Gainesville Personal Injury, Divorce and Alimony Attorney

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“My case was handled quickly and with ease.”
01/10/2014
“Prospective clients may not obtain the same or similar results.”

What is an Injunction?

English Transcript:

Good morning this is Christian Straile coming to you from outside the courthouse here in Ocala, Marion County Florida. Where I just concluded injunction Court. What is an injunction? Well, an injunction is simply an order telling you to do or not do something, it could be to remove a fence from your neighbor’s property or for today was injunctions for protection against domestic violence, telling people to stay away from each other or more particularly injunctions are one-way streets. Meaning that they only apply to the respondent, the court only orders the person who was served the injunction to stay away. These injections have long reaching consequences well beyond the courthouse, if you are served or know somebody who has been then they should speak to an attorney. You have rights you should know them; you should use them, thank you and good luck.

Spanish Transcript:

Buenos días, este es el abogado Christian Straile viniendo a usted desde fuera del tribunal aquí en Ocala, condado de Marion Florida. Donde acabo de concluir el Tribunal de Interdicto, ¿qué es una orden de Interdicto o Orden de proteccion? Bueno, una orden de Interdicto es simplemente una orden que le dice que haga o no haga algo, podría ser para quitar una cerca de la propiedad de su vecino o para hoy fue una Interdicto para la protección contra la violencia doméstica, diciéndole a la gente para mantenerse alejados unos de otros o más particularmente las Requerimiento son calles de un solo sentido. Lo que significa que el único se aplica al demandado, el tribunal solo ordena a la persona a la que se le entregó la orden Interdicto que se mantenga alejada. Estas Ordenes han alcanzado consecuencias mucho más allá del tribunal, si usted es atendido o conoce a alguien que ha estado, entonces debe hablar con un abogado. Tienes derechos, que debes conocer; deberías usarlos gracias y buena suerte. 

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Traffic tickets issued later or not received at all.

What happens to a traffic ticket if the officer did not serve the individual at the road? This is a common question in the traffic ticket defense practice. When an officer does not serve the driver with the infraction on or at the roadside, typically that means that the infraction involves a crash. An accused driver being transported to the hospital may delay the actual receipt of notice by hours or weeks. Most traffic crashes resulting in fatalities are not served at the scene but, many months later. Blood drawn at a crash means an investigation into DUI and a lawyer should be consulted immediately. Although it may come as a surprise to some, the Constitution applies to traffic tickets. Notions of Due Process, the evidence code and the right to a speedy trial all apply to traffic ticket cases like other criminal and civil cases. However, there are tremendous differences between the criminal and traffic rules or procedure. Due Process is basically the right to have notice and opportunity to be heard. Notice happens when the officer provides the citation to the accused driver. The citation is the only charging document in a traffic ticket case and can be the only charging document in a criminal case.

Failure to serve the citation is therefore a violation of the Constitutional right to Due Process. A ticket that is never served is subject to the Statute of Limitations. In a noncriminal violation, a prosecution must be commenced within 1 year after it is committed. A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when a charging document is filed, provided the Summons or Information or other charging document is served to the person without unreasonable delay.

The government still has to serve the ticket without unnecessary delay. If they do not, then the case is dismissed. There is no cure for the government; it is a hard line. The reasonableness of the delay depends on the facts over the next year but, things to consider are a Defendant’s absence from the State, homestead declarations, licensing of any type or, in the old days searching the phone book, today that would be an internet or social media search.

A ticket filed but not served and therefore not addressed by the driver, will result in a suspended license for failing to address the citation. Usually, a client finds out when the driver’s license is suspended for failing to act, sometimes the Court will have issued points and suspended the license. When this happens, the Court may still allow for a hearing and we will file a sworn Motion claiming improper or lack of service. Many times, the suspension can be lifted pending the hearing.

In a civil traffic ticket, the accused does NOT have the right to have a lawyer appointed; however, a person always has the right to hire their own lawyer. For assistance responding to a traffic summons or suspension please click, call, or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Recanting Refusal, Changing your Mind When arrested for DUI

After a DUI arrest in Florida, a person will be asked to submit a sample of their breath for analysis. Also referred to as taking the breath test. Upon refusing to provide a sample, the arresting officer is supposed to read a warning that the license will be suspended. Sometimes, people change their mind and provide a sample immediately. What if the officer says it is too late to blow and announces the arrestee has refused?

