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I Just Pled to the Charge, Now What is Happening?

A guide to understanding the sentencing process:

When one choses to plead to criminal charges, there are several terms that officers of the court (judges & attorneys) use in the execution and imposition of the sentence. If you are unfamiliar with them, it can be very confusing. My hope, is that this legal guide will help you understand.

1. Adjudication of Guilt- This means you have been found to have committed a criminal act. You are guilty of committing that act and you are being convicted of a crime. Once you have been convicted of a crime, you are no longer eligible to seal or expunge your record. If you are adjudicated guilty of a felony, then you lose certain civil rights.

2. Withhold of Adjudication- This means you have been found to have committed a criminal act, but you are not being convicted of committing a crime. This will not preclude you from sealing your record, but it will preclude you from expunging it. If you are facing a felony and you receive a withhold of adjudication, then your civil rights will not be taken away from you. However, This also eliminates may statutorily mandatory penalties upon conviction of certain crimes. For example, if you are adjudicated guilty of possession or marijuana, the judge is required to suspend your driver’s license. If you receive a withhold of adjudication then there is no mandatory suspension. Keep in mind, there are many charges for which the court does not have the power to withhold adjudication. In those cases, if you are found guilty, you must be convicted.

3. Pre-trial Intervention (PTI)- PTI is a means of resolving your criminal matter outside the court system. It can be used for both misdemeanors and certain felonies. It is essentially an agreement between you and the State that you will perform certain functions (like completing community services, taking classes, or paying money) and upon completion the State will drop the charges. This is advantages because it preserves both your ability to seal and expunge the charge.

4. Adjudication of Delinquency- This is similar to an adjudication of guilt. You have been found to have committed a delinquent act and are convicted of committing a delinquent act. By the letter of the law, it is different from an adult committing a crime. Records for delinquency have an expiration process by which records are no longer kept after five years from your eighteenth birthday. Although technically different from conviction of a crime, there are many mandatory sentencing requirements that treat an adjudication of delinquency the same as a conviction; perhaps the most significant being registration as a sexual offender. Regardless whether you are adjudicated guilty, adjudicated delinquent, or receive a withhold of adjudication, if you are found to have committed a crime which requires registration, then you must register. The only exclusion being a withhold of adjudication of delinquency.

5. Withhold adjudication of delinquency- This is about the most benign form of judgment for which one can hope. It is similar to a withhold of adjudication of a crime but it applies to juvenile petitions for delinquency. It means you have been found to have committed a delinquent act but are not being found to be a delinquent.

6. Restitution- A person is responsible for the financial loss of another as a result of their criminal act. The types of losses for which one may recover is different, and more limited, in criminal court than civil court. For example, if you punch someone and knock out a tooth, you can be held both criminally responsible and civilly responsible. In the criminal case, you could be ordered to pay restitution for the cost of fixing/replacing the tooth. If that same person sued you for civil battery, you could also be responsible for pain and suffering or other collateral damages that you would not be responsible for in the criminal case.

7. Violation of Probation- If you have been placed on probation and are accused of violating either the general or specific terms of your probation then you may go before the court on a violation of probation proceeding. There are some important things to know.

a. You can be punished up to the maximum possible punishment minus any time you have already served in incarceration.

b. The State does not have to prove its case beyond a reasonable doubt. Instead, it only has to prove by a preponderance of the evidence that you violated your probation.

c. It has to be substantial and meaningful violation. This can be confusing because missing only one meeting with your probation officer is considered substantial and meaningful, even if you don’t think so.

d. You don’t have rights prohibiting self-incrimination. Although you do have many of the other criminal constitutional rights, you can be called to testify against yourself.

I wasn’t read my rights, will my DUI get dismissed?

The impact of Miranda on a DUI investigation.

By Nathan R. Ross

Miranda rights were established in 1966 in the Supreme Court of the United States case of Miranda v. Arizona, 384 U.S. 436 (1966). In this landmark case the Court concluded that criminal suspects have the right to remain silent and the right to any attorney when being questioned by law enforcement. These rights are derived from the Fifth Amendment against self incrimination and Sixth Amendment right to counsel. The key to understanding your rights in during a DUI investigation is to know when they apply. According to the Court, these rights apply only during periods of custodial interrogation. Unfortunately, in my opinion, the definitions of “custody” and “interrogation” get blurred easily in a DUI case.

When is a person in custody?

One may think a layperson could figure out when someone is in police custody, but it’s actually not simple at all. Are you in custody when you get pulled over by police? No. How about when the officer instructs you to get out of your vehicle? No, not yet. Well then certainly when you are performing field sobriety exercises at the officer’s instruction? Still not there. The Florida Supreme Court doesn’t consider you in custody until your “freedom of action has been curtailed to a degree associated with an actual arrest.” Allred v. State, 622 So.2d 984, 987 (Fla. 1993). Since a DUI investigation typically takes place on the side of the road, in public view, for all practical purposes it means you are not in custody until you are arrested.

