We’ve all seen “The Fast and the Furious” and quickly fallen in love with the speed and adrenaline Paul Walker and Vin Diesel provide as they make their hopped up power wagons do things that are seemingly impossible. Consequently, movies like this inspired thousands of people to buy a similar car and do their best to emulate Pauly Walnuts and Vinnie D as they zing down Tampa Bay’s highways. As this practice evolved, illegal drag strips were established and through word of mouth people became familiar with where and when to go in order to see these rocket ships on wheels fly up and down the road. Like any other red blooded American male, I have to agree that the spectacle these cars provide is entertaining, if not amazing. Clearly, I am not alone.

To many spectators’ surprise and dismay, as recently as a week ago St. Petersburg local police departments organized two stings in which they blocked off any reasonable method for escape and cited and/or arrested several people racing and observing the racing that occurred near Fourth Street North. Obviously the individuals that were participating in the actual racing were either cited or arrested for “Racing on the Highway,” a first degree misdemeanor, punishable by up to a year in jail and a fine of not less than $500 but not more than $1000. Equally as punitive is the fact that if a plea is entered to this charge, be it an adjudication of guilt or a withhold of adjudication, the defendant will receive a 1 year driver’s license revocation by the department of motor vehicles.

It was the spectators of the racing that likely received the biggest surprise of the evening, however. Despite never getting behind a wheel of one of the cars or even so much as kicking a tire, any spectator in attendance could be and likely was given a civil traffic infraction with the prospect of receiving 3 points on their driving record. According to Florida Statute 316.191, a “Spectator” means any person who is knowingly present at and views a drag race, when such presence is the result of an affirmative choice to attend or participate in the race. For purposes of determining whether or not an individual is a spectator, finders of fact shall consider the relationship between the racer and the individual, evidence of gambling or betting on the outcome of the race, and any other factor that would tend to show knowing attendance or participation. In English, if you are there to watch the racing, you can get a ticket.

Fair? As a Tampa criminal lawyer, that’s not my call. Clearly Florida’s Legislature has made this recent “spectator” addition in a policy effort to prevent people from showing up at the drag strip. They likely are assuming if we can cut out the fans, then the players won’t bother playing the game. Will this policy effort work? Probably not, as any policy decision to dissuade American’s from doing something they are hell bent on doing, typically works about as well as creating a lead airplane.

So, if you find yourself in the precarious situation of being charged with racing, or merely being a spectator at a race, it would behoove you to investigate the prospect of hiring an attorney well versed in traffic law. Nobody wants a criminal record, and for damn sure nobody wants to lose their license for a year. Less serious, but still significant, it’s not a good idea to allow points to accumulate on your driving record either. If you get too many in too short a time, you can also watch your driving privilege race away. Further, once your insurance company catches wind of the points on your license you can bank on your buddies at State Farm or that Geico lizard raising those rates.

Bottom line, be careful if you choose to race or watch illegal racing. Officer friendly generally gets his man, and their pretty good at what they do around here. But, if you do get saddled with a race related charge, pick up the phone and give us a call. As experienced traffic and misdemeanor attorneys in Tampa, We might just save your license.

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Just when you thought it couldn’t be any easier for Police in Florida to detain automobile drivers in an effort to ferret out crime, guess what?  Starting June 30, 2009 Florida will put into effect a new law which will allow the Police to cite an individual for driving without a seatbelt on, even if no other violations are cited.  Prior to this law the Police could issue a civil citation for failure to wear a seat belt, but could not use this violation as reason to stop a motorist.  With the June 30^th change, FL will join 27 other states in classifying this law as a “primary seatbelt law” allowing stops for no other reason but for a lack of a seatbelt being worn by a driver or passenger.

Prior to this law going into effect, an officer had to develop probable cause to pull one over for a civil traffic infraction.  This premise was laid out in Whren v. US, 517 U.S. 806 (1996), where the court said that if an officer has probable cause to stop a motorist for even a minor traffic violation, the stop is lawful and the evidence obtained afterwards as a result of the stop is admissible in court.  Thus, even if an officer may have suspected that a criminal activity was occurring, if an officer “could stop” the vehicle for a minor traffic infraction he would have just cause to stop that vehicle and potentially further investigate the suspected crime.  The Whren decision essentially eliminated any real likelihood of a traffic stop being invalid as being pretextual as now all an officer had to do was note that he “could stop” the motorist for a traffic infraction. 

