Jeffrey Rich Blog

Buckle Up and Shut Up

June 23rd, 2009

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 30th 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.

“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 Jeffrey Rich via his 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 The Law Office of Jeffrey M. 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, we 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, the client was advised 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 Jeffrey 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 The Law Office of Jeffrey M. Rich at (813) 251-3330.

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.

Are you a paper person?

March 19th, 2009

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.

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.

 

 

Proudly powered by WordPress. Theme developed with WordPress Theme Generator.
Copyright © Jeffrey Rich Blog. All rights reserved.