Monday, August 31, 2009
Unfortunately, there are many uninsured motorists on Florida’s roadways and with the slowing economy, these numbers are expected to increase over time. Insurance protection can also provide benefits for the motorcyclist when the other driver is at fault for the accident, but does not have automobile insurance. Without proper insurance coverage, a motorcyclist can also be personally sued by the other party for property damages and personal injuries, if they caused the accident.
Although motorcycle insurance is not required in Florida and no one ever expects to be in an accident, there are many benefits in having the insurance coverage when and if needed. Unexpected and uninsured accidents can be devastating emotionally and financially. I recommend that all motorcycle owners purchase insurance coverage that will offer them adequate protection and benefits.
Thursday, August 27, 2009
If you are from out-of-state and were arrested in the Tampa Bay area for DUI, contact me so I can help you understand the laws which may affect you in your home state.
If you receive your first DUI conviction while driving a non-commercial vehicle and have a CDL, then you may lose your CDL for a period of one year. A first DUI conviction while driving a commercial vehicle will result in the loss of your CDL for one year if you are transporting hazardous materials that do not require a placard. If the hazardous material needs to carry a placard then you will lose your CDL for three years.
If you have a CDL and have been arrested for DUI in the Tampa Bay area, contact me so I can advise you of your rights.
|DUI CONVICTION||DEVICE REQUIREMENT|
|First Conviction||If Court Ordered|
|First Conviction if 0.15 or Minor in Car||At least 6 months|
|Second Conviction||At least 1 year|
|Second Conviction if 0.15 or Minor in Car||At least 2 years|
|Third Conviction||At least 2 years|
These requirements are set forth by Section 316.193, Florida Statutes.
If you are required by law to install an ignition interlock device, and you are caught driving without it, you can be charged with a new crime. This could also constitute a violation of your probation.
As you can see, DUI remains a fast-growing and increasingly complicated area of the law. If you have been arrested in the Tampa Bay area for DUI, do not hesitate to contact my office so that I may advise you of your rights.
If you’ve been recently arrested in the Tampa Bay area for DUI, call my office so I can secure the possibility of preserving your driving privileges.
On October 1, 2008, a new law went into effect to help the state combat gang activity. The law, sponsored by a former Miami-Dade Police officer, expands anti-gang measures that were currently in place. One of those measures has many questioning how far law enforcement will go and whether our freedom of expression is being taken away. Under the new law, any person who uses of electronic communication, such as social networking, to promote gangs and gang related activity can be "liable for punishment." In Bonita Springs, Florida, only weeks after the law went into effect, the Lee County Sheriff’s Office made their first arrests. They were the first of their kind in Florida and in the nation. Now two Lee County men are facing up to five years in state prison for content posted on their MySpace pages. One showed the hand signal of the Latin Kings gang and called himself "King Kamel". The other posted pictures of his friends "making ‘Eastside’ hand gestures." The arrests in Lee County were part of an effort called "Operation Firewall" and resulted in the arrest of 15 people, including 6 middle school kids. Attorneys for the two men are challenging the law as unconstitutional. The ACLU has raised First Amendment issues stating that "the Statute is so broad that you could be arrested for something you’re not aware has anything to do with gang activity." It is likely that the decision on the constitutionality of the law will be left to the higher courts.Freedom of Assembly
Chapter 874 of the Florida State Statues, Street Terrorism Enforcement and Prevention regulates gang activity. Florida Statute § 874.02 states the finding and intent of this chapter. The legislature makes note of the constitutionally protected right to freedom of association and expression. This includes the right to lawfully associate with others who share similar beliefs. However, the state legislature has a compelling state interest in preventing gang activity to maintain public order and safety. "It is the intent of the Legislature to outlaw certain conduct associated with the existence and proliferation of criminal gangs, provide enhanced criminal penalties, and eliminate the patterns, profits, proceeds, instrumentalities, and property facilitating criminal gang activity, including criminal gang recruitment."
Although there is a right to associate, the Legislature has limited this right in the context of gang activity. Therefore, there are two elements that the state would have to show to limit one’s constitutional right to freedom of association. First, is that those people who the individual is associating with are in a gang. Second, the individual is associating with them as a gang member. The legislature has provided definitions to these concepts in Florida Statue § 874.03.
Limitations on association with criminal gangs include electronic communication. This type of communication is considered a third degree felony under Florida Statute § 874.11. This statute not only limits the constitutionally protected right to freedom of association, but it also limits the first amendment right of freedom of speech. Again, this freedom can be limited because of the state’s compelling interest in preventing gang activity to maintain public order and safety. The broad language of this statute includes posting audio, video or still images which furthers the interest of a criminal gang on the internet. This statute also applies to posting on the popular social networking Web sites such as Facebook and MySpace. The statute also places a limit on transmitting, distributing and selling electronically any audio, video or still image of criminal activity. Again, the associated group who’s interests are being furthered must be considered a criminal gang otherwise there is no crime, and the individual is exercising their right to freedom of association. Certainly the legislature’s attack on criminal gang activity poses the risk of restraining legitimate activities of these people. Hand signs, dress styles, and tattoos all have an element of interpretation. The use of informants acknowledges the difficulty of penetrating gangs while simultaneously conjuring images of nefarious actors targeting individuals as gang members for the informant’s own interests. We expect these and many other issues to be aired out in Court as challenges are brought questioning the statute’s constitutionality. See article links for defenses of some of the first arrests made under the Statute. The communication must intimidate or harass others or be used as a means of advertising.Criminal Gang
Florida statute §874.03(1) defines a criminal gang: "Criminal gang means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups."