Custody is often confused with the concept of whether you are “free to leave.” Just because you are not free to leave it doesn’t mean you are in police custody. Whether a person is free to leave is a question regarding detention for the purpose of search and seizure under the Fourth Amendment. During the course of a DUI investigation, law enforcement typically advises suspects that they are not free to leave, but that they are also not under arrest. In the eyes of the law, you are being detained by the police but not in police custody. Thus, during a routine traffic stop and DUI investigation, your Fourth Amendment rights apply but your Fifth Amendment rights do not. Next question.

When is a person being interrogated?

Police interrogations occur when the questioning is intended to elicit incriminating responses that are testimonial in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). The Supreme Court has concluded that asking a person to perform an act, whether to perform field sobriety exercises or to provide a breath sample, and your reaction to that request is not part of an interrogation. South Dakota v. Neville, 459 U.S. 553 (1983). This means your refusal to do either can be used against you regardless of your desire to invoke your right to remain silent and not incriminate yourself. After you refuse, then you can invoke your rights. See, State v. Thompson, 987 So.2d 163 (Fla. 3d DCA 2008). Thus, modest questioning about your use of intoxicants and routine administration of field sobriety exercises is not likely to be considered an interrogation.

As you can see, courts have carved out nice little ways for law enforcement to interact with a criminal suspect and gather evidence directly from that suspect without that person being able to exercise important constitutional rights. Knowing this general information is important, but it is equally important to know there are exceptions to both of these basic principles. Factors like 1) being handcuffed; 2) the presence of a lot additional officers; 3) being transported to a different location during the investigation; 4) excessive questioning; or 5) a traffic accident may create a custodial interrogation where it would otherwise not exist. See State v. Evans, 692 So.2d 305 (Fla. 4th DCA 1997); State v. Whelan, 728 So.2d 807 (Fla. 3d DCA 1999).

If you were arrested for DUI and not read your rights, contact me at Luke Law and put me to work for you. Depending on the facts of your case, the failure of law enforcement to properly advise you of your constitutional rights can lead to the suppression of evidence being used against you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.

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How Can I Get a DUI if I Wasn’t Driving?

By Nathan R. Ross

I recently saw this question posted on a local website and thought it would be a good subject for this week’s contribution. In Florida, you can indeed get a DUI even if you weren’t found driving. In this post I am just going to address one of the elements of a DUI. The first element the State must prove in any DUI case is that the Defendant was driving or in actual physical control (“APC”) of a vehicle. The phrase “actual physical control” is the vehicle, so to speak, for getting convicted of a DUI without driving.

According to the Supreme Court of Florida, “actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time.” Fla. Std. Jury Instr. (Crim.) 28.1. In fact, this is the definition of driving as applied in all Florida traffic statutes, which means one can get ticketed or charged with almost any driving offense without having ever been observed driving. F. S. § 316.003.

Perhaps the two most common scenarios where one may see APC used in a DUI case are when a person has either been involved in a traffic crash or was found sleeping in his or her vehicle. In Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988), the Defendant was asleep in the vehicle with the keys in the ignition. In this case, the appellate court overturned the trial court’s dismissal of the case by finding that the Defendant could have woken up and driven way, which meant she was in actual physical control of the vehicle. This is a common DUI scenario and a well settled legal conclusion.

By contrast, in Jones v. State, 510 So.2d 1147 (Fla. 1st DCA 1987), the Defendant was a passenger in her sister’s vehicle, which broke down on the side of the road due to an electrical failure. Her sister walked home while she slept in the vehicle. She was initially convicted under the theory that she was in actual physical control of the vehicle. The court overturned her conviction and stated a person ought not be convicted of DUI “where the vehicle’s mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused.” Id. Now distinguish this with a vehicle with temporary mechanical problems like running out of gas, a flat tire, or a dead battery. In these instances, APC will generally be upheld.

Now, this situation is not limited to circumstances where you are observed still inside the vehicle. You can be considered in actual physical control of a vehicle even if you are found outside in close proximity to the vehicle. For example, in Alfons v. D.H.S.M.V., Case No. 2013-11474 (7th Cir. Feb. 3, 2014), the Defendant was found in APC for pumping gas outside the vehicle with the keys on the floorboard. Likewise, in, Simon v. D.H.S.M.V., Case No. 14-000061AP-88 (Pinellas Co. March 26, 2015), the Defendant was scene outside the vehicle with the keys sitting on a barrier next to her and the court still found APC.

When reviewing this situation, the courts will employ a totality of circumstances test, so there is no formula for separating yourself from actual physical control of your vehicle; however, it appears from Jones, there are three key things that are certainly relevant: 1) whether there is actual or constructive possession of the keys; 2) proximity to the driver’s seat; 3) and operability of the vehicle. This last point has been examined in a couple different ways. In Jones, the court considered whether the vehicle was incapable of movement except by an outside agency, while Feliciano v. D.H.S.M.V, questioned whether the Defendant will have the future ability to operate the vehicle. Case No. 16-2012-CA-11325 (Fla. 4th Cir. Feb. 14, 2014). The key is that the locations of the keys is clearly not the only relevant issue. People can be convicted if the keys are in the ignition, if the keys are on the floorboard, in your pocket, or in the other seat.

