DUI Administrative Suspensions in Florida

September 14th, 2013 | Posted in DUI

By Attorney J. David Gentle

As of July 1, 2013, the rules for the administrative suspension of a Driver License after a DUI arrest, and the right to have a review of administrative suspension have changed. If during a DUI investigation, you give air samples to a breathalyzer and the results are over .08, the officer will invalidate your driving privileges. For people who have never been accused of DUI, you now have a new choice regarding that suspension. In the past, you had a right to challenge the suspension by requesting an informal review hearing or a formal review hearing. The new third option is to request a review of eligibility for a “Business Purpose Only” (BPO) License. This means you immediately get a restricted driving license if you waive your right to a formal or informal review hearing.

The application of this law which is good is there is no “Hard Suspension” of your Driver License. If your breathalyzer results were over a .08 and you lose your review hearing, you wouldn’t be eligible for a BPO until after a thirty-day hard suspension. This is thirty days that you cannot drive. Under this new option there would be no thirty-day hard suspension, and you would immediately get a permit. Likewise, if you refused to give an air sample for the breathalyzer, and you lose your review hearing, you wouldn’t be eligible for a BPO until after a ninety-day hard suspension. Again, under the new option, you would not have a ninety-day suspension.

There is another good part of this new option. If the Department of Highway Safety and Motor Vehicles determines that you are not eligible after you request this third option, then they will still let you request a formal/informal review hearing within the 10 days of the arrest.

But there is also a downside to this change in the review system. You must make your decision blind. You must make your decision within the first ten days after your DUI arrest when your notice of suspension is issued. You will have no idea if they can properly suspend your license. Your attorney cannot properly advise you about waiving your rights. Your attorney can’t obtain and review the necessary documents without requesting a hearing. You have to make an uneducated decision about a suspension that will permanently be on your driving record. Furthermore, it cannot be undone. Once you request the formal review hearing to get this paperwork, then you cannot later change your mind and request the review of eligibility.

This new rule change doesn’t change anything if you have a prior DUI conviction or administrative suspension, and it wouldn’t apply to you. You will still want to request a formal review hearing. There is no downside to your request, and you still need to fight the suspension.

As of July 1, 2013, the rules for the administrative suspension of a Driver License after a DUI arrest and the right to have a review of administrative suspension have changed. To be fully informed contact Longwell Lawyers at 407-426-5757 and talk to one of our attorneys. We are a group of experienced lawyers that will render the best of our professional abilities.

DUI and Leaving the Scene of a Crash

September 11th, 2013 | Posted in DUI

Orange County Criminal Court

Charges: DUI and Leaving the Scene of a Crash

Summary: Client allegedly side swiped a parked police patrol car. A witness followed the client while calling 9-1-1 and flagging down a Police Officer. The Officer observed the client swerving and hitting the curb. The Officer stopped the client. A crash investigation and a DUI investigation were conducted. After performing Field Sobriety Exercises, the client was arrested for DUI and Leaving the Scene of a Crash. The client refused to take a breath test.

Result: The case was resolved at trial with a plea to Reckless Driving. The DUI charge was dropped.

Tags: ,

DUI Driver License Basic Information

September 9th, 2013 | Posted in DUI

NOTICE: The following contents are for informational purposes only. You should consult with an attorney prior to taking any action.

OVERVIEW: A DUI charge is a criminal charge, requires your appearance in court, and carries a host of mandatory penalties if you are convicted. Additionally, your driver’s license is automatically/administratively suspended as of the date of your arrest, if you refused to submit to a blood, breath or urine test or, if you submitted to a blood or breath test and had a result of .08 or higher.

YOUR DRIVER LICENSE

IMMEDIATE/ADMINISTRATIVE SUSPENSIONS: If you had a breath or blood result of .08 or above, your license was immediately suspended for a period of 6 months if this is your first violation or one year if it is your second. If you refused to take a breath/blood/urine test, your license was automatically suspended for a period of one year if this is your first violation or 18 months if it is your second. If you have a CDL, you will incur a one year suspension regardless of whether you have a .08 or higher or refuse, and a permanent disqualification if this is your second.

If eligible, the Florida DUI Uniform Traffic citation serves as a temporary driver license for the first 10 days of the suspension. After the first ten days, you may be subject to a “hard suspension” and may not be eligible to receive any type of a temporary/hardship/business license for a period of 30 days (.08 or higher) or 90 days (refusal). After the “hard suspension” is over, you may apply for a hardship/business purpose license.

