The Legal Rap - A Coffee Time Read

Red Light Camera Tickets Are Beatable

2012-01-19T14:59:00.000-08:00

My office is in Orlando. In the last three years the Cities of Orlando, Apopka, Ocoee, Winter Park, and Orange County have installed red light cameras to "protect" us from ourselves. Ask any politician why they decided to invest millions of dollars into these contraptions and the answer will always be "it's about safety." They never ask Us if we need their help - they just take our tax money and spend it to make "our" world a better place. Thanks but no thanks...

Besides the initial investment (I don't have exact figures but I believe it is over $1 million for just the city of Orlando) to get started with these cameras, every municipality owes the company (we will call them ATS) $4,750.00/camera system per month. For example, Orange County initially installed 10 cameras (I don't know how many they have now). Their monthly bill to ATS for those first ten cameras is $47,500.00. To pay the bill for just the first ten cameras Orange County must cite and have 301 drivers pay each month the initial fine of $158.00. That's just to break even! Well, if 301 paid they would make a little change...

Yeah, yeah, but it is about safety, Eric - C'mon!

Hmm, I almost bought that except for some obvious facts. If there was a safety issue at these intersections, why not first just extend the yellow light by a second or two? At least try that first before spending all this money. They did not do this. Next, if it was about safety why not install these cameras at the intersections with the most accidents? Instead, these cameras are installed at the intersections with a high "right-on-red" turn rate. And if it was about safety don't you think they should put points on these tickets so that people might actually have their drivers license suspended for this behavior? There are no points.

Yeah, but Eric it has been shown these cameras do lower accident rates at these intersections.

Maybe - depends on who you talk to about the statistics. Whatever, - there is a problem with these tickets. A problem that just stinks to high heaven. The Traffic Court Rules require these municipalities to "prove" their cases in court (if fought). These red light camera tickets, currently, cannot be proven because the Rules of Evidence cannot be met. However, non-lawyers (and most lawyers) do not have the legal knowledge to fight these tickets. Specific objections must be made - no quarter can be given! It is just impossible for the average non-lawyer to win. Yet, if a non-lawyer goes to court by themselves no one can help them and the court will let the evidence in - and that driver will be made to pay.

And the biggest fear is that this will spread. I believe, with the revenue they are getting from these red light camera tickets (and it is way more than 301 people per ten intersections per month) they will soon turn to Speeding Cameras. People will soon be cited for speeding by a camera and the pick-pocketing will continue. That is unless we fight each and every one of these tickets.

I fight them for you! It is cheaper than the notice fine and cheaper than the citation fine. But they have to be fought. It is just not fair...

RED LIGHT CAMERA TICKETS - LETS BEAT THESE THINGS!

2011-12-12T10:07:00.000-08:00

Do you know that all these red light cameras have cost a lot of money for all the municipalities and counties that have employed them. On top of that, all these counties and municipalities have to also pay for maintenance and upkeep (and monitoring - but more of that in another blog) of these cameras to the tune of $4750.00 per intersection (or camera, not sure on this, but let's just say intersection). Wow! Right?
That sounds like a lot of money until you realize how much money each of these cameras takes in each month. The gross amount well exceeds the counties and municipalities monthly costs and by now they have recouped their initial investment which was in the millions. But who is paying for this? The majority are those drivers that take a right on red without coming to a full stop. Forget the language of the statute requiring it to be prudent - that is open to too much interpretation and usually the opposite of what you think it should mean. Besides, that argument is a dead loser in court.
The way to beat these tickets is to beat the cost. The governments that have bought these cameras look at them as a revenue maker. This is their goose that laid the golden egg. What we need to do is turn that egg into a rotten egg. Attorneys have already attacked the contracts that the governments and the manufacturer had for these cameras. Specifically they attacked the portion that dealt with the government's cost if the camera did not cover the monthly maintenance fees. Most contracts now have eliminated that safeguard - either from the government or the manufacturer. So now we, the people, can strike back!
From the beginning the government has always said it was only about safety. They were just trying to make the roads safer by installing these cameras, remember? It had nothing to do with money. However, we are no longer that naive to think government does anything out of altruistic virtue. Government is run by people that now think that somehow the laws should not apply to them - we are the peons! the pockets they must reach into so they can pay for their pet projects that benefits their friends and family. But enough about the decline of our government, let's get back to the goal here - how to make the government eat crow.
You see, these cameras are not free to the government. The cameras pay for themselves only because we keep making these right hand turns "imprudently." The only prudent right hand turn that wins at court (and is usually never cited) is one that occurs after a complete stop.
Have you ever thought what would happen if we all obeyed the traffic laws for a single month? two months? six? Local government would go bonkers! Despite all their banter about safety they really would rather we were unsafe and paid them our money.
On your way home tonight look for those required postings warning of which intersections have red light cameras. Make a note of each. Then make it a habit to never turn right at that intersection again without coming to a complete stop (because nothing else matters in court) when the light is red. Don't roll through it, don't consider whether there is or is not traffic - just stop first. Simple. Then spread the word. Together we can bankrupt the red light camera fiasco and send a message to our overlords - "stop picking my pocket!"

What's the rush, this is not a race.

2011-11-22T13:59:00.001-08:00

The other day I saw one of the judges, who's criminal court I regularly appear in front of, driving on I-4. When I was a prosecutor many years ago I remember driving on all the same roads I do now. I know for a fact that both Orlando Police Department and the Orange County Sheriff's Office have unmarked cars patrolling the roadways. Why am I telling you this? I want everyone to be careful this Holiday Season. I don't want any of you to receive a ticket that, today, can hit you up for over $200 - not needed during this time of giving. And we don't want any accidents or criminal charges

There is no need to rush to get anywhere in the Orlando Metro. Orlando and all the municipalities have put up a light at just about every corner. As I noted above, Law Enforcement is out in earnest to prevent aggressive driving. And more importantly, if charged with a criminal offense you will be before a judge that will be thinking of the last time somebody cut him or her off.

Instead, turn on the radio. Relax. Take your time going to the store or church or to that meeting. None of those things are worth a $200+ ticket, a criminal charge, or an injury or death due to a traffic accident. Take the time you have to be driving and turn it into a time to relax rather than a stressful situation. This is the Season of Joy and I wish all of you a Happy Holiday Season!

Be safe!

Holidays Are A Coming... and so comes the stress.

2011-10-24T04:26:00.000-07:00

Guess what. The 2011 holiday season is upon us. This year has faded seemingly faster than the last as each year typically does. And again we find ourselves at that time of year when we turn toward the joy of giving. However, like the past several years, we have a loathsome economy dragging us down. Little money and holiday "requirements" typically cause problems with families. This need not happen.

The key to countering domestic violence is communication. Yes, this advice is coming from someone that knows way too much about defending domestic violence accusations and has been single partially due to this knowledge. When I say "communication" I am not talking about raising awareness of domestic violence. That has been done over and over again with little results in preventing it. We definitely know about it and the government has made it a crusade to intervene in our families any chance they can as part of the politics of domestic violence. Since "awareness" has raised its head the government can now point to statistics showing how much they have done - which equates ultimately to very little. Domestic violence has not gone down, families are not any better off. I could go on and argue they are worse off but that is not the point of this blog.

I want to talk about real prevention. Prevention starts where domestic violence begins - in the home. And the key is communication. Yes, there are other factors that people point to, such as money, but all those factors can be addressed rationally if there is communication between the two people in the household - husband/wife, boyfriend/girlfriend, father/mother. This two-person relationship must see each other as part of a team. They must each address the obstacles they face, such as a shortage of money, together - not with one person trying to over-compensate and hide the facts from the other. This seems to be one of the major factors that causes problems in the relationship. The burden of trying to handle such issues by oneself can lead to substance abuse, usually alcohol, which in turn leads to the behavior that ultimately has someone calling the police to rectify the situation.

Law enforcement is not meant to protect us from ourselves. Because of the politics of domestic violence, the criminal laws are specific and strict. When we call the police in these situations we usually just want our partner to go away and sober up. We don't want them to go to jail, face criminal charges, be labelled for life, and, in the case of non-citizens, be deported. But this is what happens.

Communication is not an easy task. Relationships today seem to be based more on biology rather than philosophy. Why this is the case is for someone else to write about. It seems clear that somewhere along the way we forgot about the foundations of a good relationship. However, we live in the information age and there is a lot of information out there on this subject. Find it and find it together.

Religion has been poo-pooed lately too. Don't worry, I won't preach any religion here. However, each religion or philosophy has pretty good ideas on how to be a good person. You don't have to go to church, temple, or mosque in order to learn from these ideas. But their longevity should not be underestimated.

Ultimately, how our relationships survive is up to each of us individually. If we decide to be in a relationship then we must accept that it makes us part of a team. As a team, communication is key. Now sit down, talk with your partner, and have the best holiday season ever!

