Expungements and Record Sealing

People often ask about record expungement.  In Florida, record expungement is defined as court-ordered physical destruction of a record by any criminal justice agency or other public entity in possession of such information.  In order to obtain an expungement, the State must not have filed an indictment, information, or other charging document in the case.  If one was issued, it was dismissed by the State.  There are also disqualifying offenses that can prevent an expungement.

If one does not qualify for an expungement, there is the option of record sealing.  Sealing is defined as the court-ordered maintenance of a record where it is secure and inaccessible to any person not having a legal right of access to the information contained within it.  In order to obtain a sealing, one must not have been adjudicated guilty or delinquent, never have secured a prior sealing or expunction, or have committed a disqualifying offense, and not be under court supervision.

Basically, whether one expunges or seals their record, it allows a person to remove access to their criminal history.  There is only a limited record remaining with the Florida Department of Law Enforcement, which is required by statute, but it is free from public disclosure.

One thing to keep is mind is that there are entities that are still entitled to your sealed/expunged information.  By statute one is required to truthfully disclose the sealed history under certain situations.  These include:

1.      When one is a candidate for employment with a criminal justice agency;

2.      When one is a defendant in a criminal prosecution;

3.      When one is a candidate for admission to the Florida Bar;

4.      When one is seeking employment or licensure or contract with the Department of Children and Family Services, The Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;

5.      When one is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local government entity that licenses child care facilities;

6.      When one is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is the subject to a criminal history background check under state or federal law;

7.      When one is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;

8.      When one is seeking to be appointed as guardian pursuant to Section 744.31125; or

9.       When one is seeking to be licensed by the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm.

If you need help expunging or sealing your record, call Heather Bryan Law today at 863-825-5309, or contact us online.  We are here to help!

See Florida’s application checklist.

 

Co-Parenting Through the Holidays

It's that time of year.  The time when I get complaints about my child's parent is not being cooperative about Christmas and I want to take them to court.  It is difficult, because both parents want to spend as much time with their child as possible.  You may want to leave to go out of town earlier than your parenting plan will allow, and maybe the other parent is being unreasonable by not allowing you to do so.  Or maybe your parenting plan has been in place for a few years and now that your child is older, you believe the holiday schedule is just not working anymore.  Now I could be the type of lawyer that sees a money making opportunity and immediately starts typing up a motion for enforcement or a petition for modification, but I'm not.  I say let's put the brakes on and talk about this for a minute to see if that is necessary.

 

First and foremost, it is always about the best interests of the child.  The law looks to the best interests of the child, and the parents should be looking at what is best for their child.  Parents need to take a real long look in the mirror and ask themselves that question.  Is what I want really what is best for my child, or am I doing it for selfish reasons? Is what I am asking for or complaining about because I am lonely or to punish my ex?  Be honest.

 

Next, I would suggest not thinking of co-parenting and making compromises as "giving in."  When you co-parent, you are making choices that benefit your child.  Anything that benefits your child and makes your child healthier is not "giving in."  (Now, this is not to suggest that you allow someone who is a narcissist to control you and your life.  There is a difference.)

 

If the other parent is making unrealistic demands, expecting you to agree to modifications well beyond the parameters of the parenting plan, and it is having unhealthy effects on your child, then yes, it is probably best to seek some sort of legal action.  There are options other than immediately petitioning the courts, however.  That is why it is important to speak to an experienced family law attorney to discuss all of your options.

 

If you need to discuss modifications or enforcement of your parenting plan, give Heather Bryan law a call at 863-825-5309, or contact us online today.

Modifying A Parenting Plan

I get many calls from parents wanting to change, or modify, their parenting plan.  The problem lies in that their reason for the change may not meet the legal requirements for a change to the parenting plan. In order to modify a parenting plan, there must be a 1) substantial, 2) material, and 3) unanticipated change in circumstances and a showing that the modification is in the best interests of the child. 

Parents think that just because a parenting plan is no longer working for them, that is reason enough for a change.  It may be, if you can get the other parent to agree and both of you can come to a joint agreement for an amended parenting plan.  However, if the other parent does not agree, and you are attempting to petition the court for a modification to the parenting plan, the legal standard above must be met. 

A remarriage, a new child, a new job, or a new move, are typically not enough, unless there are unusual circumstances.  The courts have usually ruled that these circumstances are expected in life and are not unanticipated.  It is definitely not enough that the other parent is just being difficult.  It is best that you have an experienced family law attorney by your side to advise you and determine if you meet the legal standard.  Also, you might be able to utilize an attorney through some sort of alternative dispute resolution to stay out of court and arrive at an amended parenting plan outside of court.  

