Can you get a DUI on a lawn Mower? YES!

Last week a St. Lucie County man was arrested for DUI when riding on a lawnmower.   CBS 12 reported it here.   It may be hard to believe, you can get a DUI on just about anything that moves.   Everybody assumes that a DUI means car, however, there is BUI (Boating under the influence).   DUI’s are just reserved for Boats and Cars, there for any vehicle.

How do you know what qualifies as a vehicle?

Under Florida Statute 316.003 a vehicle is defined as ” [e]very 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.”

That is correct “every device that” can be drawn upon a highway.   This mean virtually everything you can drive, or ride on, can be considered a vehicle. Under 316.003 a bicycle and autonomous car is considered a vehicle. We discussed the issue of autonomous cars a few months back.

Other crazy DUI

So looking at 316.193 and 316.003 here are some examples of DUI’s you never thought about.

DUI on a horse.   This woman in Polk County was arrested for DUI on a Horse.   Does a horse qualify as a vehicle? I guess so.

DUI on a bike. This person was stopped for DUI on his bicycle.

DUI on a Fork Lift?   Good Ol’ Steve Jessup got popped for DUI on a Fork Lift.

DUI on Lawnmower–   Steve Jessup at it again, he got arrested on a lawnmower too.

Ok, the last two were fun, but it really does show that you can get arrested for DUI and not be in the traditional car or boat.

EBike an alternative?

Ebike– which are electric bicycles that go no more than 20 miles an hour, do not require a license or registrations.  They are fine for those who have had their license suspended for DUI, but you still can get a DUI on an Ebike.

Stay Safe out there.

Is your personal trainer aware of your injuries? Do they Care?

Gym injuries are often overlooked because people are often times embarrassed they happened, or they don’t think it is “manly” to report. A recent article in the New York Post stated that an Equinox Gym in Manhattan got sued because one of its’ personal trainers continued to have a patron exercise an injured part of his body. See Article HERE. To be specific, this patron, David J. Walker, was a former Green Beret Paratrooper, who admittedly had a significant injury to his lower back. The trainer allegedly instructed Mr. Walker to use a foam roller on his lower back and rotate his legs in a semicircular motion. Mr. Walker complained of pain to the trainer, who encouraged him to keep going. Due to the pain he suffered and worsening his injury, he sued Equinox gym.

How Could this have Been Avoided?

Any personal trainer who has a solid certification such as NSCA , American College of Sports Medicine, or Fitness Institute, International, knows you must do a thorough health history before training any client. This type of injury could easily have been avoided if the trainer knew he had a lower back injury. If the trainer was aware of this type of injury, they should have taken precautions in that specific area. If the complexity of the injury is outside the scope of the personal trainer’s knowledge and experience, they should be referred back to their doctor to have a license physical therapist work the area of the injury.

With regard to the exercise itself, I am not an expert, however, simple research shows that foam rolling of the low back is not advised. If low back foam rolling is not advised for a healthy spine, one could assert it would not be healthy for an injured spine.

Do they Care?

Most chain gyms hire their own personal trainers to sell packages to new or existing clientele. From this article Mr. Walker purchased a 24 session package for over $2500.00. While this may seem extravagant at $100 per session, an experienced personal trainer with the accreditations listed above could easily expect that per session. The problem is that the gym is the one charging per session and is probably paying much lower rate to the trainer themselves. It’s not uncommon for big-box gyms to hire trainers with easily obtainable certifications and less experience, because they can pay them less. If a big-box gym is paying a trainer $17 an hour and charging $100 an hour for service that’s quite a markup.

 What Can You Do?

To avoid an injury like Mr. Walker suffered you should only hire a well-qualified personal trainer. There is a difference between certified and qualified. Here are a few things to consider when hiring a personal trainer.
• What kind of certification do they have? (look for NSCA , American College of Sports Medicine, or Fitness Institute, International)
• How long have they been a personal trainer? (I would take a new trainer with the credentials above before someone with a Cracker Jack certificate who has been doing it 1 year)
• Do they have experience with your demographic (Athlete, Retiree, or you have a specific injury)
• Do they personally carry liability insurance?
• Do they have you fill out a personal health questionnaire? More importantly do they go over it with you with specific questions? (If they don’t it is a clear sign they don’t care about your health, or don’t know enough about what they are doing to know it matters)
• Do they take your heart rate when going over your health questionnaire?
• How much are you paying them? (You get what you pay for).
• Do they have any recommendation from other clients?

These are only some of the questions you want to think about when hiring a personal trainer. You are paying good money to get into better physical health, why flush that money down the drain and higher someone inexperienced who could leave you in worse shape. Take the time to educate yourself about the type of trainer you need, then make the right choice for you.

ANOTHER OFFICER CAUGHT AGAIN

In what seems to be a reoccurring theme on this blog, another officer is caught by a camera doing something illegal. Palm Beach County Sheriff’s Office deputy Jason Cooke was arrested last week after it was discovered he stole medication from a deceased man’s home. Video shows the officer doing a detailed search the home, however this was not for investigative purposes, but to obtain money jewelry and prescriptions.
SEE VIDEO HERE

Another Case of Police Misconduct caught on Camera

We’ve been discussing this topic quite a bit on this blog. Police officers misconduct, especially in the form of planted drugspretextual stops on suspects, DUI Arrests are coming to light thanks to officer body cameras and civilian cameras.

 What Does This Mean for the Public?

This latest arrest could have a significant effect on any case for which Deputy Cooke was a primary officer. It could lead to dismissals in several cases where his credibility would be called into question. Time will tell as to the final outcome of those cases. Should any defendant have a case for which Deputy Cooke was a witness, they should contact their attorney to see what can be done.

I see this trend continuing as long as we are continuing to monitor each other’s personal lives. Not only are people relying on their smart phones to record was going on around them, people are actually buying dash cams for their cars in order to preserve evidence in any motor vehicle accident. These cameras are so cheap that you can get one as low as $30. Check it out.

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.