In addition to making a traffic stop for probable cause for a traffic infraction, an officer could detain a motorist if there is a well founded and an articulated rationale that there is reasonable suspicion that criminal activity is afoot.  Thus, if an officer believes someone is committing a crime in a vehicle, can articulate his reason why he thinks so, and his suspicion is reasonable, he can detain a vehicle for investigatory purposes.   

So, what are the potential criminal implications with this new “primary seatbelt law?”  Basically, an officer can pull a motorist over he believes is committing a crime if all he has as a reason for a stop is that he notices that person not wearing a seatbelt.  While making contact with the driver he may detect certain things that lead him further to believe that criminal activity is going on and thus he may inquire.  Whereas before a motorist may dodge a bullet in that an officer may not be able to develop probable cause that a traffic infraction has occurred or reasonable suspicion that criminal activity is afoot, all the officer needs now is to notice a lack of a seatbelt and he has his lawful reason for a stop and avoids any reasonable possibility that his stop could be deemed pretextual.  In essence, deciding not to wear a seatbelt could act as probable cause to be detained.  This detainment could lead to more serious charges should the motorist be up to no good. 

Moral of the story you ask?  If you’ve had a little too much to drink or have just paid a visit to one of Pablo Escobar’s associates, buckle up and if pulled over, shut up.  Nothing you say to the officer is going to do you any favors.  The Police aren’t in the business of “helping you out” or “cutting you a break.”  If you run your yap, what you say WILL be used against you later down the road.  I’ve never met an officer or a prosecutor that didn’t love a defendant that was a chatterbox.  A simple click could very well be the difference in you making it home, or making it to one of Florida’s finest vacation destinations — with a DUI or other felony charge.  So, put the belt on.  It could very well save your life or even a trip to jail.

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“I’ll do any test you want me to do so long as I can have my attorney present.”  This was the advice given by the Tampa DUI attorneys at Mayberry/Rich via their blog regarding what to do should you be pulled over and investigated for DUI and are inclined to believe you would give a breath test above a .08.  This theory was one that made practical sense for someone who knew they had had too much to drink but made the mistake of driving anyway.  Recently the theory advised by Mayberry/Rich was put to use when a client who had read the blog got pulled over and investigated for DUI.

The client was pulled over for weaving on the road and upon contact by the officer, was requested to perform field sobriety exercises.  At this point our client used the theory we put forth in the blog he read.  When the officer asked him to perform the walk and turn exercise our client advised that he had no problem performing the requested exercises, but that he wanted an attorney to be present while he did so.  As we advised in our prior blog, there is no right to an attorney at this stage of the officer’s investigation and there will be no attorney allowed to observe.  However, as part of our rationale for advising anyone in this position to make such a request, our theory will prevent the state from using a “consciousness of guilt” argument to prosecute you.  Typically when “consciousness of guilt” is used, the state will allege that you refused all testing because you were too drunk to perform and didn’t want to give the state evidence.  Likewise, they will say you refused the breath test for the same reasons.  When using our theory, a defendant isn’t refusing the exercises, they are merely requesting a dui attorney be present.

Ultimately our client’s driver’s license was suspended in accordance with administrative rules, yet his criminal case was made much stronger by following our advice.  Upon being hired, Jason Mayberry requested that the State offer a reduced charge of reckless driving.  This was offered almost immediately with standard Reckless Driving probation sanctions.  Knowing this particular case was not good for the state to pursue at trial, Jason Mayberry advised his client to allow this case be set for trial.  Upon setting this case for trial, the State again offered a Reckless Driving, this time with a withhold of adjudication, $100 fine, and court costs.  By getting the withhold after using our theory, our client will be able to seal his record almost immediately and after 10 years of sealing, will be able to expunge his record completely. 

