The DMV's Authority to Revoke or Suspend Your Driver's License

Driving is not a right.  It is a privilege in Florida.  As such, the DMV has a lot of authority over whether or not a person has a driver’s license.  Chapter 322 of Florida Statutes lays out specific laws regarding driver’s licenses.

The most common reasons people lose their driver’s licenses include:

1.      Drug related offenses – Per section 322.055, when a person is convicted of a drug related offense, the court shall direct the DMV to revoke the driver’s license of the person for 1 year;

2.      Habitual Traffic Offender – Per section 322.264, when a person has accumulated the specified number of convictions in (1) or (2) within a 5-year period the license is suspended for 5 years:

(1)   3 or more convictions of any one or more of the following:

a.      Voluntary or involuntary manslaughter resulting from operating a vehicle;

b.      Any violation of 316.193 (DUI)

c.      Any felony in the commission of which a motor vehicle is used

d.      Driving a motor vehicle while his or her license is suspended or revoked (MOST COMMON)

e.      Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or persona injury of another OR

f.       Driving a commercial motor vehicle while his or her privilege is disqualified

(2)   15 convictions for moving traffic offenses for which points may be assessed as set forth in 322.27 including those in (1);

3.      DUI – Per section 316.193, DUI convictions result in suspensions anywhere from 6 months to permanent revocations. 

If the DMV suspends, cancels, or revokes a person’s driver’s license, the person shall be immediately notified and given the opportunity for an administrative hearing.  At such a hearing, a person may show that a suspension will cause a hardship on their business or family and it is necessary to have a license for business purposes.  Completion of driver training courses or DUI program courses may be required. 

If your license was revoked because of an HTO, you must wait at least 12 months from the date of revocation to petition for a hearing.  Also, if your license was suspended because of a DUI conviction, you must wait 180 days before you are eligible for a hearing.  If you have had two or more DUI convictions within a 5-year period, you are permitted to apply for the hardship after one year from the effective revocation date. 

Finally, if you refuse to submit to a breath test, your driver’s license will automatically be suspended for a year.  You may immediately apply for a hardship. However, a second refusal results in an 18 months suspension with no opportunity to get a hardship and a first-degree misdemeanor charge just for the refusal. 

If you have a driver’s license suspension looming, you need an attorney to help you fight to keep your license.  Call Heather Bryan Law at 863-825-5309, or contact us online.

 

What is the difference between a legal father and a biological father?

A family law case is before the Florida Supreme Court right now that is quite interesting.  The court must decide a dispute between a child’s legal father and her biological father.

You see, in Florida, when a child is born of a marriage, the legal father is the man married to the mother.  The legal father, therefore, may not be the biological father.  Thus, the biological father may not have any rights to the child. 

This presumption of legitimacy is based on the public policy of protecting the welfare of the child.  Prior to DNA testing, there was no scientific way of knowing biologically who the father was.  It was presumed that the husband was the father. This presumption protected the welfare of the child.  In cases of divorce, the child had protections of child support and health care. The law has not kept up with the science.

As the law is currently, a legal father who is not a biological father would have to agree to release his rights and there would have to be a dissolution of marriage for a biological father to begin the process to become the legal father.  If the legal father is not willing to disestablish his rights, a paternity action would ensue.  If the legal father and mother wish to remain married, then the biological father cannot become the legal father.

This very issue is what the current case before the Florida Supreme Court is about.  The biological father is asking the court to grant him shared custody and parenting rights with the legal father and mother, as they remain a married couple.

Ultimately, the Florida legislature, as well as all state legislatures, are going to have to modernize the law to keep up with scientific developments. 

If you have a paternity issue, contact Heather Bryan Law for your consultation.

 

But the pot was not in my possession!?

I hear this all of the time.  Under Florida law, there is actual and constructive possession.

Actual possession is when the illicit drugs are on your person.  In other words, the drugs are in your pocket, in your sock, or in your hand.  Actual possession is an easier case for the State to prosecute.  There may still be issues with a warrant or a stop that can lead to a suppression of evidence.

Constructive possession is where it gets tricky.  Constructive possession means a person exercised control over a substance.  Mere proximity does not establish intentional control.  In order to prove "possession" the state must prove beyond a reasonable doubt that the defendant 1) knew of the existence of the drugs and 2) intentionally exercised control over the drugs.

Let's take the following scenario.  You are the passenger in a car with a friend.  You are sitting in the front, passenger seat. Unbeknownst to you, there is a make-up bag underneath your seat with .5 grams of marijuana in it.  There is a traffic stop and subsequent search.  The driver of the vehicle gives permission for a search of the car.  You and the driver are arrested for possession of marijuana and paraphernalia.

