Florida Statutes Section 322.0261(4) went into effect October 1, 2009. This new law makes it mandatory for any driver accused of violating a red light, stop sign, or other traffic sign to attend a traffic school course. Several other violations carry this consequence as well, and it applies even if the driver fights the citation in court, and is not convicted.

Florida Statutes Section 322.0261(4) reads: The department shall identify any operator convicted of, or who pleaded nolo contendere to, a violation of s. 316.074(1), s. 316.075(1)(c)1., s. 316.172, s. 316.191, or s. 316.192 and shall require that operator, in addition to other applicable penalties, to attend a department-approved driver improvement course in order to maintain driving privileges. If the operator fails to complete the course within 90 days after receiving notice from the department, the operator’s driver license shall be canceled by the department until the course is successfully completed.

On August 18, 2009, Defense aruged a Motion in Limine in regards to the 911 call. The opinion was reported in the Florida Law Weekly Supplement. State v. Payton, 16 Fla. L. Weekly Supp. 957, 958. Volume 16, Number 10, September 30, 2009.

16-flalweekly-supp-957

Orange County, County Court, November 13, 2008, Orlando, Florida

Represented the Defendant on the charges of Battery (Domestic Violence). The trial lasted one day in which the State of Florida called two witnesses and the Defense called one. After a one hour jury deliberation, the jury came back NOT GUILTY. The Defendant was facing a maximum of 1 year in the County Jail.

Orange County, Circuit Court, September 23-24, 2009, Orlando, Florida

Represented the Defendant on the charges of Sexual Activity with a Child and Lewd and Lascivious Battery. The trial lasted two days in which the State of Florida called 5 witnesses and the Defense called one. The Defense was successful keeping out Williams Rule evidence that the State of Florida wanted to introduce. After a mere 45 minute jury deliberation, the jury came back NOT GUILTY on all counts. The Defendant was facing a maximum of 45 years in the Department of Corrections.

Osceola County, County Court, September 23, 2009, Kissimmee, Florida

Represented the Defendant on the charge of Prostitution. The trial lasted one day, where the State of Florida called one witness and the Defense called one as well. The Defense successfully argued for the preferred jury instruction. After an hour and a half jury deliberation, the jury came back NOT GUILTY. The Defendant was facing a maximum of 60 days in the County Jail.

PTD UPDATE

Whether you are filing a lawsuit against someone or whether someone has filed a lawsuit against you, at some point during the litigation, you may be referred to mediation by the Court. Mediation is an alternative to trial where the parties appear in front of a mediator (which is chosen and agreed upon by the parties) in an attempt to work out a settlement agreement.

In order to have a successful mediation, the parties involved need to have authority to enter into the settlement. For example, if you are involved in mediation with a corporation, the corporations’ representative should have full authority to settle without further consultation. Under Florida Rule of Civil Procedure 1.720(b) “Unless stipulated by the parties or changed by Order of the Court, a party is deemed to appear at mediation if the following persons are present:

1. The party or its representative having full authority to settle without further consultation.

2. The party’s counsel of record, if any.

3. A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the Plaintiff’s last demand or policy limits, whichever is less, without further consultation.

If the appropriate parties are present, and an agreement is reached, then the case can be resolved. However, if no agreement is reached, the mediator SHALL report the lack of agreement to the Court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed , would facilitate the possibility of settlement. Florida Rule of Civil Procedure 1.730(a).

If an agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any. The agreement shall be filed when required by law or with the parties consent. A report of the agreement shall be submitted to the Court or a stipulation of dismissal shall be filed. By stipulation of the parties, the agreement may be electronically or stenographically recorded. In such event, the transcript may be filed with the Court. The mediator shall report the existence of the signed or transcribed agreement to the Court without comment within 10 days thereof. Florida Rule of Civil Procedure 1.730(b).

