To Blow or Not to Blow...

If you have been pulled over for a DUI, failed the field sobriety exercises, and told you are under arrest, the next step is submission to a breath test.  You will be asked if you will submit to a breath test.  You can refuse.  You have to determine if this is the best choice for you in the moment.  

If you refuse to submit to a breath test, your driver's license will automatically be suspended for a year in Florida.  If it is your second refusal, the Department will suspend your driver's license for 18 months and the State Attorney's office can charge you with a first-degree misdemeanor just for the refusal.  Driving is considered a privilege in Florida, not a right.

DUIs can be proven without a BAC, blood alcohol content level. The statute reads that a person is guilty of driving under the influence if the person: 

1) is in actual physical control of a vehicle, AND

2) a) the person is under the influence of alcoholic beverages, any chemical substance in section 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

   b) the person has a blood alcohol level of 0.08 or more; OR

   c) the person has a breath alcohol level or 0.08 or more.

Therefore, in addition to number 1, only a, b, or c needs to be met.  If you find yourself in this situation, it is imperative that you hire an experienced defense attorney to help you defend against your DUI charges. There may be issues with your traffic stop to begin with.  Did the officer have probable cause to pull you over?  Is there a motion to suppress issue?  If you did submit to a breath test, were there any technical issues with the machine?  These are all issues that an experienced DUI attorney can help you with.  

Contact Heather Bryan Law today at 863-825-5309, or online, for your consultation.  We are here to help!

Think Before You Post

Documenting our lives on social media has become second nature.  When an event occurs, we immediately take a picture and post it to some sort of social media account.  Most people do not consider the legal consequences of what they put on their social media accounts.

I recently put a meme on Instagram that read, “Dance like no one is watching; email like it may one day be read aloud in a deposition.”  I would apply this quote to all social media outlets.  If you would not want what you are about to post to be read aloud in a deposition or shown to a jury one day in open court, it is probably best not to post it.

The courts have had to rule on privacy issues when it comes to Facebook and other social media outlets.  The trend has been, in federal courts and in Florida, that if you choose to post something on social media, you are waiving your privacy, even if you have your privacy settings set to the most private.  The courts have rationalized that you are putting it out there for the world to see; and therefore, you are waiving your constitutional privacy rights. 

For example, if you have been injured in a car accident and are involved in personal injury litigation, defense counsel will more than likely request that you produce all social media pictures from the date of injury to present.  The courts have ruled this request is relevant as it can show whether in fact you are injured. 

Courts have issued similar rulings in all types of litigation from family cases to criminal cases.  There must be a finding of relevance, which is not hard to do.

One final piece of advice, if you know you are preparing for litigation, it is a very bad idea, to think, “I need to clean up my social media accounts.”  If you start deleting posts and pictures, you are destroying potential evidence.  This could get you into more trouble, and is potentially illegal.  Keep your accounts to the most secure settings, and just think before you post.

Heather Bryan is an experienced criminal and family lawyer.  Contact us online or call us at 863-825-5309 for your consultation.

Is It Possible to Reinstate Your Driver's License After A DUI?

Yes, for most people it is possible to reinstate your driver's license.

If you make a mistake and only have one DUI conviction, Florida statute requires the revocation of your driver’s license for 180 days to 1 year.  Sometime prior to the expiration of the revocation period, you may apply for hardship license.  In order to be approved for a hardship license, you must first complete DUI School and treatment, if required. 

If you have a second DUI conviction outside of a five-year period, Florida statute requires the revocation of your driver’s license for 180 days to 1 year.  Unfortunately, you are NOT permitted to reinstate early for a hardship license.  You must wait the full period of time in which the judge suspends your license before applying for reinstatement of your driver’s license. 

If you have a second DUI conviction within a five-year period, Florida statute requires the revocation of your driver’s license for 5 years.  You are permitted to apply for a hardship license after one year from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program.