ACTION TO BE TAKEN

  1. If you do nothing, the suspension will remain in effect and will appear on your permanent driving history. Additionally, you will be subject to the “hard suspension” described above.
  2. Ask for a Formal Review Hearing. A Formal Review Hearing is your only opportunity to challenge the validity of the administrative suspension. In order to take advantage of your right to challenge the Administrative Suspension, you must act within 10 calendar days to request a Formal Review Hearing. Once you request a hearing, it must be conducted within 30 days. In the meantime, you may obtain a hardship/business purpose license for 42 days, while awaiting the hearing. If we prevail at the hearing, the Administrative suspension is invalidated, your license is reinstated, and the suspension is removed from your record. If we do not prevail, you will be subject to the same “hard suspension” described previously.
  3. You may waive your rights to contest the suspension. By doing so, you may immediately obtain a hardship/business purpose license and will not be subject to the “hard suspension” previously described. This is a good option for those who do not want to risk going without even a restricted license for any period of time. The downside is that you waive the ability to challenge the suspension. To waive a hearing and obtain a restricted license, you must act within 10 calendar days.

YOUR DUI CHARGE

A DUI is a criminal charge. If you are convicted of a DUI, the court MUST impose a host of mandatory penalties. However, you have the right to a trial and to have an attorney represent you. By preparing the case for trial, it is possible to gain a pre-trial dismissal of your case, or an acquittal at trial. Many times, the process of preparing your case for trial will lead to favorable plea options, such as a reduced charge of Reckless Driving. Depending on the strengths of your case we may be able to negotiate away some of the required DUI penalties normally imposed, such as the driver license suspension. Alternatively, it is possible that Pre-Trial Diversion may be offered. If so, we will evaluate whether this option is advisable.

Tags: , ,

DUI conviction and a Hardship License

August 5th, 2013 | Posted in Articles, DUI

There are many questions that come from a DUI arrest and conviction, but the most confusing seem to be related to your driver’s license. The laws are complicated and get harder with the more convictions you have. If during a DUI investigation you give air samples to a breathalyzer and the results are over .08, the officer will invalidate your driving privileges. You may get a hardship or Business Purpose Only License temporarily only to have the Judge suspend your license again after you get convicted. Well if you do get convicted of a DUI in Florida, there may be hope. You may be qualified to obtain a Business Purposes Only License from the Florida Department of Highway Safety and Motor Vehicles. The Florida Statutes 322.271 & 322.28 set forth the reinstatement requirements.

For a driver with a first time DUI Conviction, once you complete the DUI School you can apply to the DHSMV for a hearing for a hardship license. It gets more difficult with more DUI convictions. If you get a second DUI conviction, you do not qualify for a hardship license immediately at all.

On a second DUI conviction within five years of your first conviction, you will lose your driver’s license for five years. You can apply for a hardship license only after one year without any driver’s license. To qualify, you have to finish the DUI School and follow a DUI suspension program for the remaining four years. You have to be drug and alcohol free. You can’t have any Driving While License Suspended charges. There is also an ignition interlock device requirement. If you fail to follow any one of these requirements, your hardship license will be revoked.

If you have a third DUI conviction and it is within ten years of the second conviction, you will lose your driver’s license for ten years. You may qualify for a hardship after having no driver’s license for two years. Again, you have to finish the DUI School and follow a DUI suspension program for the remaining eight years. You have to be drug and alcohol free. You can’t have any Driving While License Suspended charges. There is also a two year ignition interlock device requirement. If you fail to follow any one of these requirements, your hardship license will be revoked.

If you are convicted of a DUI Manslaughter, your driver’s license will be permanently suspended. You may qualify for a hardship, if you have no other DUI convictions, and if you haven’t been arrested for a drug charge in the last five years. To qualify for a hardship license you cannot have a driver’s license for five years. Again, you have to finish the DUI School and follow a DUI suspension program for the remaining eight years. You have to be drug and alcohol free. You can’t have any Driving While License Suspended charges. There is also a two year ignition interlock device requirement. If you fail to follow any one of these requirements, your hardship license will be revoked.
It is hard to obtain a Business Purpose Only License, but in some cases it is not impossible. To be fully informed contact Longwell Lawyers at 407-426-5757 and talk to one of our attorneys. We are a group of experienced lawyers that will render the best of our professional abilities.

Tags: , ,

Not All Confessions are Created Equal – The Corpus Delicti Issue

July 14th, 2013 | Posted in Articles, Criminal Law

What many people don’t understand in the criminal law world is that just because you make a statement against your own interest (otherwise known as a confession), it doesn’t necessarily prove that a crime has been committed, and it doesn’t necessarily prove you are guilty. This is right, just because you admit to doing something illegal doesn’t mean you are guilty. What we are talking about is Corpus Delicti.