Eric Dirga is a criminal defense lawyer in Orlando, Florida. He is not a psychologist. This blog is just his opinion and should not be considered legal or medical advice.

How to Avoid the Fear Factor When Hiring a Lawyer

2011-10-04T09:11:00.000-07:00

I have had many people come to my office for a consultation and describe the treatment they have received by other attorneys they have seen. The biggest issue being the "fear" that the other attorney placed into them in an effort to get them to hire the attorney immediately. It is true in criminal law that when a person has been charged with a crime they can possibly lose their liberty, however, that should not be the selling point for hiring a criminal attorney. Fear should not be the factor on why you hired a specific attorney.

When seeking representation for a criminal charge a person should look for the following qualities in the attorney:

Honesty - The attorney should not sugarcoat your situation and should not promise results.

Confidence - There are many offenses in criminal law, some take extraordinary skills to defend. Make sure your attorney has those skills. Also, confidence should reflect a lack of desperation. These are hard times for everyone and attorneys need to remain practicing in areas they are strong in.

Experience - It counts. When you leave his or her office you should feel good about the attorney and his/her abilities.

Communication - And by this I mean does the attorney listen to you and explain things in an understandable way.

What not to give much weight to when hiring a lawyer:

Advertising - Fancy advertising can be done by anyone. May make someone look good but will not make that person any better than they already are.

Many Attorneys - The fact that a firm has many lawyers only means that they have a bigger payroll to cover. There aren't a lot of big criminal defense law firms that only do criminal defense.

When hiring a criminal defense attorney you should talk to several before deciding who to hire. Trust your feelings - did you feel pressured? Do you think he/she is capable of handling your case? Most important, unless you are absolutely sure don't hire anyone without sleeping on your decision. Usually one day will not make a difference. And this is a good time to gauge the response to your decision to "think about it." If the attorney gives off a bad vibe here you should consider that in your hiring decision.

Eric J Dirga, PA

The Red Light Camera Issue: Safety or Money

2011-09-27T09:16:00.000-07:00

Orange County Judges sat together last week to hear arguments concerning some Constitutional issues regarding the Red Light camera program that has now invaded our state. The government claims that it is only doing this for safety and is not motivated by money. Opponents know it is all about money but they have also pointed out some issues regarding its legality and have raised some evidentiary questions too. The hearing last week did not deal with the evidentiary issues so today I want to briefly expose some of the flaws to the government's ability to enforce these money making citations.

First, the biggest issue by far is the identity issue. A citation is issued to the registered owner of the vehicle that is "captured" violating the statute. These cameras are all set up to see the back of the vehicle and the license plate. Who is actually driving is not observed. The easy fix to this is quite simple - install a camera looking at the front of the vehicle. However, the government is going to argue that the actual statute does not address the actual driver - and they are correct. The statute is purely set up to penalize the owner of the vehicle that commits the infraction. The government points out that it is a "vicarious liability" issue and the owner is ultimately responsible for who he lets drive it. There are ways for the owner to avoid the penalty by establishing that the vehicle was stolen or simply identifying the actual driver but this is something the owner must establish. The government is fine penalizing just the owner.

However, there is a bigger problem for the government. The cameras are set up and maintained by a foreign (non-Florida) corporation. The video and picture are transmitted to the government enforcement agency for review. The video and picture of the tag are the only identifying evidence introduced to the court. That is if the owner does not object. The reason to object to this evidence is simple - in order to introduce a video or photo the government has to be able to say it is was it purports to be. Having some third-party transmit the video and picture to them to be viewed at a later time is the same as receiving an anonymous email with a picture showing the president wearing a dress - it cannot be corroborated and therefore is not evidence.

Focusing on the photo of the vehicle tag, in order to introduce this as evidence the enforcement agency official has to be able to say that IT IS a picture of the tag of the vehicle in the video committing the infraction. Unfortunately, the only basis for saying that comes from the information transmitted from the third-party and the picture only shows the back of the vehicle. Moreover, the time the picture was taken is an issue. The government will point to the video and the hash-line showing a date and time. They cannot say, however, that it is accurate and it is also and therefore, in legalese, hearsay.

Date and time are big issues with these citations, as are the hearsay objections and matters of proof (predicate issues) with the videos and photos. Hopefully, all this will be settled at the upcoming enbanc hearing to be held soon in Orange County.

The Investigative Costs Fiasco - Florida's Corruption of Law Enforcement

2011-07-07T09:05:00.000-07:00

This is the first part of what I hope is a fruitful attempt to expose the corruptive nature of section 938.27 of the Florida statutes. Section 938.27 is titled "Judgment for costs on conviction." It states that in all criminal and violation-of-probation or community-control cases, people found guilty are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies . . . if requested by such agencies.

Most people will sit back and say "And so they should pay these costs!" (Hrmmph, as they sit back and flip the pages of their newspaper.) That sentiment is understandable. Criminals should pay the costs associated with society having to deal with their bad acts - and I agree. Why should the tax payer be burdened with the cost of a DUI investigation? It only seems fair that the expense fall on the neck of the person guilty of the DUI.

That is exactly how this law was sold to the public. Make the criminal pay and relieve the tax payer of the burden of these costs (or at least minimize those costs). Here in lies the problem. Making criminals pay is not my worry. The problem is to whom these costs are paid. The law requires that "[i]nvestigative costs that are recovered shall be returned to the appropriate investigative agency that incurred the expense. Such costs include actual expenses incurred in conducting the investigation and prosecution of the criminal case; however, costs may also include the salaries of permanent employees." Returned to the "appropriate investigative agency that incurred the expense?" This means that the police bill the defendant with a proviso to make payment to the police who arrested him/her.

Now let's for a moment think about that. It may still seem "okay" to many of you out there that people found guilty have to pay the police for the costs incurred and indirectly I agree. However, the police are "public" agencies are they not? They have a budget that is paid from tax revenue. That revenue comes from the municipality that created them - so, for instance, the City of Orlando funds the Orlando Police Department's [OPD] budget each year from tax revenue the City received (please correct me if I am wrong at ejdirga@ejdirga.com). So if the City of Orlando funds, through tax dollars, the OPD budget and that budget is (for simplicity's sake) say $100, then $100 of tax revenue is taken from City of Orlando to pay OPD each year. The idea behind the law would then be to have the criminals pay for a portion of that $100 budget thereby reducing the burden on the City of Orlando and indirectly on the tax payers.

So far that is what we have been sold - the idea that people found guilty of crimes are paying for the investigative costs of their offenses and relieving the rest of us of that burden. However, as you have read, those costs are paid to the police agency not the municipality. Where this money is going to and for what shall be the recurring theme as I try to find out if, in fact, any relief is coming to the tax payer or if this money is just frosting on the cake of law enforcement's revenue stream. The obvious concern is that if this money is just "additional discretionary funding" what part is it playing in the profession of law enforcement and the number of arrests made each year.

It's gonna start - Gotta get into the "Investigative Costs" Issue

2011-06-02T07:05:00.000-07:00

Started my public records request campaign to uncover what is happening with the Investigative Costs that the police now receive whenever they get a guilty decision with someone they have arrested. This law was sold to the public as "making criminals pay" for the money it costs to prosecute them. However, the law just gives this money to the arresting agency as (what I like to call) "profit." No budget gets reduced, no benefit to the tax payer is seen - at least that is what I will be trying to find out.

Stay tuned...

What Do You Do If Stopped By The Police

2011-05-26T10:02:00.000-07:00

Getting stopped by the police is a common occurrence. The police do this daily. If you happen to get stopped there are several things that you can do to make your future that much easier.

Here are some things to remember when pulled over:

1. Provide the officer with you drivers license, proof of insurance, and registration.
2. If you have a concealed weapon, keep you hands on the wheel until the officer has approached and explain the situation to him/her. Do not remove your hands until told to do so.
3. Always be pleasant to the officer. They may not seem pleasant to you (at first) but remember they don't know you and they have to guard against the possibility that you are an armed criminal.
4. Do not argue with the officer. He/She has the authority to issue you a ticket or a warning. Arguing all but eliminates the possibility of a warning.
5. Sign your ticket and be pleasant - you may run into this officer again and if you hire me to represent you for the ticket you want that officer's notes to reflect that you were nice.

Keep those things in mind and you will be a step a head of others in the challenge called "Keeping My Driver's License Valid."

Traffic Ticket Representation

Notice of the Laws - Government Fails Us

2011-03-15T09:35:00.000-07:00

Don't you think that if the State wants to stop people from doing something they should let people know what it is that they are prohibiting and what the penalty will be if people do it?

