Answering your Questions

I have been asked to answer some questions about specific incidences. Rather than answer each person individually, I wanted to use this forum to answer everybody.  In addition, I have compiled some videos to help explain my answers. You can always go to my website to watch videos and download free books and special reports that might help you with your situation.

How long will a traffic light stay yellow?

This answer depends on what the speed limit is at the intersection. The faster the speed limit, the longer the light will stay yellow. I still suggest using caution when entering on a yellow, do not rely on estimated times. To learn more watch my video here.

What if I got a ticket and I don’t think I am at fault?

If you received it traffic citation for an accident and you don’t think you’re at fault, you should fight the ticket. If you are injured in that accident, it is especially important to fight the ticket because it may otherwise decrease the value of your case if you are found guilty at a civil traffic infraction trial.   In many instances the police officers who may have issued the traffic citation did not witness the accident.   This creates some difficulty in the state obtaining a conviction without an independent witness.   For a further explanation, watch here.

How long does a personal Injury case last?

The time it takes to settle a personal injury case can vary. There are several different factors. The first factor is how long you need medical treatment. If someone has to see a doctor for several months or needs physical therapy for several months the case will not settle until the completion of all the medical treatment. The next issue is determined by whether or not the insurance company sees the value in the case as the attorney.   If there is negotiating to be done this can lengthen the time it takes to sell the case.   Finally, if there is no settlement the case may have to be filed in court and that process can take up to several years.   Watch more here.

What the Heck is My Case Worth?

This question I get asked most frequently. It’s not something I can answer without knowing several key pieces of information. The first thing you would look at is any out-of-pocket expenses such as medical bills. You would then want to look at future medical treatment. If you have suffered lost wages as a result of an accident those need to be calculated as well. There are several intangible aspects to a claim such as the person’s age, prior health history, and even personality that come into play. You can watch my video here, but if you want a FREE book about the value of your case, you can download my book “What the Heck is my Case Worth, and Why Billboard Advertising is Deceptive?” at my website. This book provides essential information to help determine the value of your case, and disposes of the myths that only the billboard lawyers will get you HUGE settlements.

AFTER IRMA CLEANUP

In a prior post we discussed disaster preparations to help you before catastrophic event. Now we are three days after hurricane Irma, and we have some cleaning up to do. Whether you have to physically cleanup your property by removing debris or cleanup the damage done to your house by filing an insurance claim here are some things to keep in mind.

MAKING AN INSURANCE CLAIM

Any time you make an insurance claim you have to observe the terms and conditions of the contract you signed. This means you have to be open and honest when you fill out a claim form. You may have to give a recorded statement to an adjuster as to what happened. In addition, in rare circumstances you may have to give what is called examination under oath (EUO).   An EUO, is a recorded statement taken by an attorney prior to a lawsuit. This is very similar to a deposition.

Typically, on a property damage claim, an adjuster will come out to your property and inspect the damage and make their own calculation of the value of your claim. If you are unhappy with the value of the insurance company’s valuation, you should consider retaining an attorney to help you with this claim. Sometimes, you may want to consider an independent adjuster to help value your property. But before you do either make sure you know what your insurance contract calls for whether it’s arbitration, mediation, or you’re allowed to file suit.

BE AWARE OF SCAMS

Now is the time when the vultures come out to take advantage of the situation. If anyone comes to your house and asked to go inside to view damage without a prior appointment, do not let them in. Often times criminals will wear fake outfits and flash a fake badge in order to gain access to your home in a state of emergency. Never let anyone in your house without knowing who they are and where they came from. If you are being pressured, call the police, but do not let them inside.

Likewise if an independent insurance adjuster comes to your house and tells you they’re going to get you money for your damages, and you didn’t request them, be very cautious doing business with them. The same could be said about contractors to work on your home. Many times fake contractors will come to your home get you to sign a retainer and promise you the insurance will take care of it upon completed work, don’t have contractors work on your home under these conditions without first talking to your insurance company. See this article.

