Gainesville Personal Injury, Divorce and Alimony Attorney

What is a Traffic Crash in Florida?

In traffic law, the term “crash” does not mean what many people think. Seemingly many people believe that a “crash” means that there is some degree of damage to vehicles. Some have even argued that at crash should equate to a significant amount of damage. Does a crash require damage? What then is a traffic crash? 

The Courts have held that the term “crash” is interchangeable with the word “collision”. In other words, there is impact with another vehicle, person, animal, or any object, even plants. Therefore, the answer to the common question of whether a person can be cited for a traffic crash with no damage is YES.

In one case a passenger was separated from a moving vehicle, hit the pavement, died and the driver left the scene. The vehicle never touched the decedent. The driver was accused of leaving the scene of a crash with a death. The Florida Supreme Court interpreted the meaning of the term “crash” to include the passenger hitting the ground. However, because the hit and run statute requires that the vehicle be involved in the crash, the conviction could not stand. Gaulden v. State, 195 So. 3d 1123 (Fla. 2016). Furthermore, the Court in that case specifically included plant life such as a tree as objects that could be collided with to equal a crash.

Once a person is formally accused, then any arguments or evidence pertaining to whether a crash occurred or how it happened must be presented to the court in a formal proceeding. No one can promise what another person or a judge will decide, and every case is different. For help presenting any type of traffic case, call or click.

Gainesville (352) 371-9141

Ocala (352) 694-4529

GET OUT! Asked to exit vehicle after a traffic stop

In criminal and traffic cases a common concern is that the officer requested the driver or other person to exit the vehicle. There is a line of thought that being removed from the vehicle requires a safety concern or other good reason. Some may question what issue(s) exist getting out of the car, others do not like the feeling of being seized, however in the context of criminal cases, exiting from a vehicle often discloses damaging evidence.

Presuming a valid traffic stop for speeding, failure to maintain a lane or other traffic infraction, law enforcement can request those inside the vehicle to exit and there is no need for a specific valid safety concern. The United States Supreme Court has said that once a vehicle has been lawfully stopped, police officers may have the driver get out as a matter of course without violating the Fourth Amendment (searches and seizures). In other words, the officers do not have to be able to articulate anything in specific.

This matters in a criminal case because upon opening the door, the driver or passenger could reveal drugs or firearms that are in the possession of a felon or were concealed without a license. In addition, other criminal cases like violation of injunction or violation of pre-trial release and the obvious criminal traffic violations such as suspended or no valid license can all start when the overhead lights are activated on the patrol car.

All this means is that analyzing the traffic stop can mean a great deal. Please call, click or fill out the form to hire a criminal and traffic defense lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

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

Habitualized the Hard Way

Almost every week I hear from people who have just been informed that they have been habitualized in the worst way. Apparently, ordinary people (not defense lawyers) trust the government and just pay a fine on a traffic ticket, especially when that fine is overdue. A common complaint will go something like this: “I just paid a ticket to get my license back and now I am being told that I am a Habitual Traffic Offender and my license is gone for five (5) years.” Almost always the ticket that was paid recently is for driving on a suspended license. 

What the court clerk will not or does not say is that paying your ticket is an admission of guilt meaning that you will have a conviction and points on your driving history. The conviction date is the date the citation is paid, not when it is received. Having three (3) convictions for listed offenses within five (5) years means losing a license for five (5) years and there is no hardship license available for one (1) year.

Practically speaking what happens is that a person attempts to reinstate the license that is suspended and in doing so makes sure that all outstanding tickets are taken care of and paid. Several callers just had their license reinstated, are holding a new license and do not understand why they were not warned that the consequence of merely paying a citation would be losing the license again. Worse, I have represented people who were told the completely wrong thing by the Clerk of the Courts or law librarian. In this instance the government is not your friend but they will take your money and suspend your license.

Acting quickly can mean a chance that to reverse the points and the corresponding habitual suspension. The longer a person waits, the worse the chances become at reversing anything.  We will likely have to purchase a lifetime or complete driving history in order to assist in the matter. There is no reason to just pay a ticket without talking to a traffic lawyer first. To learn if we can help please click or call for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

HTO No! (Florida Habitual Traffic Offender)

For some it is getting the letter or notice of Habitual Traffic Offender (“HTO”) in the mail. For others it is getting arrested after being pulled over for no reason or even if there was a traffic citation, surprise! The license is being, or has been, suspended for five (5) years. The driver has been habitualized!  After Notice from the DHSMV, we can determine the next step to attempt to reinstate the license. An analysis of the driver record may be required. 