If you have a third DUI conviction within a ten-year period, Florida statute requires the revocation of your driver’s license for 10 years.  You are permitted to apply for a hardship license after two years from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program

If you have a fourth DUI conviction, Florida statute requires the permanent revocation of your driver’s license.  You are permitted to apply for a hardship license after five years from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program

If you are convicted of DUI Manslaughter, Florida statute requires permanent revocation of your driver’s license.  You are permitted to apply for a hardship license after five years from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program

If you are convicted of DUI Manslaughter after a prior DUI conviction, Florida statute requires a permanent revocation of your driver’s license and you are NOT permitted to apply for a hardship license.

If you never apply for a hardship license and just wait to reinstate your license, you will still be required to show proof of enrollment in the DUI school and treatment.  If you fail to complete school and treatment within 90 days, the Department of Motor Vehicles can suspend your driver’s license.

Also, when you are reinstated, you must take the required driver’s exam, pay all fees, and provide proof of bodily injury liability insurance in the amount of $100,000 per person and $300,000 per occurrence and property damage liability insurance in the amount of $50,000.

If you have been charged with a DUI, you need an experienced DUI attorney as your advocate.  Contact Heather Bryan Law online or call 863-825-5309 for your personal and confidential consultation.

Be Careful What You Sign: Protecting Yourself and Your Assets

Sometimes people just sign documents without even reading them.  This practice is a dangerous one, especially when it comes to a power of attorney.  

Be wary of general power of attorney documents that gives broad power and have no expiration date.  I have seen two situations with horrific outcomes: 1), where a person did not even realize he or she was signing a power of attorney document, as it was done by trickery, and 2), where a person just did not thoughtfully choose the proper person to which to give the power of attorney.  In both situations, the people were stripped of their assets by others they thought they could trust. Both situations could have been prevented.  

First and foremost, read everything you sign.  Do not trust anyone, even loved ones and family members when they put something in front of you and tell you they just need your signature. When money is involved, unfortunately people can become selfish.  People can become quite nasty and unrecognizable when it comes to something they think they are owed.  

Second, when you need to assign a power of attorney for a specific purpose, limit the document both in scope and time. Some examples may include for the purpose of taking care of certain finances while away on an extended trip or to make health care decisions during a hospital stay.  Consult an experienced attorney to draft this power of attorney document for you and your best interests.  It is ill advised to have the person in which you are giving the power of attorney draft the document.  Finally, sign the document in the presence of witnesses and have it notarized.  

If you are in need of a power of attorney, contact us online or call Heather Bryan Law at 863-825-5309 for your consultation. 

 

Defending Against Domestic Violence Charges

Domestic Violence abuse is a serious allegation and nothing to joke about.  The unfortunate truth is that many innocent people are falsely accused each year of domestic violence crimes. The reason is because all it takes is a phone call to 911 and an allegation, and someone is going to jail.  

For example, the definition of domestic violence battery is any actual and intentional touching or striking of another person without consent, or the intentional causing of bodily harm to another person (a family or household member).  As you can see, nowhere in the definition does it say that the alleged victim must have actually been harmed.  The statute uses the word "or."  Because of this language, a "he said / she said" situation may occur, and someone ends up getting arrested and charged with domestic violence battery.  

In addition, the decision to prosecute is not up to the alleged victim.  That decision is ultimately up to the State Attorney's office.  The State of Florida, and in particular, Polk County, aggressively pursues these charges.  The prosecutor may still file charges against a defendant and prosecute a defendant even if the alleged victim signs a waiver of prosecution. The State has even been known to go after alleged victims for not being cooperative.  If an alleged victim does not show up for court, the State may have the police pick them up and hold them in contempt for not abiding by a subpoena.  

If you have been falsely accused of a domestic violence crime, it is imperative that you have an experienced criminal defense attorney by your side to fight for your rights.  In Florida, even if the judge withholds adjudication, with a guilty or no contest plea, you cannot seal or expunge your arrest, per Section 741.28.  The only way for the arrest to be expunged is for the charges to be dropped.  

Contact Heather Bryan Law online today or call us at 863-825-5309 for your free and confidential consultation.  Let us fight for you.

 

 

Premarital Agreements

I have recently been asked a lot about premarital agreements.  I personally have mixed feelings about them.  My optimistic side, that wants to believe in the happy ending, sees them as setting your marriage up for failure.  But then my lawyer side kicks that version of myself right back to reality.  