Ultimately, the theory set forth in the Mayberry/Rich blog achieved the result it set out to obtain.  It should be noted that if one has previously refused a breath test, doing so again, even under our theory, could result in an additional charge of refusing testing.  Also, refusal of the breath test will amount in a longer driver’s license suspension than one would have gotten had they performed the breath test.  However, this theory is built on the premise that the State will have a weak case and will likely reduce the charge to a Reckless Driving, which is far less significant that a DUI for purposes of criminal record and insurance purposes.  If you or a family member is in need of a DUI attorney, please contact a DUI attorney at Mayberry/Rich at (813) 251-3330.

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Over the last few days Bay area news channels have been inundated with news of the deaths of Largo man Michael Roberts, Tyler Newman, and Taylor Reiterman. (See the story on ABC Action News) Currently the deaths of the three aforementioned individuals and the injuries sustained by Sherry Hice are under investigation from Pinellas County authorities. Focus of several news outlets has been directed to four petitions for restraining order injunctions filed by both Sherry Hice and Tyler Newman on March 18, 2009, reference an alleged incident occurring on March 16, 2009 at 7983 Shadow Run Drive, a home owned by Michael Roberts.

Sherry Hice’s petition alleged that she and Michael Roberts lived together in the home and that Roberts was Hice’s “ex (Sic) boyfriend and roommate.” She alleged that an altercation occurred at Roberts’ home when he saw her on the internet and became angry with her and she further alleged emotional abuse. Hice alleged Roberts’ daughters came to the house and began attacking Hice and her son and eventually Michael Roberts pulled a gun from his back pocket, and ultimately made threats to Sherry Hice.

Subsequent to Sherry Hice’s petition for injunction for protection against domestic violence, Michael Roberts sought the counsel of Mayberry/Rich Tampa criminal defense attorneys at law to defend him on this matter. After Ms. Hice filed her petition she was granted the injunction on a temporary level until a final injunction hearing could be heard to determine whether the injunction would be granted on a permanent status. With her grant of the temporary injunction, Ms. Hice was able to maintain possession of the Shadow Run home, owned by Michael Roberts, and could thereby prevent him from staying at or entering his home without police presence. Ultimately, after a final hearing on Sherry Hice’s petition in addition to Tyler Newman’s petition, all petitions were denied.

So what does one have to do in order to get a permanent restraining order against another person? The first step in making this determination is to ask if there is a domestic relationship between the parties. Under Florida Statute 741.30(1)(e) a person can move for a Domestic Violence Injunction if they are a “family or household member.” Under Florida Statute 741.28, family or household member “means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.” This family or household member must also prove at the final hearing that they are a victim of domestic violence, which is defined under Florida Statue 741.28 as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member,” or they have reasonable cause to believe they are in imminent danger of becoming the victim of any act of domestic violence. Essentially, if you are classified as family or a household member under Florida law definition, you must only prove one act of violence at the final hearing in order to have the injunction granted. If you cannot show this by a preponderance of the evidence standard, the petition for injunction will rightfully be denied as the facts applied to law do not meet the necessary threshold.

So what if you are not a family or household member? Under Florida Statute 784.046 there is a restraining order for repeat violence, dating violence, and sexual violence. Using the Michael Roberts incident as an example, Tyler Newman would have had to have shown two acts of violence or stalking within 6 months of the filing of his petition for repeat violence injunction, assuming he could not develop the necessary standards for a petition for domestic violence. Under Florida Statute 784.046 an act of violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” Though the eventual outcome of Mr. Newman’s efforts are a tragedy, at the hearing he could not produce the necessary evidence to warrant granting of his petition.

Permanent injunction hearings can be performed with or without the aid of a criminal attorney. The petitioner bears the burden of showing the necessary requirements by a preponderance of the evidence in order to get their temporary injunction granted on a permanent status. During a hearing the judge must hear testimony from the petitioner and then that petitioner can be cross examined by the respondent or respondent’s attorney, followed by testimony from the respondent and subsequent cross examination from the petitioner. Upon hearing all the testimony elicited at the hearing, the judge must determine whether the requirements of the respective injunction have been shown by a preponderance of the evidence. If the determination is that petitioner has shown cause for the injunction, it will be granted. If they have not, the judge is bound by law to deny the effort of the petitioner.