A person caught driving on a license that has been revoked pursuant to the habitual offender law can be charged with a third degree felony, punishable by up to five (5) years in prison. People do serve jail or prison time for driving offenses in Florida. Therefore, upon receipt of a letter, informing that because of points or too many criminal traffic offenses, the license is lost for five (5) years, DO NOT drive after the effective date of the suspension. Because driving on a habitual suspended license is a felony, it will be taken seriously by the Courts.

Not all hope is lost; there are things that can be done to reverse the habitual suspension. For example, if the reason for the suspension letter is that recently several traffic tickets were paid, then a traffic attorney may be able to help get your license back. A hardship license is available after one (1) year of no driving. Changing the disposition or sentence in one or more civil traffic ticket cases could mean the difference between being arrested for driving, no driving for a year and reminstating the license.  A reinstatement fee will have to be paid, if the driver is able to have the license reinstated.

There are also reasons for suspension that cannot be easily undone. If the reason is too many criminal traffic cases such as, knowingly driving on a suspended, revoked or cancelled license, failure to stop or leaving the scene of a crash, drunk driving (DUI), manslaughter or homicide, then the remedy may be more difficult. There may be no remedy.

Getting a driver’s license back is a completely separate matter from being arrested or accused of a crime. Please click, call or fill out the form for a consultation.  We can also help after arrest or receipt of a criminal or “court appearance required” citation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Roadblocks or Roadside Safety Checkpoints

Roadblocks or “Roadside Safety Checkpoints” as they are referred to by law enforcement are legal only if the police follow the rules. Yes, the Constitution does still apply as do the laws of the State of Florida, even though it certainly does not feel like it or a particular law enforcement officer’s god complex has raised its ugly head. In order to be legal, they have to have followed several steps including publishing an operational plan, communicating the plan and then actually complying with the operational plan. 

The inspiration for this blog was that the Gainesville Police Department (GPD) announced that it will set up a roadblock or checkpoint along with the Alachua County Sheriff’s Office (ACSO), Florida Highway Patrol (FHP), University of Florida Police Department (UFPD), High Springs Police Department (HSPD) and City of Alachua’s Police Department (APD) on Friday, June 26th, 2015, at 3200 SW Archer Road in the westbound lanes between 9:00 PM and 3:00 AM.

According to GPD’s announcement, they are looking for people who are driving under the influence of alcoholic beverages and those driving without a valid driver’s license. They claimed that “[d]rivers who are able to provide a valid driver’s license upon first contact will be allowed through the checkpoint without any further delay. Suspected impaired drivers will not be allowed to leave the checkpoint unless a lawful level of sobriety is confirmed.” This implies that they will be running the driver license through the police database and removing anyone who smells like alcohol or drugs in order to do a DUI investigation.  They will surely also find marijuana and people impaired by other drugs such as prescriptions.

I have never heard of a person with an active warrant being allowed to leave a roadblock/checkpoint. Surely, if a warrant is detected, that person will be arrested. Likewise, several people will be cited for driving without a license, no valid license, failure to display, driving with a suspended license, driving outside restrictions, and other civil and criminal traffic violations.

If you or a loved one is caught up in this or any other roadblock/checkpoint click, call or fill out the form to hire a lawyer today. The firm represents people in all criminal and traffic violations.

Gainesville (352) 371-9141

Ocala (352) 694-4529

GPD’s announcement

Traffic Crashes Involving a Death

Tony Stewart’s crash that killed another driver, Kevin Ward Jr., will be investigated by law enforcement. A few minutes into the business day and I am already being asked “for what?” While some feel this is an incident for which Mr. Ward waived any civil actions by assuming the risk of death when he exited his vehicle and tried to confront a race car,, there are others that want our government to investigate all incidents of death with an eye towards prosecution. 

What then could be the outcome of said investigation of Tony Stewart? A close look at the video shows that the vehicle fishtailed. If there were evidence of intent to strike the pedestrian, then Mr. Stewart could be charged with Aggravated Battery with a Deadly Weapon. Some people are surprised to learn that vehicles are deadly weapons when used as a weapon. Aggravated Battery with a Deadly Weapon is a second degree felony in Florida.

Another possible charge would be Vehicular Homicide. Vehicular Homicide is when a person operates a vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another and then does cause a death in a traffic crash. While it may be true that racing is reckless per se in Florida, I do not think the fact that the death occurred in this race will meet the reckless requirement. However, if there is evidence of intent then that could meet the reckless requirements.

We have to also consider that this could have been an accident and Mr. Stewart was trying to avoid the fatal impact. If there was no intent, then the State could charge a civil traffic ticket case of careless driving with a death. While there would be no incarceration possible in a traffic ticket case, there would be a mandatory driver license suspension.

