Body and Dash Cameras

One of the first conversations I usually have with my clients that hire me for their criminal case here in Polk County usually involves something like, “get the body camera or dash camera footage; it will show you what happened.” Unfortunately, here in Polk County, there are no body cameras or dash cameras.  Our Sheriff has made it abundantly clear that he does not support such technology.

 However, the National Association of Criminal Defense Lawyers released a report entitled “Policing Body Cameras: Policies and Procedures to Safety the Right of the Accused.”  This report supports police agencies using such technology and makes several recommendations for police departments including:

·        Having clear policies in place that establish when officers are to begin recording (not leaving it up to individual officers).

·        Recordings should be stored for specific time periods and long enough for the accused to support his or her defense.

·        Allowing the accused prompt access to the recordings.

·        Officers should not have access to the videos prior to preparing their reports.

·        Officers should not have access to the videos after encounters in order to bring additional charges.

This advice, and more, comes from legal scholars and criminal justice experts.

Larger cities across our country are beginning to come on board with body cameras and dash cameras.  Unfortunately, there is no uniform set of rules for the use of the technology.  Officers tend to not turn their body cameras on, in some circumstances, until after the event has taken place. 

After the recent shooting of the Australian woman by a Minneapolis officer, the technology depends on officers turning on their devices immediately upon dispatch.

These cameras are not intended to catch officers’ bad behavior.  In fact, this technology can protect officers from being unfairly accused.  They can clear officers when officers are doing exactly what they are supposed to be doing. 

If you are pulled over for a traffic stop, make sure you are respectful and cooperative while still maintaining your rights.  Read my other blog posts on saying no to searches and videotaping the police.

If you have been charged with a crime, you need an experienced criminal defense attorney who will protect your rights and fight for you. Contact Heather Bryan law today online, or call 863-825-5309, for your consultation.

Top 10 Things NOT To Do During A Divorce

A divorce is one of the most significant and emotional experiences that a person can go through.  Not only are you going through this life-changing event, but you have concerns about your finances, moving, belongings, and most importantly your children.  It is important not let this process turn you into a person that you don’t want to be—a person that you don’t even recognize.  Be the better person, even if your soon to be ex-spouse is not.  In the long run, you will be a healthier, happier person.  The following list is a compilation of my suggestions of how NOT to act during a divorce.

10. Don’t go pro se…if your spouse has hired an attorney, you have a lot of assets, debt, or income, or if you have children.  Too many things can go wrong.  It is best that you have a skilled attorney that knows the law and can represent your interests and advocate in your behalf.

9. Don’t disparage your spouse or discuss your divorce on social media.  You are hurting and this may seem like a great idea in the moment, but more than likely will come back to haunt you, especially if you have children.  You really don’t want your disparaging posts read in open court. 

8. Don’t flaunt a new partner. You are eager to put yourself back out there and excited when you find that someone.  However, do NOT post pictures of you with that someone on social media, bring that person to court proceedings, and most definitely do NOT bring that person around your children during the divorce process. These activities will instantly turn the most civil divorce into the most contested, drawn out divorce imaginable.  You do not want that.  You can wait until the divorce is final. (And for your own personal health, you really should anyway, but that is another blog topic).

7. Don’t attempt to hide your assets.  MORE than likely, they will be found.  Your spouse’s attorney will hire an expert and the divorce process will get costly and drag on.  You might even end up having to pay for your spouse’s fees and costs.  It is not worth it and you end up paying anyway. 

6.  Don’t fight over the television.  Stuff is stuff.  Is it really worth it?  Are you arguing over items because you are hurting?  Are you really going to pay your lawyer $300.00 per hour over that item?  You could have already replaced that item.  Think about it.  Relinquish your attachment to replaceable items and let the healing process begin.

5. My ex needs to “pay” for what happened. Divorce is painful. You may be hurting from abuse or an affair.  However, for the most part, no fault divorces under Florida law are NOT designed to punish parties.  Assets and liabilities are distributed equitably and alimony is awarded by need and ability to pay. 

4. Don’t wipe out the bank accounts. You are not entitled to all of the money in your bank accounts.  Even if your spouse did not earn the money in the accounts, you are not entitled to all of it.  Florida follows what is called equitable distribution of the assets.  All assets, and debts, will be divided up equitably.  If you and your spouse cannot come to an agreement, the court will decide, and the court does a good job of making sure that is pretty equal.  If you have wiped out all of the accounts and left your spouse with nothing, it will upset the judge and make you look bad, which might not go over so well for you at a future court date.  If you feel like you need to protect money that is in your bank accounts, contact an attorney immediately to find out how to do so.

3. Don’t go into the marriage home after you have moved out and take things without your spouse knowing.  Once you have officially separated, you and your spouse need to agree before you just go back into the home and take items.  If you cannot agree, and it is an item that you need, you can talk to your attorney about how to get the item prior to a final judgement. 

2. Don’t disparage your spouse in front of the children.  No matter how hurt you are or what your spouse has done, even if it is illegal, the parent of your children.  Nothing will ever change that.  And your children will love their parent, as they should.  If you think, even if rightly so, that your spouse is being a horrible parent, your children do not need to hear that from you.  If you can’t say anything nice, just don’t say anything at all.  One day, your children will figure it all out on their own. And they will love you and appreciate you more for it.