Depending on how you look at the statistics, approximately half of all marriages will end in divorce.  No matter what your hopes and dreams are, you cannot control the marriage or your partner.  It is important to protect yourself and your rights.  I can't help but think of the song by Kanye West, "Gold Digger" as I type.  The lyrics say, "If you ain't no punk holla we want prenup, we want prenup!"  This song happens to be about women, but it is equally applicable to men as well.  

As a general rule, premarital agreements are enforceable in Florida.  A well drafted agreement can protect your assets, reduce the potential for litigation, and clearly define your obligations.

Unfortunately, some people find themselves in a situation where they have signed an extremely unconscionable premarital agreement based on the empty promise of forever.  In addition, the spouse did not provide full disclosure of their finances prior to signing the agreement, and the premarital agreement left the other spouse with nothing.  This situation is one where the premarital agreement can be challenged.  

If you have questions about premarital agreements, would like to draft a premarital agreement, or need to challenge an unfair premarital agreement, contact Heather Bryan Law online or call us at 863-825-5309 for a consultation.

 

 

 

You Can Say No

Many people are taught growing up that they must be respectful to police officers and submit to their authority.  Police officers do come into harm's way quite frequently and work hard to protect society as a whole.  However, respecting police officers does not equate giving up your rights.  

You have a right to privacy that is specifically protected by the Florida Constitution.  You also have a right to freedom from unreasonable search and seizure.  This right is fundamental as is guaranteed by the U.S. Constitution's Fourth Amendment.  The police cannot violate this right without a warrant unless one of the following circumstances occurs:

  1. You have given the officer consent to search,
  2. The officer has probable cause to believe there is evidence of a crime in your vehicle (probable cause must come from specific facts and circumstances, rather than simply from the officer's gut feeling or suspicion),
  3. The officer reasonably believes a search is necessary for their own protection, or
  4. You have been arrested and the search is related to that arrest.

 If you are stopped and a police officer asks to search your person or your vehicle, you can say no. Now, I highly suggest doing so in a non-threatening, respectful manner.  I might say something such as, "Officer, with all due respect, I am utilizing my 4th Amendment right and denying your request to search my car."  I would then follow up this statement by asking the officer two very important questions: 1) am I being detained, and 2) am I free to leave.  

It is important to note, that if you tell the officer he or she cannot search your person or the vehicle, the officer, in Florida, might request a K-9 dog sniff unit to the scene.  Florida law permits the officer to detain you for a very short amount of time to conduct a dog sniff if there is probable cause for the traffic stop in the first place.  However, the amount of time that the officer is allowed to conduct the dog sniff is the amount of time that it takes to write a traffic citation.  It has been found to be unconstitutional for officers to hold you any longer than that and is the grounds for exclusion of evidence.  

By staying calm and remembering your rights, you can have successful interactions with police officers.

If you are in need of an experienced criminal defense attorney, contact Heather Bryan Law at 863-825-5309 for your consultation.

Time-Sharing and Suitcases

Let me preface by saying I am not a child psychologist--I am just a lawyer.  

I came across this article in the Huffington Post yesterday and I paused.  In my job, I work with parents who underneath it all, want what is best for their children. But sometimes, because of their own hurt and anger, they get sidetracked and lose sight of that.  This article demonstrates what happens to children when parents lose sight of putting their children first and start nitpicking about material things, such as items of clothing.  Children end up living out of suitcases.     

In Florida, the best interest of the child is always the primary standard used when it comes to determining time-sharing.  Judges will also look to other factors such as:

  • The moral fitness of the parents.
  • The mental and physical health of the parents.
  • The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
  • The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  • The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  • The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
  • The home, school, and community record of the child.
  • The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  • The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
  • The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
  • The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

If parents are telling the child, "that's Daddy's shirt; make sure that shirt comes back to Daddy's house," or "where are Mommy's shoes? I paid $50.00 for those shoes?," the child will feel like he or she does not have a home.  These statements are definitely not in the child's best interest and do not provide a stable environment.  