Mediation is an integral part of civil litigation. When a dispute arises, and suit is filed, mediation will almost always be in your future. The parties have the opportunity to choose and agree upon a mediator to help resolve your case. If the case does not resolve, you will then find yourself in a trial posture. We have worked with numerous local mediators and have negotiated many settlements to our clients benefit. If you find yourself in a civil dispute, whether it be breach of contract or personal injury, please call our office so we can ensure the best resolution for your case.

-Christopher Atcachunas, Esquire

Domestic Violence is an intricate part of the law and an unfortunate circumstance for those who are affected by it. There are a number of offenses that you can be charged with when it comes to Domestic Violence. Under Florida Statute 784.03, battery is defined as occurring when a person: Actually and intentionally touches or strikes another person against the will of the other; or intentionally causes bodily harm to another person. It becomes classified as Battery, Domestic Violence when it is allegedly committed against one family or household member by another family or household member. It can also include non-blood or relative through marriage who are living together as a family or if they had lived together in the past. If you are charged under the above mentioned statute number, it is a first degree misdemeanor, punishable by up to one (1) year in jail and or a one-thousand ($1,000.00) fine.

There are a number of other charges that can be filed under the domestic violence scheme. These include but are not limited to assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, felony battery, domestic battery by strangulation and false imprisonment. The penalties can range from a misdemeanor to a first degree felony.

If you are charged with any of the above mentioned crimes, there are a number of things that may happen. First, after arrest, along with a bond amount, you may have numerous conditions regarding your pre-trial release. More than likely, you will have a “no-contact” provision with the alleged victim, and depending on the severity or number of priors the Defendant may have, a G.P.S. monitoring device could be imposed. If you find yourself in this position, there are a number of things that we can do for you. First, we can move to modify the conditions of your pre-trial release. This means that we can amend the “no-contact order” to a “no-hostile contact” order. This amendment would allow you to be in contact with the alleged victim, but only under amicable conditions. We can also attempt to have the G.P.S. device removed as well. This can be accomplished through motion and usually by victim cooperation or Defendant hardship.

During the case, if there is reconciliation between the parties, the victim can file a “declination of prosecution” with the State Attorney’s Office. This document is a sworn instrument in which the victim states he or she wishes not to prosecute the case. More often than not, when the State Attorney realizes that the victim wishes not to prosecute, the case will be dismissed. However, there are times when the State will continue with the case.

Recently, I tried a case where our client was charged with Battery, Domestic Violence. The alleged victim in the case wished not to prosecute and expressed her wishes to the Assistant State Attorney. However, there were eyewitnesses to the event and 911 tapes that contained the victims call. In this scenario, the State moved forward with their eyewitness and the tape. During trial, the witness testified to what he saw and the 911 tapes were played to the jury. Despite their recollections, the jury came back with a verdict of not guilty.

Battery Domestic Violence is an intricate part of criminal law. Civil injunctions may be imposed and you can face numerous sanctions, including jail-time, if the case is not handled in the proper fashion. Our office has handled thousands of these cases and hundreds of civil injunction cases. If you find yourself in one of these situations, please call our office for help.

-Christopher Atcachunas, Esq.

Have you made a mistake in the past? Is that mistake affecting your job prospects? Is that mistake embarrassing to you and your family? If you find yourself in this situation, you may be interested in having your criminal history record sealed or expunged. Under Florida Statute sections 943.0585-943.059 and Florida Administrative Code Chapter 11C-7, you can have your record sealed or expunged. However, there are numerous qualifiers that can affect your eligibility for either of the aforementioned remedies.

First, you may ask, “what is the difference between a sealing of my record and an expunction of my record?” The best way to describe the difference is that an expunged record means (removed from FDLE and NCIC records) and sealed record means (placed under highly restricted access). Secondly, you may ask, “Am I eligible for either type of relief?” You can be eligible for an expungement if your case was dismissed or nolle prosequi by the State. This includes completing a diversion program. Also, the offense must be dismissed PRIOR to trial. The key to having your record expunged is that you cannot enter a plea. If you enter a plea, you will only be eligible for a sealing. In addition, you cannot be convicted if you enter a plea. Thus, in order to be eligible for a sealing, you must have had a withhold of adjudication.