1. Don’t think of the children as “my” children and that your way is the only way. The children are both you and your spouse’s children.  And the court is presumptively going to give you and your spouse shared parental responsibility.  There is probably no way around that, unless you can prove that your spouse is somehow unfit.  It is best that you figure out a way to get along and to find a way to raise the children together.  Understand that in most cases, the court will order a parenting plan that puts both parents in the children’s lives.  So get used to it.  And read this article.

If you are in need of a family law attorney, contact Heather Bryan Law online or call 863-825-5309. 

 

Why I Do What I Do

I am often asked one of several questions by people with no understanding of what I do:

I am very proud of what I do.  I work each and every day to protect people and their Constitutional rights.  I protect them from an overzealous government.  I protect innocent people and people who have made mistakes.  And make no doubt about it, everyone makes mistakes.  

I have always been a public servant. I worked for over ten years as a public school teacher.  There did come a point however, when I decided I needed to do more.  I saw kids that I could not reach. They were not going to do their homework for me or learn from me when they weren't safe at home (think back to Maslow's hierarchy of needs).  

When I started law school, I immediately became an intern at the Public Defender's Office.  My first week on the job I saw a ten-year old in handcuffs. I cried.  This wasn't justice.  I knew at that moment, that this area of the law was what I was meant for.  

It was also through my work at the Public Defender's Office that I met James Bain.  Through a joint effort of the PD's office and the Innocence Project, he was exonerated after 35 years in prison for a crime he did not commit.  He is such a wonderful man. He has no hate in his heart.  It is truly amazing.

I have represented people who have been harassed for no reason by our government simply because they looked different or poor or "like trouble."  I have represented people whom I know were completely innocent of what they were accused of, yet their lives were potentially ruined because of the stigma.  

And yes, I have represented people whom I have no idea if they were guilty or not.  But that is not my job.  My job is to protect their rights.  Every person in this country has certain rights and protections guaranteed by our Constitution. The Constitution is not a technicality.  These rights are not only given to innocent people--they are given and guaranteed to all people.  If those protections are eroded, our country as a whole has lost. Whose rights will they come after next?

If you are in need of a criminal defense attorney, contact Heather Bryan Law online, or call her today at 863-825-5309.

 

Common Offenses With Driver's License Suspensions and Revocations

Offense                  Suspension/Revocation

Murder resulting from operation of a motor vehicle; DUI manslaughter where conviction represents a subsequent DUI-related conviction; 4th DUI (See 322.26, Florida Statutes)

Permanent revocation

 

Any felony where a motor vehicle is used; failure to stop and render aid when required in a crash resulting in death or personal injury; perjury to the Department under 322.26; conviction of 3 charges of reckless driving within 3 months; conviction of lewdness or prostitution with the use of a motor vehicle; conviction of any offense where there is the use of a motor vehicle and the Court feels it warrants the revocation of a driving; fraudulent insurance claims (See 322.26, Florida Statutes)

Indefinite revocation

 

DUI; Refusal (See 316.193, Florida Statutes)

Anywhere from 6 months to permanent revocation

 

Fleeing/Eluding law enforcement (See 316.1935, Florida Statutes)

Anywhere from 1 year to 5 year suspension

 

Possession of Controlled Substances (See 322.055, Florida Statutes)

1 year suspension

 

Theft (See 812.014, Florida Statutes)

Anywhere from 6 months to 1 year suspension

 

Racing on Highways (See 316.191, Florida Statutes)

1 year suspension

 

Habitual Traffic Offender (HTO) (See 322.264, Florida Statutes)

5 year suspension

 

Failure to pay child support

Suspended until paid

 

If you have been charged with a crime or need help obtaining a hardship license, you need an experienced attorney by your side.  Call Heather Bryan Law today, at 863-825-5309, for your free and confidential consultation, or contact us online.

You Have A Right To Remain Silent...Use It!

Our founding fathers very specifically crafted the protection against self-incrimination located in the Fifth Amendment with a purpose.  The protection dates back to English common law when the courts sought to prohibit the use of inquisitorial methods of interrogation.  By the late 1700's, Parliament had begun to recognize the presumption of innocence.  Of course, these ideas were carried over into colonial America and adopted into our Constitution. Through decisions of our Supreme Court, the protection of the Fifth has been well grounded and preserved.  Justice Frankfurter, in Ullmann v. United States, 35 U.S. 422 (1956), stated:

"This constitutional protection must not be interpreted in a hostile...spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States."

There is no shame or presumption that a person must have done something wrong or must have something to hide just because someone utilizes his or her constitutional right to remain silent.  

In fact, I would advise you to never speak to law enforcement without having a lawyer present. Far too often, your words will get turned in such a way that you never intended.  People tend to believe that since they are innocent and have nothing to hide, it is okay to speak to law enforcement.  Then the next thing, they know, they are in handcuffs, being charged with a crime that they did not commit.  You have the protection of the Fifth Amendment for a reason.  Use it!

If you have been charged with a crime, or need experienced representation for a legal matter, contact Heather Bryan Law online or call 863-825-5309 for a consultation.  

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.