Jupiter Looking to Use Body Cameras

The town of Jupiter is looking to be another municipality that uses body cameras. The Palm Beach Posted reported today that there is a budget proposal for the police to have body cameras. In addition to the body cameras it appears that they would have new tasers as well.

The story indicates that the body cameras would only be activated when the Taser is removed from its holster. It seems the town of Jupiter is more concerned with allegations of police misconduct violence as opposed to recording all evidence from each case.

“The program will also increase transparency, which is a benefit as it will show the community the department’s willingness to open itself up to outside inquiry. Another advantage of having (the body-worn cameras) is the expedited resolution of complaints and lawsuits,” according to a Oct. 2 memo from Jupiter Police Chief Frank Kitzerow.

Delray Beach Using Cameras since 2016

Delray Beach is another agency using body cameras. They too are looking to purchase specific cameras that activate upon a gun being drawn. Delray Beach Police Chief stated “The cameras are not a magic wand”. These sentiments seem to indicate they are not there for investigation however rather to protect against allegations of false arrest.

Continuing Trend

As we’ve explored several times on this blog, I believe this is a continuing trend, that will not only aid municipalities in the reduction of false arrest claims, but gain citizens trust that the police are doing what they are supposed to be doing.

 

SHOULD DASH CAMS BE MANDATORY FOR ALL DUI CASES

A recent article questioned South Carolina’s law that requires all DUI investigations to be recorded on dash cam video, whether it was making prosecutions more difficult. After reviewing this article, and watching the video provided, I wondered if this type of law should be adopted in Florida. After some brief research it appears that South Carolina requires its police officers to record any investigation where an officer believes someone was drinking and driving.

 Criticism against the law

As we’ve discussed several times in this blog, body cameras are being used against the police for their own improper actions. The article mentions that South Carolina has a lower conviction rate for DUI cases in comparison to the country as a whole. MADD (Mother’s Against Drunk Driving) believes that the law makes it too strict for prosecutors, which leads to dismissals and reduction of charges.
When watching the video connected with the article it gives it insight to why this law is so important. It helps support the officer’s testimony that the person is behaving the way that that officer reports. The law makes it difficult for an officer to introduce video of field sobriety exercises where it is incomplete. An example of this would be the walk and turn exercise. This exercise (notice I didn’t say test), should be done on a flat surface, and a well lit area, and a demarcation line should be used. If dash cam footage does not show the line for which the person is walking, how do we know they are doing it improperly. It only makes sense that if you are going to have a dash cam to support your evidence, it should be recording all the evidence.

Madd State Direct Steven Burritt told the Fox News reporter “There are things in our state laws, and loop holes, and the way we provide resources to prosecution, that leads to lots of challenges…including the fact that so many cases are getting pled down because of the number of technicalities folks have to deal with as they prosecute the case.”

First off when anybody uses the term “loopholes” it clearly means don’t know what they’re talking about. There is no loophole when it comes to using dash cams or body cameras. In fact, this is a safeguard for those individuals who may be wrongly accused of driving under the influence.
Maybe Mr. Burritt should not look at curbing driving under the influence as a when or a loss for a prosecutor. He should look at this as a way to protect the public in general.

Should Florida Adopt this Law

I believe South Carolina is being very progressive in mandating dash cams. This technology is becoming so readily available that private individuals actually have their own dash cams. I have personally seen it in two cases for which my clients were involved in an accident that a private citizen recorded it on their own dash cam.

If private citizens are doing the work of the police, that is far bigger problem than DUI convictions. A picture is always worth 1000 words, and video is worth more. So why shouldn’t we use this new technology, that is so readily available, to make sure justice prevails.

STAND YOUR GROUND LOSES GROUND IN CIVIL CASES

Florida’s stand your ground law lost some footing this week in civil court as the Florida Supreme Court stated that a defendant who prevails successfully in criminal court under stand your ground immunity cannot use the same immunity to block a civil lawsuit. The Supreme Court stated that the 2017 amendment to the stand your ground law created different burdens of proof for criminal and civil immunity. And that there should be separate immunity determinations to be made and as such the finding in a criminal case cannot be applied to the civil case.

