Criminal Law

Florida's New Texting and Driving Law

If you have not heard, Florida’s legislature has passed a new bill banning texting, while driving. The law goes into effect on on July 1st. Texting while driving was already a secondary violation, meaning that if you were stopped for another offense, then you could also be ticketed for texting, but officers could not pull you over for the primary offense of texting. Now they can.

While many view this law as good news and a way to stop those “texters” who should be paying attention to the road, many of us who are involved in the defense of the defenseless view the new law as another way for the poor and minorities to be treated unfairly by law enforcement. Black and Hispanic motorists are already pulled over by police at a much higher rate than white motorists. Will texting while driving give the police another reason for traffic stops of minorities? The new law will require law enforcement agencies to record the race and ethnicity of violators and report the data to the governor and the Florida Legislature. But what will these offices do with the data?

Obviously, you should not text while driving. The law does allow hands-free use of the phone and texting at a stoplight. But beware! Make sure your phone is locked and password protected at all times. The Supreme Court has ruled that as long as your phone is password protected, law enforcement needs a warrant to search. If you happen to be pulled over, you have the right to remain silent and you do not have to consent to any searches.

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

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.


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.  





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.

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.

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.



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. 

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.


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.