All death cases are serious cases but just because somebody died does not mean the government can prove guilt. The question is always causation and not the resulting death because the result is always death in death cases. No person should face the government alone. If you or a loved one is under investigation or has been accused of any traffic accident causing a death, then please click call or fill out the form for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Florida Ban on Texting While Driving Law

Yesterday, May 28, 2013 the Governor signed into law SB-52 a ban on texting while driving in Florida. A violation of the texting law is a non-moving violation and can only be enforced as a secondary offense. This means you must be pulled over for another reason other than texting. A driver charged with violating the law is subject to six points if there is a crash or two additional points if the primary moving violation occurred within a school zone. 

Under the new law, a person may not operate a motor vehicle while manually typing or entering data or while sending or reading data for the purpose of nonvoice interpersonal communication. A motor vehicle that is stationary is not being operated for purposes of the texting ban and is not subject to the law. Therefore, texting while at a red light should still be legal. The law goes into effect in October and has not been tested; therefore, nobody can know how a court will interpret the new texting ban statute.

The big-brother aspect of the law has been toned down from previous versions. Now law enforcement can obtain your cell phone records in a crash resulting in death or bodily injury. In other versions any alleged violation would allow the government access to your cellular phone billing records.

The law still has exceptions that in my opinion go against the supposed spirit of the law. Weather alerts, radio broadcasts, navigation, initiation or deactivation of a feature, or reporting suspicious or criminal activities are all exempt. So it is okay to enter data into your GPS. What if your phone is your GPS? Texting is okay if you are reporting a crime, a weather or emergency alert, but not if your dinner date is late. Texting is excepted if a driver is performing “official duties as an operator of an authorized emergency vehicle”.

If you or a loved one is accused under the new “Florida Ban on Texting While Driving Law”, or any other traffic offense, please click or call for representation in your case. I offer free consultations in all traffic and criminal matters.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Texting and driving still legal in Florida but beware

Texting and driving is not a direct violation of the law in Florida. However, I have had several prosecutors argue to me that texting was, could be or should be considered reckless driving per se. This all may change with the introduction of senate bill 2013-0052. 

This bill would make texting and driving a moving violation punishable by points, presumably with a driving school option and increased points if it leads to a crash. While I believe you should pay attention while driving, on of my problems with this bill is that, as many texting while driving bills has several exceptions.

These exceptions include all law enforcement, fire, or medical emergency vehicle operators while performing duties. Remember your government can do it but not you. Also, navigation devices, such as your phone, sending or reporting emergency information to law enforcement, receiving “safety-related information, including emergency, traffic or weather alerts”. So it is okay if you are checking the weather app or traffic app. Another exception to the texting while driving bill are activation or deactivation of a function etc. So the exceptions eat the rule.

My big problem with the texting while driving bill is section 3(c). It states that your billing records are admissible. If this bill does become law, I will use the lack of your billing statements in evidence as a reason to dismiss the citation. However, the big brother aspect is chilling. Imagine every time you get a traffic ticket for this, an officer will be able to subpoena your cell phone bills! Wow, hello big brother.

If you or a loved one has any kind of traffic case, please click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

I Received a Traffic Ticket, Now What?

You received a traffic ticket for speeding, failure to yield, violation of a traffic control device, careless driving, or some other reason so now what? For some reason many people believe they must pay a citation within 30 days. While that is an option it is not necessarily a requirement.

Within 30 days of receiving the citation you must inform the court whether you want to A) pay the citation and then pay the ticket, B) elect school, if you qualify, to resolve the citation and still pay the amount on the ticket or C) take the traffic ticket to court. If you hire a traffic attorney you are making the election to fight your traffic citation in court. If you wait past 30 days, you cannot elect school to resolve your citation, despite what the police may have said roadside.  In addition, waiting past 30 days, will lead to the license being suspended.  A driver who failed to act can request a hearing if the citation was issued within180 days.

No all lawyers go to court, some will just enter a plea of no contest through the mail and never plan to appear at a hearing.  Hiring this firm menas that there will be an attorney to appear at court to argue. An appearance by the accused is not necessary and can actually hurt the case especially if there is an identity issue, such as in a crash case.  If you choose to fight your traffic ticket, your attorney should go to court for you.

At the hearing, if the officer fails to show then the person wins and the traffic citation case should be dismissed on those grounds. If the officer does appear, then they must prove that the speed measuring device, weather radar, laser, stop watch, or in a pacing stop their speedometer, has been properly maintained and calibrated.  If the officer is missing documentation or there is an error, then the defendant can win on those grounds.

Click, call or fill out the form to hire a traffic attorney to represent the accused in court.

Gainesville (352) 371-9141

Ocala (352) 694-4529