With respect to the Michael Roberts injunction, after thorough investigation by the Judge, testimony from the petitioner, and cross examination by attorney Jason Mayberry, there just wasn’t the requisite evidence for the Judge to grant Ms. Hice and Mr. Newman’s injunctions sought against Michael Roberts and Caroline Roberts. Unfortunately due to the nature of restraining orders, there is always a possibility of eventual tragedy. If you or a loved one are in need of an injunction against someone, or need an Tampa or Pinellas County criminal attorney to help you defend against a petition for injunction against you, it is imperative to hire an attorney well versed in restraining order procedure and law. Contact the criminal lawyers at Mayberry/Rich, serving the Tampa, St. Petersburg, Clearwater, and Polk County areas, today for your free consultation about your restraining order needs at 813-251-3330.

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Every criminal defense attorney has had the client at one point in his career who they consider not to be a good candidate for probation.  The case comes in and unfortunately the evidence against the client is too overwhelming to consider going to trial.  “So and so” just isn’t a paper guy/gal,” says the criminal defense attorney to the Prosecutor.  Some defendants know full well that if they enter a plea and receive probation, it will only be a matter of time until they manage to violate their probation one way or another!  Whether it’s keeping away from an alleged victim, refraining from doing a drug of choice, keeping in touch with their probation officer, or just keeping out of trouble in general, some defendants cannot and will not accept a probation offer. 

Probation is a very restrictive means to keep folks in check.  9 times out of 10 there will be several restrictions keeping a person from doing certain things, and just general restrictions on one’s liberty.  Typically the alternative to accepting a probation offer is to take your case to trial or have your attorney negotiate with the state for a jail sentence.  Often times for folks who aren’t paper people (good candidate for probation), they are willing to accept a jail sentence in order to get finality with their case quicker than they would have had it, had they accepted a probation negotiation.  I have had repeat clients who may be recreational drug users who would most assuredly violate (typically based on prior hirings for violation of probation hearings) their probation, who if their case is not defensible, I recommend to take a minimal jail sentence.  Though the thought of jail is not appealing, serving 10 days in County and getting the case over with is a much better alternative than violating probation.  Depending on your charge, if you violate probation you could be sentenced up to the maximum allowable jail or Prison time if found guilty of willfully violating your probation.  This can lead to incarceration from anywhere to 60 days several years in Florida’s Prison system.  Additionally, once the VOP warrant is issued you could be picked up and whisked off to your county’s finest accommodations without warning.  The practical implications of this amount to one being arrested without time to prepare their family, pets, or home for their absence.  This can often be more devastating than the actual incarceration itself. 

What’s the point of this entry you might ask?  As a client you need to be honest with yourself and your attorney when considering a probation sentence.  Though probation is a less intense option than incarceration, if you know that you are a good candidate to violate probation, you should ask your attorney to negotiate a jail sentence so as to have both options available.  If your attorney is a straight shooter, and is familiar with you on a professional level, they will tell you whether or not you are a “paper person.”  Our duty as your Tampa, Clearwater or St. Petersburg defense attorney is to be frank with you and give you sound legal advice with respect to any implication your case may have.  Though it may not always be what you want to hear as the client, it’s better to make a sound decision at the outset than to regret it later.

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Get Caught with a Piece in Florida?

Due to the recent arrest of Pro-Bowl football player Marshawn Lynch on Felony Carrying a Concealed Weapon Charges in California, and Plaxico Burress’ “incident” in a nightclub in New York, the Tampa criminal lawyers at Mayberry/Rich feel it is important that Floridians be educated on our gun laws.
To understand the consequences of “getting caught with a piece,” you must first have at least a surface understanding of the gun laws in Florida. As you are aware, the United States Constitution guarantees every citizen the right to bare arms… Or does it? That depends! In Florida no state permit is required to possess or purchase a rifle, shotgun or handgun. However there are certain restrictions in place.
It is unlawful for:

• Any convicted felon to have in his or her possession any firearm, or to carry a concealed weapon.
• For persons to have in their care, custody, possession, or control any firearm or ammunition, if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence.
• To sell, give, barter, lend or transfer a firearm or other weapon other than an ordinary pocketknife to a minor less than the age of 18 without his parent’s permission, or to any person of unsound mind.
• Any dealer to sell or transfer any firearm, pistol, Springfield rifle or other repeating rifle to a minor.
• A minor less than 18 years of age to possess a firearm, other than an unloaded firearm at his home, unless engaged in lawful activities.

