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?

Former Sheriff arrested for DUI in Ormond Beach

No one is above the law, and former Putnam County Sheriff Jeff Hardy (not to be confused with WWE Superstar Jeff Hardy) was arrested last week in Ormond Beach for DUI.   Video of the Field Sobriety Exercises don’t look good for Mr. Hardy.

Once again Body Cameras observe Violations

As we have previously discussed, body camera evidence is used not only to protect, but to preserve evidence.  Here it is saving the evidence of the performed field sobriety exercises.  Often times in DUI cases, the arresting officer has a camera in his car, or on his body.  This will preserve the performance of the field sobriety exercises (FSE’s).  Most people think of FSE’s as “tests.”   This is not the case.   There is no Pass or Fail, the officers look for “clues” during these exercises that indicate if someone is impaired.   Using the NHTSA’s DWI Detection Manual , the officer evaluates the clues based on the performance of the exercises to form probable cause for the arrest.   Despite what Mr. Hardy states, he did not “write the book” on DUI, NHTSA did.

What Clues are Apparent?

First looking at the video, Mr. Hardy is combative with the investigating officer.  During the HGN (Pen Light Test), he is not following the stimulus (pen).  During the walk and turn exercise, he cannot keep in the starting position.  And, he did not follow instructions; he did not walk in a straight line.   You can see a pattern here.   I will not analyze the whole video.

Is there a Defense?

There are always defenses to a DUI.    Without knowing the reason for the initial stop, we cannot evaluate the constitutionality of the stop.  As a skilled defense attorney, I see some issues right away.  Did you see these?

  • the arrestee is performing exercise in bare feet.
  • the arrestee informed the officer of specific physical problems that might affect his performance
  • the arrestee performed the exercise on a road with a giant crack, which means it may not be a flat surface as advised by the NHTSA manual

These are just some of the issues I observed with this case.  Will it create a not guilty verdict?    I will leave that to his attorney.

Could this have been avoided?

Absolutely, this could have been avoided.   If you watched the video and read the story, Mr. Hardy already had one encounter with police that night.   It seems he was given a professional courtesy which most people do not get when the Volusia County officers warned him not to get behind the wheel after an earlier altercation.   It appears there was even an offer to get him home, which was not taken.

Many people get arrested for DUI.   In fact, a former president and vice president have been arrested for DUI.   It does not excuse the crime.  As a DUI defense attorney, I get asked all the time how to avoid a DUI.   The answer is simple: Don’t Drink and Drive.   I say this without judgment. Simply, it is the only way to avoid a DUI.    The other major question I get asked is “Should I give a breath sample?”   See my answer here.

If you are reading this because you have recently been arrested for DUI, get a copy of my new book: My Loved One has Been Arrested, What’s Next.

 

 

 

 

15 Minutes Too Long?

It’s that time of year, the summer, when we hear the most horrific stories on the news of children dying from being left alone in the car too long.  When it comes to your child’s safety in a vehicle, you can never be too cautious.

Florida allows 15 minutes of child being unattended

Under Florida Statutes Section 316.6135 you are legally allowed to leave your child under 6 years of age in your motor vehicle up to a period of 15 minutes.   This seems not only outrageous, but dangerous as temperatures can be increased in a short time in a nonmoving motor vehicle.    And, what is really confusing about this statute is there is a subsection that declares you are not allowed to leave your child in the car while the engine is running.   This statute is clearly outdated as most cars have the ability to keep the car running without being in danger of being placed into gear.   It is important that the legislature update the statute to allow a car to be running to engage necessary functions like air conditioning so that children and pets do not suffer heat exhaustion.

New law is being drafted

Lawmakers are looking at shortening the period of time a child can be left in the car.     CBS 12 broke the story here.   Look close because they interviewed our own Ashley Glasser-Konecky on the subject. However, it seems as though they are not addressing the issue of keeping a vehicle turned on, which could prevent heat exhaustion.

What are Your Responsibilities?

When in doubt about what your responsibilities are; look it up.    The Florida Department of Children and Families, provide great resources about your duties.

 

Body Cameras used against the police

We have been discussing the use of video by private citizens as well as law enforcement as an evidentiary tool. With in-car cameras and now body cameras police are able to obtain evidence for trial that previously they would have to recall from memory. As they say a picture is worth 1,000 words.

Cameras keeping police in line.

Nothing could be more true in light of what happened this week in Baltimore. Video surfaced of an officer planting drugs inside a can and using it as evidence against a defendant. Video was obtained by the same officer’s body camera. It took solid work from the defendant’s attorney to discover that the officer’s video recorded 30 seconds prior to him turning on the camera. Axon the camera’s manufacturer makes the camera record and hold 30 seconds prior to an officer activating the camera so to capture crucial evidence that may have occurred prior to the activation. Read and see here.

Body camera evidence is great for this reason. I have been able to obtain nolle prose in Palm Beach County (State’s Dismissal) as a result of obtaining body camera evidence. In one particular case, the Defendant was accused of Domestic Battery. When the police arrived the Defendant was not there, in fact, the complaining victim didn’t actually call the police, a welfare check was done because she was not responding to another family member’s call. What transpired was the alleged victim gave her side of the story on camera, however, it did not match up to the facts presented. Furthermore, and was most shocking is the officers had a discussion on camera about how they weren’t even sure that anything had happened. Despite this conversation, they sought to arrest the defendant. Once the State Attorney’s office saw the video, the inconsistencies with the victim’s testimony, and the officers wavering about if they had enough to arrest the defendant, they dropped the case.
We always try to obtain in-car camera evidence on a DUI stop. Often times we find that the officer’s Probable Cause Affidavit (police report) is inconstant with the video. Descriptions of the field sobriety exercises are not given justice without video. Juries love to see what actually happened on scene rather than her several different accounts.

While video is not always helpful to a defendant, it is here definitely here to stay.

Is being old the equivalent as being too impaired to Drive?

The State of Utah has recently and acted a law that lowered the legal blood alcohol limit from .08 to .05. There has been some significant backlash at the enactment of this law. In fact, the American beverage Institute took out a full page advertisement in local newspapers comparing the new law to drivers who are older than 65. The advertisement also included 11 lawmakers were over the age of 65. See article here.
Some of the lawmakers were outraged and could not understand the comparison between the two. And that really is the problem. The national Highway Traffic and Safety Administration (NTSA)provides a handbook for officers to determine if someone may be under the influence. The field sobriety exercises that we have all heard of are listed in the NTSA handbook. Some of these field sobriety exercises are physical in nature and as such the handbook states that certain individuals over 65 years of age may have difficulty performing the tests. Continue reading