Hammurabi was a butcher of people but at least he had a conscience. The one thing Government is suppose to do is make rational laws and notice us of those laws. I could go into a complete 3 day discussion regarding the rationality of laws (or rather the irrationality of the laws) our lawmakers come up with but I'd rather not - my heart can barely take the doses I have to endure.

However, giving us notice of the law would seem fairly simple since the government publishes all the laws it creates every year. With the internet it is even easier to look up the laws. But don't let that stop the bureaucrats from totally muddying up the process. I'll give as an example the law that I was looking up for a client to find out hat the fine amount for violating said law would be (see my Traffic Law News page on my website).

Buried innocuously in section 316.2085 of the Florida Statutes [FS] is a prohibition simply stating that "A person shall ride a motorcycle . . . with both wheels on the ground at all times[.]" It goes on to say that a violation of this section is non-criminal and punishable under Chapter 318. Search chapter 318 for section 316. 2085 and you come up with a big zero - nothing.

That's because a violation of 316.2085 also shows up in section 316.1926 (known as "additional offenses") which basically states that a violation of 316.2085 is punishable under Chapter 318. Now search for 316.1926 and you find that a violation section 316.1926 carries a $1,000 fine! (under s. 318.14 - "exceptions").

I'm sorry, if this "bait and switch" is how government works we need to defund the entire process and start over. We are being represented by people not looking out for our best interests.

SB 792 Relating to Driving with a Suspended License

2011-03-03T11:42:00.000-08:00

The new senate bill (SB 792) that is currently passing through the Florida legislature will, if passed into law, make driving with a suspended drivers license much more harmful to your wallet. If it does pass it will become effective law on July 1, 2011.

This bill will require that a vehicle, driven by someone that has a suspended drivers license, be immediately impounded or immobilized. For a first offense a fine of $500 must be paid before release of the vehicle. The fine amount will not include standard impoundment/immobilization fees. A second offense will raise the fine to $1,000 and a third up to $1,500.

The release has to come from the clerks office making the bureaucratic delay that much more and your standard fees that much higher. A simple driving with a suspended license could be costing upwards of $2,000 or more before bail and attorneys fees.

The New Proposed Law Banning Texting While Driving

2011-01-04T11:23:00.000-08:00

Last year's initial attempt to ban texting while driving was so poorly written it would have made it illegal to read the amber-alert signs. For 2011 we have a new and better written bill that may pass muster this Spring and become law soon thereafter.

The highlights for this new law can be found in HB 79. The first thing that you will notice is a much better definition for what "device" is being banned. This is good. We don't want any more laws that are so vague it allows a police officer to pull you over at will.

The list of exceptions remains and allows for "texting" to report an emergency and includes receiving messages that are safety related or for navigational purposes, among others. Emergency duties by official personnel are also exempt.

This infraction can only be issued if the driver has been stopped based on probable cause for a separate traffic offense. But let's face it - if you're texting it can easily be claimed by the police you were committing another infraction. If this law passes expect this restriction to go away within a few years allowing the police to stop on suspicion of texting.

The BIG ISSUE with this law is that if you are cited and convicted (simply paying the ticket will result in a conviction) you will be assessed 6 POINTS. This is the amount of points assessed for citations involving automobile accidents.

I'll try to keep this post updated as the bill makes its way through the Florida Legislature.

Another year down... the new dangers.

2010-11-18T08:46:00.000-08:00

Well, we have completed another year of life and law and things are changing again. If anyone has noticed, court fees have dramatically increased this year. Somehow the government thinks that if there is no money for taxes then there must be money for fees. It gets you coming and/or going.

The economy continues to take a toll on all of us. Speaking of tolls, remember when you think about not paying a toll that the law allows the tollway authority to charge you the toll amount plus $25. If you get a letter stating that PAY IT. The next letter will be a ticket and that will be $200+ and the amount of the toll. The best bet is to pay all tolls or if you just don't have the money get a coupon from the toll attendant.

The racing statute has been amended to raise the penalties. Unfortunately, most people charged with racing continue to be people who are not racing. Unfortunate for them but quite advantageous for me if I'm defending them.

It has been a good year in the courtroom. All trials this year were victories. Victories meaning "not guilty" or "judgment of acquittal." I love that. Most other cases resolved favorably.

I started a case law update blog on WordPress. That blog is located at http://ejdirga.wordpress.com. It is mainly for the criminal defense lawyers but some cases are comical.

Remember when driving to obey the laws - law enforcement have two jobs to perform and the perform both very well. First to protect us and second to enforce the law. Additionally, make sure you have adequate insurance coverage. This includes uninsured motorist coverage. I started taking car accident injury cases this year and between that and my criminal law practice I can honestly say there are A LOT of people driving that are un- or under-insured.

Speaking of car accident injuries and personal injuries, check out the new website at http://www.attorney-injury-personal.com. There is a lot of good information on that site regarding car accident injuries and insurance.

Wishing you all a Happy Thanksgiving, Merry Christmas and Happy New Year.

Eric

Your Rights, Florida lawz and why legislators can't stop legislating...

2010-10-21T13:52:00.000-07:00

Do we have enough laws? Do you know how many volumes it takes to have all the laws of Florida before you? Did you ever realize that YOU are presumed to know all of these laws?

Sounds crazy but under the law you presumptively know all the laws and every new one that will ever be passed. You also know when they take affect! Let's take criminal laws: did you know that the penalties for racing went up as of Oct 1, 2010? "No!" Yes, you did.

Every year in Florida legislators get together in the Spring and pass more and more laws. (You know all of these laws by the way.) There seems to never be enough laws for legislators. They just keep adding more.

Did you know that you must wear your seatbelt now? Probably. That one got a lot of publicity. Did you know that the No-Texting And Driving law did not pass? Maybe?

Every year we are bombarded with new laws and you know every single one of them. So don't start yelling "I didn't know it was against the law to ________!" The State Attorney will just use those words against you. Stay silent. Remain silent. Tell them "I invoke my right to remain silent." Then contact your state representative and tell him/her that you do not know all these laws he is passing and you want to be noticed when a new law gets passed. He/she will balk and direct you to a website. Don't fall for it - the website is as confusing as all the laws that get passed. Immediately respond with "It's too confusing. I need an email from YOU when a new law is passed or, better, a copy of the new law." Give them your email address.

They won't email you anything. Why? They don't have to - remember, you are already presumed to know all the laws! Still can't grasp it? Let say you get pulled over and the police tell you that you were "driving too fast for conditions." You ask "how?" The police don't have to answer nor will they recite the law to you because they don't know it either - they only presumptively know it (although they do have a book with it written in they can refer to). Acting confused is no defense. A better defense is to respond this way:

Police - "I'm citing you for driving too fast for conditions." Standing by your window.
You - "No I wasn't." Smugly
Police - "I'm not going to argue with you. Tell the judge." Starts to leave.
You - "I presumptively know all the laws and I was driving right at the speed limit." A bit higher tone.
Police - "Yes, but it is pouring out and the roads are extremely wet and slippery."
You - "Your not a meteorologist!"
Police - "You can see it is raining!" getting angry.
You - "Are you a mechanical engineer?"
Police - "Have a nice day." Walking away.
You - "You can't testify to how slippery the road is!" Screaming back as the police officer gets in his car.

This won't save you a dime and it may cause you to piss off the officer and he may come up with a law that gets you arrested. When that happens you can say "I presumptively know all the laws and I don't know of any that you are alleging the authority to arrest me!" Remember not to kick but be sure to scream.

The point is that laws are being passed to the point of absurdity and we are all the victims. Contact your state reps and bitch at them. Write them letters and emails. Protest outside their office. Do all these things and know that it won't change a damn thing.

Law Enforcement

2010-10-11T08:44:00.000-07:00

Sometimes our jobs get the better of us. What that means is that sometimes we are not as good a person as we can be because we let trivial things blind us. As a criminal defense attorney, that "blinding" happens to me too.

On the way back from the courthouse today a downtown Orlando Police Officer on bicycle patrol passed me. I said "good morning" as I always try to do to Police Officers. He responded back and added "sir." I thought about that and I realized something. Yeah, I'm older and I have been called "sir" for a while now (regrettably, Lol!) but I did not get from the Officer that he was calling me "sir" because of my age. I understood that he was doing it as part of his character and his position.

We are all just people trying to survive in this world. We all have fears and hopes. It is no different for anyone else that has not simply let go of our societal boundaries. There is a reason for everything, good and bad. There are reasons for law enforcement officers to always try to do what is right even if what they do is ultimately wrong for some high-on belief that no one really understands. We have to accept that those of us that abide by our societal norms are all humans. We make mistakes but we all deserve the respect for being a participant in our societal plan.

The confusion between Rights, Privileges, and Laws.

