Gainesville Personal Injury, Divorce and Alimony Attorney

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, text (352) 371-9141 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

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, text (352) 371-9141 or fill out the form to begin the process. Any information gathered will be kept confidential.

Gainesville (352) 371-9141

Ocala (352) 694-4529