Another question you may have is, “What if I have multiple arrests?” The court may only order expunction/sealing of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. The court may, at its sole discretion, order the expunction/sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the expunction/sealing of records pertaining to such additional arrests, such intent must be specified in the order. This section does not prevent the court from ordering the expunction/sealing of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity.

Lastly, there are certain offenses and other factors that can disqualify you altogether from having your record sealed or expunged. Here is a list of disqualifying factors:

1. The criminal history record reflects that you have been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing any felony or a misdemeanor specified in s.943.051(3)b. Certain driving violations are classified as criminal, such as DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked.

2. The criminal history record reflects that you have been adjudicated guilty of or adjudicated delinquent for committing one or more of the acts stemming from the arrest or alleged criminal activity to which the application pertains.

3. The criminal history record reflects that you have received a prior sealing or expunction of a criminal history record under s.943.0585, s.943.059, former s.893.14, former s.901.33, former s.943.058, or from any jurisdiction outside the state.

4. The criminal history record to which the application pertains relates to a violation of s 393.135, s. 394.4593, s.787.025, chapter 794, s.796.03, s.800.04, s.810.14, s.817.034, s.825.1025, s.827.071, chapter 839, s.847.0133, s.847.0135, s.847.0145, s.893.135, s.916.1075 a violation enumerated in s.907.041, or a violation of any offense qualifying for
registration as a sexual predator under s.775.21 or for registration as a sexual offender under s.943.0435, F.S., with a finding of guilt, or a plea or guilty or nolo contendre (without regard to whether adjudication was withheld).

5. The criminal history record reflects that you have another petition to seal or expunge pending before a court or competent jurisdiction.

6. The criminal history record reflects that the court supervision applicable to the disposition of the arrest or alleged criminal activity to which the application pertains has not been completed.
Our office has handled numerous sealings and expungements throughout Central Florida. Please contact our office if you find yourself in the situation of needing your records sealed or expunged. We can discuss the process and the length of time it will take to get the job done for you.

-Christopher Atcachunas, Esquire

As a result of your DUI arrest, your Driver License is subject to two separate suspensions:
1. Department of Highway Safety and Motor Vehicle Administrative Suspension
2. Criminal Suspension
Most importantly, you need to be aware of Florida’s Ten Day Rule regarding your right to fight the Administrative Suspension.

DHSMV Administrative Suspension

The first Driver License suspension you are subject to is imposed by the DHSMV and is known as an Administrative Suspension. This suspension is imposed if, after your DUI arrest, you either
1. Refused to submit to a breath, urine or blood test, or
2. Submitted to a breath, urine or blood test and your blood alcohol level was found to be .08 or higher.
If you refused to submit to a BAC test, or if your BAC was over .08 your Driver License will be suspended for either 6 months, 1 year, or 18 months from the date of your arrest. If your license is suspended for either reason, you will be issued a temporary driving permit that expires at midnight on the 10th day following the date of your arrest.

Florida’s Ten Day Rule

You only have 10 days from the date of your arrest to request a formal review hearing with the Department of Motor Vehicles to contest the Administrative License Suspension and attempt to get your license back. If you fail to request the hearing with the 10-day period, your license will be suspended for 6 months, 1 year, or 18 months depending on the circumstances. It is important to contact our office within the 10-day period.
If a formal review hearing is requested within the mandatory 10 days of your arrest, you will be issued a temporary license that is good until seven days after the hearing. At midnight of the 7th day after the hearing, however, until we either receive notice that we won, or if the suspension is upheld, your license is suspended. If we have won your DHSMV hearing, you will have your full driving privilege. Otherwise, you only have 10 days to drive after you are arrested using your citation as a driving permit.

