Alleged Excessive Force Used At Orient Road Jail

Two individuals who have recently been taken to the Orient Road Jail because of allegations of Driving Under the Influence have filed notices of intent to sue the Hillsborough County Sheriff’s Office for excessive force. Both incidents of excessive force occurred in the central breath testing area. One individual states that she went unconscious while waiting to be administered a blood test and a deputy pulled her off the chair and dragged her across the floor. The second individual claims he was choked by officers while taking the breath test. The Hillsborough County Sheriff’s Office denies any wrong doing by its officers.

http://www2.tbo.com/content/2009/oct/07/2-dui-arrestees-allege-excessive-force-hillsboroug/

Florida Driver’s License Emergency Contact Information

You never know when or if you will be involved in a horrific car accident or will need emergency care. When these situations occur, you might not be able to call your loved ones to tell them that you are being transported to the hospital or that you need their help. The Florida Department of Highway Safety and Motor Vehicles offers a free service which allows you to provide emergency contact information to law enforcement in the event of an emergency, if you have a current Florida Driver’s License or Florida Identification Card. Having this information accessible saves critical time. The emergency contact information is protected under the “Driver Privacy Protection Act (DPPA) and automatically blocks the release of driver license information, name, address, telephone number, medical or disability information and emergency contact information. Please consider logging onto http://www.flhsmv.gov/index.html and provide your emergency contact information.

Driver Privacy Protection Act. http://www.flhsmv.gov/index.html

Out-of-State Resident and Arrested for DUI?

Just because you get arrested for DUI and are not from Florida doesn’t mean there won’t be consequences in your home state. The Interstate Drivers License Compact shares driving record information among several states and requires the State of Florida to notify your home state of your DUI arrest or license suspension. This could even result in your driving privileges being suspended in your home state because of reciprocity agreements.

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.

Commercial Driver’s License and DUIs

If you have a CDL and are convicted of DUI, you will lose your CDL in addition to the penalties you will receive under Florida law. This could cost you your living.

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.

When Would I Have to Install an Ignition Interlock Device?

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.

DUI – Ignition Interlock Device

After July 1, 2002 the State of Florida enacted a law in which those who have been convicted of DUI may have to use an ignition interlock device upon being eligible for reinstatement for a permanent or restricted driver’s license. Further, the driver bears the expense of installing the device. Installation may also be required when a driver convicted of DUI applies for a restricted license for work or business purposes. This device is installed onto dashboards and works much like a breathalyzer. If one installed in your car, you have to blow into it in order to start your car. However, if you are under the influence, the interlock device will not allow you to turn on your car.

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.

Recent DUI Arrest

When you are pulled over for allegedly driving under the influence, you may be required to take a breath test. If you refuse the breath test or blow over .08%, you have ten days to file for a hearing to try to keep your license. If you were driving with a valid license then it is legal to drive for ten days following the arrest.

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.

Driving Under The Influence Of Drugs Increasing Nationwide

A recent report by the National Highway Traffic Safety Administration shows that the number of drunken driving arrests has been declining. Surveys show that in 2007, the number of drivers having a blood alcohol level of 0.08% or higher have declined to 2.2%. In 1973, the percentage of intoxicated drivers was 7.5%. Unfortunately, the number of drivers testing positive for drugs has increased. With 16% of drivers testing positive for drugs, law enforcement agencies are utilizing urine testing if drugs are suspected. In Hillsborough County, if a breath alcohol reading shows a result of .05% or lower, a urine test will be requested to test for the presence of drugs.
http://articles.moneycentral.msn.com/Insurance/InsureYourCar/more-stoners-on-roads-than-drunks.aspx?page=1

Uninsured Motorist Coverage

Uninsured Motorist Coverage provides protection against two types of drivers, drivers who do not have insurance coverage and drivers who do not have enough insurance. These drivers are called uninsured and under insured motorist. This type of protection offers coverage in two situations. The first type applies to live-in relatives of the insured. The second type refers to those inside the car when the car of the insured is in a crash. In certain situations coverage may not be in effect if injury occurs when a person starts to walk away from the vehicle.

Why Did Michael Jackson’s Person Physical Hire An Attorney?