A person has changed their mind and agrees to take the chemical test, for breath, blood or urine. Now what? The answer is ‘it depends’. Having a changed mind may matter if (1) the request to submit to is made within a reasonable time after the refusal; (2) the test administered would still be accurate; (3) the machine or testing facility is still readily available; (4) there has been no substantial inconvenience or expense to the police; and (5) the Defendant has been in custody while under continuous observation.

The changing of the mind cannot be conditional. Presuming the above listed elements, then a criminal defense attorney can file a Motion to Suppress the refusal so that the State cannot make the argument in the criminal trial that “the Defendant refused because they were guilty”. The case is not necessarily dismissed, but a big piece of evidence can be missing from the prosecution’s case. In addition, long before a DUI trial, a DUI lawyer may be able to successfully challenge the automatic driver’s license suspension that results from refusal. A successful challenge will keep the refusal off of the Driver Record. That is important because a second refusal is a misdemeanor.

Driver’s license proceedings are at the Department of Highway Safety & Motor Vehicles, or DMV and are separate from the criminal proceedings in the courthouse. The Public Defender does not assist at the DMV and the accused must act within ten (10) days to protect the license.

DUI defense is technical and specialized. To schedule a strategy session with a DUI Defense lawyer, click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Summons in Florida

What happens upon receipt of a Criminal Summons in Florida? In some jurisdictions, the use of a Criminal Summons was part of criminal justice even prior to COVID. Some people are surprised to receive a Summons, while others are made aware of a criminal investigation and may be expecting it or relieved to receive a Summons instead of being arrested.

When the State of Florida files criminal charges and, presuming a person is not arrested on the scene of an alleged crime, there are two ways to notify the defendant. A criminal defendant is notified either by an arrest or by issuing a Summons, also called a Notice to Appear. When a person receives a Summons, they must respond or else the Judge will issue an arrest warrant. Most people should view receiving a Summons as better than being arrested.

Typically, the Sheriff’s Office will not discuss a Summons over the telephone, and someone has to physically appear at the Sheriff’s Office. A lawyer may be able to respond to the summons on behalf of the summonsed individual, which can be beneficial or just bring peace of mind. A person receiving a Summons in criminal cases should respond to the Summons by themselves or by a lawyer instead of choosing to be arrested. Upon responding to a Summons, an arrest can be avoided. As for timing and all the rules, the service of a Summons functions the same as an arrest. For example, it starts the clock of speedy trial.

In any criminal case, the accused is entitled to have a lawyer appointed, however, lawyers are not appointed to the accused during the investigation, arrest or Summons portions of the case. A Public Defender is assigned by the Court after the Summons is served or an arrest is made. For assistance responding to a Summons or any criminal case, please click, call, or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Florida Criminal Arraignments During COVID

Much has changed in the practice of Florida criminal defense during COVID. With varying orders being issued by the Florida Supreme Court, the Chief Judges of the Circuits, County and local municipalities, we are all dealing with the semi-shutdown as best we can. It seems that new orders, tweaking the last set, are made about every other week.

The common ground amongst the orders affecting the courthouses is that during the shutdown in-person hearings are to be rare. Many essential functions are deemed an exception to the rule and are taking place in person. A recent development from the Florida Supreme Court, was to add criminal arraignments to the list of those functions deemed essential to the system. Because arraignments are now on the list of essential proceedings, arraignments are held in person. That means the Defendant has to appear and enter the courthouse, wearing a face covering, of course.

Failing to appear at arraignment, or any other criminal court event will cause an arrest warrant to be issued for the Defendant. This is true even if the case is a misdemeanor, felony, or criminal traffic citation and the reason given is fear of COVID. While some people may be reasonably and actually scared of COVID, failing to appear is not the way to face the fear.

In Florida, but not all states or the Federal system, a person with a lawyer does not have to attend arraignment. A criminal lawyer can file paperwork to excuse the Defendant from arraignment and some, but not necessarily all, other court events. Unfortunately, unless a Public Defender was assigned at First Appearance, then a Defendant relying on the services of the Public Defender will have to physically appear at an in-person arraignment to have the Public Defender assigned. (First Appearance & Arraignment.)