 What is the Stand Your Ground Law

Under Florida Statutes 776.013;
A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use:
(a) Nondeadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force; or
(b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
(2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

As applied to a criminal defense action, a defendant can raise this defense prior to trial for a judicial determination if they have immunity under the statute. A special hearing called a stand your ground hearing would be held before Judge, and not a jury.
Florida has been the subject of controversy as this defense was used in several notable cases in recent years.

Prior Challenges to this Rule

The Hon. Judge Milton Hirsch, in Miami is the first judge to declare the 2017 revision to the law unconstitutional. The basis for the on the constitutional challenge is that the chain should have been made by the Florida Supreme Court and not legislature. The challenge to the ruling is a victory for prosecutors who felt like defendants were able to escape prosecution.

The Ruling today doesn’t change how applied in Criminal Cases

The Supreme Court ruling today only affects stand your ground in civil cases, it does not change the statute for criminal cases. There has been no further movement on Judge Hirsch’ ruling.

The new Konecky Journal is out Now

The new Konecky Journal is out now. If you want a hard copy, email me or fill out a contact request and let me know you want the Konecky Journal delivered to you directly.

New Avvo Review

Did you know Avvo changed my rating form 9.1 to 9.9 (out of 10).   If you haven’t seen my Avvo Profile, check it out HERE. There you can review my legal guides and see reviews from other clients.

More YOUTUBE VIDEOS

If you haven’t visited our YouTube page lately, we have included more videos to answer your questions.   Check it out.

If a tree falls in a hurricane…

We all know the ancient philosophical phrase “if a tree falls in the forest and no one is there to see it doesn’t make a sound?”   What happens when a tree falls in a hurricane? It made me think after Hurricane Irma I had a fallen tree on my fence that caused damage. The tree was on the city’s property encroaching over my property line.

This is really law school 101. But since I started law school about 18 years ago, I had to do some research as to who really is responsible. I found a great resource from the University of Florida, called “the handbook of Florida fence and property law: trees and land owner responsibility”.   This handbook cuts to the chase as to who is responsible for situations as described above.

Landowner Responsibility

You cannot remove a HEALTHY tree on a boundary line without the adjoining landowners permission.   The removal of a tree without permission could result in damages for the loss of the ornamental value creatures comforts provided by the tree.   However, branches and roots that extend across the property line may be trimmed by the adjoining land of as they desire.

If he tree is not healthy, or dead, the landowner for which the tree is on is responsible for any damage caused by the tree.   It is your responsibility to let the landowner know that their tree is dad or not healthy. Don’t wait until it’s too late and damage has already caused.

What Should I Do?

Looking at my scenario, I need to determine, or have determine whether or not the tree that broke in the hurricane and caused damage was a healthy tree. If it was not a healthy tree I could submit a claim to the city for which I live. If it is a healthy tree, I am unfortunately stuck with the repairs.

In the Future

Moving forward with this information I will make sure I trim any tree that is in good healthy condition prior to any storm coming our way. This will reduce any chance of damage to my property. I suggest you do the same. I would give you a bit of caution. Before trimming any trees that are on your neighbor’s property, give them a heads up. Show them the handbook I have referenced above. This way you can show them that you’re doing your responsibility, and you are not just trimming their trees.

Hurricane Damage

if you are reading this because you have suffered damage from Hurricane Irma, I want you to know I am teaming up with the Law Office of Adelman & Adelman to help them process their hurricane claims. Go to www.hurricanelawflorida.com and www.hurricanelawfl.com to see how we can help you in your time of need. We will be serving the entire South Florida area from Miami-Dade County through Palm Beach County.   Even if you have the claims process started, we can assist on a contingency fee basis for any dispute you have with your insurance company.

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.