It is important to note here that Florida allows for joint possession.  Two or more persons can possess the same drugs.  In other words, two or more people can be arrested, prosecuted, and found guilty for the same 0.5 grams of cannabis (or even something smaller like the same roach).

Why are you being arrested for something that you had no idea was even in the car?  "Those are not my drugs," you tell the officers.  But they won't listen.  You find yourself being handcuffed, booked, and your mugshot being taken. Now you are facing up to a year in county and a driver's license suspension.  Charges like this are frequent. 

It is imperative that you have a criminal defense attorney beside you to help defend you against these charges.  An experienced criminal defense attorney can help bring that reasonable doubt that you knew of the existence of the marijuana in the first place should your case go as far as a trial. 

If you find yourself with a drug charge, call Heather Bryan Law at 863-825-5309, for your consultation, or contact us online.  

 

 

 

 

But I Am The Father, Why Don't I Have Any Rights?

You may very well be the biological father but does not mean you are the legal father or that you have any legal rights to your child.  It is important that if you are an unmarried father, you immediately establish your legal rights to your child.  In Florida, if a child is born out of wedlock, there is no presumption of fatherhood.  Paternity should be established first and foremost. 

An establishment of paternity can be done in several ways:

·        At the hospital, the “father” and mother when signing the birth certificate also sign an affidavit acknowledging paternity.  This affidavit is notarized and witnessed by 2 individuals.  If you only signed a birth certificate but did not sign this affidavit, you have not established paternity. 

·        The “father” or mother files a petition for paternity through the court.  The parties then either stipulate to paternity or there is DNA testing that is conducted. 

·        The Florida Department of Revenue may commence a paternity proceeding and child support proceeding.

If you do not establish paternity, the mother has all of the legal rights concerning the child and the “father” more than likely has none.  Therefore, even a biological father will likely have no say when it comes to time spent with the child, schooling, travel, or even if the mother decides to move the child out of state.  Paternity must be established before the “father” has a say in any of those things. 

One of the more pressing concerns is that a mother could give the child up for adoption and the “father” would have no recourse.  It is imperative that a “father” preserve his rights by registering with the Florida Putative Father Registry maintained by the Office of Vital Statistics.  This registration will preserve a “father’s” right to notice and consent to an adoption. 

Once paternity is established, this does not automatically mean that parental responsibility or a time-sharing arrangement is established.  It is important that you file for a parenting plan with the court so that you have a time-sharing arrangement for your child and parental responsibility is established.  If you file a petition for paternity, a parenting plan will and child support will be a part of that process.

If you are an unwed father and need to establish paternity or time-sharing for your child, contact Heather Bryan Law today.  We will advocate for you!

What is an HTO?

What is an HTO?

HTO stands for Habitual Traffic Offender. Upon being deemed a habitual traffic offender, the Department of Motor Vehicles will revoke your driver’s license for 5 years.  There are a couple of ways that you can be deemed a habitual traffic offender in Florida:

1.      3 or more convictions of any one or more of the following offenses arising out of separate acts within a 5-year period:

a.      Voluntary or involuntary manslaughter from driving a motor vehicle;

b.      Any DUI violation;

c.      Any felony in which a motor vehicle is used;

d.      Driving a motor vehicle while your driver’s license is suspended or revoked;

e.      Failing to stop and render aid as required under the laws in the event of a crash resulting in death or personal injury of another; or

f.       Driving a commercial motor vehicle while the privilege is disqualified.

2.      15 convictions for moving traffic offenses for which points may be assessed within a 5-year period.

If you receive a notice from the DMV that your have been given HTO status, it is important that you contact an attorney immediately to see if there is anything that he or she can do to help you.  In some situations, an attorney can file certain motions in your behalf to remove the HTO status. 

It is of utmost importance to note that if you have been given HTO status, do not drive!  If you are caught driving, the consequence is now more than just a misdemeanor.  It is now a felony.

If you have been deemed a habitual traffic offender, you may apply for a hardship license after 1 year from the effective date of the revocation.  You must contact the Administrative Reviews Office in your area to request a hearing.  You must provide proof on enrollment or completion of the Advanced Driver Improvement School and pay a revocation reinstatement fee and any other fees or fines that may be outstanding.  Hardship licenses are for employment/business purposes only. 

If you have questions about your driving status, need help fighting driving charges or an HTO designation, call Heather Bryan Law today at 863-825-5309, or contact us online.

Can I get my attorney's fees paid in my family case?

Divorces can be expensive. So can going back to court to enforce orders in a multitude of family issues from time-sharing to alimony payments.  Many people attempt to represent themselves because of the cost of attorney’s fees.  While in some circumstances (I would venture to say very few) a person may represent himself or herself quite well, in most circumstances, a person does not know all of his or her rights and does not end up with the best outcome. 

