Gainesville Personal Injury, Divorce and Alimony Attorney

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, text (352) 371-9141 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, text (352) 371-9141 or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Leaving The Scene Of Crash Involving Death – Actual Knowledge Required

The criminal traffic charge of Leaving the Scene of an Accident (LSA) or Hit and Run from a crash involving a death is a serious felony.

An appellate court considering a case of leaving the scene of a crash involving death, addressed the issue of whether the jury instructions should require that the driver had to have actual knowledge of the crash or should read that the accused knew or should have known about the crash. There is a big difference between the two.

Even though the Florida Supreme Court has ruled that actual knowledge of a crash is a required element, the driver in that case, did not dispute the fact that a crash had occurred. Instead, she claimed to have believed at the time that she had hit a traffic cone or barrel. Disputing what was struck means that she admitted having actual knowledge of the crash and then appealed claiming actual knowledge was an issue. This is another example that the only thing media has correct is that anything said or done will be used against the accused. She admitted the crash; the actual knowledge requirement was upheld but that didn’t help the Appellant who admitted knowledge of the crash.

The minimum penalty for hit and run or LSA with a death is four (4) years in prison and a three (3) year revocation of the driving privilege. The revocation period of the driver’s license does not start until the defendant is released from prison. (Read more about Hit and Run – Leaving the Scene of an Accident). These are serious cases. Normally, a person accused will also have to consider hiring an expert to reconstruct the accident. It is imperative that you hire a lawyer and expert with experience litigating or taking these accident cases to trial.

If you or a loved one is accused of leaving the scene, click, call, text (352) 371-9141 or fill out the form to hire a criminal traffic attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529