PHYSICALLY CLEANING YOUR HOME

Here are some things to keep in mind when you are physically cleaning up your property. If you have trees down, or have removed trees from your home, mark the hole with a flag so no one falls in and hurts themselves. If you have trees around power lines make sure you hire someone who is licensed and insured and is qualified to remove the trees and not hurt themselves. You could be liable for any injuries on your property for those helping you cleanup.

Be safe and if you have any questions know we are here to help you.

Is this Drunk Driving?

In this crazy video, a man was on top of his driverless car while intoxicated. He was subsequently arrested for driving while intoxicated and reckless driving. And it makes me think, how can you be drunk driving if he is outside the car. It also makes me wonder, what is our legislature going to do with driverless or autonomous cars?

What Qualifies for Drunk Driving?

Under Florida statute section 316.193 a person is guilty of DUI if they are in actual physical control of the vehicle and is under the influence of alcohol beverages or chemical substance to the extent that person’s normal faculties are impaired.

The legal limit for blood alcohol content is .08 or more grams of alcohol per 100 mL of blood.   There is no numerical threshold to determine chemicals substances. As the statute says any effect upon the person’s normal faculties makes it a DUI.

Guilty of DUI?

Looking at this video, you might argue that the gentleman is not an actual physical control of the vehicle, and therefore could not be guilty of DUI. Typically in Florida to prove actual physical control a prosecutor must show the defendant was in the motor vehicle had the capability to operate the vehicle, and the vehicle was operable.

There are many times where defendants are passed out in the front seat of their car with the keys in hand, and the courts have held this is actual physical control. The reasoning is that the vehicle was operable, the defendant had the capacity because they have the key, and he was inside the vehicle.

Going back to this video, one could argue since the gentleman was outside the vehicle, he may not be an actual physical control.   As you can see in the story, he apparently could control the vehicle with his feet. Which might mean he is an actual physical control, and would be subject to Florida statute 316.193.

The Big Picture

This is the first known case of someone obtaining a DUI in/on a driverless car. But as technology is changing, and Google and Uber attempt to put driverless cars on the streets, there could be real issues addressing what is actual physical control. Driverless cars could potentially drastically reduce the number of accidents on the streets because the drivers won’t be distracted by texting. It could also reduce the number of drunk drivers, if you have the ability to have the car take you home.

The issues that could be raised are if you are intoxicated and it’s your vehicle and you have to start the autonomous process, does that make you in control of the vehicle? If so should there be an exception because you are doing the right thing?   As more and more of these types of vehicles get produced, the legislature will certainly have to address this issue. It would be a shame to see someone make the right decision by taking a driverless Uber home, still get cited for a DUI.

To SCRAM or not to SCRAM?

As technology changes, so to the methods the court use to enforce sentences. With DUI advocacy becoming hot button topic over the last 20 years, the courts are trying their best to enforce sentences for DUI, and prevent recidivism. Here in Palm Beach County, the office of the state attorney enacted a first time DUI offender program. (DUI can’t be exupunged) The aim at this program is to give first time offenders a chance to have a DUI offense removed from the record. In addition, the program aims to reduce recidivism for DUI charges.

One of the ways the program aims to reduce recidivism is to have a three-month alcohol monitoring device. One of those monitoring devices is called SCRAM. It is an acronym for secure continuous remote alcohol monitor. What a SRCAM monitor is a bracelet that goes around the defendants ankle and it electronically monitors the use of alcohol through the skin. When the bracelet is in place it takes readings once per hour if alcohol is detected readings are taken twice per hour and is reported to a remote monitoring service.

RECIDIVISM RATES ARE REDUCED

The SCRAM monitor works best when it’s worn at least 90 days so that the offender has enough time to remain sober and to start treatment program. Preliminary evaluation of the SCRA couple M monitor showed a reduced recidivism rate for those who use the product by about 3%. However, when the offender had two prior offenses recidivism rate using the monitor dropped significantly by about 13%. See report.