2010-08-23T14:30:00.000-07:00

The recent mosque debate has led me to believe that we have a serious education problem with adults in this country. I can accept people being uneducated in the Constitution or American history or that, as we all get older, we can and tend to forget those things we have been taught but do not play a role in our everyday lives. All that I can accept.
In this case, though, even nationally recognized news-media personalities seem to be muddying the waters when it comes to what is a Right, a Privilege, and the Law. It is a habit we have all fallen into with the use of the word "Right" in particular. People freely use it to make their argument over some action they want to do. A few examples of this is summed up in the misconceived statements "women's rights" and "the right to marriage." In actuality neither of these exist.
To understand this we have to understand that a Right is something that we are empowered with from birth. It is something that government cannot grant or, more importantly, cannot take away from us without us violating a social norm, e.g., committing a criminal act can cause loss of liberty. A Right exists because we were born human beings. These are inalienable Rights and they apply to everyone equally. There cannot be Rights that only apply to women or gays. There cannot be a Right to marriage since marriage is a state created contract (Note: marriage comes in two forms, religious marriage and state marriage, here we are only talking about state marriage). A Right is something given to us by our creator (I know that some people like that term but it explains the concept well) and, thus, is above the power of government.
A privilege is a state created freedom that can be regulated and taken away very easily. Examples of privileges are the privilege to drive an automobile and the privilege to purchase and consume alcohol upon reaching the age of 21. These are freedoms granted to us by government and, as such, are different from Rights.
Laws also grant us some things. Laws set procedures for such things as acquiring real property, obtaining licenses to work in certain fields, and how we resolve disputes.
The problem that is occurring today is that we are getting all these things confused. Getting back to the mosque debate, as an example, Muslims do have the Right to practice their religion. That, however, does not mean that they or any other religion can do anything so long as it is in the name of their religion. The building of a mosque at ground zero in New York City does not fall under the First Amendment because whether the City grants or denies permits has no impact on the establishment of Islam or the free exercise to practice it. Better put, if this particular mosque is not built, will it prevent Muslims from practicing Islam?
The unfortunate thing that has occurred is that people, even news-media personalties, have equated the building of this mosque as a Right. It is not.
The mosque may or may not be built. Those for it and those against it can debate the construction of it for as long as it takes to decide the outcome. But when they debate it keep the word Right out of the conversation.

New Quick Fixes Corrupt Our Police

2010-08-16T13:36:00.000-07:00

Expanded forfeiture laws and ordering defendants to pay "cost of investigation" was tauted as a way to make criminals pay. Sounded really good. Why not have those found guilty to pay for the cost to the tax payers!

A forfeiture check worth $4+ million gets
shared between agencies.

Well, if it only worked that way.

The way it should work is that all of the "cost of investigation" money and all the forfeiture money should go back to the municipality that funds the budget for that law enforcement agency. That money should then be put into a trust fund for the following year's budget for law enforcement. The money saved for that year should then be refunded to the property owners who pay the taxes.

Unfortunately, this was the only way
this picture uploaded. Heads of Orange
County's finest share the profits. Tax
payers get nothing.

That is the way it should work and, except for the refunds, is how it was sold to the public. But the way it really works makes no sense. Today, when law enforcement forfeits property (seizes it and takes it from the owners and seeks a court order to transfer ownership to the agency) it keeps it to sell or use. When they get their "cost of investigation" money, they keep that too - and they get it even if the police were on duty the entire time of their investigation.

Now the process of fighting crime has turned into a profit making business. This is not how things should be at all and bodes ill of our future. I've already written about how bad cops don't get fired. It may be because bad cops bring in more money to the agency.

Once a profit motive enters into the equation any public service will be corrupted. Public service and profit cannot go hand and hand, especially with law enforcement.

In the old days "making their quota" was always the argument for getting a ticket. Today, "making their margin" will be the argument for getting arrested.

Some say justice delayed is justice denied...

2010-08-09T07:38:00.000-07:00

..Those are mostly prosecutors saying that. Take the case of Koua Fong Lee. Mr. Lee was charged with vehicular homicide on June 10, 2006. On that day his car ran into another car killing three people. Mr. Lee maintained all along that he braked but the car kept going forward. His car - a Toyota Camry.

Fast forward to today. Several things come to light. The most dramatic is the fact that Toyota has admitted to some issues with sudden acceleration with its cars. Less known is the fact that the prosecution asserted at trial that Mr. Lee's car was not equipped with Anti-lock Braking System, that the brakes were not engaged at the time of the accident, and that the lack of skid marks proves a lack of braking - all now known to be false.

Mr. Lee, who at the time was driving with his family in the car, tried to refute the prosecutions theory that he was attempting to commit suicide at the time of the crash. His explanation that the car would not slow down was simply ignored rather than examined as a possible alternative theory by the state.

The state prosecutes crimes with a flotilla of power. It has law enforcement, forensic laboratories, the power to subpoena, and the money to pay for experts. The main duty of all prosecutors is to "seek justice." With all that power and with their obligation to discharge their duty how is it that they cannot objectively investigate such cases?

As with anything that is rushed, a rush to justice can put an innocent man into prison, separated from his family and without hope of reprieve, for - in this case - three years of his life.

Should the Police be allowed to Break the Law?

2010-08-04T09:26:00.000-07:00

This question almost always comes up in the situation when a client has been caught speeding. He will get pulled over and be given a ticket and then complain to me that he was doing the same speed as the police car ahead of him.

I have been pointing out that the speed limit is "the limit" but lately I have been given more thought to this issue. When the police drive at speeds over the limit established by the Florida Department of Transportation are they not endangering those other drivers and passengers around them? Is that not the reason "we" receive speeding tickets?

Yes, I know, we want the police to be able to respond to emergencies as fast as they can and I am not discouraging that ability here. But when I have a client doing the same speed as the police and that police officer has the time to pull him over to issue a ticket, i.e., the officer is not en route to an emergency, is that "okay?"

Probably the scenario of exceeding the speed limit is so minor we really don't care. The police don't drive like maniacs and even if they are not going to an emergency no one is really up in arms about them exceeding the speed limit. But what about the case of OPD Office Fernando Trinidad?

In 2007, Officer Trinidad charged Jessica Asprilla with Battery on a Law Enforcement Officer (s. 784.07, Fla. Stat., a 3rd degree felony punishable by up to 5-years in prison) and, the old stand-by, Resisting Arrest Without Violence (s. 843.02, Fla. Stat., a 1st degree misdemeanor punishable by up to 1-year in jail). This allegedly occurred at the now defunct Paris Nightclub. Unfortunately for Officer Trinidad the nightclub was equipped with cameras which showed (1) that Jessica Asprilla did not commit the crimes he charged her with and (2) he pushed her down stairs causing her to be injured. (More fascinating is the fact that she was not even arrested that night. Her arrest came 5-months later after the State Attorney's Office issued an arrest warrant for the NA (non-arrest) charges filed by Trinidad. Not being arrested that moment for "Battery on a Law Enforcement Officer" is a glaring question-mark.)

Eventually, after the video came to light, the charges against Jessica Asprilla were dropped by the State Attorney's Office and an investigation into Officer Trinidad's actions ensued. Under Florida law it is a crime of battery to touch someone against their will. If the touching causes an injury the offense can be raised to Felony Battery or Aggravated Battery depending on the extent of the injury. Writing the false charging affidavit can also be a crime under Chapter 839. Orlando Police Chief Val Demmings (wife of now Orange County Sheriff Jerry Demmings) said that Trinidad "made a serious mistake." She added that "If she had something to do today, I would probably take a look at the off-duty work policy." Officer Trinidad was working off-duty at the time of the arrest.

About 6-months after this story broke the news in 2008, the State Attorney's Office held a grand jury to determine if criminal charges should be filed against Officer Trinidad. It has to be understood that a Grand Jury is conducted solely by the Office of the State Attorney. The Prosecutor can introduce or not introduce any evidence that he or she wants and the sole purpose for the Grand Jury is to determine if enough evidence existed to indict the person under investigation. As expected, the Grand Jury did not indict Officer Trinidad.

For this incident, an incident that showed "Trinidad's actions were clearly the cause of Asprilla's falling down the stairs" and that Trinidad had entered "inaccurate, false or improper information in Asprilla's charging affidavit," Val Demmings removed 8-hours of earned vacation time from Officer Trinidad's employment records.

Here I say "No!" law enforcement officers should not be allowed to break the law. I might even add "hell" in front of that. First, the punishment was a joke. Writing a false arrest affidavit accusing anyone of a crime that can result in a person's loss of liberty should be automatic firing from the agency and loss of his license to be a police officer, anywhere! Second, Val Demmings needs to do something today like read a dictionary to learn the difference between the word "mistake" and "crime" and then brush up on her Florida Statutes on what a "battery" is.