Florida does allow for courts to order one party to pay the other party’s reasonable attorney’s fees and costs in certain situations to ensure that both parties have equivalent access to capable legal counsel and to ensure that one party does not have an unfair advantage over the other.  The court must first consider the financial resources of both parties.  The primary considerations of the court are need and ability to pay.  In other words, the party asking to be awarded attorney’s fees must prove that he or she has a need.  Then he or she must prove that the other party has the ability to pay. 

The request for attorney’s fees must be made in the initial document filed in the case, typically the petition.  If the party defending the case also wishes to ask for attorney’s fees, then he or she must ask for them in his or her first document filed, either the answer or counterpetition. 

The court can grant temporary as well as final fees.  The court uses the same considerations for temporary as final fees: need and ability to pay.  It is important to note that one may have a need, but that does not necessarily mean that the court will find that the other party has the ability to pay. If this is the case, then the party will not be awarded attorney’s fees. 

Finally, the fee must be reasonable.  The court will consider the amount that the attorney is requesting and if it is in line with the standard in the community and the experience of the attorney.  A court may grant an award of attorney’s fees but may lessen the amount that is requested because the court determines the amount to be unreasonable.  Also, the court will consider whether or not the party and attorney have filed frivolous motions for the purpose of delaying resolution of the case.  If this is the case, then the attorney’s fees may be denied. 

If you are considering a divorce or other family matter, you may have a valid claim for attorney’s fees.  Call Heather Bryan Law at 863-825-5309 or contact us online, to discuss your case today.

What is Resisting An Officer Without Violence?

If you live in Polk County you have probably seen the video circulating social media of the gentleman that was supposedly resisting arrest by Lakeland police officers and therefore force was used against him.  According to the chief, that force was necessary because the gentleman was “actively resisting” and his resistance was even “violent.” 

This video has caused an array of opinions whether the officers’ response was justified.  What one must question is what exactly is resisting an officer without violence?  And what exactly what must one do to get charged with this crime? 

Florida Statute section 843.02 defines resisting an officer without violence as resisting, obstructing, or opposing any officer in the lawful execution of their legal duty, without offering or doing violence.  I am sure that clears things up!  Therein lies the problem.  An officer just has to say that a person is opposing him or obstructing him in some way, and he can charge that person with resisting. 

I personally have seen items on police reports such as “clenched fists” and “stiffened arms.”  I just shake my head as I read these allegations.  Of course a person is going to have a stiffer body posture if being manhandled!  Another common example is when someone does not follow orders fast enough. They are told to either sit down or stand up and they just don’t do it as fast as the officer would like.  It is therefore seen as resisting.  A final common example is when people say things to officers that the officers see as offensive.  They may use curse words or call the officers names.  This one is a little easier to defend because as long as you are not making threats, you have a right to free speech. 

If you happen to be arrested, even if the arrest is not justified, try to just go along with it.  Try not to stiffen your body language in any way and just follow the officer’s orders as quickly as possible.  Doing this will prevent the extra charge of resisting an officer without violence.  Unfortunately, in most of these cases it is the officers’ word versus your word, especially in jurisdictions where law enforcement is in opposition to body cameras. 

If you have been charged with a crime, you need an experienced criminal defense attorney by your side.  Call Heather Bryan Law, at 863-825-5309, for your consultation, or visit us online.

Co-Parenting and Relocation

One would think that you should be able to pick up and move with your child(ren) whenever and wherever you would like. However, if you have shared parental responsibility pursuant to a parenting plan in Florida, unfortunately you cannot just move; or you might be in contempt of court.  It seems that I have had to counsel quite a few people on "relocation" lately, so I thought a blog post was necessary.

Relocation is the change of your residence at the time of the order establishing or modifying time sharing for 60 consecutive days.  The change of location of residence must be 50 miles.  Therefore, If you move within a 50 mile radius, then you have not relocated.  

If you and your co-parent agree to the relocation, then the statute allows the two of you to sign an agreement saying that you both consent.  The agreement must also define the new time sharing schedule and describe the transportation arrangements.  This agreement can be filed with the clerk of courts and the parent who wishes to relocate is free to do so.

If the other parent opposes your relocation, however, you cannot just do it anyway.  You must file a petition to relocate and have it served on the other parent.  There must be a hearing before a judge to determine if the relocation is in the best interest of the child.  It does not necessarily matter if it is in your best interest to relocate.  The court's main consideration is whether it is in the child's best interest.  The court will look at all of the following factors for consideration:

  • The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life;
  • The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
  • The feasibility of preserving the relationship between the non-relocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court;
  • The child’s preference, taking into consideration the age and maturity of the child;
  • Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities;
  • The reasons each parent or other person is seeking or opposing the relocation;
  • The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child;
  • That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations;
  • The career and other opportunities available to the objecting parent or other person if the relocation occurs;
  • A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation; and
  • Any other factor affecting the best interest of the child or as set forth in s. 61.13.