A person criminally accused has rights and should use them. To hire a lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Law and COVID-19

Intersections between criminal and public health law do exist. In Florida, section 381.00315, relating to public health advisories; public health emergencies; isolation and quarantines, creates a misdemeanor for violating “any rule adopted” pursuant to the section. Of course, this includes “any isolation or quarantine, or any requirement adopted … pursuant to a declared public health emergency”.

A person can be arrested for this criminal violation, even though it is a misdemeanor. Any criminal case exposes a Defendant to incarceration. There have been a lot of rumors spread during the pandemic relating to whether and the extent to which local jurisdictions are arresting people. To our knowledge, no sheriff in North Florida has completely ceased making arrests.

Within the Fifth Judicial Circuit, any person arrested for violating a section 381.00315 Quarantine Order, “who is reasonably believed to be infected with the coronavirus or who is reasonably believed to have been exposed … is presumed to involve a danger to the public health. Due to the danger to the public health for such a violation, the bond shall initially be set at no bond.” [internal quotations omitted]. Quoting a case from the Florida Supreme Court in 1943, the administrative order reasons that “[t]o grant release on bail to persons isolated and detained on a quarantine order because they have a contagious disease which makes them dangerous to others, or to the public in general, would render quarantine laws and regulations nugatory and of no avail.”

The Fifth Circuit encompasses Marion, Citrus, Lake, Sumter and Hernando counties. Fortunately, the judge at First Appearance which takes place the day after an arrest, does have the discretion to modify the no bond status, if appropriate.

Any arrest is scary. Going through the system with and advisor can make it less scary. To hire a lawyer please click, call or fill out the form.

Ocala: (352) 694-4529

Gainesville: (352) 371-9141

Criminal Assault, the Threatened Use of Force and Warning Shots

In the realm of criminal cases one way a defense attorney can protect a client is to argue self-defense. Some years ago, there were reports of a ‘Warning Shot Bill’ that would allow Floridians to fire a warning shot. There is no law that specifically ‘allows a warning shot’. What in the stand your ground law caused the confusion that has me answering similar questions years later? 

Initially, the stand your ground law in Florida was silent as to whether a threat to use force was included. That meant that people, who chose to make a threat to use force and would have been immune from criminal prosecution had they actually used force, were instead being sent to prison. The law did not allow for immunity from prosecution for threats, just the use of force. For example, a person who killed an aggressor could be immune from a murder prosecution but in the same situation, having the restraint to not kill would send that same person to prison.

Thankfully, that omission was filled in 2014. The Legislature found that “persons have been criminally prosecuted … and have been sentenced to mandatory minimum terms of imprisonment for threatening to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.” Therefore, the legislature, added the words “or threatening to use” and “or threatened use” to the provisions of law related to the justifiable use of force. They did not add the words “warning shot(s)”. In my opinion, the law will NEVER say that a person can fire a warning shot, but one day it may say that a person cannot.

The law in threatening or using deadly force is generally that a person is justified only if they reasonably believe that such conduct is necessary to prevent the imminent commission of a forcible felony. “Forcible felony” is defined as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

Whether a warning shot is justified is for the judge or jury to decide. Every case is different, and no lawyer can guarantee what a trial judge or jury will eventually decide. Criminal and civil cases involving the use or threatened use of deadly force require significant attention. To hire a lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Equitable Distribution the Division of Assets and Liabilities in a Divorce

In any divorce or dissolution of marriage, an area of great concern(s) is the division of assets and debts. In Florida, the law provides for an “equitable distribution” of marital assets and liabilities. While a divorce court must begin with the presumption that marital assets and liabilities are to be divided equally, the court may distribute the marital estate fairly or “equitably” instead. Fair is not always equal. Factors to be considered include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse.  Alimony is determined after equitable distribution.  

Assets may include cars, houses, retirement benefits such as a pension, IRA or 401(k), business interests, cash, stocks, bonds, bank accounts, promissory notes, personal property and other things of value. Debts include mortgages, car loans, credit card accounts and any money owed to third parties.

Assets and liabilities can be (1) nonmarital or (2) marital and some assets could be both. Generally, any asset or debt acquired during the marriage is considered marital and subject to equitable distribution. Any asset(s) or debt(s) that are considered nonmarital should be awarded to only one party. Examples of nonmarital assets are things like family furniture, heirlooms, or other inheritance. Whether a family business is a nonmarital asset or liability, depends on the totality of each individual circumstance.  The court generally approves of reasonable agreements; however, if the parties cannot agree, then the Court will decide the fate of any property or liabilities in a trial.

