Law enforcement will read the Florida Implied Consent Warnings to an individual arrested for Driving While Under the Influence. Only if the individual refuses to submit to the applicable test (breath, urine or blood), will law enforcement read the following statement.
“If you fail to submit to the request I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.”
If law enforcement clearly misstates the law, thereby providing material misinformation to an individual about his rights under the implied consent law, it cannot be said that the individual voluntarily submitted to the breath test. The remedy when consent for a breath test is not obtained voluntarily from an individual is suppression of the results.
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I was arrested for battery but I was defending my property from damage by another individual. Why was I arrested and not him? Can I claim self-defense at trial?
Yes. In Florida, Jury Instruction 3.6(g) – Justifiable Use of Non-Deadly Force is read at trials where the defendant claims self defense. Jury Instruction 3.6(g) reads in part:
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [injury to] victim resulted from the justifaibale use of non-deadly force.
In defense of property, the defendant would be justified in using non-deadly force against (victim) if the following three facts are proved: (1) Victim must have been trespassing or otherwise wrongfully interfering with land or personal property; (2) The land or personal property must have lawfully been in the defendant’s possession, or in the possession of a member of his immediate family or household, or in the possession of some person whose property he was under a legal duty to protect; (3) defendant must have reasonably believed that his use of force was necessary to prevent or terminate the victim’s wrongful behavior.
If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.
Numerous Florida Courts have ruled on issues of self defense in favor of the defendant. Stieh v. State, 36 Fla. L. Weekly D709 (Fla. 2nd, DCA, 2011)(If the State fails to prove beyond a reasonable doubt that the defendant did not act in self defense after the defense presents a prima facia case of self-defense, the trial court is duty-bound to grant a judgemnet of acquittal in favor of the defendant); Sneed v. State, 580 So.2d 169 (Fla. 4th DCA, 1991) (The State must disprove beyond a reasonable doubt, defense of self-defense … The State has the burden of proving guilt beyoind a reasonable doubt, which includes proving beyond a reasonable doubt that the defendant did not act in self-defense); Brown v. State, 454 So.2d 596 (Fla. 5th DCA, 1984) (While the defendant may have the burden of going forward with evidence of self-defense, burden of proving guilt beyond reasonable doubt never shifts from the State, and that the standard broadly includes the requirement that the State prove beyond a reasonable doubt that the defendant did not act in self-defense.)
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Is there a difference between an injunction involving domestic violence and an injunction involving repeat violence?
Yes.
Domestic Violence Injunction: Where an individual is the victim of domestic violence OR has reasonable cause to believe he/she is in imminent danger of becoming a victim of domestic violence. Domestic Violence includes: assault, aggravated assault, battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death to one family or household member by another family or household member.
Repeat Violence Injunction: Where an individual is the victim of TWO instances of violence or stalking. Violence involves non-family members (usually neighbors or co-workers).
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I accepted a plea to a DUI in Broward County in 2006. Can I seal or expunge my record?
No. Individuals who accept a plea to a DUI are ineligible to have their records sealed or expunged.
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My father has pending charges of Possession of Cocaine. Is it better to accept a plea of Withhold of Adjudication and Twelve Months probation or an Adjudication and Time Served?
Although each case is different, an informed defendant would most likely choose to accept a plea of a Withhold of Adjudication and Probation instead of an Adjudication and Time Served. Besides being designated a “convicted felon”, your father would also lose his license for two years on an Adjudication to a drug charge. Your father would not lose his license on a plea to a Withhold of Adjudication.
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What is the definition of trafficking in cocaine? Is there a mandatory sentence associate with the charge?
Citing Florida Statute 893.135(b)(1), “any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of 28 grams or more but less than 150 kilograms of cocaine commits a felony of the first degree, which felony shall be known as “trafficking in cocaine”. If the quantity involved:
- Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of three (3) years, and the defendant shall be ordered to pay a fine of fifty thousand dollars ($50,000.00).
- Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a minimum mandatory term of imprisonment of seven (7) years, and the defendant shall be ordered to pay a fine of one hundred thousand dollars ($100,000.00).
- Is 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of fifteen (15) years and pay a fine of two hundred and fifty thousand dollars ($250,000.00).
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My friend was stopped for running a stop sign. Upon making contact, the officer advised my friend that he “smelled weed” and asked him if he had any drugs on him. When my friend said, “No”, the officer replied, “Fine, I’ll get the dogs to sniff the car.” At that point, my friend told the officer that he had a bag of marijuana and two xanax pills in his pocket.