My best advise is to utilize an attorney from the beginning. It seems that most of my calls from parents wanting to modify their parenting plans are from parents that did not use an attorney in their divorce.  They “did it themselves.”  And now they are realizing all of the many situations they did not think through very clearly and need help sorting out.  If you are going through a divorce or need help with a modification, contact Heather Bryan Law for your consultation today, online or at 863-825-5309.

 

How Do I Approach Defending Criminal Charges?

First, I meet with my potential client to make sure that I am the right lawyer for him or her.  A client needs to feel comfortable with her or her lawyer.  This initial meeting is extremely important.  If at this initial meeting a potential client does not have a gut feeling that the lawyer is the right one for the job, then suggest he or she hire a different lawyer.  The relationship must be one of trust.  Once the engagement agreement is signed, then it is time to get down to the business of defending the case.   

I always begin with reading the statute, even if I have read it hundreds of times and I know it like the back of my hand.   The client needs to understand each and every element that the state has the burden of proving.  If the state cannot prove just one of those elements, then their case is over.  Think of it like a table with four legs.  If one of the legs is cut off, then the table falls.  Therefore, it is important to discuss each element of the alleged charge(s) with the client. 

It is very important to gather as much information as possible when discussing each element of the alleged charge(s).  Even though the state has the burden of proving their case, it makes the defense’s job much easier if the client happens to have an alibi or witnesses. 

The next step for me is to think about how the case law and how my client’s rights apply to the situation.  Have his or her rights been violated in any way?  For example, if the situation started because of a traffic stop, was the stop a legal stop?  Did the officer have the right to pull him or her over in the first place? 

During this process I demand discovery from the State.  The State has 15 days to comply with the demand from the date they officially charge a defendant and the date of the demand.  When I receive the State’s witness list, it will have a list of persons they intend to call as witnesses and all exhibits they intend to use in a trial.  The State must list all people and evidence, including exculpatory evidence.  If there are items on this list, like pictures or recorded interviews, I immediately order them from the agency (whichever police department conducted the interview or took the pictures).  This process of ordering all evidence can take a bit of time. 

As it starts to come in, I may discover that I need to order something from another agency.  For example, if my client was a passenger in a vehicle, when I get the police report, I will see the VIN number and tag number on the police report.  I will then need to order a certified copy of the vehicle registration from the Department of Motor Vehicles to prove the vehicle did not belong to my client.  This document may take another 6-8 weeks to arrive. 

Also, when I receive the State’s witness list, I may determine that I need to conduct a deposition of a State witness.  This decision is a delicate one.  A deposition is a sworn, statement given out of court before the attorneys and a court reporter.  Attorneys conduct depositions ahead of a trial to see what a witness might say at trial.  It also allows attorneys to get the witness to commit to a certain statement ahead of time, then if the witness changes his or her mind during the trial, he is perjuring himself.  There is no right or wrong decision in determining whether to conduct a deposition.  It is a strategy and another reason why you need to trust your attorney. 

Once all of the evidence is collected, I sit down with the evidence, the case law, and the statutes, and I think about how the case looks.  Do I think the State will be able to prove its case?  Then I look at the penalties (I have already discussed this with my client in the initial meeting) that my client is facing again.  I have another meeting with my client and go over it all with my client.  The final decision on whether to negotiate a plea or go to trial is ultimately up to my client.  But I do understand that my client is relying on my opinion of the case. That weighs heavily on me and I don’t take it lightly. 

I hope this summary helps you understand what a criminal defense lawyer does to help prepare your case.  If you have been charged with a crime, you need an aggressive, yet compassionate lawyer by your side.  Call Heather Bryan Law today for your consultation, at 863-825-5309, or contact us online.

DUI's: What qualifies as a vehicle?

DUI’s have been in the news lately, especially with what seems absurd charges like a DUI on a horse!  One might wonder what qualifies as a vehicle? Can a person get a DUI on a horse? What about a bicycle? What about a golf cart?

The Florida DUI statute states that in order for a person to be found guilty of a DUI, the person must be found to be driving or in actual physical control of a vehicle.  We can discuss “actual physical control” in another blog post, as our purposes here are to define “vehicle.” 