DUI laws are generally constrained in favor of the broad policy of public safety rather than the concern for any individual’s liberty. If you are facing a DUI charge and you were not driving at the time, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.

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How Does a DUI affect Your Security Clearance?

By Nathan R. Ross

If you have a security clearance and get arrested for Driving under the Influence (“DUI”), it won’t take you long before you start wondering if you have just jeopardized your livelihood by getting arrested, particularly if there is reason to believe you are guilty. In short, you need to know how a DUI arrest or conviction affects your security clearance. It would be impossible for me to cover the effects on every level of access to classified information so I just want to provide a brief primer on the subject. If you get arrested for DUI and have a security clearance, you need to hire a DUI lawyer with specific experience in this matter.

The good news first, it is not a deal-killer. A typical misdemeanor DUI arrest or conviction is highly unlikely to result in automatic revocation of your clearance. Likewise, an isolated incident isn’t likely to be the sole reason a person fails to maintain continued eligibility when your clearance comes up for review. In fact, you may not have to officially address this problem until your clearance is up for review. This is most likely to first time you will have to address the issue. With that in mind, I do believe it is important for people to know what impact it may have.

According to the Department of State, there are thirteen (13) adjudicative guidelines for all people who require access to classified information. These guidelines are codified in Chapter 32, Section 147 of the Code of Federal Regulations. In my opinion, a DUI could be relevant in five (5) of those guidelines. Although one incident can cross these adjudicative guidelines, the government has taken a “whole-person” approach to the adjudicative process so a person is unlikely to be disqualified unless the conduct “reflects a recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior.” 32 E.C.F.R. § 147.2(d). Now, let’s look specifically at the applicable guidelines.

Guideline E- Personal Conduct.

The concern is that conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. What does this mean? It may seem risky, but in my opinion, you should immediately disclose an arrest to your employer and remain truthful regarding any questioning about the incident. With that said, respectfully decline to incriminate yourself. An arrest of any kind can be seen as a reflection of poor judgment, but this guideline primarily addresses concerns regarding concealment or falsification of information. While you shouldn’t conceal information from your employer, you do want to be careful about admitting things that can be used against you. It is a delicate balance but how you conduct yourself after the arrest affects your security clearance as much as the arrest itself.

Guideline G- Alcohol Consumption.

The obvious concern is that excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness. The meaning of this is fairly obvious when you are talking about a DUI. In fact, the guideline specifically states that driving under the influence is a security concern. So, what mitigates this? 1) so much time has passed and the incident was so isolated that it doesn’t cast doubt upon your reliability, trustworthiness, or judgment; 2) successful completion of an inpatient or outpatient rehabilitation program; 3) frequent attendance at Alcoholics Anonymous meetings; or 4) abstaining from alcohol. If your DUI was an isolated incident then the guidelines take that into consideration. Likewise, if you are experiencing larger dependency issues, the government wants to see that you are taking steps to address them.

Guideline H- Drug Involvement.

The concern here is the same as it is with alcohol, which is that improper or illegal involvement with drugs raises questions regarding an individual’s willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, thereby increasing the risk of the unauthorized disclosure of classified information. What does this mean? I think this guideline is also fairly intuitive, either illegal or improper drug use, even if it doesn’t result in a DUI or other criminal allegations, presents a security concern. The mitigating factors are similar to excessive alcohol use and emphasize the importance of addressing dependency issues.

Guideline I- Emotional, Mental, and Personality Disorders.

The concern is that emotional, mental, and personality disorders can cause a significant deficit in an individual’s psychological, social and occupation functioning. These disorders raise a security concern because they may indicate a defect in judgment, reliability, or stability. How does a DUI implicate this guideline? Mental health providers understand that many types of emotional or mental disorders manifest themselves as dependency issues. The death of a loved one, a divorce, bankruptcy, or any major change in your life can have a impact that is difficult to fully appreciate while you are experiencing it. If you are turning to substances or alcohol as a coping mechanism then you need to recognize the need for help.

Guideline J- Criminal Conduct.

The security concern is that a history or pattern of criminal activity creates doubt about a person’s judgment, reliability and trustworthiness. A single serious offense, such as DUI manslaughter, would certainly demonstrate a significant security concern; however, an isolated lesser offense is not much of a concern. The government would be more concerned about a continued pattern of criminal conduct that demonstrates vulnerability, poor judgment, and lack of trustworthiness. What mitigates evidence of criminal behavior? Some things that mitigate the existence of criminal behavior are: 1) the passage of time demonstrating an isolated incident; 2) acquittal; or 3) evidence that the factors leading to the criminal act are no longer present.

