Maddux addresses issue of "Cop Watching"

Tampa Lawyer Michael P. Maddux discusses the issue of "cop watching" with Channel 8 local news.

Watch Man thrown in jail for "cop watching" at Tampa Bay Online

Big Brother Faces Challenges

Many cities in Florida rushed to install red light cameras without legislative authorization and now they are facing challenges to keep these cameras in place. There’s a pending class action lawsuit against the city of Temple Terrace for permitting American Traffic Solutions (ATS) to install and operate the traffic cameras. The traffic camera program was initiated to generate $3 million in annual revenue, mostly targeting vehicles that were illegally turning right at red lights where prohibited. Although Florida’s legislation has consistently refused to permit automated ticketing, these companies proceeded to install the cameras. The primary argument against Temple Terrace is that there’s already state law in place for red light running and Florida Statutes § 316.007 doesn't allow municipalities to "enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized". Like other cities in Florida, Temple Terrace claims to avoid this restriction by creating it’s own ordinance violation adjudicated by a recently created red light camera "hearing officer". However, according to attorney, Jack L. Townsend, Jr., the state constitution gave our legislature exclusive jurisdiction over civil traffic hearing officer systems and cities cannot just implement their own judicial system. Since Temple Terrace cannot use state law to enforce camera based citations, the city’s ordinance gets its teeth by declaring that a vehicle owner who fails to pay the fines will be denied rights and privileges, including the right to use municipal facilities, to obtain licenses or permits, and other restrictions.

Resource: www.thenewspaper.com

Is Your Music Too Loud For Florida’s Roadways?

In 2010, Florida’s legislators will be reviewing a proposed Bill, which would make driving with loud music a more severe crime and carrying harsher punishment. State Representative D. Alan Hays (R-Umatilla) introduced House Bill 137 to the Florida House of Representatives in September. If passed, this Bill, would modify the current loud stereo statute by imposing double the fines and making the offense a moving violation. If cited 3 times for this offense, the House Bill 137 would impose 3 points against their license and a $180.00 fine. These points would increase auto insurance premiums for the cited individual.
As it currently stands, it is currently unlawful to drive past a church, school or hospital with a stereo "plainly audible" from 25 feet away or that is "louder than necessary for the convenient hearing by persons inside the vehicle". Law enforcement and politicians are excluded from this law, since politicians often use loud sound devices for "political purposes".
While state law already imposes fines for loud stereos, many cities have already written their own civil ordinances imposing harsher laws and stringent punishment.
Resource: www.thenewspaper.com

Do I Need Med Pay Coverage?

Med Pay is optional and supplemental auto insurance coverage offered in the State of Florida and can be purchased for an additional fee. Med Pay coverage will pay the 20% of medical bills that PIP does not cover and when PIP is exhausted will pay 100% of the medical up to the coverage limits. Unlike PIP coverage, Med Pay does not compensate for lost wages. Med Pay is affordable coverage that helps when someone’s negligence causes you to suffer significant injuries and large medical bills. Typically depending on the amount of coverage purchased, Med Pay can be added to a policy for around $50.00 a policy period. You should check your policy for Med Pay and consider adding this coverage.

Personal Injury Precautions and Holiday Time

Holiday time often fills your home with family and friends. But during this joyful time, homeowners should be actively protecting visitors to your home from potential hazards.

Halloween will soon be here, and this holiday comes with its own set of hazards to your home and those visiting your home. Many legal and insurance commentators offer advice for protected the safety of those visiting your home, and for protecting yourself against liability.

This may be the only time of the year that your home will be visited by many strangers, creating a unique situation for premises liability. Legal commentators note that this holiday is particularly risky for slip-and-falls, which create a liability for the home owner. (Injury Board.)

Many of these hazards can be easily prevented. It is good to make sure that in the area where trick-or-treaters come up to your house is well lit. (Home Safety Council.) Also, clear this area of clutter including Halloween decorations, and pumpkins. (Home Safety Council.) This will help to prevent falls which you could be liable on your property.

Another way to prevent liability is to make sure that your pets, whether inside or outside are properly restrained, so that they don’t jump on or hurt visitors to your home. (Insurance agents).

http://www.homesafetycouncil.org/SafetyGuide/sg_halloween_w001.asp
http://www.insuranceagents.com/halloween-home-safety.html
http://voices.injuryboard.com/property-owners-liability-slip-and-fall/liability-on-halloween-slip-fall-or-safety.aspx?googleid=272190

Drive-By Tasering Results in Teen Death

On October 3, 2009 Pensacola Police Officer Jerald Ard saw Victor Steen , 17, at a construction site. As Steen began to ride away on his bicycle, Ard pursued him in his police cruiser and ordered him to stop. However, Steen did not stop. Ard attempted to stop Steen by using his Taser, but Steen was able to turn into a bank parking lot. He then crashed his bicycle and was run over by Officer Ard.

Ard has been placed on paid leave pending an investigation by the Florida Department of Law Enforcement. Thereafter, results of the investigation will be turned over to the State Attorney’s Office to determine whether Ard should face criminal prosecution.

In response to this incident, the Pensacola Police Department decided to update its Taser policy. Assistant Chief Chip Simmons released a memo stating officers are not allowed to fire their Tasers out of or into moving vehicles, which includes bicycles.