Carrying

Unless covered under the exceptions, it is unlawful to openly carry on or about the person any firearm, or to carry a concealed firearm on or about the person without a license.
Exceptions:

• Persons having firearms at their home or place of business.
• Enrolled members of clubs organized for target, skeet, or trapshooting, while at, or going to or from shooting practice.
• Members of clubs organized for collecting antique or modern firearms while at or going to or from exhibitions.
• Persons engaged in fishing, camping or hunting and while going to or from such activity.
• Persons engaged in target shooting under safe conditions and in a safe place or while going to or from such place.
• Persons who are firing weapons for target practice in a safe and secure indoor range.
• Persons traveling by private conveyance if the weapon is securely encased, or in a public conveyance if the weapon is securely encased and not in the person’s manual possession.
• Persons carrying a pistol unloaded and in a secure wrapper from place of purchase to their home or to a place of repair and back.
• Persons engaged in the business of manufacturing, repairing or dealing in firearms.
• Military, law enforcement personnel and private guards while so employed.

In Florida there are basically two different charges that can arise from possessing a firearm. The type of charges that you face will hinge on a couple factors. Initially the question is, were you a convicted felon at the time you were found to be in possession of the firearm? Also, did you have actual physical control of the firearm at the time you found in possession, or were you just in constructive possession of the firearm? Construction possession is when you don’t actually physically possess an object but you have the power to control and intent to control the object. Was the firearm in “plain view” or was it concealed?

So, if you are a convicted felon at the time you are found in possession, your type of possession will have a great impact on what consequences you are facing:
1. Actual physical control of firearm: Can be charged with a felony and face a 3 year minimum mandatory sentence
2. Constructive possession of firearm: You can be charged with a felony but constructive possession does not carry a minimum mandatory sentence.
3. It does not matter if the gun was in plain view or concealed when you have been previously convicted of a felony and are found to be on possession.

Not a convicted felon at the time you are found in possession:
1. Concealed and actually physically control firearm – You can be charged with a misdemeanor carrying a concealed weapon, unless you have a concealed weapons permit which you must announce immediately.
2. Concealed and constructive possession – You can be charged with misdemeanor carrying a concealed weapon, unless you have a concealed weapons permit which you must announce immediately.
3. Plain view and actually physical control – No charges unless there is some other legal circumstance that prohibits you from possessing a firearm.
4. Plain view constructive possession — No charges unless there is some other legal circumstance that prohibits you from possessing a firearm.
**Possessing a firearm during the commission of any other crime can result in an enhancement of sentence for the underlying crime, in addition to charges for possessing the firearm.

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Fast? And the Furious Cop!

Looks like Vin and Paul are at it again in another version of “Fast and Furious!”  Vin is back in the classic lumbering muscle car, while Paul chooses the highly modified import that sounds like a lawn mower.  Admittedly, and embarrassingly, I am a fan of the “Fast and the Furious” series when Vin Diesel and Paul Walker are behind the wheel.  Without a doubt, just as they did last go around, this movie will inspire many to modify their Honda Civics and soup up their Subarus and join the nearest street racing club.  Also, without a doubt, folks will be eager to test out their modifications to their cars and motorcycles, only to have a chance encounter with Officer Friendly who is not so appreciative of their new super deluxe exhaust install…  So, while Mr. Diesel and Pauly Walnuts may be racing, ramping, and popping wheelies in their rides without consequence, what happens when you or I get in our sensible family sedan and run em’ down Kennedy? 