With all of the media attention and controversy surrounding the death of Michael Jackson, his alleged use of prescription drugs and his personal physician, who was present at the time of his death, the fact that the physician has hired a criminal defense attorney to represent him during the investigation may lead many to believe he has something to hide. However, it is not an uncommon practice for individuals being questioned by police during an investigation to be represented by an attorney and, in this case especially, is a wise thing to do. Even if police do not consider a person a target of an investigation, that person has a right to have an attorney present to protect their rights as guaranteed by the United States Constitution. In cases such as this, where there are no clear answers as to what happened, it is even more important to hire a criminal defense attorney before being questioned by the police. This right is reinforced by Miranda v. Arizona wherein the government must advise any individual being questioned of their right to have an attorney present to protect your Fifth Amendment privilege against self incrimination and that any statements made by the individual, whether they are a suspect or simply a witness, can and will be used against them. Even if you know you are completely innocent, you do not want to be put in the position of saying something the police could potentially use against you during the investigation. Many people are intimidated by the police and their nervousness may cause them to say or do something that is misinterpreted by investigators. An attorney can guide the individual through the questioning process to ensure the person does not unwittingly incriminate themselves.

http://www.examiner.com/x-12971-Houston-Legal-Issues-Examiner~y2009m6d30-Why-does-Michael-Jacksons-personal-physician-need-a-criminal-defense-lawyer

Florida Crack Down On Illegal Prescription Drug Market

Florida will no longer be one of twelve states without a prescription-monitoring program. Governor Charlie Crist signed a legislation that will require pharmacists and doctors to record patient prescriptions for most drugs in a state-controlled database. Pain clinics will now be required to register with the state Department of Health, and will also have to undergo annual inspections. This new law will help authorities locate individuals who go to multiple doctors in an attempt to get illegal amounts of pills. Prior to this legislation, Florida attracted many drug addicts and dealers looking for large amounts of painkillers because there was little oversight of doctors providing these prescriptions.

With new law, Florida can crack down on illegal prescription drug market

Voices That Speak To Prosecutors

Excessive influence over a prosecution can be exerted by victims.

Every day in our criminal courts, prosecutors and defense attorneys battle over the merits of charges, the admissibility of evidence, the proper sentences for offenses, and ultimately about the true meaning of different people’s actions. In addition to the lawyers and the judge, the parties that influence cases are law enforcement officers, victims, witnesses, and politicians.

Victims have the right to be heard as enshrined Florida’s constitution in Article 1, Section 16(b). Florida Statutes, Section 960.0021 specifies many of these rights which include the right to be heard at all crucial stages of criminal proceedings and to consult with the state attorney’s office.

Many times victims who have been stripped of their dignity feel empowered through participation. Similarly, victims can exert excessive influence over a prosecution. When they do the symptoms can be the filing of questionable charges and requests for excessive sanctions.

Defense attorneys strive to provide alternative views of the case. In doing so they challenge the voices that normally garner a prosecutor’s attention. Sometimes these challenges are perceived as hostile by victims who are already raw from the process. This can make for intense dialogue during negotiation and sentencing. Sometimes prosecutors decide not to handle the responsibility of a key decision in a case and they defer to the judge to do the "heavy lifting."

The Supreme Court stated in Imbler v. Pachtman, 424 U.S. 409, 431 (1975) that "we recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions . . ."

No doubt prosecutors face many difficult questions. This brief article does not even address a whole host of other critical issues prosecutors face like how to deal with exculpatory evidence, making proper closing arguments, the burden of proof, and presenting satisfactory statistics for politicians with budget money, among others.

Ultimately, the purpose of this rambling vignette is to acknowledge the difficult job of prosecutors. They have many voices clamoring for their attention.

Long-term Impacts On Criminal Convictions

Losing parental rights is a significant impact resulting from a criminal conviction, even while it is a collateral consequence of the conviction.

Everyone knows that a prison sentence entails much more than simply serving the time. A convicted felon will be reminded of his mistake for the rest of his life. Whether it be obtaining employment, registering to vote, or applying for a driver’s license; there are many different ways a convicted felon is reminded of when she broke the law. A recent Florida Supreme Court decision reminds us how a conviction can also terminate parental rights.

B.C. v. Florida Department of Children and Families, 29 Fla. L. Weekly S 508 (2004) involved the termination of parental rights of a father serving a prison sentence. Section 39.806(1)(d)(1), Florida Statutes (2003) states that, "The department may petition for the termination of parental rights when the parent of a child is incarcerated in a state or federal correctional institution and the period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years." Attorneys, especially those practicing dependency law, are very familiar with this statute section. However, the issue in B.C. was whether "substantial portion" was to be weighed against the entire period of incarceration, or if the language pertained to only the remaining time to be served after the petition for termination is filed.