Maybe driving over the speed limit for no official reason is not such an egregious act. But if that leads to the thinking that the police are somehow above the law - that adding this or omitting that from a charging affidavit or that a little shove will shut her up - then maybe the police need to be held to the same standards they hold us. The incident of Officer Fernando Trinidad should be a wake up call to all citizens of Orlando. If it had not been for the video camera at the club, Officer Trinidad might have gotten away with his crimes - and make no mistake, these were crimes not mistakes.

It should be noted that both the Orlando Police Department and the Orange County Sheriff's Office have removed their in-car cameras from all standard patrol vehicles. There won't be any video "mistake" when you get pulled over.

- All quotes were taken from articles written by the Orlando Sentinel.

UPDATE: January 28, 2011

Well, a federal trial was had - Jessica Asprilla filed a law suit asking for monetary compensation from the City of Orlando and Fernando Trinidad for medical bills, false arrest, malicious prosecution, excessive force, emotional and physical suffering, etc. The jury found that Officer Trinidad was guilty of battery against Jessica Asprilla.

She got a judgment against Fernando Trinidad for $4,700.00 in medical expenses.

Officer Trinidad was cleared of all criminal allegations by a grand jury and an internal OPD investigation found he violated agency standards. He had 8 hours removed from his vacation pay and was reassigned to the Orlando International Airport.

Let's see how this all works. First, the monetary awards were decided by a jury so I will leave that alone. Gotta trust someone in this "system" and I find jurors are often the ... er, ones to trust.

Let's look at how Officer Trinidad was cleared of these offenses. First, a grand jury cleared him of criminal charges. That's a jury, can't we trust them? Well, no. A grand jury is a different beast all together. All they do is listen to the State Attorney's Office put on evidence and then they are asked "is that enough for us to charge that person with a crime?" There is no defense put on and the evidence put forth is totally up to the prosecutor. Sooooo, let's just say the prosecution has a lot of power with a grand jury as to what evidence they hear or don't hear.

OPD apparently does not find it offensive or indignant that one of its officers kinda sorta maybe got a little creative with an "official sworn statement." No bells were heard ringing at OPD headquarters when one if its officers filed "battery on a law enforcement officer" charges without arresting the person. No, that is all perfectly a violation of standards but not worthy of dismissal. No big deal.

Or!

What may have really happened is that Officer Trinidad lost his temper, pushed a person down a flight of stairs, and then later had some concerns about it and talked with a fellow "thin blue line" friend to get some advice. Next day or so he writes up a charging affidavit to "cover his ass" (CYA) and files it with the State Attorney's Office just in case this Jessica Asprilla person might try and do something stupid like sue him for her injuries. He will just "officially" turn the story around on her before she ever knows it and "Whalah!" that civil law suit will come in standing on no legs! Brilliant!

Unfortunately, for the mind trust at OPD, the odds were that nothing would have ever come of this had Trinidad just let the matter go. Jessica Asprilla was well on her way to forgetting the event when she was arrested 5-months later. Accusing her of the crime began the whole ball of wax rolling which ultimately cost the taxpayers of the City of Orlando a whole lot-oh-money!

Luckily for us who live here, current Orlando Police Department and City of Orlando employee Officer Trinidad has had to pay for this with 8-hours of vacation time - gone - disappeared - just like that.

Orlando Police Department and Orange County Sheriff's Office: BRING BACK YOUR IN-CAR CAMERAS (P.S. It's 2010)

2010-07-15T10:15:00.000-07:00

How many years has it been since the Orange County Sheriffs Office and the Orlando Police Department decided that video cameras hurt their cases (because video doesn't fabricate evidence) and took them out of their cars? Has it been over ten years?

Up until now when I commented on this "absence" I have given these agencies the benefit of the doubt. I have not expressed my suspicions. Yet now it just has to be said. The Orlando Police Department and the Orange County Sheriffs Office have removed the in-car cameras from their patrol vehicles because they would sometimes be used by the defense to refute what the police had charged. Don't tell me it was done due to lack of money because this was done during the purchasing era of 16 elephant guns, tanks, and multiple airplanes. This was during the time of vast expenses on items that were NOT needed.

In-car cameras not only provide a protection to the public (if you are accused of drunk driving the video should corroborate the lack of sobriety) they provide protection to the officer. How many times on "America's Most Wanted" do we see police video capturing the bad guys faces and license plate after they have shot at the police? This is basic equipment. All surrounding jurisdictions have the cameras in the cars and caseloads in those counties are done - cases are resolved.

Lack of video evidence reduces many traffic arrests to a "cop said, he/she said" court battle that wastes precious court resources. It use to be that a video either supported the police report, in which case a defendant would enter a plea, or it refuted the police report, in which case the state would reduce or dismiss the charge. The video didn't exaggerate, embellish, or outright lie. It was and can still be a great tool in resolving cases.

The Orange County Sheriffs Office and the Orlando Police Department have to replace those cameras.

Can a little bump really cause an injury?

2010-07-12T09:58:00.000-07:00

Driving a car has inherent risks. Physics will show that when a 3000 lbs vehicle hits another 3000 lbs vehicle, the contents of said vehicles are going to get, well, jostled. Most accidents occur at the 5-10 mph range. You are sitting there, the light is getting ready to change, then "bump." There goes your new clean car.

Immediately after an accident, that results in a sudden jolt of your body, you brain is sending out all sorts of signals to send chemicals out that dampen the effects of pain. This is why we feel more pain after time has passed than immediately after an accident.

Sudden jolts can and do cause serious, long-term injuries even when we think it was just a fender bender. Why? Think about your body. Human beings have a unique posture. Our neck and backs are vertical to the ground. That means our back and neck bones sit on top of each other, one upon the next. It is like a Jenga game. Now imagine one of your vertebrae is pushed slightly out-of-whack. That can't be good. Then remember that in-between each vertebrae is a disk - that can be pushed out of place. And finally, remember that running through all these neck and back vertebrae and disks is your spinal cord. A bundle of nerves that allows you to move, breath, eat, walk, etc.

All I want people to know is that you can get hurt in a minor accident. The effects can be long term. Florida law requires that everyone carry a minimum amount of automobile insurance. Part of that is money specifically designated for your medical costs. You can't get it, and attorney can't get it, and it cannot be negotiated away. If you are involved in a car accident, get checked out by your doctor. Make sure you are okay. Do not settle with your insurance company until you know what is your health situation.

You have paid your insurance premiums for years. Accidents are what you insured yourself against. Please use your insurance when the time comes.

Competition, Winning, and Doing the Right Thing

2010-07-06T13:16:00.000-07:00

Why is it prosecutors always seem to lose sight of their goal? Maybe because young prosecutors are not taught what their goal is, what their job really is.

When I was a prosecutor I can remember the enormous amount of peer pressure to, first, go to trial, and then to have people found guilty after a trial. All the other new prosecutors would want to know if you were in trial and then if you had won. Overlooked was the reason we were there. It was simply a matter of fear and doing it.

The reality was that we were all scared of being in trial. We were new, did not know what we were doing, and generally had an over exaggerated view of what a trial actually was from the TV and movies. So we hid it by pressuring others, by taking things to trial "for the experience," by making ridiculously hard offers on cases easy to prove. We were competing with each other and our fear and desire to show others that we were not afraid drove us. Unfortunately, we were exorcising our fears at the expense of the public and, by innuendo, ourselves.

The goal of a prosecutor is to seek justice. The job of a prosecutor is to seek justice. Justice is a very complex word. It is not the same as the word "bike" or "cake". Those words are clear. We know exactly what a "bike" is or what is a "cake." We do not have to look up the words "bike" or "cake." We do not sell "bikes" or make "cakes." However, a prosecutor's job is all about "justice." He or she is suppose to seek "justice" in every case that he or she works. It is therefore imperative that a prosecutord have a concept of what the word "Justice" means, what it stands for, and what it alludes to.

I do not sit here writing this as if I am omniscient and have a firm grasp on this concept called "justice." Then again, that is no longer my job (although I find myself seeking it almost every day as a defense attorney).

Yet today we live in the Information Age. We can look up anything at anytime from just about anywhere. I find it hard to believe that the concept of "justice" is so elusive. For instance:

Wikipedia has a site: http://en.wikipedia.org/wiki/Justice#Concept_of_justice
Amazon has books on Justice: http://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Dstripbooks&field-keywords=justice&x=10&y=15
Or just Google "What is Justice" http://www.google.com/search?sourceid=chrome&ie=UTF-8&q=What+is+justice

Can it be that hard?

If the idea is to seek "justice," a prosecutor might actually have to understand both sides of a dispute - both sides of the allegations - in order to find "justice" in outcome, or at least have a slight idea of what result would come close to achieving "justice." Yet many prosecutors only rely on police reports, police witness lists, and evidence collected by police to the exclusion of everything else. There is no effort to find out any more than one side of the story before heading off to trial and trying to convict a person of a crime. This is not the job of a prosecutor.