Obtaining a Hardship Driver License

If we are unable to successfully challenge the administrative suspension, you may still be eligible for a hardship license. To be eligible for a hardship license you must: (1) enroll in a DUI School, (2) serve the first 30 days of your administrative suspension for a first offense, and (3) provide proof of enrollment in a DUI school to your local DHSMV Administrative Review Office. The review office will then process your hardship license application. If the review office gives you approval to reinstate your license early for hardship purposes, you must then present this approval to your local driver license office. Finally, you must complete the DUI school within 90 days of being given the hardship license. Failure to complete the DUI school will result in cancellation of your hardship license until the DUI school is completed.

Criminal Suspension

The Criminal Suspension is imposed by the Court. If you are eventually convicted of DUI, another mandatory 6 or 12 month suspension begins on the date of conviction and the judge will suspend your hardship license.

Criminal Suspension Periods

Depending on what you are charged with, the following criminal suspension periods would be imposed if eventually convicted. After that are the eligibility requirements for a hardship license if you were to experience a Criminal Suspension.
A. First Conviction: Minimum 180 days revocation, maximum 1 year.
B. Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year. Other 2nd offenders same as above.
C. Third Conviction outside of 10 Years: If the two previous DUI convictions were more than 10 years prior to the current conviction, then you are only facing a maximum of 1 year suspension. If one of the DUI convictions have occurred within 5 years of the current DUI conviction, then you are looking at a 5 year suspension
D. Third Conviction Within 10 Years: Minimum 10 years revocation. May be eligible for hardship reinstatement after 2 years.
E. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. No hardship reinstatement.
F. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years.
G. Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3 year revocation.

Eligibility for Hardship License

Depending on the degree of DUI you were convicted of, the following requirements must be met in order to be eligible for a hardship license following a criminal suspension.
• First Conviction: Must complete DUI school and apply to DHSMV for hearing for possible hardship reinstatement. Mandatory ignition interlock device up to six months for BAC of .15 or higher, effective 07/2008.
• Second Convictions (or more): No hardship license except as provided below. Mandatory ignition interlock device for one year, effective 07/2008.
• Second Conviction Within 5 Years: (5 Year Revocation) May apply for hardship reinstatement hearing after one year. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period.
• Third Conviction Within 10 Years: (10 Year Revocation) May apply for hardship reinstatement hearing after two years. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period. Mandatory ignition interlock device for two years, effective 07/2008.
• DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): May be eligible for hardship reinstatement after 5 years from date of revocation or from the date of term of incarceration provided the following requirements have been met: (1) Has not been arrested for a drug-related offense for at least 5 years prior to the hearing; (2) Has not driven a motor vehicle without a license for at least 5 years prior to the hearing; (3) Has been alcohol and drug-free for at least 5 years prior to the hearing; and (4) Must complete a DUI school and must be supervised under the DUI program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license).
• Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: (3 Year Revocation): May immediately apply for hardship reinstatement hearing. Must complete DUI school or advanced driver improvement course.

-Christopher Atcachunas, Esq.

This is an area of law that is frequently overlooked and not taken seriously by many people. Here I will give you a crash course on the pitfalls and surprises that are associated with this driving offense.
First question we need to answer is how your license gets suspended? That’s pretty self explanatory, but here are some examples on how and when your driver’s license gets suspended.

- Failure to pay traffic infractions
If you don’t pay/elect school/elect a hearing for your speeding ticket or other violation within 30 days, the Court can D6 (suspend) your driver’s license.

- Failure to pay Child Support Obligation/Failure to Obey Court Order
If you are under Court order to pay child support and you fail to pay, the Court can D6 your driver’s license.
If the driver enters into an agreement or settlement regarding their driving privilege, if this agreement is breached, the Court can suspend your driver’s license.

- D.U.I. or Drug Offense suspension
If you are convicted of D.U.I. or any type of drug offense, your driver’s license can be suspended by the Court.
If caught driving on any of these offenses, jail is the standard offer by Florida prosecutors.