I can’t emphasize enough that being arrested, or even convicted of a misdemeanor DUI, alone is highly unlikely to result in the loss of your security clearance. In my opinion, if keep your employer aware of your case, undergo a dependency evaluation and comply with any recommendations, then you have a good chance of keeping your clearance. With that in mind, you will have to be prepared to readdress it when your clearance is up for renewal. With the government’s “whole person” approach, if it was truly an isolated incident and not reflective of your overall personal character then you will have an opportunity to demonstrate this.

If you are facing DUI charges and have a security clearance, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.

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A Ramp up to Boating Season

Some Things to Know About Boating under the Influence

By Nathan R. Ross

Since summer is here and boating is such a popular activity throughout Florida, I thought this would be a good opportunity to provide information about Boating under the Influence (“BUI”) law and compare it to Driving Under the Influence (“DUI”). This is important because there are both similarities and differences between the two.

What are the Similarities?

The primary BUI statute is Florida Statute 327.35. The standard for being under the influence of alcohol, chemical substances or controlled substances is to the extent that your normal faculties are impaired, having a breath alcohol level of 0.08 grams of alcohol per 210 liters of breath, or a blood alcohol level of 0.08 grams of alcohol per 100 milliliters of blood. This is the same as DUI.

For the most part, the mandatory minimum penalties, for first, second, and third offenses are the same as DUI law. Like DUI, there are enhanced penalties for blood/breath alcohol above 0.15, for two offenses within five years, and for three offenses with the last two within ten years of each other. The definition of “normal faculties,” the presumptions of impairment, the treatment of persons under twenty-one who operate a vessel while consuming alcohol are all the same as DUI law. Likewise, there is also a mandatory adjudication of guilt upon conviction, just like a DUI. In addition, the convictions are interchangeable so previous DUI convictions are considered previous BUI convictions, and vice versa. In fact, the regulatory schemes are largely identical.

So, what are the Differences?

The main regulatory difference is with implied consent and refusing to submit to testing. Any person who accepts the privilege of operating a vessel within the state of Florida is deemed to have given his or her consent to submit to an approved chemical or physical test, if lawfully arrested for operating a vessel while under the influence of alcoholic beverages. Florida Statute § 327.352. This means that refusal to submit to testing can be used against you in court just like in a DUI. However, the administrative penalty for doing so is different from a DUI. If you refuse testing when arrested for DUI your driver’s license is suspended. Refusal in a BUI case results in a $500 civil penalty. The consequences for failing to pay the civil fine are outlined in Florida Statute § 327.35215. Like a DUI, you can request a hearing to determine the legality of your arrest. If the fine is upheld, you have thirty days to pay or your ability to operate a vessel within the state will be suspended. From there, operating a vessel while suspended due to failure to pay the civil fine is a first degree misdemeanor.

The biggest differences between DUIs and BUIs can be found in the context of the criminal investigation. The first major difference is about how you will likely come into contact with law enforcement. The second difference is the types of field sobriety exercises you will be asked to perform during the DUI investigation.

On the road, a law enforcement officer can generally only stop a vehicle when there is probable cause to believe the operator is committing a traffic infraction or there is reason to believe the driver is ill, tired, or impaired. There are some other reasons, like checkpoints, but these are the two major legal reasons for stopping a vehicle. Challenging the lawfulness of traffic stops is a major component of DUI defense.

In a BUI case, there is rarely a basis to contest the vessel stop. On the water, a law enforcement officer can stop any vessel any time in order to conduct a safety check. State v. Casal, 410 So.2d 152 (Fla. 1982). This safety check gives the officer an opportunity to check your safety equipment, lights, fire extinguisher, fishing permits, etc. Because of this ability to conduct a vessel safety inspection, there is rarely an ability to challenge the legality of the stop.

As far as law enforcement is concerned, the safety inspection gives the officer an opportunity to check for signs of impairment. The common signs of impairment for BUI are the same as for DUI; the odor of alcohol, watery or bloodshot eyes, and a flushed face. Although there are many more innocent explanations for these physical characteristics when boating rather than driving, these signs alone still form the basis for detaining a boater for a BUI investigation. Think about this a moment, the odor of alcohol, a red face from being in the sun all day, and watery eyes from the wind blowing in your face could result in being the subject of a BUI investigation.

To me this is problematic because the field sobriety exercises used in a BUI investigation are different, and in my opinion more difficult to understand, than DUI field sobriety exercises. The BUI investigation will often take place on a vessel so walking exercises are usually not conducted. Instead, you will likely be asked to perform what are commonly called the “seated standard field sobriety exercises.” In addition to the Horizontal Gaze Nystagmus (“the HGN”) and the finger-to-nose exercises, these include the “palm-pat” and the hand coordination exercise. If the BUI investigation takes place on land, you will likely be asked to perform the standard field sobriety exercises.

If you are arrested for BUI after performing theses exercises it is important to consult an attorney who is familiar with the exercises. They are relatively new, the standard instructions are confusing, and they are difficult to perform even in ideal conditions. Knowing these exercises and challenging them when they are not conducted properly is a major component of BUI defense.