The section parsed requires that the following requirements must be met:
- Formal/Informal organization, association of group
- Primary activities are the commission of criminal or delinquent acts. This does not have to be most important part of the group, but just that a substantial amount of time is spent on it.
- There must be at least three people.
- The member must have something in common such as common name, identifying signs, colors, symbols.
The Florida Statute § 874.03(2) states that a person is held as associating with a gang member when they either admit to that association, or the court establishes them as a member of the gang. Florida Statute § 874.03(3) lists the requirements which are needed for a person to be considered a gang member. At least two of the listed criteria must be meet before the person can be held as a gang member. The criteria listed include the following:
- (a) Admits to criminal gang membership.
- (b) Is identified as a criminal gang member by a parent or guardian.
- (c) Is identified as a criminal gang member by a documented reliable informant.
- (d) Adopts the style of dress of a criminal gang.
- (e) Adopts the use of a hand sign identified as used by a criminal gang.
- (f) Has a tattoo identified as used by a criminal gang.
- (g) Associates with one or more known criminal gang members.
- (h) Is identified as a criminal gang member by an informant of previously untested reliability and such identification is corroborated by independent information.
- (i) Is identified as a criminal gang member by physical evidence.
- (j) Has been observed in the company of one or more known criminal gang members four or more times. Observation in a custodial setting requires a willful association. It is the intent of the legislature to allow this criterion to be used to identify gang members who recruit and organize in jails, prisons, and other detention settings.
- (k) Has authored any communication indicating responsibility for the commission of any crime by the criminal gang. Where a single act or factual transaction satisfies the requirements of more than one of the criteria in this subsection, each of those criteria has thereby been satisfied for the purposes of the statute.
When the presence of a gang is established through the statutory definition, there is no protected to right to associate with members of the gang in their criminal capacity. The legislature limits this type of association specifically in the statute against electronic communication.
Florida Statute § 874.11 "Electronic communication.--Any person who, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, uses electronic communication to intimidate or harass other persons, or to advertise his or her presence in the community, including, but not limited to, such activities as distributing, selling, transmitting, or posting on the Internet any audio, video, or still image of criminal activity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."
originally blogged 8/7/9
Friday, August 21, 2009
Unfortunately, sometimes these mistakes can lead to someone getting arrested for no reason whatsoever - just because someone made a mistake. People can lose their jobs because of the mistaken arrest and suffer great emotional pain. One presumes when a mistake with such adverse consequences is made, you can seek redress with a lawsuit. However, filing suit under these circumstances is a bit different and much more challenging.
In order to sue the State of Florida or one of its entities (e.g. the Clerk’s Office or the State Attorney’s Office), the State must owe the victim an individual duty. Florida courts have stated, however, that the State’s duty to accurately maintain records is a general duty to the public and not individuals. Therefore, one who has been falsely arrested because of a clerical error is often left without a remedy.
Nevertheless, there are still some instances in which a mistake by those involved in the criminal justice system does create a specific duty to victims. If you find yourself in this sort of situation, call my office. Let us evaluate your claim and advise you of your rights.
Friday, August 14, 2009
Juveniles in the State of Florida face some of the harshest sentences in the United States. Records show that Florida has handed out more life sentences to juveniles for non-murder crimes than have all other states combined. In a study conducted by Florida State University, 77 young men have been sentenced to life in prison, without parole, in Florida for non-homicide crimes when they were 17 years of age or younger. Six of those juveniles were 13 or 14 at the time of their crimes.
These sentencing trends have raised questions about cruelty and generated protests from human rights groups which argue that these sentences violate the ban on cruel and unusual punishment in the 8th Amendment to the Constitution.
Florida"e;s position on sentencing is currently before the U.S. Supreme Court in a case involving two men, ages 16 and 13 at the time of their crimes, who were sentenced to life without parole. Terrance Graham, was convicted after fleeing police after a home invasion robbery. He was on probation at the time for an armed robbery he committed when he was 16. Despite the recommendations of prosecutors for a sentence of 30 years, the judge, citing an escalating pattern of criminal conduct and the protection of the community, handed down the life sentence. The other party to the Supreme Court case involves a then 13 year old convicted after a one day trial of raping a 72 year old woman.
A wide array of groups including the American Bar Association and the American Psychiatric Association have filed briefs in the case which is using the 2005 U.S. Supreme Court ruling that the death penalty for juveniles was unconstitutional as the legal basis for this challenge.
http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20090809/ARTICLE/908091068/2107/BUSINESS&Title=Florida justice Tough on youths&template=printart
http://sentencing.typepad.com/sentencing_law_and_policy/graham and sullivan eighth amendment cases/
Tuesday, August 4, 2009
Monday, August 3, 2009
According to the Fourth Amendment, a person can only be arrested if a law enforcement officer has probable cause to believe that an individual has committed a crime. Of course, this doesn’t clarify much at all because probable cause is a difficult concept to define. It is not a concrete idea, and its definition almost changes on a constant basis because no two situations are ever exactly the same. Nevertheless, the courts have generally defined probable cause as a reasonable ground of suspicion sufficient to warrant the cautious man to believe the accused is guilty of the offense. Now, you’re probably thinking that if Prof. Gates was arrested without probable cause his arrest is unjustified; therefore, he could sue the police for false arrest.
I’m saddened to say that is not the case. According to the current state of the law if a police officer is able to demonstrate he/she had arguable probable cause for an arrest, the accused does not have a false arrest claim against the officer. Taking into account this imprecise standard, it’s probably a safe bet to assume Dr. Gates will not be a successful plaintiff anytime soon.
Clearly, false arrests are difficult to understand. If you’re in the Tampa Bay area and believe you were falsely arrested, call my office so we can help you understand whether or not your civil rights have been violated.