If you relocate without going through the proper procedure of filing a petition, then your co-parent could file for contempt against you.  The judge would more than likely use that against you in any future proceedings considering your request to relocate.  In addition, you may also be charged criminally for kidnapping.  

If you are considering relocation, or if your co-parent has attempted to relocate without your permission, then you need the help of an experienced attorney.  Call Heather Bryan Law for a consultation at 863-825-5309, or contact us online.

 

False Confessions

There are only 24 states that require police interrogations to be recorded from start to end, and Florida is not one of them.  Not recording the entirety of a police interrogation is a problem, especially considering that in over 25% of wrongful convictions that have been overturned by DNA evidence, the Defendant made false confessions to law enforcement during the interrogation. 

Why do people make false confessions?  

Most people believe that they would most certainly not confess to a crime that they did not commit.  However, studies show that under the conditions of an interrogation, false confessions are a huge problem that cannot be overlooked. 

Law enforcement officers often give details to crimes leading suspects in the direction that they wish him or her to go.  For example, the officer may tell the suspect that he knows he used a shovel.  He knows he used a shovel to hit him.  And he hit him in the head.  He hit him in the head over and over.  This goes on for hours, wearing the suspect down.  Finally, after hours off camera, the suspect knows all of the details of the offense.  Then the suspect cries out yes!  Then the camera is turned on and he gives the entire narrative after it has been fed to him. 

Confessions are unreliable.  Children and people with mental disabilities are especially easy to manipulate and are susceptible to false confessions.  In addition, impaired mental states because of drugs or alcohol, or mental illness also contribute to false confessions. 

People don’t realize that it is perfectly legal for law enforcement officers to use deception, to outright lie, to obtain a confession.  Suspects may be told things like, we know you did it.  We already have the forensic evidence to prove it.  We have your fingerprints.  We have the weapon.  The list goes on.  None of this has to be true.  After hours of hearing that law enforcement has all of this evidence against you, it makes a person susceptible to give a false confession. Some are told they will be convicted and if they confess their sentence will be more lenient.  Law enforcement has no control over sentencing or over plea deals.  Those decisions are left to judges and state attorneys.

People confess to crimes they did not commit because of duress, coercion, intoxication, mental impairment, ignorance of the law, fear of violence, threat of a harsh sentence, misunderstanding of the situation, and much more.

Recording interrogations, from the very start to the very end, can prevent these types of issues from arising.  Disputes over how suspects were treated, whether confessions were coerced, etc., will be prevented.  If you are a Floridian, I encourage you to call or write your state senators and tell them to pass Senate Bill 1220, requiring that all custodial interrogations be recorded in their entirety.

If you have been charged with a crime, you need the help of an experienced criminal defense lawyer by your side.  Contact Heather Bryan Law today online, or call 863-825-5309 for your consultation.

Sources:

http://floridainnocence.org/content/?page_id=70

https://www.innocenceproject.org/causes/false-confessions-admissions/

http://jaapl.org/content/37/3/332

 

Prostitution in Florida

I happen to live in a county where the Sheriff is known for prostitution stings.  I just did a google search and almost every hit was for my county!  As a criminal defense attorney, this causes me some distress.  (One might think, this brings me business, but I have different opinions on the matter).

In Florida, prostitution is defined as the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.  It is a misdemeanor for a first or second violation. It becomes a felony of the third degree for a third violation.  In addition, a person who specifically solicits, induces, entices, or procures another to commit prostitution is subject to a minimum mandatory 10 days incarceration, vehicle impoundment, and a civil penalty of $5,000.00. 

Most of the people charged with prostitution are low-income women.  In fact, statistics show that 80% are women.  Most are put into the industry at the age of 14.  These women are forced into prostitution by pimps.  They are nothing but modern-day slaves.  Approximately 70% have experienced multiple rapes by their customers and pimps. 

Why are these women being arrested for prostitution and treated as criminals?

What we really should be focused on is sex trafficking.  To quote Oklahoma state representative Sally Kern, “existing laws [are] inadequate because we [aren’t] going after the true offenders.”  These women are victims, and need to be treated as such.  They have been coerced into selling themselves.  We need to allow them to expunge their records and provide help for them.  We need to protect them and their identity so they can testify against their traffickers and pimps. 

Until more people care about this issue, and take the time to inform their elected leaders, the laws won’t change. 

If you have been charged with prostitution, contact Heather Bryan Law for your consultation online or call us at 863-825-5309.  You need aggressive, yet compassionate representation.