• Despite being one of the most heavily relied upon exercises by law enforcement, the HGN exercise is considered scientific evidence and will not be admissible in court unless conducted by a drug recognition expert.

• The finger-to-nose can be affected by movement of the vessel and other conditions where it is performed.

• The palm-pat involves placing your hands directly on top of each other palm to palm and turning over the top hand with increasing speed. Signs of impairment include failing to increase speed as instructed and not lining your hands properly.

• The hand coordination test is intended to replicate the walk-and-turn but using your fists. It involves walking your fists out from your chest, clapping your hands, and walking them back. The instructions are very confusing and officers who have not had sufficient training may not instruct you properly or demonstrate the exercise correctly.

The last thing to consider regarding BUI investigations is the potential for being investigated by a poorly trained or inexperienced officer. During major summer holidays or peak times of the year, it is not uncommon of law enforcement agencies to focus on BUI prevention. From a personnel perspective, this may involve taking officers off the street and putting them on the water under the assumption that investigating a BUI is identical to investigating a DUI. Investigating a BUI is not the same as investigating a DUI. Likewise, defending a BUI is not the same as defending a DUI. If you are arrested for BUI, be sure to hire any attorney who knows the difference.

My advice for avoiding a BUI is the same as avoiding a DUI, have a designated driver. As long as the designated driver is born before 1988, he or she will not need to have a boater safety card. There is no minimum age for operating a vessel, but any operator born after January 1, 1988 will need a boater safety identification card in accordance with Florida Statute § 327.95. There are no speed limits, no travel lanes, and few traffic control devices so having someone on board who can safely navigate the waters if someone has had too much to drink should not be difficult and it may save you lots of time, money and heartache.

If you are facing BUI charges, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.

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What’s This I Hear About Avoiding a DUI Checkpoint?

Recently, I’ve been reading headlines and have even seen a few Youtube videos touting a method of avoiding contact with law enforcement during a DUI checkpoint. The technique involves making your driver’s license and vehicle registration visible to law enforcement without rolling down your window or otherwise making contact with any officers. However, I haven’t seen any legal authority as the basis for this theory. So I decided to check it out for myself and have some information for you to consider.

First, the United States Supreme Court has reviewed the constitutionality of a DUI checkpoint.
In Michigan Dept. of State Police et. al. v. Sitz et. al., 496 U.S. 444 (1990), the Court ruled that checkpoints are lawful invasions of a person’s Fourth and Fifth Amendment rights. This is virtually the only time a law enforcement officer can detain a person without any suspicion of a crime. Nevertheless, Florida courts have acknowledged that it is a form of detention. Thankfully, there are rules law enforcement must follow. The agency conducting the checkpoint is required to have written guidelines that specifically articulate the policies, procedures, and detention techniques that will be used in the checkpoint. In State v. Jones, 483 So.2d 433 (Fla. 1986), the Florida Supreme Court listed several factors to help lower courts determine whether a checkpoint meets the proper standards. Since it is merely a list of factors, there are no bright-line rules, so anyone arrested for DUI at a checkpoint should hire a DUI attorney experienced enough in this area of the law to check your case for possible defenses. A copy of the written policies and procedures for every checkpoint should be obtained through discovery.

One of the important factors to consider is the purpose of the roadblock. A checkpoint used to detect ordinary criminal activity will not be constitutional. However, a checkpoint for the purpose of DUI detection or vehicle safety is lawful. The highest court in Florida that I have found addressing someone who refused to cooperate at a DUI checkpoint is the Fourth Judicial Circuit Court in Rinaldo v. State, 787 So.2d 208 (Fla. 4th DCA 2001). In this case, the defendant refused to roll down his window or have any contact with officers. Ultimately, he was arrested for Resisting an Officer Without Violence (“resisting without violence”), contrary to Florida Statute § 843.02. The reviewing court determined the checkpoint in question met constitutional standards. This essentially meant that the officers had lawfully stopped the Defendant and he was “under a legal obligation to respond to an officer’s request for certain information and documents, and the driver’s refusal to respond to these requests may constitute the misdemeanor offense of obstructing or opposing an officer.” Rinaldo, 787 So. 2d at 212.

The question then is whether putting your driver’s license and registration against your window without making contact with the officer going to satisfy law enforcement. The Rindaldo court did not discuss to what degree, if any, the defendant attempted to cooperate. Apparently, in some cases it does, and that is great. If the purpose of the checkpoint was to secure a crime scene or to identify a fleeing suspect, then it may be enough. But if the purpose of checkpoint is at least in part for DUI detection, then it may not work. What should you be prepared for in that case? The Rinaldo court did not say that lack of cooperation was necessarily evidence of criminal activity, but it did point out that other states have come to that conclusion (i.e. Virginia, South Dakota, Pennsylvania, Arkansas, and Alabama) and it did say that motorists are obligated to comply with an officer’s reasonable requests and must accept the minor inconvenience of the checkpoint. So, if refusing to cooperate is evidence of a crime, it would be resisting without violence.