Second question is how do you know your license is suspended? If your license is in the process of being suspended for any of the aforementioned reasons, the Department of Highway Safety and Motor Vehicles in Tallahassee will send you a notification of when your license will be suspended. This usually gets sent to the address listed on your Florida Driver’s License.
Third question is what exactly is Driving While License Suspended? Under Florida Statute 322.34(2), Driving While License Suspended WITH Knowledge, makes it a second degree misdemeanor to drive on a suspended license. The maximum penalty for this offense is up to 60 days in jail and or a fine up to $500.00.

There is a major difference between Driving While License Suspended (DWLS) WITH knowledge and DWLS WITHOUT knowledge. DWLS WITH knowledge is a criminal infraction for which you can be arrested and face criminal charges. DWLS WITHOUT knowledge is a civil infraction that can be paid at the clerk’s office like any other traffic violation.

However, both of these infractions, whether civil or criminal, carry the penalty of counting towards the status of being classified as a Habitual Traffic Offender. This is something that nobody wants to deal with. Under Florida law, if you plea to either the civil or criminal infraction of DWLS, it will count toward you being a Habitual Traffic Offender. After 3 of these pleas, you can be classified as a HTO and you can lose your license for 5 years! That’s not all either. If you have 2 DWLS With Knowledge, your third will be charged as a third degree felony with a maximum penalty of up to 5 years in prison and a fine of up to $5,000.00.

Now you are probably thinking, “What can I do if I receive one of these infractions?” Well, our office can offer a number of solutions to whatever your situation may be. If you are able to reinstate your license at any time during your case, we can work out a deal where you can plea to the lesser offense of Possession of an Invalid Drivers License under Florida Statute 322.03 (NVDL). The advantage of this is two fold. First, you can save yourself possible probation and driver school and most importantly, NVDL does not count toward your HTO status. If reinstating your license is not an option, trial is always available. Were you the actual driver? Were you in control of the motor vehicle? Did you know your license was suspended? These are all defenses to the criminal offense of Driving While License Suspended with knowledge. We can also examine possible suppression issues with your stop. If you were illegally detained or pulled over, we can have the case thrown out on Constitutional grounds.

If you have any other questions or concerns please call our office. We have handled hundreds of these cases in the Orange, Osceola, and Seminole areas.

-Christopher Atcachunas, Esquire

If you are issued a traffic ticket on federal property, such as at Kennedy Space Center, Patrick Air Force base or Ocala National Forest, you will have to go to federal court if you wish to fight the ticket. In some cases, you will have to appear in federal court even if you don’t want to fight the ticket. That is because federal traffic matters are often not infractions that one might receive on state roadways, but many federal traffic citations are “petty offenses,” for which an offender could serve up to 6 months in jail.

In the past, I have represented clients in federal court on offenses ranging from speeding to reckless/careless driving. These offenses differ from state violations in that no matter what happens, no “points” can be placed on your license. The reason being, the State of Florida issues your drivers license and in essence controls your driving privilege. The federal system cannot place points on your license no matter what. However, the fines and court costs greatly differ in that the federal fines and costs are significantly higher. Also, the penalties for going to “trial” are different as well. It is safe to say that one will not go to jail for contesting your speeding ticket in state court, but, do that in the federal district, and you may be spending time in jail, or paying in upwards of $1,000.00 in fines.

If you receive one of these federal infractions, please contact our office. Not every attorney can contest these infractions for you. Your attorney MUST be admitted into the appropriate federal district (Mr. Jackson and Mr. Atcachunas are admitted into the United States District Court for the Middle District of Florida). We have worked with the U.S. Attorney’s Office and successfully negotiated deals where some “petty offenses” have been dismissed, and some where fines have been cut by 50%. If you want to fight your ticket to “trial” we will not hesitate to do so.

-Christopher Atcachunas, Esquire