The positives of using a SCRAM monitor is the reduction in recidivism. It also enforces punishment issued by a court. Previously if an offender was on probation for DUI, the probation officer would have to initiate a random breath or urine tests to determine alcohol. Here, the SCRAM monitor is always working.

NOT EVERYTHING ABOUT SCRAM IS POSITIVE

While reducing recidivism is important, it is also important we have due process. One of the biggest drawbacks of using SCRAM is that by the time the courts are alerted that there is a positive test, there is no way for an individual to attain an independent test. While scram alert the private company that there is a positive test that company may take several weeks to alert the courts, and/or probation of the allegation. By that time it is too late for the defendant to get obtain an independent test show person consume alcohol.

Where this leaves us is the debate as to whether or not the results of a scram monitor should be used in court to prove that the defendant violated a term or condition of probation. A great article written by Michael Hlastala. Addresses that issue, he firmly believes it should not be used for evidentiary purpose, however should be used to require a more stringent test.

BRIGHT SIDE

The bright side is, society is coming around to fixing the problem (helping someone who has an issue with alcohol), as opposed to just punishing the crime. This gives individuals a chance at moving on from a bad decision without it impacting their future.   To understand more about DUI and its effect on a defendant please go HERE.

 

REDLIGHT CAMERA TICKETS, THE SAGA CONTINUES….

Since I’ve been writing this blog we’ve been talking about the endless saga of the constitutionality of red light camera tickets.   For those who have been in the dark, red light camera tickets started approximately 10 or so years ago. Municipalities placed cameras at specific intersections that recorded all traffic. Upon someone entering an intersection without stopping at a red light picture was taken of the driver’s vehicle. Then a ticket would be issued to the driver called a “Notice of Violation.” This “Notice” was not a ticket but a chance to pay the city directly for the violation without it notifying the DMV.   The upside was no points on your license. The downside was the government watching our every move and enacting a fine procedure without having to prove the case.

The alternative to paying the fine was the city would then issue a uniform traffic citation. This citation was a real deal ticket. If you failed to pay the ticket or appear in court, it would have an effect on your license.

The kicker to this whole situation was that the municipalities rarely had to do anything. The red light cameras were being leased and operated by a private company. What you would see are these private companies making arrangements with the city for lease of the cameras, but in many instances the payment of the cameras were made by the fines received. It was a win-win for the city and for a private company.

AREM v. CITY OF HOLLYWOOD

In 2014 things came to a halt with reference to red light cameras. The Fourth District Court of Appeal found that “only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions, which means only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for a red light violation.” Essentially, the cities cannot let the private entities make the choice of who gets a ticket.

BOYNTON BEACH IS BACK AT IT

In today’s Palm Beach Post a new article warns that Boynton Beach has reinstated the red light camera ticket program. Watch yourself: Traffic cameras are now active After AREM, many cities stopped using the red light camera tickets. However, some just changed how the program operated to be in accordance with the law. That is apparently what Boyton Beach has done.

WHAT TO DO

If you get a red light camera Notice of Violation the first thing you need to do is find out if you actually ran the red light.   Each notice of violation has a link for you can actually watch the video to see if you answered after the light turned red. If you did not, you should fight the ticket.

What if you weren’t the one driving and you were issued a ticket? There is a remedy for that. What you have to do is fill out an affidavit stating it was not you, however you will have to identify who was driving. Ultimately they may get a notice of violation, and a ticket.

If you are issued a uniform traffic citation contact our office as we may be able help you. While tickets are not our bread and butter, we have helped hundreds of our clients with traffic matters throughout the years.

IS YOUR GYM SAFE?

The fitness industry is HUGE. There are about as many gyms in your neighborhood as there are Starbucks.  The difference is when you go into a Starbucks, you know what you are getting, the consistency between them should be about the same.     Gyms on the other hand are completely different animals.   They come in all shapes and sizes.   Some are traditional, some are out of the box, some are mom and pop, and some are cookie cutter.   It doesn’t matter what kind of gym you go to as long as you go to one that is safe.  After all, what is the point of getting in better health if you injure yourself at the gym?