There are four elements to the offense of resisting without violence. First, the Defendant resisted, obstructed, or opposed law enforcement. This is a broad element, which means that almost anything a person does can be constrained within this element. Second, at the time, the officer was engaged in the execution of legal process or lawful execution of a legal duty. This is critical element in checkpoint cases. If a judge determines the checkpoint met the constitutional guidelines of Jones, then almost anything a person does to interfere with an officer during the checkpoint can be the basis of a resisting charge. The final two elements are that the person was an officer and that the defendant knew the person was an officer. Those are relatively easy to either prove or disprove.

If an officer demands you to roll down your window, you should expect police detention and arrest procedures to take priority over checkpoint guidelines. I would not be surprised if a reviewing court found it reasonable for an officer to remove you from your vehicle and arrest you for resisting without violence. Courts around the country have found there is no more palatable excuse for minimizing a person’s constitutional rights than DUI detection. Remember, the only crime for which a person can be detained without any evidence is DUI. My conclusion is this: if you are going to try this technique of putting your license and registration against the window be prepared to either cooperate or get arrested. If it works for you, congratulations.

If you are facing DUI charges, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. We are also available to travel to you to discuss your legal matters.

Luke Law, LLC Expands with Addition of an Attorney

Attorneys Gary L. Luke and T. Hailey Hatcher are pleased to welcome Nathan R. Ross to Luke Law as a DUI attorney. Prior to joining Luke Law, Nathan worked as a prosecutor in the Office of the State Attorney in Clay County, Florida. During his years of service to the State, Nathan prosecuted thousands of cases ranging from Driving under the Influence (“DUI”) to drug possession to domestic violence, and theft. He has come to Luke Law to focus his practice on DUI defense.

Nathan has been a resident of Clay County since moving to the First Coast in 2005. He moved to the area to further his employment as a financial advisor with Merrill Lynch, in Jacksonville. He ultimately decided to separate from the financial services industry and enrolled at Florida Coastal School of Law while still working at Merrill Lynch.

He graduated Magna Cum Laude from Florida Coastal School and was an active student during his time there. He served on the editorial board of the Law Review and helped organize nationally recognized legal symposia. He was awarded competitive internships at both the Florida Supreme Court and at the United States District Court for the Middle District of Florida in the chambers of the Honorable Monte C. Richardson. He also served as a student-pupil in the Chester Bedell Inn of Court and represented clients as a Certified Legal Intern in the consumer law clinic at Florida Coastal.

As a DUI attorney, Nathan is dedicated to the zealous representation of his clients. He believes firmly in the Constitution and the protections of civil liberty it affords all people. With that in mind, he fights hard to ensure that law enforcement does not infringe upon anyone’s constitutional rights for the sake of making a DUI arrest. In addition to representing his clients in court, Nathan regularly attends training seminars on DUI law and constantly studies updates to case law on the subject of DUI in Florida.

If you are facing DUI charges, contact Nathan Ross at Luke Law and put him to work for you. You can reach him at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. We are also available to travel to you to discuss your legal matters.

ANATOMY OF A LAWSUIT – A Brief Primer For Clients

by T. Hailey Hatcher

What To Expect With Your Lawsuit

In the personal injury field, there are essentially three outcomes to sending a demand package with an offer to settle a claim. One, the insurance company for the tortfeasor makes an offer to resolve the case which is satisfactory to the claimants; Two, they make an offer which under the circumstances is not reasonable and must be declined; or, Three, they refuse to make any offer at all, denying any liability whatsoever on the part of their insured. In scenario one, if the offer is accepted, the case is closed, end of story. However, when either of the other scenarios develop, the client has the option to continue negotiations in the hopes of achieving a resolution to the matter, forgo any claim, or file suit. In other words, it is decision time. In your case, we are now at one of the stages wherein a decision must be made whether to forgo the claim or to file suit. While I am certainly going to help you analyze some of the pros and cons of your case, the following material will help you gain an understanding of what can lie ahead. Thus, the purpose of this brief essay is to familiarize you with what may lie ahead so that you can incorporate the process to which you will be exposed into the calculus of making your decision to forgo or go forward.

Much has been written by better writers than I about the various stages of a lawsuit. Books, treatises and articles abound by seasoned trial lawyers and judges on all aspects of litigation. A trip to any local library or bookstore will provide you with ample reading on the topic. However, as my client, I want you to know my thinking, my perceptions and my outline of how things will happen after a lawsuit is filed.

Perhaps the most important thing for a client to know is that this will take some time. A lot of time. I would even go so far as to say for the layperson, an unreasonably long time. Therefore, you must be prepared at the outset to allow this process to work however slowly. Quite possibly, a case could last anywhere from eighteen months to two years. It may last longer. It may not. But, you must be of the mindset that it will take a long time so you do not get overly frustrated and aggravated with the process. While there are legal techniques and tools which can be used to speed up a lawsuit, I advocate that slow and steady wins the race. Remember here the story of the tortoise and the hare, and as the case moves forward practice patience with me, the defendant, the opposing attorney or attorneys, and the court system.