If we’re lucky, and we haven’t made officer Friendly too angry (or he thinks it’s impossible that our car could actually be capable of “racing”) he will either cite us under Florida Statute 316.1925 for Careless Driving or 316.192 for Reckless Driving.  Careless driving is considered a civil traffic citation, not requiring a court appearance.  According to the Statute, one drives carelessly when fail to operate their car on the streets or highways of Florida in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person.  Receiving a Careless Driving citation in a “racing” situation is likely your best case scenario.

If Officer Friendly is mad, but not completely blown, he may cite you for Reckless Driving.  Reckless Driving is when you are driving any vehicle in a willful or wanton disregard for the safety of persons or property.  Reckless, unlike Careless Driving is considered a misdemeanor, punishable by up to 90 days in jail and a $500 fine for the first conviction and up to 6 months in jail and up to a $1000 fine for a subsequent violation.  Does this sound good?  No.  It’s a crime, but it is much the lesser of the two evils when comparing Reckless Driving and Racing on the Highway crimes.

If you’re popping wheelies, and ramping your car down Kennedy with your competition close by, you’re most assuredly going to either be arrested for Racing or at least issued a Notice to Appear to answer for your fast and furious behavior.  The officer will cite you for Racing if he witnesses you, “drive any motor vehicle, including any motorcycle, in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot; in any manner participate in, coordinate, facilitate, or collect moneys at any location for any such race, competition, contest, test, or exhibition; Knowingly ride as a passenger in any such race, competition, contest, test, or exhibition; or purposefully cause the movement of traffic to slow or stop for any such race, competition, contest, test, or exhibition.”  Racing is considered a first degree misdemeanor punishable by up to 11 months 29 days in jail.  So, realistically what makes Racing a harsher offense than Reckless Driving?  Section 316.191(2)(a) commands the department of motor vehicles to revoke your driver’s license for one year if convicted.  Even if one gets a withhold of adjudication their driver’s license will be suspended.  In my experience, the driver’s license suspension is the hang up with former clients. 

So, what do you do if you get caught and charged with Racing?  Given the fact that Racing is a first degree misdemeanor with possible jail time, and considering the driver’s license suspension, it is of utmost importance to hire a traffic attorney who understands how to defend a Racing charge.

Within the last 2 months our Tampa Criminal Lawyers have represented several clients charged with Racing.  Of the clients who’s cases have been closed, all were reduced to Reckless Driving, thus avoiding a driver’s license suspension, and none serving any jail time.  Currently there is a District Court of Appeal conflict with regard to the Racing Statute.  The 4^th DCA in State v. Wells, 965 So.2d 834 (Fla. 4^th DCA 2008), found the current Racing statute to be vague both on its face and as applied to Wells.  Further Wells found it necessary to include an element of competition in its definition of race.  However, the 1^st DCA in State v. Reaves, found the current Racing Statute to be Constitutional.  What in the heck does this mean to you?  Basically right now Florida’s trial courts can choose which DCA opinion to follow.  If they adopt the Wells holding, they will dismiss a Racing charge if your attorney files a motion to dismiss.  The state can still potentially file a reckless driving charge, but again, this is the better of the two evils.  If they follow Reaves, your row will be much more difficult to hoe as a motion to dismiss will not be granted, citing Reaves.

Eventually Florida’s Supreme Court will settle the conflict between the 1^st and 4^th District Courts of Appeal and potentially a new version of the Racing Statute will be put in place.  It is imperative that you contact a Tampa misdmeanor attorney to see how the courts in your jurisdiction are interpreting the Racing statute.  If you are in a Wells following DCA, it may be to your benefit to resolve your case soon.  It is possible that the Supreme Court may find the current Racing statute to be constitutional, thereby weakening your chances for a charge reduction to Reckless Driving. 

If you’ve been charged with Racing on the Highway, it would benefit you greatly to contact an Tampa traffic lawyer capable and experienced with Racing cases.  Losing your full driving privilege could be potentially devastating to your livelihood, and could have a great detrimental effect on your family and friends.  If you want to fight your Racing charge contact our office immediately at 813-251-3330 for a free consultation.     