Family
Who pays for the attorney’s fees in a divorce? I heard the husband always pays? Is that true?
When one spouse makes significantly more money than the other spouse or has a lot more assets, the Court may order the spouse with the higher income and/or assets to pay for the other attorney’s legal fees. As such, the husband or the wife may be required to pay for the other attorney’s legal fees. An experienced attorney will be able to determine whether it is appropriate to ask for attorney’s fees on a case by case basis.
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As a result of the economy I have been forced to obtain a new job, however I am earning significantly less than I did before. How does this affect the child support and/or alimony I am paying?
Child support is always modifiable. Pursuant to Fla. Stat. 61.30, if your child support obligation decreases by $50.00 or 15% whichever amount is greater than you are entitled to a modification. You should consult with an attorney in order to determine how you should proceed.
In addition, alimony is also modifiable, however it depends on what type of alimony you are paying. Typically alimony terminates if the payor dies, the payee dies, the payee gets remarried and/or cohabitates with another person in supportive relationship. Alimony also may be modified upward or downward depending on whether the payor’s ability to pay has changed or if the payee’s needs have changed. For example, if you were earning $100,000 per year, but now are earning $50,000 per year, your ability to pay has decreased. Therefore you may be entitled to a modification of your alimony payments. Likewise, if your former spouse who you are paying alimony to was earning $25,000 per year and is now earning $100,000 per year, then you may be entitled to a modification. However it should be noted that, if you entered into a marital settlement agreement in which you agreed to pay nonmodifiable alimony, then you may not be able to decrease your payments.
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How long does a divorce typically take to finish?
A divorce usually takes between six to 12 months to complete from the date that you file for divorce.
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I have remarried and my new husband got a new job that requires us to move to New York. Will I be able to move?
You will always be able to move, however the children may not. If your former spouse will not agree to allow you to relocate, then you must file a petition with the Court. The Petition for Relocation must include the following information:
- A description of the location of the intended new residence, including the state, city, and specific physical address, if known;
- The mailing address of the intended new residence, if not the same as the physical address, if known;
- The home telephone number of the intended new residence, if known;
- The date of the intended move or proposed relocation;
- A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based on a job offer that has been reduced to writing, the written job offer must be attached to the petition;
- A proposal for the revised post-relocation schedule for access and time-sharing together with a proposal for the post-relocation transportation arrangements necessary to effectuate time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient; and
- Substantially, the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition:
A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKIG TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.
If your former spouse objects to your relocation, the court will set your matter to be heard no later than 90 days after notice to set the matter for a nonjury trial has been filed.
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My former spouse is always late paying his child support. Can I have his employer pay me directly?
Yes, you can request that the Court enter an Income Deduction Order which will require your former spouse’s employer to pay his/her child support obligation to you directly or through the Support Enforcement Division of the Department of Revenue.
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My former spouse is behind in his child support payments. What can I do to get him to pay?
You will need to file a motion for contempt and enforcement with the Court and then have a hearing. The Court may impose sanctions against your former spouse in order to get him to pay. For example, ordering him/her to pay a fine, pay your attorney’s fees and costs, and/or incarceration.
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* The materials and information on this web site are made available by Lyons, Snyder & Collin, P.A. for informational purposes only and should not be considered legal advice. The transmission and receipt of information on the web site do not form or constitute an attorney-client relationship with Lyons, Snyder & Collin. Persons receiving the information on this web site should not act upon the information provided without seeking profession legal counsel. Persons receiving information authorize Lyons, Snyder & Collin to contact them concerning legal representation.
The officer arrested my friend without reading him his Miranda warnings. Did the officer mess up? Can the Court dismiss the case?Many people are confused about Miranda warnings and what the consequences are of a failure by the police to give them. Miranda Rights were created in 1966 as a result of the United States Supreme Court case of Miranda v. Arizona. The Miranda warning is intended to protect the suspect’s Fifth Amendment right to refuse to answer self-incriminating questions.
The Court requires law enforcement to read a suspect their Miranda warnings when law enforcement takes a suspect into custody and asks questions designed to elicit an incriminating response. Law enforcement’s failure to give Miranda warnings to a suspect in custody could possibly make any self-incriminating statements made by the suspect inadmissible in Court. However, the failure to give Miranda warnings does not mean that an arrest is unlawful, and solely affects the admissibility of the statements. Of note, spontaneous or voluntary statements may be used in evidence in Court regardless of whether law enforcement reads Miranda warnings. Always request to seek the advice of counsel prior to speaking with law enforcement.
The standard bond for a second degree felony is $3,500.00.