After you make the decision to file a lawsuit, I will spend several days preparing the papers that are filed with the court. You are labeled as a Plaintiff, while the party who is being sued will be the Defendant. First, I will prepare a Summons for each defendant in your case. The clerk will sign this document instructing a defendant that a response is required within a certain amount of time. Along with this, I will prepare the Complaint. This is the document that outlines, among other things, your grievance with the opposing party or parties. Often, preparing the Complaint will involve conducting additional investigation, performing legal research and the editing of several revisions before a finalized product is produced. Prior to filing, you will be given an opportunity to review the complaint and accompanying documents.

A party is required to respond to the Summons and Complaint, in most cases, within twenty (20) days. The final documents that generally accompany the Summons and Complaint are Interrogatories and Requests For Production of Documents. The Interrogatories are written questions to the defendant or defendants to which answers are given. The Requests For Production are a series of requests to the defendant or defendants for documents, papers and other items. Generally, when these two forms of written discovery are filed with the court at outset of the case, the opposing party will be allowed forty-five (45) days to respond. If filed some time after the Complaint, the responses are due within thirty (30) days. Many times, an extension of time will be granted by one party’s attorney to another party’s attorney for additional time to respond.

At some point, the defendant’s attorney will send you Interrogatories and Requests for Production. You will have thirty (30) days to respond, unless an extension is requested. At the outset of a case, long before the court system is invoked into a case, clients are steadfast in their resolve to file a lawsuit. While I may firmly support this decision, clients are usually completely unaware of the invasion of privacy that will flow forth from such an action. It is during this phase of the lawsuit, commonly known as Discovery, where the invasion occurs. Both the Interrogatories and the Requests for Production will strive to elicit from you very personal information. Some topics will include your prior medical history, previous marriages and your criminal history. You will probably be required to provide your tax returns for the last several years. It is not uncommon that a client expresses anger and amazement at some of the questions and requests. However, this is all a part of what you, as a plaintiff, can and should expect. I, as your attorney, will do what I can to raise objections where appropriate, but be advised that there is only so much that the law will protect. What is not protected will be discoverable. Now, I don’t mean to say that you should not file a lawsuit because of what may exist in your past. I only bring this aspect of the process to your attention because this can have an active role in helping you to reach a decision whether to file suit.

Following this initial written discovery, it may be necessary for I and the opposing attorneys to send other written discovery to people and entities that are not a party to the lawsuit. This discovery is comprised generally requests for documents, and are known as Requests For Production of Documents to a Non-Party. We may send such requests to the defendant’s employer or medical doctors to find out things about his work record or medical history. The defendant will likely send requests to all of your doctors. When I say all of your doctors, I mean all of them, not just the physicians that treated you for the incident over which the lawsuit is filed. They may also send requests to your employer, and your former employers in an effort to find information in your past which will negatively impact your claim against their client. Again, I will do what I can to object, and even file a motion with the court to prevent the release of things that are inappropriate, if necessary.

In addition to the written discovery discussed above, your lawsuit will progress to the point where the attorneys will begin to schedule depositions, another form of discovery. A deposition is a semi-formal engagement wherein the attorney for one party will ask questions to the other party. The person who is answering questions is the deponent. During this phase of the case, I will depose the defendant, and the defense attorney will depose you. I may also depose the police officer, or the witnesses to the collision. The defense lawyer may depose your treating doctor, your childhood doctor and even your spouse. At a deposition, a court reporter will be present, and he or she will take down every question and every response. Ultimately, a transcript will be produced and provided to the attorneys in the case. The depositions serve to memorialize a person’s testimony, and often will even be used against that person at trial, especially when the trial testimony differs from what was said at a deposition. Prior to your deposition, we will meet to discuss what you should expect.

At some point during the discovery process, either I or the opposing counsel will file a Motion To Set with the Court. This document informs the court that the parties wish to meet with the judge who is presiding over the case to schedule the case for trial. At the motion to set hearing, or when the parties meet with the judge in his chambers (known as ex parte), not only will a trial date be set, but a mediation will likely be ordered and a mediator selected. Finally, during the hearing or ex parte on the motion to set, the court will schedule a date for the pre-trial hearing of the case.

A mediation is a formal gathering of the parties in a neutral location wherein settlement talks take place. While most cases do go through the mediation process at some point, not all of them will. In a case where an insurance company, and their attorney, have disputed liability, there may be no need for a mediation. This is because when a party does not believe they are at fault, they will not be making an offer of settlement. So, under such circumstances, the trial of a case will be focused on proving or disproving who is responsible as well as the extent of that responsibility. When mediation does occur, all of the parties, all of the attorneys, and a representative from the insurance company will gather together in a conference type room. A mediator will make some introductory remarks, as will any and all of the persons present. As your attorney, I will make an opening statement similar to what would be done at trial, only in an abbreviated form. The defense counsel, and possibly the insurance adjuster will also make some opening remarks. After the initial statements, the parties will break out into caucuses. This simply means that we will go into separate rooms. The mediator will then move from room to room discussing settlement options with all the concerned parties and attorneys. Hopefully the mediation results in resolution of the case during the mediation day. If not, the second hope is that the case will be resolved after several more days of discussions. When all discussions and negotiations fail, the next step is to proceed to trial.