THERE ARE NO STANDARDS

The problem is the health club industry is not really regulated in Florida. The truth is there is no licensing requirement from the State of Florida to license a personal trainer.   When you think about it, that is a scary fact.   Many “certified” personal trainers, have very little to no  training whatsoever.   Just about anyone can find an online certification, or a weekend certification and become a personal trainer.   On the flip side, physical therapists need to be licensed to perform similar activities.

THINGS TO CONSIDER BEFORE JOINING

The National Academy of Sports Medicine  suggests before joining any fitness center you defiantly want to take a tour.   When you take your tour, don’t just focus on the “newest” and “best” equipment, look at the following:

  • Is the gym laid out in an orderly fashion?   Are there clear walking paths to get to the bathrooms, the entrance and exit? If not, there could be definite trip hazards.
  • Does the equipment look new or in good condition?   If not, that means management doesn’t care about upkeep.   One frayed cable could mean a serious injury for you.
  • Does the equipment look clean?   Again, if it is not clean, management doesn’t care about the longevity of the equipment. Nor do they care about the health of their patrons.   If there is dirty equipment, you can be there are germs floating about.
  • Are there plenty of cleaning stations? Gym equipment should be wiped down after each use. If there are not enough cleaning stations, you know that is not getting done.   Also look to see if management or employees are cleaning the equipment as well.   Sweat transfer can cause all sorts of skin diseases if equipment is not cleaned properly.
  • How are the patrons behaving? Is this a place where meatheads are throwing weights around in a haphazard fashion?   Is this a place where groups of 3-5 people hang out in front of a mirror talking and not lifting a single weight?   Is there rowdy behavior that management is not addressing?
  • Are there fire extinguishers and have they been checked as well.
  • Most Importantly is there an AED? An automated external defibrillator (AED) is a portable device that checks the heart rhythm and can send an electric shock to the heart to try to restore a normal rhythm.

QUESTIONS TO ASK BEFORE JOINING A GYM

  • Has there been previous injuries?
  • What are the emergency procedures?
  • Do your Employees know CPR?
  • Do you carry liability Insurance?
  • Where are your personal trainers certified?

If you get a blank stare or some off the cuff answer, run.   While some of these things might seems  a little too critical to consider,  think about your safety first, because no one else will.

These suggestions, are just the tip of the iceberg. As we discussed, the fitness industry is not really regulated in Florida, and personal trainers do not have to be licensed.   (That is a whole other blog topic for another day).   The worst thing that can happen is that you do get injured trying to better yourself at the gym.   If you do get injured while at the gym, read about how we can help you.

Speaking of Disaster Preparedness….

It’s that time of year again, hurricane season. We’ve all been watching the weather man for months stating that this is the year there will be more hurricanes. Our initial reactions are to blow it off until fall, but now that the kids are back in school, and autumn is around the corner it’s time to be prepared. Everyone has their own disaster preparedness process. Some wait to the last minute to go shopping buying all the scraps left at Publix. Others start filling their pantries with bottled water, dry foods, and filling all the flashlights with fresh batteries.

We are lucky to have a warning when a hurricane comes. It gives us time to prepare. It gives us time to make arrangements to either get out of town, or batten down the hatches and face the storm head on.

WHAT ABOUT LIFE’S DISATERS

You may think that we can prepare for hurricane, but you cannot prepare for a life disaster such as an automobile accident or an arrest, you’re wrong you can prepare for both.

The best way to avoid any legal entanglements with law enforcement, is to avoid law enforcement in general.   Keeping your car properly registered, free from mechanical defects, using your turn signals, and obeying the speed limit will keep you from being pulled over.

God forbid, you are pulled over, or in the alternative you are going to be arrested, having knowledge on how to handle yourself is important.   This can make or break any criminal case.

PREPARING FOR A CAR ACCIDENT?

While theoretically you cannot prepare yourself for an automobile accident, you can lessen the impact by understanding what to do once you’re in an automobile accident. Handling yourself on the side of the road can both protect your safety, but it can also protect any claim you have may have against somebody else or they may have against you.