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Going out on a limb, I’m not sure there is much that infuriates the average joe more than a traffic citation, calling for your swift donation to the local clerk of court.  For some of us it happens a little more often, while others it seems, manage to go years without receiving a citation.  Most citations can be disposed of by simply paying the citation alone (never a good idea.  Stand by for my rationale), participating in a basic driver improvement course, or appearing in court alone or hiring an attorney to handle the citation for you.

The worst thing you can possibly do is pay your citation without taking the necessary measures to avoid points being assessed to your driving record.  If you are assessed points on your record this will negatively affect you in two or more ways.  Accumulation of points over different periods of time can act to suspend your license.  Accumulating 12 points in 12 months will act to suspend your driver’s license for 30 days, 18 points in 18 months will suspend you for 90 days, and finally 24 points in 36 months will shut you down for an entire year.  Grinding more salt into the wound, it is possible, depending on certain circumstances that ticket accumulation and/or a combination of criminal citations and civil infractions could act to suspend your license for 5 years under Florida’s Habitual Traffic Offender statute.  For the vast majority of our clients, this is not the main concern and typically license suspension resulting from point accumulation is not an issue.  When you are so graciously gifted the statutorily assessed point total for paying your ticket, your insurance company will be notified and without a doubt, they will increase your insurance premiums.  So, simply put PAYING THE TICKET ALONE = ADJUDICATION OF GUILT = POINTS = INCREASED INSURANCE RATES.  Got it?    

Another option is taking a 4 hour basic driver improvement course which will act to decrease your ticket price by 18% for most tickets and will prevent points from being assessed.  This is a great option for most, and in fact I have counseled several existing clients and several more potential clients to simply take this course as it is a guarantee.  One can  elect to take a 4 hour driving school once every 12 months and up to 5 times in their lifetime.  One drawback to taking the driving school is that one is never afforded the opportunity to beat their ticket outright through their day in court.  For many, this is imperative as they zealously contest the allegation found on the ticket.  If you are an out of state driver, be very wary of this option in Florida.  It is possible that you could successfully complete your driving school and validly submit it to the applicable Florida Clerk of Court.  Florida may in fact not transfer points to your out of state DMV, only to have your home state not honor the driving school you sat through.  For the out of state driver, the best bet is to hire local counsel to handle the citation.

Lastly, and my favorite option, hire an attorney to ensure that you receive no points, or better get the ticket dismissed completely!!  Florida is a state full of busy people.  Whether you work 40-90 hours a week, nose to the grindstone like the rest of us, or you have paid your dues and now wish to pass the time on one of our many beautiful golf courses or cast a line in the big pond that surrounds our state, for a good portion of Florida’s residents their time is worth more to them than the fee paid to an attorney to handle their ticket.  Who wants to spend 4 hours in a class or in front of a computer when you can bee reeling in a hard charging  Tarpon?  Problem solved!  Hire me.  If not me, there are several very competent Florida traffic attorneys that can protect your driving record and get a result that will benefit you from the point accumulation stand point and from insurance companies attempt to spike your premiums.  Additionally, if you’ve been the lucky recipient of a citation following an accident, at least contact a traffic attorney to investigate your options.  If there was serious bodily injury reported, you are facing a mandatory 3 month suspension.  Recently I was able to negotiate with an officer to drop that portion of the infraction in exchange for a heightened fine.  My client kept her license and gladly paid the slightly increased fine.  It is worth your while to speak to an attorney when this is the case.  If there is an accident but no injury, likely the officer didn’t witness the crash.  If this is so, the only way Officer Friendly can prove you were at fault is to subpoena the other party in the accident.  Quite often the other party will not show up to court which means your ticket will be dismissed for failure to show you were the at fault party.

So, the moral of the story with respect to ticket-town, is that you will likely benefit from at least contacting a competent traffic attorney.  Often you can get a pretty good price for representation and may not even have to take a driving course to keep the points off.  Good luck!

