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Too often people get pulled over, officer friendly issues any number of citations, people let the citations sit around for a awhile then on about the 29 day after the citation was issued people either over-night the check to the clerk of the court, or elect the traffic school. People don’t pay attention to the citation, or more importantly the specific statute the officer friendly wrote on the citation.

Case in point:

Defendant driver was travelling on east on 2-lane road. The defendant driver approached a 4-way stop. As he approached the 4-way stop no other vehicle were present. Like so many people before, the defendant rolled through the stop sign without coming to complete stop. Just as defendant driver was rolling through the stop sign, officer friendly was traveling north towards the same intersection. Officer friendly witnessed the defendant driver fail to stop at the stop sign. He flipped on his light and conducted a traffic stop. He approached the vehicle asking the standard questions and before defendant driver had a chance to even blink he was handed a citation.

The defendant felt like most people: “I got caught; I should have stopped at the stop sign”. The defendant let the ticket sit around for a few weeks before thinking about what to do with it. The defendant was not eligible for the traffic school because he had already taken the class within the last 12 months. He decided to call an attorney to see if there was any way to defend the ticket. After consulting with Tampa traffic attorney Jeff Rich he was informed that he was absolutely guilty for running the stop sign and there was no defense for that traffic infraction. However, the attorney informed the defendant that there was great defense to the citation. Traffic Attorney Rich went on to explain that the statute that the officer wrote on the citation was for failing to yield the right away at a four way stop. Since there were no other vehicles at the four-way stop at the time he rolled through the stop sign, he was not guilty of the statute the officer wrote on the citation. He was absolutely guilty of running the stop sign, but that was not what he was charged with.

Attorney Rich set the case for a hearing. At the hearing the officer was present and presented his case. He testified that he witnessed the defendant driving the vehicle and “blow through the stop sign”. At no point in his testimony did he indicate that there were any other vehicles present at the stop sign. The defendant also testified that there were no other vehicles coming in any of the other directions into the intersection. At the conclusion of the testimony the attorney argued that no evidence was presented that there were any other vehicle in the other 3 directions, therefore it was legally impossible for the defendant to be guilty of the infraction that he was cited for. The failure to yield statute requires that a vehicle must yield to another vehicle that arrives at a four way stop first. Without any evidence of another vehicle there was nothing to yield to. Attorney Rich conceded that the defendant was absolutely guilty of running the stop sign, but that was not what he was cited for. The Judge agreed and the defendant was found NOT GUILTY for failing to yield.

So take a lesson from this case: just because you are GUILTY does not necessarily mean you are GUILTY (at least of the citation that you are cited for). Always consult a Tampa traffic attorney on your case!

So you’re whizzing down the interstate and as you crest a hill you see a State Trooper on the side of the road, outside of his or her car, talking to a civilian who has been pulled over. Traffic is thick as you approach the Trooper and you seemingly have nowhere to go. What to do, what to do??? It would be wise to do one of two things to avoid getting yourself a ticket accompanied by a tongue lashing.

1) Move over. Get in the farthest lane possible away from the officer to avoid any potential tragedy.

2) If you can’t move over, slow down. You must drop AT LEAST 20 miles per hour below the posted speed limit.

What many Florida drivers don’t know is that Florida has a law that requires the above recommendations. Under Florida Statute 316.126(1)(b), if one does not do one of the above, they can be issued a civil traffic infraction and have points assessed against their driving record. A variation of this law has been in effect in other states for years with Florida recently adopting this.

So, when you encounter a situation as above or when there is any emergency vehicle on the side of the road, do the person on the side of the road a favor and save yourself some money and move over. For more information on what to do if you are pulled over, or other traffic ticket issues, contact a Tampa traffic attorney at The Law Office of Jeffrey M. Rich today: 813-251-3330.

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.

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 Jeffrey M. 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, 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 The Law Office of Jeffrey M. 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.

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, Tampa criminal lawyer Jeffrey M. Rich feels 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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