It is also important to know what insurance coverage’s you have before you get out on the road. Not being fully covered can lead to financial disaster. This is something that can easily be avoided.

Here are a few things you can do to “prepare” for a car accident:

Like preparing for a Storm, we hope it wont happen, but now there is no excuse for not being prepared.   Review the rest of my YouTube page to see how I can help you.

 

MAKING A CLAIM FOR PERSONAL INJURY PROTECTION (PIP) BENEFITS WILL NOT AFFECT YOUR INSURANCE RATES

One of the common misconceptions regarding a personal injury claim in Florida is the other person’s insurance is supposed to take care of your medical bills. In most other states this is correct, however, Florida mandates drivers to have personal injury protection insurance (otherwise known as PIP insurance).   In short, the law states that regardless who’s at fault your own insurance takes care of the first $10,000.00 of medical bills first. Then is the responsibility of the person who caused the accident.

Many times when we start a claim for a client, I receive some pushback because the client does not want to open a PIP claim.   The reason for the pushback is they don’t want their rates to go up.   In a normal world I would agree that you shouldn’t have to make a claim on your own insurance when someone else is at fault, however we are in Florida.   The proper thing to do is to make a claim on your own insurance for your PIP benefits, and then go after person who caused the accident for their bodily injury coverage to take care of any excess medical bills, co-pays, future damages, and pain and suffering.

WHY MAKING A CLAIM AGAINST YOUR PIP SHOULD NOT RAISE YOUR RATES

Attorney Jeffery Adelman wrote a terrific article in Justlaw magazine regarding just this issue.    Under Florida Statute 626.9541(o)3a, bars imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor accident unless the insurance file contains information from which the insurer in good faith determined that the insured was substantially at fault in the accident.

In essence, what this means is that an insurance company cannot bully you into raising your rates simply because you are in an accident. They must determine your substantially at fault for the accident to justify any rate increase.

ANY RATE INCREASED WITHOUT FAULT COULD SUBJECT THE INSURANCE COMPANY TO BAD FAITH LITIGATION

In the event you find your insurance company has either dropped you, or has raised your rates, for an accident you didn’t cause, talk to your insurance company and show them Florida Statute 626.9541(o)3a.   If they do not alter their position, you may have the ability to file a bad faith action against the insurance company. You would have to follow the procedure under the Florida civil remedy statute.

NOW YOU KNOW, MAKE YOUR CLAIM

Now you know that making up PIP claim will not necessarily affect your rates as long as you were at fault, be confident in making your claim.   If you choose not to make a claim, understand the other person’s insurance will discount the value of your case by $10,000.00 because they are entitled to a PIP set off. It wouldn’t make sense to do it this way for the above stated reasons. If you want to know more about how your personal injury case is valued, read my book “What the Heck is My Case Worth?” and look for more answers to frequently asked questions about your personal injury cases go here.

 

The Real Cost of a DUI

We have spent a lot of time talking about some notable DUI’s lately, specifically  Tiger Woods and the Ormand Beach Sheriff.   But lets talk about DUI’s that don’t involve celebrities or politicians.   For everyday people, and by the way, that’s who get DUI’s (everyday people) not everyone can hire the most expensive lawyer in the area to defend it.   So some ask the question…

Do you need to hire a lawyer for your first offense?

The answer some may say is NO, especially since we have been discussing the Pre-Trial program in Palm Beach County.   Many times with a first DUI without an accident, injury, or previous criminal record, there may be little risk of jail time.    Does this mean you shouldn’t hire an attorney?

A recent article by Lee Prindle examined the Cost Benefit of Hiring a DUI Lawyer.   The article address some of the issues most people don’t think about when facing a DUI as they are focused on jail time.  Most people focus on the penalties assessed in court.  The next they look at penalties assessed by the DMV.

This article focuses on insurance rate increases and in some instances insurance companies dropping their insured.  They conducted a study looking at a driver with a clean driving record and one with a DUI charge.   They state “Drivers with DUIs can expect to pay an average of $830 more per year for car insurance than drivers with clean records.”