So what is a “vehicle”.  Florida statute defines a vehicle as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices and devices used exclusively upon stationary rails or tracks.”  By this definition a vehicle is any device by which a person or property may be transported.  Devices are manmade.  They are objects.  This definition of a vehicle, which does not include having any sort of motor or engine, allows bicycles to be included in the definition of a vehicle.  Therefore, a person can be found guilty of a DUI on a bicycle.  You can also be found guilty of a DUI on a golf cart, or any other type of device that fits the definition of a vehicle.

That brings us to a horse.  As a defense attorney, I would argue first that the horse is a mammal and not a device.  Therefore, a horse does not fit the definition of a vehicle.  Next, there is an exception within the Motor Vehicle statutes for “animals and animal-drawn vehicles” that allows them to be treated as pedestrians.  Finally within the statute, it states that whenever sidewalks are not provided, pedestrians can walk on the shoulder of a highway on the left side facing traffic. As there are no precedent horse DUI cases that I can find, this particular case should be interesting. 

If you have been charged with a DUI, you need an aggressive attorney by your side.  Call Heather Bryan Law, at 863-825-5309, for your consultation, or contact us online.

Helping Your Lawyer Prepare For Your Criminal Case

So you have been charged with a criminal offense.  You feel like your world is falling apart.  It is a difficult time that affects every aspect of your life.  You need a knowledgeable and experienced attorney by your side.  Hopefully you have hired one.  

What can you do to help?  There are several things. 

First and foremost: do not talk to anyone about your case except your attorney.  You have the right to remain silent.  Use it!  It is extremely damaging to your case if you speak about it with anyone. And it can kill your case if you put anything on social media.  You also have this right even with your attorney.  Your attorney will probably ask you very specific questions.  Think about how your attorney is asking those questions and answer the question that is being asked.  

Think of any evidence that you may have. Although the burden to prove their case is on the State, anything that you may have to disprove the State's case will definitely make things easier.  Do you have any witnesses?  Give their names and contact information to your attorney immediately.  The longer the amount of time that passes may make it difficult for your witnesses to be reached, or their memory may start to fade.  Do you have any documentation that may help like receipts, registrations, leases, or phone records?  For some of these items, certified copies may need to be ordered, and your attorney will need to have the time to do so.  

It is also important to stay in contact with your attorney.  Keep him or her updated with contact information.  You may have an unexpected court date arise, the state may disclose evidence at the last minute, or any number of things can happen to where your attorney needs to speak with you right away.

The most important thing that you can do is listen to the advise of your attorney.  Your attorney knows the rules of procedure and the rules of evidence.  What you believe may be important, unfortunately may not be admissible or legally relevant.  It is imperative that you have a relationship of trust with your attorney.

If you have been charged with a criminal offense, contact Heather Bryan Law for your consultation online, or call 863-825-5309. 

 

Marijuana and Decriminalization in Florida

The process of decriminalization of marijuana in Florida is slow, but occurring.  In all there are 14, counties, cities, and/or municipalities that have passed ordinances that give police officers the option to issue civil citations or fines rather than arrest a person who is caught with 20 grams or less of marijuana. It is important to note that in these cities or counties, the choice still lies with the individual officer whether to issue the citation or make an arrest for misdemeanor possession.  Each place’s ordinance varies, so it is important to read the specific ordinance.  Below is a list of places thus far that have passed such ordinances with links to more specific information about the ordinances.

Alachua County

Broward County

Hallandale Beach

Key West

Miami Beach

Miami-Dade County

Orlando

Osceola County

Palm Beach County

Port Ritchey

Tampa

Volusia County

 

West Palm Beach

Wilton Manors

On a national level, twenty states have enacted legislation decriminalizing possession under specific circumstances.  However, in Florida, there has been a resistance among the voters at the state level.  Arguments for decriminalization include: 1) law enforcement should use their time going after much more serious matters and criminalization is expensive, including the cost of prosecution, 2) the idea that legalization would lead to higher crime has been rebutted by data in Colorado, 3) marijuana is (relatively) harmless, and 4) minorities are arrested and charged for possession at a much higher rate than whites.

Here in Polk County, possession of marijuana is still aggressively prosecuted as a first-degree misdemeanor.  If you are in possession of less than 20 grams, you can face up to 365 days in Polk County Jail. 

If you have been charged with possession of cannabis, or any other drug crime, contact Heather Bryan Law for your consultation today at 863-825-5309, or contact us online

 

Heather's Top 5 "Myths" in a Divorce Case

5. We have already agreed to everything.   You may have sat down and agreed to everything.  You may have even typed it up and signed it.  But all of that may go down the drain, when it actually comes down to the process of the the divorce.  I have seen that happen more times than not.  Divorce somehow has a way of making the ugly come out in even the best people.  They are hurt and and they want their spouse to feel their hurt.  Suddenly those agreements go are non-existent.