The term Corpus Delicti, Latin for “the body of the crime,” is used to refer to the legal elements needed to prove that a crime has been committed. The Corpus Delicti rule means that a crime must be independently proven before one can be convicted of committing that crime. The Corpus Delicti rule dates back hundreds of years to prevent the conviction of anybody who confessed to non-existent crimes because of mental illness or law enforcement coercion. It is such a good rule that it has been incorporated into our modern criminal laws. As the Courts in Florida stated, “it is to remove the danger of a defendant being convicted out of derangement, mistake or official fabrication.”

This is where your statement becomes an issue. The “independently proven” part is separate and aside from your own testimony. There must be evidence free of your confession that you committed a crime. In other words, the crime charged cannot be proven only through your statements. Before the State Attorney can introduce your statements, they must introduce some evidence independent from your confession to establish that the crime you confessed to actually happened. This standard does not require this proof to be great or uncontested, but it must at least show the existence of each and every element of the crime.

For example, if an intoxicated person is standing next to a parked car, and they make a confession to a police officer that they just drove there, this statement would not be allowed into evidence by itself. The evidence would have to show that the person committed a DUI beyond just the statement. There would have to be independent evidence, such as someone seeing the person drive the car under the influence. After the independent evidence is established, then the statement could be used against the person.

So just because someone confesses about a crime that doesn’t mean the confession automatically is evidence. Corpus Delicti requires the State to show more proof than just those statements if they want to use their words against them.

DUI and your Driver’s License

July 13th, 2013 | Posted in Articles, Criminal Law, DUI

If you are arrested for a DUI in Florida, your license may be administratively suspended immediately by the Department of Highway Safety and Motor Vehicles (DHSMV). If you are later convicted for the DUI in court, your license is subject to another suspension as a penalty for the criminal conviction. Fortunately, there are remedies that can be utilized by an experienced attorney which may allow you to continue to drive while your license suspensions and criminal penalties are potentially avoided.

Longwell Lawyers is experienced in representing individuals who have been arrested for DUI and had their license taken away. Here are some helpful facts we want you to know about how a DUI may affect your driver’s license, and what may be done about it:

  1. You may drive for the first 10 days. Unless ineligible, your DUI Citation will serve as an unrestricted driver’s license for the first 10 days of your suspension.
  2. A Formal Review Hearing must be requested within 10 days. This is best done through your attorney at DHSMV. Once a hearing is requested, you must be given a hearing within 30 days. It is this hearing that will allow your attorney to try to get your driver’s license reinstated.
  3. You may get a Permit to drive for 42 more days. This is so that you can drive until a decision is made at your hearing as to whether to fully reinstate your license.
  4. Your license may be reinstated. It is possible that DHSMV will invalidate your suspension and reinstate your driver’s license if you prevail at the Formal review Hearing.

However, you are still not in the clear. You still have to go to court for the criminal charge of DUI. If you are convicted of DUI, the court will impose a driver license suspension upon conviction, among other penalties. By hiring an experienced attorney, such as one from Longwell Lawyers, you may contest the case. Longwell Lawyers will utilize your important and powerful constitutional due process rights to prepare your case for trial. The trial preparation process will allow your attorney to obtain all of the evidence and thoroughly scrutinize the case in an effort to have evidence suppressed, or get your case dismissed without the need for a trial. Even if your case is not dismissed, your Longwell Lawyer may be able to negotiate to have the charge reduced so as to avoid a driver’s license suspension and minimize the impact of your arrest.

Contact Longwell Lawyers, at 407-426-5757, or go to LongwellLawyers.com, for more information.

The Criminal Process

July 12th, 2013 | Posted in Articles, Criminal Law

The police need probable cause to believe that a crime has been committed in order to get an arrest warrant, or to arrest you because they witnessed you commit a crime, or they gathered sufficient evidence to believe that you have committed a crime. Once you are arrested, you are taken to jail and booked.

In Florida, within forty-eight (48) hours of being arrested, a defendant is taken in front of a judge for an initial appearance. During this procedure, the judge determines whether:

  1. The police had probable cause to arrest the defendant,
  2. An attorney needs to be appointed for the defendant, if they don’t already have one,
  3. The defendant will receive bail, and the amount of that bail.