If you are in the middle of a custody battle and time-sharing is yet to be determined, take a moment to reflect upon the statements you are making when you are sending your child to his or her other home or when it is time for him or her to come back.  Be mindful of calling it Dad's house or Mom's house.  Your child will begin to feel like he or she doesn't have a home.  

If you are in need of a family lawyer, you need the help of an experienced family law attorney. Contact Heather Bryan Law today at 863-825-5309 for your consultation.

Shared Parental Responsibility

You may have heard the term "shared parental responsibility" when it comes to child custody. This doctrine means that each parent keeps full parental rights and responsibilities with respect to the child and both parents must communicate with each other so that major decisions affecting the welfare of the child will be determined jointly. Examples of decisions that are typically subject to shared parental responsibility include decisions concerning the child's daycare, healthcare, school, education, summer camps, and activities.  A Florida family law attorney would explain that many courts take the view that day-to-day decisions, such as bedtimes, diet, exercise, clothing, and choice of friends, are not subject to shared parental responsibility in normal cases. 

Extreme circumstances regarding certain day-to-day decisions may justify a court getting involved.  Courts frequently take differing views regarding religion, allowing each parent to expose a child to the parent's own religion during that parent's time-sharing.  If a particular type of decision is important to a parent, be sure to include that decision in the parenting plan as one that must be shared by the parents, or conversely be certain that either parent can make the decision during his or her time-sharing.

 In Florida, it is public policy that parents have shared parental responsibility.  A court, when determining parental responsibility for the child, will not have a certain presumption for the mother or father.  The days of courts granting primary decision-making to mothers simply because they are mothers are long-gone.  The court will take many factors into consideration.  The primary factor is always the best interest of the child. 

It is relatively rare for a court to grant sole parental responsibility to either parent.  The court must find that shared parental responsibility would be detrimental to the child.  Frequently, conduct that one parent may consider immoral, harmful, or inappropriate, does not meet the objective standard of being a detriment to the child.  The courts consider the child's relationship with both parents of great importance.

If you a Lakeland divorce lawyer or Polk County family law attorney, get someone with experience by your side. Contact Heather Bryan Law at 863-825-5309 for your consultation.

Yes You Can Videotape the Police, But Take Precaution

By now many of you have probably seen the video of the Uber driver/lawyer who was pulled over by police and told he could not record the officer.  The police officer told the lawyer to turn it off or he'd take him to jail.  The police officer also told the lawyer that it was a new law that was recently passed. None of these statements made by the police officer, however, were true.  

The lesson here is that the police can lie to you at a traffic stop.  It is important for you to know your rights and remain calm and respectful to prevent unnecessary charges, an arrest, or something worse.

In Florida, you can videotape the police, if they are on duty, in public, and you are not interfering with their ability to do their job.  The Eleventh Circuit Court of Appeals has ruled that people have a First Amendment right to record police in public unless they infringe on an investigation.  There is one gray area, however, and that is with audio.  State law requires consent for audio recordings when there is a reasonable expectation of privacy.  Most experts agree that this requirement pertains to wiretapping and does not apply to the videotaping of police officers that is permitted while they are on duty and in public. But because there has not been a specific ruling for this issue, the Florida Chapter of the ACLU recommends that if an officer tells you not to record audio, turn off the audio.

It is important to remember that just because the law allows you to videotape the police, this does not mean the police will be happy about it or cooperative.  They may even harass or lie to you, as the officer did to the lawyer in the video above.  It is imperative that you remain calm and respectful throughout the encounter.  You want to to show that you are not a threat. The officer will probably ask you what you are doing or why you are recording him or her.  It is best to respond with something such as, "Officer, it is my understanding of Florida law that I am permitted to record on duty police officers in public areas."  If your immediate response is aggressive, you will likely end up on your stomach in handcuffs or worse.  

It is also important that you keep a safe distance and do not make any sudden movements. Remember that the law allows you to record only if you do not interfere with the officer's job. Police officers are performing a dangerous jobs and do deal with very real threats.  If you know your rights, know the law, and remain respectful, you can fully exercise your rights with success.  

If you need legal advice on a criminal or family law matter, contact Heather Bryan Law at 863-825-5309 for your consultation.