Depositions of "other" witnesses seem to be a bore to prosecutors, an inconvenience. Some will listen but others twiddle their thumbs, work on their iPhone or laptop not paying attention. They hardly ever obtain a transcript of the deposition and instead just argue against whatever it purports to say.

I am pretty sure that all prosecutors went to the same law schools we all went to and I am pretty sure the only other training they received were the words "your hired."

What makes them seem so different? Our competitive nature is the only thing that comes to mind. One would think we were able to overcome this basic nature at so high a calling. Every once in a while you are faced with a prosecutor that wants to listen and see the entire picture. These are the true prosecutors. I have been very fortunate to know quite a few true prosecutors, those that seek justice rather than convictions. And when it works, our justice system is a beautiful thing.

Fourth of July and why you can't trust the police.

2010-07-02T09:49:00.000-07:00

Yep. I said it. You can't trust the police. Shocked!? No. There is a reason why we cannot rely on the police to be right all the time - like us they are human beings. They do their job and for the most part they try to do a professional job. While, at the same time, we are doing our jobs, travelling to work, paying bills, trying to survive - just like them. So it is understandable when we come in contact with the police, in the worst of cases - criminal cases, that we each remember things differently and, therefore, we cannot trust the police... to remember things just like us.

As a defense attorney I always feel that the arresting officer is going to embellish what he wrote in his report when he is testifying on the stand - and for the most part it is true. They embellish and manufacture facts that are not in the report and they think they are helping the prosecutor. Unfortunately, for the police, embellishing and modifying their reports always seems to backfire for them. The jurors are people too and they can sense when that fine bit of prosecutorial direct examination is just a load of bullshit. That is unfortunate but not for me.

It is unfortunate because jurors just want to know the truth. That's all. If police would just answer questions honestly without worry of the outcome they would do so much better at trials. Don't embellish, make things sound worse, of fill in the blanks of your memory - tell them you don't remember, or it is not clear, or it has been a while - the jury will believe that. They will respect that. And they will tend to trust the person that portrays them self as an imperfect human being because that is believable.

Every now and again I deal with a police officer that comes in, testifies honestly and without worry of the outcome, and when all is done - he/she leaves. It is the worst nightmare I can have. Thank goodness that type of officer is rare today.

The Government does only one thing really well...

2010-06-23T09:48:00.000-07:00

Every government program, no matter how well intentioned, does only one thing well - penalizes people who don't follow the rules. Look at Medicare Part-D. Why is there a "window" for senior citizens to make necessary changes in their coverage? And if they don't follow the rules or 'forget' (something unheard-of for our seniors) they suffer with the lack of coverage and the lack of the benefit Part-D was all about.

Don't get me wrong - I don't think there should be a Part-D or Medicare at all. If the government had not taken their money to "pay" for these programs maybe those seniors could pay for their own medications without having to ask for help from the government.

Let's look at something that affects everyone - car registrations. Henry Ford really put the car on the map. He made cars affordable for everyone. With cars in everyone's hands came accidents, get-aways, and grand theft auto. Well, it's damn hard to figure out who did what to whom if the police look at a car but can't figure out who it belongs to. So we got registrations, vehicle identification numbers, car insurance, driving tests and drivers licenses. These were all done to "protect us."

All good, but for... You see, no matter how much the government tries to "protect us" they can only "protect us" by pointing the barrel of the law at us. Register your car or face a fine or jail and suspension of your drivers license (read on). Have car insurance or be fined (actually it is have "proof" of insurance or be fined, but guess what - when they stop us the police already know whether we have insurance or not because they are all connected by computer to D.A.V.I.D. - why the hell do we need to carry that card around?). Have a valid drivers license or be fined, jailed or put on probation - and, have your driver's license suspended again.

Now, all those things that were for our protection - namely having a drivers license that shows you are qualified to drive a car - is being used to punish us. Yep, now that we need a drivers license to live - it can be an excellent tool for the government to "put the screws" to us.

So, now - even when we have not committed a car related infraction of the law, the good 'ole government has decided that - as part of the "punishment" - our drivers license shall be suspended. This is for such things as drug possession in the middle of the woods, shoplifting at the Mall, or spray painting graffiti on a wall. If you are too young to have a license you may have to wait a bit longer before you get it.

See, nothing that government tells us is to "help" us is ever in a void. There is always a catch. The catch just happens to be "suffering."

Racing and Guns - Really?

2010-06-22T04:59:00.000-07:00

I was struck by how many times my "racing" clients explained how they had been stopped and then extricated from their vehicles by what is known as a felony take-down - guns drawn and pointed and screams of exit and get on the ground. Now I know why.

For some reason people who race cars, members of car clubs, drive little imports with loud mufflers, carry guns or worse - carry toy guns with the red safety cap removed or painted black. What's worse than showing up to a gun fight with a knife? Showing up with a toy gun. Want to get shot? Point a toy gun at someone with a real gun.

Anyhoo, carrying a gun when you are about to do something illegal is extremely unintelligent. I can understand why the police use the felony take-down procedure for racing stops. I just cannot understand the use of guns in these "sporting" events.

The Technology Age - Not for Orange County

2010-06-21T11:38:00.000-07:00

The next time you are watching "Cops" or "World's Most Dangerous Crimes" or whatever the new police reality show is, remember that there is a reason you will never see the Orange County Sheriff's Office or the Orlando Police Department on those shows. The reason is that about a decade ago both agencies removed their in-car cameras from their patrol cars.

The reason for this is unclear but we know it was not due to the expense. Almost every police department and sheriff's office in the country has in-car cameras for their officers safety and as an evidence gathering tool - e.g., see TV shows named above. From the perspective of a criminal defense attorney, the answer for this omission is easy - without a camera we (everyone else) must rely on what the police describe in their reports.

If it is true that the cameras were removed because the video didn't jive with the officer's reports then we have to thank the Orange County Sheriff's Office and the Orlando Police Department for congested courtrooms and questionable outcomes. It was clear, before the cameras were removed that cases were resolved with the video. If a person was falling down drunk on the video the case did not go to trial. If a person is not showing signs of impairment, the case was resolved by a dismissal or an amended charge. Cases were resolved. Today it has turned into a "he said, she said" battle because of the lack of evidence - and we are all paying for it.

To the Orange County Sheriff's Office and the Orlando Police Department - bring back the cameras!

We can all relax - "Standing in Line" has been saved.

2010-06-17T10:11:00.000-07:00

Here is a lesson to all of us. A certain Clerk of Court Office, south of Orange County, has paid for a system, that I am sure cost tens of thousands of dollars, to bring "standing in line" into the 21st Century all the while that same clerk is laying off people. No Joke.

Now, as far as I remember, learning to "stand in line" was lesson #1 in kindergarten. We perfected it with lunch lines from first through eighth grades. For those who have been in the military, we learned higher levels of "line standing and advancement" with very bad things happening to us if we screwed up this BASIC skill.

Now, however, a specific Clerk of Court, with the use of technology, has raised "line-standing" into a technical feat. Before, at this Clerk's Office, we use to go to where we wanted to make a payment, see a line, and place ourselves at the end of the line. As one person paid and left we would all move up just a little. The system worked despite its primitiveness. Now, the line has been completely abolished. First one must possess a slip of paper produced by a small printer on a counter that says "Do not touch the printer." A person behind the counter must be told "I need a slip." With these magic words a slip of paper prints out toward you from the printer. You must take the paper without touching the printer. Then you must walk the distance of the building as it is long to a room filled with chairs. You sit down (Note: no standing). On the wall is a huge large screen HD television (maybe plasma). It has to be at least 60 inches. On it we can see numbers. These are the numbers on the slips that have been printed out way down the hall at the other side of the building. A voice comes over the intercom simultaneously as the very nice big television puts the image of the numbers being called. The voice tells us what number is ready to see which clerk window. When we get to that window we must hand the slip to the clerk and then proceed with our request.

On this day we did it wrong and had to do it all over again but that is not the point. The question is "Did we really need this advancement of "standing in line" thrust upon us when we can't even pay for the employees at this Clerk's Office?

Yeah, yeah, everyone thinks they know better. To them I say "STOP!"

The Car Insurance Formula

2010-06-15T05:48:00.000-07:00

I think many people have a misconception about suing companies and big settlements. I don't think people understand that there is a conceptual relationship between extent of injuries, amount of coverage, and settlement when it comes to car accident injuries. I like to think of this as a mathematical formula - the lay-person can look at it as the lottery, but a lottery that they can manipulate.

Wouldn't it be nice to play the lottery and get three of the six numbers given to you. Well, in the world of personal injuries the most common catastrophic injuries occur from car accidents and with car accidents you all (us, we drivers) have great control. You can say we have the opportunity to have three out of six numbers.