The case is then set for an Arraignment, which normally occurs within thirty (30) days after the Initial Appearance. During this proceeding, the defendant is informed of their charges and is asked to enter a plea of either:

  1. Guilty: admission to having committed the crime for which the defendant is being charged by the State, thus receiving a sentence,
  2. Nolo contender: no admission or denial to having committed the crime the defendant is being charged with by the State, or
  3. Not guilty: denial of having committed the crime the defendant is being charged with by the State.

It is strongly advised that you seek an experienced attorney to represent you at the arraignment because they can appear in court on your behalf, waive your appearance, and file the appropriate documents, such as a written plea of not guilty. After the charges are read and a plea has been entered, the court will provide pre-trial conference and trial dates, which are the court proceedings that follow an arraignment. Additionally, at this point, your attorney can ask the judge to consider setting bail or reducing your bail amount.

An experienced attorney will review your case after arraignment to determine if there are any Pre-Trial Motions which need to be filed with the court and to set a hearing in front of the judge. This pre-trial motion hearing might occur before or after a Pre-Trial Conference, which is a proceeding to update the judge on what is going on with the case and to schedule the next court date. These are the three different scenarios that can happen in a pre-trial conference:

  1. The case is ready to be scheduled for trial on the court docket,
  2. The case is set for a plea because the defendant and the State have agreed on a plea that is agreeable to both sides. It is important to note that a judge is not obligated to accept a plea agreement, but they typically will,
  3. The case is continued because either the defendant’s attorney or the State is not ready for trial. For example, a pretrial motion hearing is not scheduled until after pre-trail conference and the decision of that hearing is imperative to the trial preparation.

Finally, the case goes to trial if there are no reasonable offers from the State to justify entering into a plea agreement, or if the case is not dismissed or Nolle Prosequi by the State.

If you have been arrested contact Longwell Lawyers at 407-426-5757 and schedule a free consultation. We are a group of experienced lawyers that will render the best of our professional abilities.

Fireworks in Florida

June 26th, 2013 | Posted in Articles, Criminal Law

With the Fourth of July celebrations approaching, I get a good deal of questions regarding the legality of possessing and shooting off fireworks in Florida. It seems to be confusing because there are tents on the side of the road selling all kinds of fireworks. If they can sell them out in the open, they must be legal, right? Not necessarily. My general answer to my friends is if you want to see good fireworks go see a professional show. Do not do it yourself. Most of the fun fireworks are illegal for the average Florida citizen like you and me. Under Florida Statue 791, the only fireworks legal for use by us are categorized as sparklers. Sparklers are the non-exploding fireworks most commonly known and sold as Fountains, Glow Worms, Snakes, and Sparklers. None of which are very exciting if you are over the age of six years old.

Believe it or not the roadside tents or stores who sell these fireworks may not be breaking the law. They are using a loophole that allows them to sell fireworks only for legal and approved uses. If you purchase non-sparkler fireworks, the seller will often ask you to sign a waiver. By signing this waiver, you’re agreeing that you intend to use the fireworks for a legally approved purchase. This is acceptable if you are going to use them to scare off unwanted animals on your farm or your fish hatchery. But if you buy them for your own personal fireworks show, then you are breaking the law.

The waivers are legal for the seller, but they do not make the fireworks legal for you. Always remember as a general rule, anybody that asks you to sign a waiver is trying to protect themselves. They are not protecting you. These waivers protect the seller. They do not magically make these fireworks legal, and they don’t absolve you.
So what happens if you decide to purchase and use these non-sparkler fireworks anyway? Under Florida law, use or possession of illegal fireworks is a first degree misdemeanor. If you are accused of breaking this law, you will be arrested. If you plead or are tried and found guilty, you can be sentenced to up to one year in county jail, given up to one year on probation, and/or fined up to one thousand dollars. Do yourself a favor, save your money and stay legal. Just go watch a professional firework display and enjoy the Fourth of July.

Tags: , , ,

Arrested… Now What?

June 22nd, 2013 | Posted in Articles, Criminal Law

If you are arrested for an alleged violation of a Florida criminal law, there are a few things you should know. First, don’t panic. Not all is lost. You have many rights that will protect you from being illegally held in jail without release. Ultimately, your rights will also help ensure that you are not wrongly convicted.

Bond Out:

You will most likely be given an affordable bond that can be posted once you are booked. If an affordable bond amount is set, you should post it and get out of jail. You may either post the full cash bond (which will be returned to you upon conclusion of your case) or use a bondsman to post it for you. A bondsman will charge you a fee of at least 10% of your bond amount. Once the bond is posted you will be processed out and usually released from booking within a few hours.

Important tip:

If you use the jail telephones or have visitors at the jail, be careful what you say – you are being recorded!