In all family matters, we perform a conflict check before setting a meeting and after consulting with one spouse, the firm could never consult with the other party or represent them in the dissolution. Therefore, the firm does charge a consultation fee in family cases. Please, click, call or fill out the form to begin the process. Any information gathered will be kept confidential.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Child Support, Incarceration and Imputed Income

When a parent is about to be or has been ordered child support and the paying parent is or is about to be incarcerated, then what? This is a common occurrence in divorce and paternity cases and like many things in family law, the answer depends on the facts of each case. There is a distinction in the case law between setting child support and supplemental petitions to modify child support.

There is a split in the districts as to whether child support can be set during incarceration. The answer differs when if the person paying child support lives in Gainesville or Ocala. The First District, which includes Gainesville and the rest of the Eighth Circuit has held that when setting child support, imputing income to an incarcerated parent is inappropriate. The First District contains the 1st, 2nd, 3rd, 4th, 8th and 14th Circuits) However, the Fifth District encompassing Ocala and the Fifth Circuit had held that does not serve to protect the child’s rights in their support and imputing income is appropriate. Both Districts have certified conflicts with each other but there has not been a resolving opinion as of the typing of this blog.

The Florida Supreme Court resolved the conflict regarding modifications of child support already ordered by establishing a procedure to deal with the problem. First, upon the filing of a Supplemental Petition for Modification of Child Support by an incarcerated parent the arrearages no longer are vested to the recipient. Therefore, a Petition should be filed as soon as possible, since money owed prior to the filing of the action to modify are vested and cannot be changed by the Court. Then, the trial is to place the petition in abeyance until the obligor parent’s release. Once the parent is released from incarceration, the trial court would hear the modification petition, taking into account numerous factors, including any additional considerations even taking into consideration if the crime was motivated to evade a child support obligation. The Supreme Court of Florida also specifically rejected a per se rule that would permit incarceration to be utilized as a basis to modify support, calling that “tantamount to authorizing a suspension or abatement” which they did not want.

Issues in family cases including child support can be much more complex than just using the formula to calculate support. A lawyer can assist in the process. We do charge a consultation fee in family cases, that means that we could never consult with the opposing party on the same issues and will perform a conflict check prior to setting a consultation. To get the process started, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI, the 20 minute observation & DHSMV Hearings

After an arrest for driving under the influence (DUI), if the driver is alleged to have refused to provide a breath sample or provided a sample resulting over .08, then the arrestee’s driver license is supposed to be automatically suspended. This suspension takes place after ten (10) days. A driver must apply to challenge the suspension at the Department of Highway Safety and Motor Vehicles (DHSMV) or DMV within those same ten (10) days. DHSMV blog.

Prior to collecting a breath sample for analysis, the machine operator is supposed to observe the arrested driver for twenty (20) minutes. This is designed to ensure an accurate sample by eliminating foreign objects, substances and things like regurgitation that can all affect the analysis of the sample. The required twenty (20) minute observation period is only one item that is subject to attack in the administrative license hearing.

At a hearing, the State must show competent substantial evidence to prove law enforcement conducted this observation period. Competent substantial evidence is evidence that will establish or cause the reasonable inference of a fact, such as whether the waiting or observation period occurred. Like many other aspects of criminal and traffic defense, the supporting documents can be vital to any challenge of the sample. There could be arguments based upon the lack of documents or based on the conflicts in the documents. The burden of proof at a driver license hearing is by a preponderance of the evidence, much lower than the beyond a reasonable doubt standard at the DUI trial.

Having a lawyer for these hearings is recommended because in any appeal of the Department’s decision, the Circuit Court will not reweigh evidence, nor to substitute its judgment for the findings of the hearing officer. Any review of the record determines whether the hearing officer’s findings were supported by competent, substantial evidence and whether the essential requirements of the law were applied.

DUI Defense is a technical area of practice; there are many avenues that are subject to attack. Every word used to communicate with the suspect can make a difference to what evidence is allowed to be presented to the jury. To hire a lawyer to assist in a DUI case of any kinds, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529