Should you ultimately decide to file a lawsuit in your case, in the coming days, weeks and months you will see the slow development of the above process. Again, I encourage you to be patient. As time progresses, we will continue to discuss the various developments in your case, the strategies for putting forth your claim, all the while preparing the matter for presentation to a jury. As we move forward, remember that I am here to assist you with this course of action and bear some of the burden for you. To this end, you are free to contact me at any time to discuss your case.

New Office Space for Luke Law, LLC

by T. Hailey Hatcher

Attorneys Gary L. Luke and T. Hailey Hatcher are proud to announce that Luke Law, LLC is moving into a new office space. Over the next several days, our office will be moved from our present location into a newly remodled office suite located directly across the hall from our former location. If you are a current client of Luke Law, LLC, or if you have a need for legal representation, we would appreciate the opportunity to show you our new location.

Luke Law, LLC is located in Orange Park, Florida, and is conveniently located to Green Cove Springs and Middleburg and most areas in northeast Florida. We are also available to travel to you to discuss your legal matters.

Please contact us today to schedule an appointment to discuss your current or potential case, and view the new Luke Law, LLC location.

Cancellation or Nonrenewal of Your Automobile Insurance Policy

by T. Hailey Hatcher

When I have a client involved in an automobile accident who has sustained an injury, I always request a copy of my client’s automobile insurance policy. When the party at fault for the collision is not insured or when the at-fault party does not have adequate insurance to compensate my client, then I look to that portion of my client’s automobile insurance policy which provides coverage to the client for claims involving uninsured or underinsured motorists, typically referred to as UM coverage.

More often than not, my clients are immediately concerned about making a claim against their own policy for two reasons. First, since my client is not at fault, why should they make a claim against their own insurance? Second, clients are concerned that their automobile insurance policy could be canceled or nonrenewed at the end of the policy period. Since this seems to be both a frequent and a legitimate concern, I want to briefly address this issue.

As for the first client concern. If a client has UM coverage under their policy, they have, obviously, selected and paid premiums for a specific type of coverage – coverage which protects them against uninsured and underinsured drivers. Since a client has chosen to have this coverage, for the very purpose of protecting them against uninsured and underinsured drivers, it makes little or no sense not to make a UM claim. The coverage has been purchased, so clients should take advantage of what they have been paying for. This being said, there are circumstances, situations and conditions under which an individual may wish to forgo a UM claim, and they will be addressed in future editions of Luke Law, LLC’s blogs. In the meantime, if you have concerns, please call T. Hailey Hatcher to discuss them.

With respect to the second concern voiced by clients, cancellation and nonrenewal, the Florida Statutes have much to say on the matter. In Florida, our legislature has created laws which govern when insurance companies can and cannot cancel or renew policies. For example, Fla. Stat. § 626.9702 says that no insurer can impose or request an additional premium for automobile insurance, or refuse to renew a policy, simply because the insured has been convicted of one or more traffic violations which do not involve an accident or do not cause driving privileges to be revoked or suspended unless the insurer can provide adequate proof of a direct, demonstrable, objective relationship between the violation and an increased risk for highway accidents. In addition, this statute says that no insurer is allowed to cancel or terminate a contract for insurance after an insured has paid the premiums for 5 years or more because of a single traffic accident.

Other provisions of the Florida Statutes also apply to the cancellation and nonrenewal of insurance policies. Fla. Stat. § 627.728 contains very specific mandates for an insurance company when notifying an insured about policy cancellation. This section also says that no insurer shall fail to renew a policy for reasons based entirely on sex, occupation, marital status, residence, military service or age of an insured, on the principal place of garaging an insured vehicle or any combination therof. Further, the statute provides that no insurer shall fail to renew a policy for reasons based on the race, color, creed or national origin of the insured. Finally, and perhaps most importantly, this section says that an insurance company cannot fail to renew a policy for any reason which is arbitrary or capricious. Brief research into the case law reveals that the point of contention is often determining what constitutes arbitrary and capricious.

The final section that I would like to address is Fla. Stat. § 626.9541, which is entitled Unfair Methods of Competition and Unfair or Deceptive Acts or Practices Defined. Since the text of this statute is quite lengthy, and addresses numerous matters including false advertising by insurance companies, unfair claim settlement practices, specification of insurance costs, as well as cancellation and nonrenewal, I will be discussing these additional provisions in upcoming blogs. Please return soon to follow up for more information.

In the meantime, if you feel as though your policy has been wrongfully canceled or non-renewed, or if you have foregone making a UM claim for fear of having your policy canceled or nonrenewed, please contact T. Hailey Hatcher at Luke Law, LLC for a consultation regarding your insurance issues.