When it comes to car accident injuries and claims (the amount of the settlement) the formula looks something like this: C (insurance coverage) / I (extent of injury) = $ (settlement or verdict). I is a number from one to ten with one being the most severe injuries and ten being the least.

The only factor that we all have the ability to manipulate is the amount of coverage. If you carry a minimum policy of $10,000 and some uninsured kid, driving his import with the loud exhaust slams into you causing you to lose both your legs, that $10,000 policy will not carry you far once it is determined that the kid has nothing. We can look at this as $10,000 divided by 1 = $10,000. Not much compensation for the loss of two limbs. In that situation the insurance companies will write you a check for the $10,000 the same day - they are done after that.

If you had $1,000,000 policy with commensurate uninsured motorist policy (http://bit.ly/c1An4I) then that policy would compensate you better than the first scenario. The difference is that your insurance company will try to settle for far less than the limits you insured yourself for (http://bit.ly/akKyLj).

Car accidents happen everyday. They account for the most injuries due to accidents. If you want to be safe and compensated if and when that uninsured kid slams into you then make sure you cover yourself properly with a more than adequate auto insurance policy.

Home of Government

2010-06-14T13:56:00.000-07:00

There was a time when domestic violence had a scientific definition, then government took it over (http://www.ejdirga.com/criminal_offenses/domesticviolence/truth_about_domestic_violence.htm). There was a time when no one was ADHD, then government took over children's behavior and the schools. Funny, no matter what the government touches it turns out bad for someone.

In Florida, more people are jailed daily for driving a car than any other crime.

"Yes, but Eric that is because their drivers license has been suspended!"

Florida requires the suspension of a person's drivers license for such offenses as theft and graffiti and pot possession even if all done away from any car. http://www.ejdirga.com/traffic_crimes/suspendedlicense/dwls_hto.htm

The fact is that Florida suspends people's drivers licenses with or without notice for many things and then the police arrest people daily for driving with a suspended drivers license. Can everyone see how crime can statistically rise because of this? Do these penalties deter crime or unwittingly increase it?

"But Eric, people without a valid drivers license are more likely to be driving without automobile insurance and that can effect all of us, heaven forbid!"

Then penalize driving without automobile insurance.

The Land of the Little People

2010-05-26T11:11:00.000-07:00

We live in some pretty weird times. It seems as if the world all of a sudden turned upside down. East is West and South is North and Santa Claus is forbidden from being talked about. Now I know a lot of things have been changing for some time and people have been going through tough times - we all have - but where in the world has this attitude come from that suggests that relying on the government is a good idea? I'm not sure but there are a lot of people that seem to think the government can do things better than private enterprise. Yes, we really do live in weird times.

I hear people complaining about "big business" all the time. I think they are referring to those entities that provide employment for people. Most also provide medical insurance too, well, up until about 2014 now. Anyhoo, many people complain about how big business is doing this and big business is doing that - all bad stuff, ignoring all the good that "big business" does. Oh, "they're greedy" this and "their greedy" that - people talking from a point of complete ignorance. These people think government is the answer to making their dreams come true... maybe little dreams, very little day-dreams, maybe?

Maybe they are right because private business does make you work for their money. They also provide opportunities for advancement too, but skip that. Government gives you a job for life unless you really mess up like bringing a gun to work and shooting the place up - that will get you terminated from your government job. What does Big Business do? Not a damn thing except make their bosses and owners rich! And pay their workers, and pay the taxes to fund the glorious government, and pay for medical insurance, and other benefit stuff... But other than that NOTHING!

Let's look at what government does so well. NASA! oops, defunded. They don't do that well anymore. Okay, the military! Those warmongering people that take poor kids and send them off to war! And provide college tuition, loan repayment, medical benefits, retirement benefits, education, technical skills, teach motivation, responsibility, and otherwise take people going nowhere and turn them into doctors, lawyers, entrepreneurs, etc. Okay, skip the military, we know they prey on the under-privileged.

Seriously, besides the military what does government do well? They pass a lot of laws that regulate our behavior and if you break the law they take your money, your freedom, or both. And despite Hammurabi, our laws are not clear and not easily read. Hell! they are typically impossible to be found. Seriously, has anyone that is not an attorney tried to look up a specific law? If found, could you understand it?

A good example is the suspended drivers license statutes in Florida. These statutes put more people in jail daily than any other crime. What is worse is that often times this offense is over-charged and people are needlessly incarcerated. This is great for the criminal defense bar but for the average person it will cost them upwards of $2500 to extricate themselves from this mess when you include the costs and attorney fees.

Okay but the government does put people to work in tough times right? Yes, yes, let's take a walk down history's path. We must be talking about the New Deal and Roosevelt and the Great Depression. So when government hires people who are down trodden, pays them a minimal wage, and exploits their labor - it is okay? The government during the great depression raised taxes (read: took their money) on anyone still working (roughly 75% of the population) and turned around and hired people to do back breaking work all across America at an exploitative $1.25 per day wage - and this is why government can do things better than big business? Better than the big business that brings you Air Jordans? Better than the big business that brings you iPods? Or fancy cell phones, sunglasses, or movies? Better than those big businesses that bring you the Yankees, Lakers, or Redwings? Yes, government is great. Government brought welfare to your neighborhood and for four generations now have held people in ignorance and poverty for a mere $800 per month. Can it get better? Yes!

All the while that government creates such bliss we have politicians passing laws to tax us more so that they can use the money for their own personal gain. Ever been audited by the IRS? Politicians holding office haven't. Ever been jailed for theft? Politicians holding office haven't. Do you like being taxed ten ways to Sunday? Politicians don't and they don't pay their taxes. Who will know and if found out who will do a damn thing about it?

Government has caused more pain and suffering than any private "big business." The main reason is that if you don't like the big business you are FREE to quit, boycott them, ignore them, bad mouth them, etc. Not so with government. It use to be that we were free to do all these things to our government too, but today, well, north is south, and east is west, and well, things just aren't the same.

Yet this is your government at its best. Go believe that your salvation is with them, big government. Help them crush freedom under foot. And when all is said and done and you find yourself a slave to the powerful, when you realize that freedom is worth more than any government job, sit there and take it! Cry to yourself. Don't bother me with your problems. The government shall raise the poor to be poor.

Some Websites to Help Figure Washington DC Politics out.

2010-02-01T12:54:00.000-08:00

Politics over the last couple of years has been heating up. Each side claims the other is doing this or hiding that. Waiting on your favorite news channel to tell you what is happening has turned into a cheer leading competition. If you watch MSNBC you will hear the "good" about the democrats and the "bad" about the republicans. If you watch FOX you will hear the "good" about the republicans and the "bad" about the democrats. Ironically, we live in the information age yet getting the straight scoop about our government is as hard as tying your shoes with your hands tied behind your back.
Frankly, I am tired of the news pundits. We need real news to know what is really happening. I would like to have someone else do the research and just tell it to me but today - who can you trust? They no longer try to hide the spin - they blatantly smear it on news items like frosting on a cake. If you want the facts you will have to do the research yourself. Not really a fun task especially when we have so little time to do such "unproductive" things when we are struggling now just to live and pay ever increasing taxes. So I decided to list some websites below that seem to be non-partisan and that give us information (the dirt) on our politicians. Enjoy.
Open Congress
This is an excellent site that tells you who every congressman is beholden to. It includes Bills, donors, campaign money-in/money-out, and voting record. There is a sister site called Open Congress on Wiki that use to be called Congresspedia. Very informative.
Map Light
This site is dedicated to connecting the money to the politics. For example, why was there no tort reform in the Heath Care Reform Bill? Maybe because supporters, such as Mary Landrieu (D-LA), received over $1.2 million in contributions from lawyers and law firms. Harry Reid? Almost $3 million from lawyers. Now we can see what is really going on in politics. very good interactive map to find legislators.
Open Secrets
This site delves deep into the contributions to politicians and explains where the money is coming from. It also points out when the candidates are out of compliance with federal reporting laws - for instance, John McCain has incomplete campaign finance reports on 12.8% of his 2008 contributions. It tells us who donated, where they are employed, the amount of the contribution, and the date of the contribution. Running through the names of contributors for Barrack Obama will expose some of the way political favors are paid back.
Check back as I add more informative sites.