First, the court considered how much time constitutes a "substantial portion of the time before the child reaches 18." The father in B.C. had approximately four years left to serve in his seven year seven month prison sentence. The father’s four-year old child had fourteen years remaining until reaching the age of majority. The Florida Supreme Court agreed with the trial court and concluded that, "the four years remaining in the father’s sentence was not a substantial portion of the remaining fourteen-year minority of the child." Id. at 511.

If the court considered the entire period of incarceration, the father in B.C. would have his parental rights terminated because his total sentence was more than 50% of the remaining fourteen-year minority, which would be considered a substantial portion. However, in this same situation, if the court considered the time remaining on the prison sentence, this same individual will be able to remain a father when he completes his prison sentence. B.C. held that the period of incarceration remaining after the petition is filed is the appropriate standard. Id. at 509. Applying this rationale, B.C. concluded that before parental rights may be terminated, "the trial court must find by clear and convincing evidence that the time remaining in the parent’s incarceration constitutes a substantial portion of the time remaining before the child or children attain the age of eighteen years." Id. at 511.

Why is B.C. beneficial to a defense attorney? If you represent a parent in a criminal case, you may have to advise her of the long-term impacts a conviction may have on her future. It is crucial to be aware of B.C. because accepting a plea of X years may result in the termination of parental rights. While a collateral consequence of the conviction, losing parental rights is still a significant impact resulting from a criminal conviction.

B.C. is a constant reminder of the long-range impacts of criminal convictions. Attorneys who inform their clients of all possible negative impacts from a conviction are providing the highest quality legal services.

Restitution In Criminal Cases

If your holiday season always seems to go by too fast, like ours do. Just a few of the activities common to the holiday are spending time with loved ones, relaxing away from the work environment, and breaking out the winter clothes. Also on this list, of course, is gift giving. With the hustle and bustle past, chances are you have a reminder of the holidays in the form of one or more credit card bills. Now that all of your creditors are looking for your restitution, what better topic to discuss than restitution in criminal cases.

There are numerous issues in proving restitution in a criminal case. Florida law provides that "in addition to any criminal punishment imposed, the court shall order the defendant to make restitution to the victim for (1) damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution; and (2) damage or loss caused directly or indirectly by the defendant’s offense." Although restitution can be an available option, it must first be proven by the state.

The state must satisfy two tests before restitution can be imposed on a criminal defendant. In Schuette v. State, 822 So.2d 1275 (Fla. 2002), the Florida supreme court established both the causal relationship test and the significant relationship test.

Schuette explained that, "To compel a defendant to pay restitution, the State has the burden of establishing causation, as well as the burden of demonstrating the amount of loss sustained by the victim as a result of the offense. Further, the State must establish both causation and the amount of loss or damages by a preponderance of the evidence." Id. at 1278-1279. If the causal relationship test is satisfied, the state must then prove the significant relationship test before restitution can be awarded.

The significant relationship test involves the state proving that the defendant’s conduct was the proximate cause of the particular harm. Schuette pointed out that, "The victim should be entitled to recover damages through criminal restitution if the causal connection between the criminal offense and the damage is comparable to that proximate causation which would allow the victim to relate comparable damages to a wrongful act in tort." Id. at 1282. Thus, the act committed by the defendant must be reasonably foreseeable to result in the type of harm sustained by the victim.

In Molter v. State, 29 Fla. L. Weekly D 2590 (2nd DCA Nov. 17, 2004), the court analyzes several aspects of restitution. First, an objection as to the amount of restitution mandates a hearing on the issue. Second, a prosecutor’s unsworn assertions about the total value of items is not evidence and can not be used to establish value. Instead, there must be record evidence sufficient to support the state’s preponderance burden. Finally, since restitution serves as a form of rehabilitation, deterrence, and retribution and is not just for compensation, fair market value may not always be adequate. In this case, the trial court had assessed family heirlooms at higher than market value.

Restitution is not awarded simply because the defendant is convicted of a qualifying offense. The state must first prove that restitution is appropriate. If restitution is requested from the state, it is the job of the defense attorney to protect the financial interests of the defendant by demanding proper record proof of the causal relationship and the significant relationship tests.

Michael Maddux, P.A. can help you!

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