Sr- 22 Insurance is now a requirement after a first conviction in Florida.  This insurance can extremely increase premiums.

Other Factors to Consider

Other monetary concerns the article address is that with a DUI you have mandatory requirements of probation that cost money like:

  • DUI School (recommended treatment)
  • MADD impact panel
  • Possible Ignition Interlock  ($75 to $150 to install with $60 to $80 monthly maintenance)
  • $500 minimum fines + Court Costs
  • Probation Fees (Monthly)
  • Lost time from work

DUI Lawyers are 3X more likely to get a DUI charge reduced.

A great quote in the article, which I find always holds true is “Would you extract your own tooth or would hire a dentist who has training?”  The answer is obvious, still some people tend to think they know best when it comes to their DUI.   Like Abe Lincoln said “he who represents himself has a fool for a client”.

Some clients opt for the Public Defender.  This can lead to great results, however, many times attorneys at the Public Defenders offices are overworked and underpaid.   True attention to your case does not always happen.

A skilled DUI defense attorney will look at every angle of the case including:

  • The legality of the traffic stop
  • Perceived impairment
  • Calibration of the breathalyzer
  • If a blood test was taken, was it timely?
  • Administration of the field sobriety test
  • Medical or vision problems
  • Were procedures followed in filing the case?

Quote Wizard estimates a dropped DUI saves you $3,400 in insurance, dropped to reckless driving saves you $1,900.00 as well as court costs.   These costs coupled other fees long term, the choice of weather or not to hire an attorney is clear.

 

 

To Program or not to Program: Will Tiger Woods Plea on Wednesday

Tiger Woods DUI arrest on May 29th, 2017 sparked a lot of debate on whether or not he was guilty of DUI.   Most people think DUI means under the influence of alcohol.  Under FS.§316.193 a person is guilty of DUI when a person is in actual physical control of his vehicle and is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired.

Tiger Blew 0.00

As we have discussed Mr. Woods didn’t blow over the legal limit of .08BAC in fact he didn’t register and alcohol.  The problem is that Tiger admitted to taking medicine that were substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired.  So the question becomes does Tiger have a leg (or tail) to stand on.

Looking at the Road Side video, his actions do not look trial worth.   May have some defenses to the performance of the field sobriety exercieses as they are physical tasks that it is well documented that he had a recent surgery.    I am not sure this defense would hold water with a top level athlete such as Woods.

So what are his options?

Palm Beach County first time offenders program

The State attorney’s office in the 15th Judicial Circuit has set up  a first time DUI offenders program .  Not every Defendant may qualify, however many can if:

  • This is a first DUI offense;
  • No accident;
  • No injuries;
  • No other commission of crimes

It appears Mr. Woods does indeed qualify.  The big debate is should he?  The first time offenders program allows you to plea to a reckless driving and receive a withhold of adjudication (no conviction in Florida).  This would allow you to seal your record.    The probation period is 12 months and requires all of the DUI requirements and more.   In a typical DUI plea, you could see less probation.

Experts weigh in on doing the program

The Palm Beach Post had a detailed article of some of Palm Beach Counties finest attorneys (somehow they forget to get my opinion) on whether he should do the program.   The debate come down to this what does Tiger have to lose?

I believe the case looks bad against him, if this were any other person, I don’t know if we would be having a debate.   Tiger has notoriety and since this is a first offense, I don’t foresee him having to serve any jail time if he gets convicted.  So some would say roll the dice.    It won’t matter if he can get his arrest sealed because the world already knows about it.

Tigers decision needs to be what is best for business.   If he gets a not guilty, we have all seen the dash cam.   If he gets found guilty, then it looks like he used his celebrity status to get by with something.   If he enrolls in the program and successfully completes it, it will probably smooth theses unsettled seas.

If this were my client, or a loved one of my client weighing their options, I would have them read my book: My Loved One has been Arrested, What’s Next?