Hire a Criminal Defense Lawyer:

Upon release, you should start looking for a criminal defense attorney to represent you in your case as soon as possible. Longwell Lawyers offers experienced criminal defense representation for all misdemeanor and felony criminal charges in Florida.

If you are not given a bond, or your bond is too high, or you are not otherwise released within 24 hours of your arrest, you must be brought before a judge for a first or initial appearance. The judge will conduct a non-adversarial review of the court file to determine whether probable cause exists to hold you on the charge. If there is not sufficient probable cause, you will be released on your own recognizance pending the outcome of the case. If there is probable cause, the judge will determine bond/release conditions.

If you are still not released, your attorney will seek a bond hearing and seek to have the bond amount reduced or set. At the same time, your attorney may be advocating for you to the prosecutor in an effort to get your charges dropped or minimized.

If you are still not released and held without charge for 21 days, your attorney may seek an adversarial probable cause hearing. This will require the State to establish probable cause by presenting evidence to the court under the scrutiny of your attorney. If probable cause is not established at this hearing, you will be released.

After 33 days, if you are still held without formal charge, the court must release you, unless the State gains an extension of time to 40 days. At 40 days, you must be released if not charged.

What Will Be The Outcome Of Your Case?

Do not assume you will get convicted or sentenced. Your attorney may be able to get your case dropped or dismissed. Or, you may be found not guilty after a jury trial. Or, your attorney may be able to resolve your case through negotiating a plea bargain. Your attorney will prepare your case for trial by scrutinizing all of the State’s evidence and witnesses through discovery and depositions and by gathering your evidence and witnesses and preparing your defenses. Your attorney will be prepared to give you the best chance of a dismissal or acquittal in your case by seeking to suppress the State’s evidence if appropriate or by having your case dismissed through pre-trial motions before your case ever gets to trial. Ultimately, your attorney may represent you at a jury trial and require the State to try to prove your case with admissible evidence that must unanimously convince a jury beyond a reasonable doubt. This is a tough burden that represents our judicial system’s strong principle that an accused is presumed innocent and cannot easily have his or her liberty taken away.

In conclusion, if you are arrested…don’t panic. By hiring an experienced criminal defense attorney you may exercise your rights to ensure that you are treated fairly.

Stand-Your-Ground and The Castle Doctrine

June 12th, 2013 | Posted in Articles, Criminal Law

Ever since the shooting death of Trayvon Martin by George Zimmerman, a volunteer neighborhood watchperson, everyone is talking about the Castle Doctrine and the Stand-your-Ground laws in Florida. Many people are finding out that they don’t understand what these two laws are and how they are applied. The reason they can be confusing is because they are very similar rules of law. The Castle Doctrine is based out of common law stating that a person does not have a duty to withdraw from their home, or their “castle” as it is referred to, and may use reasonable force, as well as deadly force, to defend their place, their selves, or other people. Basically stated, you have a right to attack and defend yourself for an intruder instead of leaving your home. In Florida the law has been extended and your “castle” can be any place legally occupied. It does not need to have a roof on it. It can be movable or stationary, or it could even be as temporary as a tent. Under the Castle Doctrine, if you are beyond your “castle” and you have the ability to do so, you have a duty to retreat before using force. (Dorsey v. State, 74 So.3d 521 (2011)) Deadly force is considered justified force only in cases when you reasonably feared immediate death or serious bodily harm to yourself or another. Besides Florida, forty-six states have integrated a version the Castle Doctrine into their laws.

The Stand-Your-Ground law, by comparison, does away with the law requirement that you have to retreat outside of your “castle,” therefore allowing you to use force in defending yourself or others when there is reasonable belief of harm. Florida law states, under Florida Statue § 776.013(3), that a person has the right to defend their ground if they reasonably believes it is necessary to do so to prevent death or great bodily harm. The law allows this if the person is not engaged in an unlawful activity and if they are attacked in any place where they have a right to be. Deadly force, under this law, is allowed, if you reasonably are in fear of imminent great bodily harm or death. Twenty states have now enacted some version of the Stand-Your-Ground law.

The Castle Doctrine and Stand-Your-Ground laws are very similar, which is why they are confusing to some. In theory Stand-Your-Ground assumes and expands the Castle Doctrine. Both allow you to defend yourself, and both are used as affirmative defenses for people charged with a crime, such as aggravated battery or murder. The main difference is that Stand-Your-Ground expands the Castle Doctrine beyond your home or “castle.”

Tags: ,

  • Newsletter Signup
    Get our newsletter!