4. My spouse is not going to hire an attorney.  I had this happen just this past week.  Guess what? The spouse hired an attorney.  And as they should!  You cannot count on the fact that everything is just going to go your way during the divorce process.  You must be willing to compromise on some things.  

3. I know my soon-to-be-ex-spouse better than you (attorney).  Therefore, I am not going to listen to my attorney's advice.  You hired your attorney for a reason.  You really should listen to your attorney.  Your attorney deals with these types of situations on a daily basis.  He or she is a pretty good predictor of how spouses will react in certain situations.  It's usually a good idea to listen!

2. This is going to be easy.  The minute I think this is the minute something goes terribly awry.  I have learned to never think this way.  And if it does end up being easy in the end, then great!  (But I haven't had a family case yet that was easy.)  In family cases, you are dealing with the end of a marriage, child custody, and money issues.  None of these are easy issues.

1. I don't need an attorney. Even lawyers hire lawyers.  Emotions are high and you are not at your best during this process.  You need an advocate to stand beside you and make sure you are protected.  

If you are in the midst of a family case, you need a compassionate, yet aggressive attorney by your side.  Call Heather Bryan Law today for your consultation, at 863-825-5309, or contact us online.

StingRays and Your Right to Privacy

In 2014, the Florida Supreme Court protected privacy by ruling that it is a violation of the Fourth Amendment to track cell phone location data without a warrant.  Police departments in Florida and around the country have been using metadata from cell phones to track a person’s location in real time without obtaining warrant.  The ruling also covered the use of StingRays, a technology often used by law enforcement to track people.  This device tricks cellphones into sending it their location information, as it is a cell-site simulator.     

The ACLU defended the 2014 Florida decision by saying that it not only gives location information, but the most private information in our lives—like doctor’s visits. 

Even though this has been the ruling in Florida since 2014, other states have continued to use StingRays.  However, on September 21, 2017, an appellate court in D.C. ruled with Florida, finding that warrants must be issued prior to StingRays being used.  This ruling is now the fourth such ruling in the country.

There are still 72 simulators in 24 states according to the ACLU; and there could be many more.  It looks like this issue could go before the highest court in the land for a final decision. 

If you have been charged with a criminal offense, you need the help of an experienced criminal attorney to stand beside you and fight for you.  Contact Heather Bryan Law for your consultation today, at 863-825-5309.

Summary of FEMA Relief for Polk County

Polk County has now been added to the list of counties that are eligible for disaster relief from FEMA.  Individuals in Polk County can get recovery support and disaster assistance.  For help, you will need the following information:

·        SSN

·        Daytime telephone number

·        Current Mailing Address

·        Address of Damaged Property

·        Insurance Information

Information is available at 1-800-621-FEMA and www.DisasterAssistance.gov.

What Specific Help is Available?

Individuals and Households Program

Covers temporary housing and rental assistance, home repairs or replacement, and other needs not covered by your homeowner’s insurance because of hurricane Irma.  It does not have to be repaid.  It will not cover items covered by your homeowner’s insurance.  If you do not have homeowner’s insurance, this program may provide assistance.  Also, if you are underinsured, this program may help you.  Decisions are based on need. 

Mortgage Help

You may qualify for help with your mortgage depending upon your specific circumstances and your lender.  Federal mortgage agencies such as Fannie Mae, Feddie Mac, and FHA have programs available for very specific circumstances.  Examples include: suspending foreclosure sales for 90 days, forbearances, and temporary suspensions or reductions of mortgage payments for up to 6 months.  Call your lender and let them know you are in Polk County and request relief because of Hurricane Irma to see if you qualify. 

Long-term Shelter

If you need long-term shelter because of damage to your home, you may be eligible for Transitional Shelter Assistance.  You must register through FEMA.

Unemployment

If you have lost your job because of Irma, unemployment assistance may be available once you have applied for and used all regular unemployment benefits from a state or do not qualify for unemployment benefits.  This benefit also applies if you were injured because of Irma. 

Business Recovery Center

If you have a small business and need help recovering from Irma, representatives are available to discuss federal loans that can help small businesses recover.  Thus far one has not opened in Florida, like they have in Texas, but be on the lookout for one by doing google searches and watching the news. 

 

9.0Heather Bryan