped or settled then, (3) proceed to trial.

A defendant who has failed to come to a reasonable plea agreement with the State can ask to Court to hold a sentencing hearing. This is a called an ‘open plea’. An open plea is more commonly called “throwing yourself at the mercy of the Court”. But there is more to it than just walking in and looking pretty. The sentencing hearing can be a lot like a trial without the jury. The defense and prosecution enter evidence and make their arguments to the Court. The scary part is that the court may hand out a sentence harsher than the State was offering. The Court may not see things the same way as the Defendant.

Criminal defense lawyers are obligated to communicate all plea offers whether they like it or not. How they communicate makes a difference. To hire a private lawyer to help settle the case, have a sentencing hearing or proceed to trial, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529