Expungements, Expunging, and Expunged Criminal Records - The State of Affairs in Florida

2010-01-11T12:46:00.000-08:00

Today many people are becoming aware of the term expungement. A bad economy and the high rate of job loss has people scrambling to become more competitive to potential employers. When it comes down to hiring a person who has a criminal record and one that does not - the choice is clear. Even people who have not been involved with the court system for years are finding old arrests popping up with more frequency causing headaches, head scratches, and awkward explanations. More to the point, these past mistakes are causing employers to look elsewhere for employees.
Florida attorneys have seen the trend and many are hoping they can cash in on the trend. Unfortunately, there is much more to sealing or expunging a criminal record than just petitioning the court. Having done hundreds of petitions to seal or expunge for clients in Florida, it is easy for me to say to people hoping to clear up their criminal record to be wary about who you hire.
When looking for an attorney to seal or expunge your records make sure the attorney has been doing these types of procedures for several years. This is important because most public defenders and assistant state attorneys that open up their own office have never done these before. They may be ready to defend an armed robbery suspect but they have never sealed or expunged a single record. Yes, they can plod their way through but odds are you do not have the time for them to correct their mistakes.
I have been sealing and expunging criminal records since the 90s. I have two websites regarding this procedure that can be found at My Criminal Defense Website and My Website Dedicated to Expungements. If you are dealing with a good attorney, knowledgeable in the law regarding sealings and expungements, he/she will be able to tell you if you qualify before you hire him/her. I always do this. My assistant and I will always ask a series of questions about your situation to ensure you qualify before a dime is transferred.
A good attorney will also explain that the process takes between 6 and 9 months to complete. If an attorney tells you it can be expedited and they can do it in less time - be careful.
I speak to the personnel up at the Florida Department of Law Enforcement [FDLE] who process the paperwork. I have gotten to know them over the years. They are dedicated and very helpful and, on occasion, they have looked at a file of one of my clients for me at my request. This does not mean they fast-track the file. They are dedicated, helpful, and above-all professional. The process takes between 6 and 9 months, period.
When you seal or expunge a criminal record you have the lawful ability to deny that the arrest ever occurred. However, there are several exceptions to this. The attorney you hire should explain this to you before you proceed. I list these on my website under exceptions for everyone to read.
I split my fees in half because petitioning the court to seal or expunge a record is a two part procedure. The first part involves obtaining a certificate of eligibility from the FDLE. If we cannot get that then our client does not owe us the second fee payment. However, as an experienced attorney in the field of expungements, even when the FDLE denies our clients Certificate of Eligibility, we are able in many cases to correct the reason for the denial and get our clients on to the next phase which is to petition the court. Only when we receive a certificate of eligibility do we ask for the second payment. We also post our fees online.
Remember you get what you pay for. Be cautious of the low fee. Often times the low fee come with very little explanations and no pre-qualification screening. This means that you can be throwing your money out-the-window before the attorney ever realizes you don't qualify.
The fact is that not all attorneys are experienced in expunging criminal records. There are several around the state of Florida that have been doing them for years, including my office. We often cover for each other and assist each other because we each are on the same page when it comes to helping our clients.

HB41 – No more texting and driving

2009-12-16T14:04:00.000-08:00

THE PROHIBITION OF TEXTING AND DRIVING – FLORIDA HOUSE BILL 41

A study was done recently that claims that texting while driving is as dangerous as driving while impaired. This study hit the newswire and went viral. As soon as the news ran with this study I knew it would be a matter of days before one of our illustrious Florida state legislator rushed some bill out to make texting and driving against the law. This type of behavior by our legislators is not uncommon (actually it may be the rule) and it has caused the “one withhold and your done” legislation to pass right after the Miami Herald had an article about people with felonies getting multiple withholds of adjudication – as if the journalist was a contemporary legal giant (or even had a clue about the legal system). The bottom line is that our legislators rush out “crap” laws at a drop of a hat if it will allow them to say “I pushed for [fill in the blank].”

HB 41 is the Florida House Bill that is set to modify section 316.304 (currently titled “Wearing of Headsets”) of the Florida Statutes some time next year when it passes – and it will pass without a single objection, trust me. Once passed the new title will read “Use of listening or communications devices: restrictions.” The main change to the statute states the following:

No person shall operate a moving motor vehicle while reading, manually writing or typing, or sending a message on an electronic wireless communications device.

Seems innocuous enough – just like that new seat-belt law that allows law enforcement to pull you over if they “suspect” you are not wearing your seat-belt. It use to be only if you committed another infraction that they could cite you for it. I guess now law enforcement will be allowed to pull us over if they “suspect” we are texting while driving – and why not! It is a dangerous activity according to that study, right? But what is an "electronic wireless communications device"?

Long ago we had a group of people get together that agreed that the force of government had to be restrained if said government was going to be from, by, and for the people. I know I’m mixing some history there but the underlying theme is the point. Along these lines they put in a restriction on government intrusion into our lives and they called it the Fourth Amendment to the Constitution which was also adapted to our state constitution in Article I, Section 12. The gist of all this effort way back when is that the government was not going to be allowed to intrude into our lives absent a warrant or unless you were dumb enough to commit a common law crime.

Flash-forward to today and we notice (1) the whole idea of the warrantless search prohibition has been watered down, and (2) if you didn’t know much about it to begin with, so much the better – at least from the perspective of the government. "But wait a darn minute, Eric! The government is made up of people, just like you and me, that share in our freedoms and in our desires too! They would not do anything that would make their lives more harsh."

Yeah, forget that notion. Makes logical sense until you put in the one illogical factor – people, and the one desire – power. Today we have very little legal privacy in our cars. The law allows us to get pulled over and stopped, a/k/a seized, by law enforcement anytime they can write up a sufficient probable cause statement (or at least fabricate one on the fly at an infraction hearing). I am not saying that law enforcement officers make up their probable cause on every traffic stop they make - I am just pointing out that it is just that easy to do. There are no real safeguards in this area. If a police officer testifies that he saw you run a red light – you pretty much ran a red light.

So what does all this have to do with HB 41? Well, it says that law enforcement can stop you if they have probable cause that you are texting while driving. All the police have to describe is some activity indicating the probability of you texting on the phone while you are driving. Let's face it, today just about everyone has a cell phone and just about all cell phones are capable of texting. Not much difficulty there to describe a probable cause situation allowing law enforcement to pull you over for “suspected” texting – unless you just happened to forget your phone that day. I don’t know what law enforcement's new whacked-out terminology they will use will be but I suspect it will include such language as “observed,” “focusing in a downward fashion,” and “manually manipulating a device with furtive shoulder movements.”

All this can and will get you pulled over once HB 41 passes into law. Of course these movements could describe you writing without using an “electronic wireless communication device.” Maybe you are putting in your destination on your GPS device – is a GPS device also an “electronic wireless communications device”? What about an electronic book such as Kindle? Okay to read a paper book but not the Kindle? How does that make sense? There will be a lot of confusion and a lot of time spent trying to figure out this confusion but one thing will be constant – law enforcement/government will be getting more intrusive.

So what’s the point? The point is that not everything we think is bad should be prohibited by laws. All new prohibitive criminal and traffic laws have in common is that they all allow law enforcement another excuse to intrude in your life. Can’t we, as people, be entrusted to stop texting and driving on our own? Can’t we shame ourselves out of this behavior? Many will say that we can’t but their alternative is trust in the law. Having worked “in the law” for several years (and I think my colleagues will agree with me) I am not big on the trust factor. Moreover, if texting and driving is dangerous, isn’t just about anything we do while driving dangerous? Should everything be prohibited? Does government really need to protect us from ourselves? Do WE need to be protected from ourselves? When does it end?

Other problems arise too. I touched on it a bit above. What if you are programing your GPS or writing a note on “paper”? You may get pulled over for that. Something not prohibited yet whose perception gives rise to probable cause for a texting violation and once you tell the police officer what you were doing he writes you a careless driving ticket. Inconvenience, stress, and more money being paid out of your pocket to the state and we conclude it is all in the name of safety. Well, I don’t buy it.

“You wouldn’t feel that way if you were hit by someone who was texting, Eric.” I can hear that already. Will this law really stop texting and driving? Will it really make us any safer? Or, as I believe, will it just allow the government another avenue into our lives? Let's compare - we have laws prohibiting driving while intoxicated yet we still have people drinking and driving. The DWI laws have been on the books for decades. People are hurt everyday by drunk drivers despite the fact we continually make punishments more severe for the driver who cannot maintain a single lane. Somehow we believe as long as something is against the law we are safe from it. Are we really so naive? People will continue to text and drive even after this bill becomes law. There won’t be any shame in it – instead it may now be a challenge, something that’s cool – maybe, but no shame.

I don’t believe in government solutions to everyday problems. Yes, we need laws to punish robbers but we don’t need a new law for every new behavior. Wearing seat-belts was once a choice and we survived. Mandating the wearing of seat-belts to keep FHP troopers from having to witness what a body looks like after it is thrown through a windshield – that I can understand – to protect us from ourselves – that I cannot condone. The bottom line is this – all I know is that another law will be made that will allow the state to intrude into our business just that much more easily and no one will say anything. Next year another law will be passed and the following year another law. At some point we will not be free, we will be subject to all sorts of government intrusions, and we will ignorantly accept this as a good thing - the right thing to do.