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The short answer to this question (if there is such a thing) is that you don’t, at least at the stop.  If an officer suspects you of Driving Under the Influence at the scene of a stop, unless you do remarkably well on your Field Sobriety Exercises , you are likely going to be spending a night in Officer Friendly’s finest accommodations.  What you can do at the scene is mitigate your damages for later.  I have in the past and continue to advise that when the officer cordially invites you to participate in his so called “standardized” Field Sobriety Exercises one should very respectfully reply, “With all due respect officer, I will participate in any exercise you ask of me, so long as my attorney is present.  I am not an attorney or someone familiar with the law and I would just like to be on even ground.”  It is important to know that you will be taking a ride with him for saying this, but you likely were anyway.  Upon your arrival at the jail, he will then read you what is called “implied consent,” and request either breath, urine, or blood under certain circumstances.  Again, your response should be, “I will be happy to take your test Officer, so long as I can have an attorney present.”  

If you do as I’ve mentioned in this post you should know that you will spend the night in jail and you will be initially charged with DUI.  You should also know the State will attempt to use your lack of participation in Field Sobriety Exercises and lack of participation with the breath, urine, or blood test as a refusal against you.  Finally, by not taking a breath, urine, or blood test your initial license suspension with the DHSMV will be 90 days as opposed to 30 days had you participated, and a year as opposed to six months via Florida statute on a first time DUI.  Right now you’re probably thinking I’m crazy and a terrible attorney.  The method to my madness is that DUI is a big picture charge.  By requesting a Tampa DUI attorney, the State cannot legitimately use this against you at trial.  Juries do not want to hear that someone was willing to fully participate with an Officer, so long as they could be educated about his request first.  Rationally speaking, there is no refusal, only a request for an attorney to stand by as you perform the Officer’s request.  Despite what I say, you will be afforded no attorney at this point, as caselaw holds there is not yet a right to an attorney at this stage of your detainment.  Again, Juries will likely not want to hear this.  From the outset, giving as little evidence to the State as possible can only help your case.  

In my time as a Prosecutor and a Criminal Defense attorney in Florida, I have heard of very few instances where an officer detains a driver, and then lets them go after they successfully complete Field Sobriety Exercises.  Speak to nearly any DUI attorney and they will tell you that Field Sobriety Exercises are exercises using unnatural movement, built to “test” natural motor skills.  The long and short of it is that most simply can’t complete Field Sobriety Exercises, impaired or not, so why supply the State with evidence to convict.

Whether you buy into my theory is up to you.  All this really does is act to aid your prospective attorney to build you a defense at trial or provides ammunition to lobby for a reduced charge.  One should know that in Florida, a second time refusal of a chemical test is a criminal offense, so be cognizant of this as you enter the breath test room.  This is not a sure shot ticket to having your charge dropped, reduced, or won at trial.  In fact, given certain circumstances, you still could be convicted of a DUI.  This theory is merely a method to give your attorney a shot and “put him on even ground” so to say.   Good luck!

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Under Florida Law, anyone with a  Florida Driver’s License is subject to what is called Habitual Traffic Offender Status pursuant to Florida Statute 322.264.  Under the Habitual Traffic Offender law one is subject to having their driver’s license suspended for 5 years if they accumulate 3 convictions for certain types of offenses detailed in 322.264(1), or 15 convictions for moving traffic offenses for which points can be assessed to their license pursuant to 322.264(2).  Very often our clients have been granted the unwelcome gift of habitualization pursuant to accumulating 3 driving while license suspended charges within 5 years.  What many Florida drivers don’t know is that if they simply pay a civil unknowing driving while license suspended ticket, they are admitting guilt to the charge and will be convicted for habitualization purposes.   

Of course there are numerous ways upon which one can be classified as a habitual traffic offender pursuant to Florida law.  In addition to losing one’s license for 5 years, that person will not even be eligible for a restricted driver’s license for one year after the habitual traffic offender status engages.  Unfortunately, unlike many other urban areas like Chicago, New York, or Boston, Tampa’s mass transit system is both inconvenient and costly.  Thus, when a Florida driver loses their privilege to drive, it can effectively strip them of their livelihood for a year.  It is of utmost importance that if a Florida driver receives notice that they are about to be habitualized, that they contact an experienced attorney, well versed in traffic and habitual traffic offender law.  It is possible that an attorney can “reverse” the habitualization process, thus saving one’s license from being suspended for 5 years. If you have been charged with an HTO, contact the attorneys at Mayberry/Rich.

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