Recently I posted that the Florida House and Senate passed a bill to help clear wrongfully accused individuals records. The Governor signed SB 118 into law. Starting July 1, 2018, yes that is 2018, this law will take effect.
Highlights of the law include prevention of any entity in the business of publishing arrest booking photos from charging a fee to have the photograph removed. Removal shall be done within 10 calendar days. The law will also allow administrative sealing on criminal history pertaining to an arrest where the state declined to file, or entered a nolle prose (dismissal).
Have you been told by your insurance agent “you have full coverage”? Do you know what “full coverage” is? I don’t. The reason why it is subjective. To some full coverage is the minimum, to others it might mean everything under the sun, and an umbrella policy. Watch this video for a better explanation. https://youtu.be/KcLDp0Fx-AE
State Bill 118 was passed in the house and senate and is up for the Governor to sign. This bill does two things; first it creates a way for those who have been arrested and have their case dismissed, or no filed, have their records removed from public viewing for free. Second, the bill creates an easier way to have a case sealed.
For those who don’t know, private entities have made lots of money over the past seven years by taking public records and reposting arrest information on private sites. Mugshots.com, Boca busted.com, arrests.com, or just some examples of websites who post mugshots. The problem is now, when someone is arrested and has their case dismissed, or even expunged, there mugshots will remain on those sites. Often times sites like these charge to have the mugshots removed. This bill would make it a penalty for the website to keep the mugshots up once the defendant makes a request in writing for the removal of a booking photograph.
This will save innocent people lots of money from having to pay to have their mugshots removed. Let’s all hope Gov. Scott will sign this bill.
In Saturday’s Palm Beach Post, a story was reported that the Florida Legislature is contemplating a new law mandating a ignition interlock be placed in a vehicle for all first time offenders for DUI.
An ignition interlock is a device to sense alcohol prior to starting a vehicle. Currently, it is not mandated by statute on a first offense, unless the offender had a breath of .15 or above (almost 2x the legal limit).
The proponents of the bill state that this will save lives. They site to studies that it cuts down on recidivism, and state “The recidivism rate drops dramatically because you simply can’t do it again,” said Heather Geronemus, a member of the Mothers Against Drunken Driving chapter that covers Broward and Palm Beach counties. “In the case of people who have already offended and been convicted, we’re helping them make a better decision.”
While I applaud any effort to reduce Drunk Driving, I think those in the legislature who put this bill forward think its a win/win. No one in congress seems to oppose laws that make DUI penalties more severe. Why would they, on the next election, their opponents would say this person helps drunk drivers.
The Florida DUI laws in place are very strict and have severe penalties for first offense like:
1. Mandatory conviction. (Stays on your record forever).
2. Mandatory probation.
3. Mandated DUI school. Which requires an evaluation, and mandatory treatment if required.
4. Vehicle immobilization.
5. Community Service Hours
6. Minimum fine of 500.00 dollars.
These penalties are on top of penalties imposed by the DMV, which can result of the loss of your license for 6 months to 1 year.
By the time someone has been convicted of their first DUI they have already spent hours in court, probation, dui school, community service, and more than likely have lost the ability to drive. This can put some one’s job at risk.
Lastly, the increased monthly expense of having an interlock device can be astronomical. This will only set those up to fail.
We should stop imposing more penalties and use resources to help those make bad decisions to start making better ones.
DUI is a very serious crime that can have fatal implications. There is no excuse for it. I don’t believe increased penalties on a first offense will significantly drop the recidivism rate.
I know you have seen those billboard advertisements on 95 depicting an accident victim saying So and So Law Firm got me $600,000.00 There is no better explanation of why Billboard advertisements can be misleading than this SNL skit.
Why are some cases worth more than others? Did the amount on the billboard actually go to the client or were there medical expenses, legal expenses, legal fees deducted? These questions cannot be verified just from the billboard alone. Like the skit, you don’t know what attorney in the firm handled the case, did you get Brodrick or Ganz.
If you have been following my blog over the past couple years you know I try to keep everyone updated on the State of the Constitutionality of the Red Light Camera Tickets. In Broward and Palm Beach the Arem decision held them unconstitutional in the Fourth District Court of Appeal. The Third District held this summer under State v. Jimenez that the City of Aventura’s use of a private entity did not violate any rights. It should be noted that the City of Aventura had a different procedure compared to the City of Hollywood (Arem Case).
The Jimenez case did however certified 3 questions for the Supreme Court of Florida to Answer:
1. Does the review of red light camera images authorized by section 316.0083(1)(a), Florida Statutes (2014), allow a municipality’s vendor, as its agent, to sort images to forward to the law enforcement officer, where the controlling contract and City guidelines limit the Vendor to deciding whether the images contain certain easy-to-identify characteristics and where only the law enforcement officer makes the determinations whether probable cause exists and whether to issue a notice of violation and citation?
2. Is it an illegal delegation of police power for the vendor to print and mail the notices and citation, through a totally automated process without human involvement, ] after the law enforcement officer makes the determinations that probable cause exists and to issue a notice of violation and citation?
3. Does the fact that the citation data is electronically transmitted to the Clerk of the Court from the vendor’s server via a totally automated process without human involvement violate section 316.650(3)(c), Florida Statutes (2014), when it is the law enforcement officer who affirmatively authorizes the transmission process?
Until these questions are answered, we may see the flipping and flopping of Municipalities issuing Red Light Camera Tickets.
Often times I am posed with a question, can’t the Judge just dismiss this thing? Getting a case dismissed by the Judge prior to trial happens very rarely. Under Rule 3.190(c) the court may at any time entertain a motion to dismiss on any of the following grounds:
(1) The defendant is charged with an offense for which the defendant hasbeen pardoned.
(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The most common reasons for the Judge dismissing a case are under subsection (c)(4). In this instance the Defendant has to swear under oath that the facts presented are true, and they don’t fit the criteria under the statute.
Most cases there are facts that are in dispute, therefore it is a he said/she said matter. It is up for the trier of fact (Jury)to determine who is correct.
So the next question I get is, how can we get it thrown out? The State has the power to dismiss charges they file. It is called a nolle prosequi. It is defined as formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
This is where a good attorney pre-trial can show the state through lack of evidence, conflict in evidence, conflict in character that their case is not worth pursing.
So typically when I am asked, if the Judge can “throw it out” I say no, but we will do our best to make sure that the State does.
In the last few years we saw a decline in tickets being issued as a result of Red Light Cameras. In Palm Beach and Broward Counties, the reasoning was a 4th DCA court of Appeal held they were unconstitutional because in part some of the municipalities issuing the tickets outsourced traditional policing functions to a private institution. Some municipalities are changing the way the tickets are issued to avoid the AREM decision previously discussed. The result is you can expect more red light tickets being issued in the near future.
If you have a warrant for a non-violent misdemeanor, you may get your get out of jail free card on April 30th. Please read:
Davenport Iowa is reporting a significant decrease in DUI arrests. Uber is taking credit. Only time will tell if that is the case. Whatever the reason for the decline, Iowa roads are safer.