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

The current landscape of the Constitutionality of this Florida Criminal statute is in a state of the unknown. On September 12, 2007, the Fourth District Court of Appeals ruled that the above mentioned statute was Unconstitutional for its vagueness. The Court held, “By defining the term “racing” in part as the use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle, the legislature has rendered § 316.191, Fla. Stat. vague because the “outgain and outdistance” term could encompass passing, accelerating from a stop, and countless other legal maneuvers (and illegal and otherwise proscribed maneuvers, such as speeding) which drivers employ in their daily lives. Section 316.191, Fla. Stat., by failing to include an element of competition in its out-of-the-ordinary definition of “race,” encompasses an endless range of otherwise legal conduct (primarily based on the “outgain and outdistance” term), including passing and accelerating from a stop so as to make the scope of proscribed conduct vague and the statute facially unconstitutional. State v. Wells, 965 So.2d 834, 839 (Fla. 4th DCA 2007).

For a period of approximately six months, there were no conflicting cases on this statute. However, on March 31, 2008, The First District Court of Appeals ruled, “The Fourth District’s finding that the definition of “racing” should have included an element of competition is unpersuasive. When engaging in statutory interpretation, “related statutory provisions must be read together to achieve a consistent whole.” Woodham v. Blue Cross & Blue Shield, Inc., 829 So. 2d 891, 898 (Fla. 2002); see also Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007). Here, section 316.191 (2) (a) (1) prohibits drivers from engaging in, among other things, “any race, speed competition or contest, [or] drag race or acceleration contest.” (emphasis added). Moreover, the legislature defined “drag race” as when two vehicles engage “in a competitive attempt to outdistance each other.” § 316.191 (1) (b), Fla. Stat. (emphasis added). Reading these provisions together, the statute cannot be applied unless vehicles are “competing” with each other. Therefore, we decline to follow Wells and find section 316.191 facially constitutional. Reaves v. State, 979 So.2d 1066 (Fla. 1st DCA 2008).

From the procedural history of the Constitutionality of this statute, it is my opinion that it is ripe for hearing in the Florida Supreme Court. Being that there is no opinion from the 5th DCA, our local jurisdiction, judges here can either follow the 1st or the 4th opinion. I recently had a racing case here in Orange County in which I filed a Motion to Dismiss based on the Unconstitutionality of the statute. In my motion I cited the opinion in Wells as my basis for dismissal. The Office of the State Attorney dismissed all charges against my client before the motion could be heard.

So, in my opinion, before the Florida Supreme Court takes a case addressing this statute, or before the 5th DCA takes a case, I would file Motions to Dismiss this charge in every case the State charges under this statute, and if the motion is heard, and the Court follows the 1st, the case could be ripe to take to the 5th DCA or up to the Florida Supreme Court. Please comment or call my office if you have any questions or concerns.

-Christopher Atcachunas, Esq.

Orange County Circuit Court, May 14-15, 2008, Orlando, Florida

Represented the Defendant on the charges of False Imprisonment and Battery. The trial lasted two days in which the State of Florida called five witnesses and the Defense called two. After a 5 hour jury deliberation, the jury came back NOT GUILTY on the felony charge of False Imprisonment, and the jury deadlocked on the Battery charge. The Defendant was facing a maximum of 6 years in prison.

Volusia County Circuit Court, May 21, 2008, Deland, Florida

Represented the Defendant on the felony charge of Burglary of a Dwelling. Defense filed a Motion to Dismiss the Information. After a 45 minute hearing, the Judge ruled in favor of the Defense and all charges were dropped. The Defendant was facing a maximum of 15 years in prison.

Orange County County Court, March 24, 2008, Orlando, Florida

Represented the Defendant on the charge of Driving Under the Influence with Property Damage. On the day of trial, the State of Florida amended the charge to Reckless Driving. The Defense negotiated with the State to forego a license suspension and a conviction.

Orange County County Court, March 28, 2008, Orlando, Florida

Represented the Defendant on the charge of Driving Under the Influence. The Defense filed Motions to Suppress the Stop, Field Sobriety Exercises and a Motion for Sanctions against the State Attorney’s Office for withholding evidence. On the day of the Motion, the State dismissed all charges.

Impoundment or immobilization of your vehicle under the Florida D.U.I. statutory scheme can be quite confusing. Under Florida Statute section 316.193(6):

- For the first conviction the Court must order, as a condition of probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual control of the Defendant or any one vehicle registered in the Defendant’s name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days.

- For the second conviction, the Court must order, as a condition of probation, order the impoundment or immobilization of ALL vehicles owned by the Defendant at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days.

- For the third conviction, the Court must order, as a condition of probation, order the impoundment or immobilization of ALL vehicles owned by the Defendant at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days.

The Court must at the time of sentencing the Defendant issue an Order for the impoundment or immobilization of a vehicle. Within 7 business days after the date the Court issues the Order for impoundment or immobilization, the Clerk of the Court must send notice by certified mail, return receipt requested, to the registered owner of each vehicle, if the registered owner is a person other than the Defendant, and to each person of record claiming a lien against such vehicle.

However, just because you are convicted, does not mean you must have your vehicle impounded!! Under Florida law, the impoundment or immobilization may be dismissed!! At sentencing, your attorney can raise the following hardships on his/her client why the impoundment may be waived:
- If the Court makes a finding that the family of the owner of the vehicle has no other private or public means of transportation.

- If the Court makes a finding that if any of the vehicles that are owned by the Defendant but they are operated solely by the employees of the Defendant or any business owned by the Defendant.

- A person who owns but was not operating the vehicle when the offense occurred may submit to the court a police report indicating that the vehicle was stolen at the time of the offense or documentation of having purchased the vehicle after the offense was committed from an entity other than the defendant or the defendant’s agent. If the court finds that the vehicle was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

- A person who owns but was not operating the vehicle when the offense occurred, and whose vehicle was stolen or who purchased the vehicle after the offense was committed directly from the defendant or the defendant’s agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vehicle was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs.

In my personal experience, the hardship definition varies courtroom to courtroom. For instance, last week a client was sentenced to a DUI first time offense, and the Seminole County Judge found no hardship where the Defendant was a college student who was attending school full time and had no other means of transportation to and from school. In contrast, I had a client who was sentenced to a DUI and they were the sole breadwinner for the family and they had no other means of transportation. Here, the Orange County Judge found a hardship, and dismissed the impoundment against my client.
People also feel that impoundment or immobilization means that their vehicle must go to an impound yard at the police station or some other government facility. That is not true. In some cases, probation can come to your residence and place “the Club” or some other device that can render your vehicle immobile.
Of course, my first priority is to have your D.U.I. charge dismissed or win at trial. However, when all the options and defenses are exhausted, I will still fight to get you the best possible resolution for your case.
By: Christopher J. Atcachunas, Esquire