If you believe a police officer has improperly used a Taser on you or believe you are the victim of excessive force, contact my office to schedule a consultation so that I may advise you of your rights.

http://www.newsherald.com/news/pensacola 78192 teen death.html

Taser May Be Cause of Bradenton Man’s Death

A 38 year old man from Bradenton who was riding his bike and subsequently ran from cops following a traffic stop was tasered and died less than an hour later at Manatee Memorial Hospital. An autopsy will be conducted to determine the cause of death. Family members said that the man suffered from epilepsy. Until a full autopsy is conducted, the Police Department will not make any comments as to whether the taser caused the death.

http://www.bradenton.com/news/local/crime-and-courts/story/1737465.html

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/

Just Moved To Florida? Law Requirements For Driver’s License And Car Registration

Welcome to the Sunshine State! I know you have a busy schedule, but there’s a few things that you should do immediately to ensure you are following the laws of this State. First, you will need to convert your driver’s license to Florida. You can check online to see if you will need to take a written or road test to qualify for a Florida’s driver’s license. Secondly, you should inform your auto insurance carrier immediately of your move and obtain a Florida auto insurance policy from a licensed company. Thirdly, you will need to register your vehicle’s title with the county tax collector’s office. You will need to bring proof you have Florida automobile insurance, your original out-of-state title and physical inspection verification that your automobile’s VIN number is legitimate. You must register your vehicle within ten days of obtaining employment, placing children in public schools or establishing residency.

Resource: Florida DHSMV-New Residents

Avoid Accidents and Tickets: Know the Rules Of The Road

How many times do you see someone driving below the speed limit in the left lane or driving on the shoulder to beat the traffic? These actions often lead to horrific accidents that could have been easily avoided. Some people know they are breaking the law, but simply don’t care. Others may have forgotten the laws governing our roadways. Most people study the Florida Driver’s Handbook when they are about to get their driver’s license, but years later, few pick up the book to refresh their memory. Knowing how to drive is different from knowing the rules. The Florida Driver’s Handbook has a lot of valuable information and safety tips, such as handling emergencies like breakdowns, tire blow outs, wet brakes, jammed gas pedals, brake failures, skidding and fires. I recommend that everyone freshen up on the rules of the road, it could save lives, including your own.
The Florida Driver Handbook
El Manual de Conductores de Florida

Florida Motorcycle Laws

Florida law does not require motorcycles to be insured, leaving many motorcyclists without insurance to protect themselves and others in an accident. Typically, motorcyclists are often severely injured in accidents and their medical bills quickly escalate while in emergency care. Motorcycle insurance is essential considering the rising cost of healthcare, leaving many Floridians without health insurance or means to pay their medical bills. Without proper insurance, they are faced with enormous medical bills and financial ruin.

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.

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.

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.

Arrested For Myspace Photos

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:

1. Formal/Informal organization, association of group
2. 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.
3. There must be at least three people.
4. The member must have something in common such as common name, identifying signs, colors, symbols.

Gang Members

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.

Electronic Communications

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

http://blogs.miaminewtimes.com/riptide/2009/08/two_florida_men_face_five_year.php

http://www.tcpalm.com/news/2009/jul/30/busted-myspace-2-fl-men-face-charges-over-gang-pho/?feedback=1

State Of Florida Tough On Juvenile Offenders

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/

http://eji.org/eji/childrenprison/deathinprison/sullivan

Michael Maddux, PA adds Hurricane Insurance Claim Representation

Michael Maddux P.A. can help you negotiate through the insurance issues arising from Hurricane related litigation. See The Florida Hurricane Attorney

Now Michael Maddux, P.A. can help you with Hurricane Insurance Claim Representation, State Criminal Defense, FL Statute 3.850, State Criminal Defense Appeals, Federal Criminal Defense, D.U.I., Formal Review Hearings, Federal Criminal Defense Appeals, Juvenile Delinquency, Juvenile Delinquency Appeals, Juvenile Dependency, Juvenile Dependency Appeals, Personal Injury, Automobile Accidents, Motorcycle Accidents, Premise Liability, Wrongful Death and P.I.P. Litigation.

New Seat Belt Law in Florida

Starting June 30, 2009 law enforcement officers can stop you for the single offense of not wearing your seat belt. Officers no longer have to have another reason to stop a vehicle to issue a citation for a seat belt violation. Now, motorists can be ticketed if either they or their front seat passengers fail to wear their seat belt. All passengers under 18 years of age are also required to wear seat belts, regardless of where they are sitting in the vehicle. The penalty is a $30 fine plus administrative and court costs, which makes most tickets cost about $100, varying by county.

Investigation Continues into Miami Beach Police Tourist Shooting

On June 14, a Virginia man was shot and killed by police officers in Miami Beach. Prior to this unfortunate incident, Husien Shehada was at a nightclub with friends and family. After returning to their hotel at about 4:30 a.m., Shehada and his brother decided to go back out. While walking down the street, police received calls informing them that it appeared Shehada and his brother were carrying firearms. When police arrived on the scene they ordered the two men to stop and put and their hands up. Immediately thereafter, police shot and killed Shehada. His brother claims they both stopped, but police state otherwise. An investigation has been launched to determine whether this shooting was justified. I’ll keep a close eye on this one as the investigation progresses.