Law Offices of Russo Pelletier & Sullivan

Florida Doubles Down on Texting While Driving Ban What You NEED to Know Before July 1

 

This Monday, July 1, 2019, Florida drivers may be in for a big surprise as a new law will go into effect permitting law enforcement to conduct traffic stops and issue tickets for texting while driving. Texting while driving is dangerous and has resulted in countless accidents. Now law enforcement personnel will have the lawful ability to conduct traffic stops and issue citations for this infraction.

ABC Action News Reports

 

History of Florida’s Texting While Driving Ban

In 2013, Governor Rick Scott signed Senate Bill 52 into law, enacting Florida Statute 316.305, better known as the “Florida Ban on Texting While Driving Law.” However, this law did not operate as an outright “ban” on texting while driving as one might expect, but rather, texting while driving was a “secondary offense.” This meant that police, even if they witnessed a driver texting while driving, could not pull drivers over for that reason alone. Instead, police could only add a charge of Texting While Driving in instances where they stopped a vehicle for a “primary offense,” such as speeding, and also witnessed the driver texting.

Fla. Stat. 316.305 has taken some criticism since its 2013 enactment, often because the “secondary offense” amounted to what some viewed to be a toothless “ban.” However, this was an intentional compromise. Many of those in favor of the bill worried that an outright ban could punish drivers engaging in less reckless, more innocent behaviors, such as checking GPS navigation or contacting emergency services. Others cautioned that a total ban on texting could lead to an increase in racial profiling by police officers, and therefore felt the law’s limits were necessary to prevent widespread injustice. Yet in a time when texting drivers kill more than drunk drivers, and when more than 40 states treat texting as a “primary offense,” safety concerns trumped privacy concerns, and Florida lawmakers decided to craft a more effective ban.

With a “New Sheriff” in Town, Florida Amends Texting Statute

On May 17, 2019, only five months after taking office, Governor Ron DeSantis signed HB 107. This bill was popular in the Florida Legislature, as it passed in the Senate in a 33 to 5 vote and in the House of Representatives at 108 to 7. It was created to be a direct amendment to Fla. Stat. 316.305. Now that Governor DeSantis has signed the bill, it will go into effect July 1, 2019. Most significantly, this new bill removed the language of “as a secondary offense.” In other words, effective Monday, texting while driving can be the sole basis of a law enforcement officer’s stop and ticket.

 

Penalties for Texting While Driving

A first offense for a Texting While Driving citation will cost an offender a $30 penalty, which can exceed $100 if certain court fees apply. Subsequent violations within 5 years result in a $60 penalty, before final court costs.

While this may initially seem like an overbroad, sweeping change that could punish those more innocent ways phones can be used on the road, the law is written to focus on texting and not just “using” the phone while driving. Checking a GPS app, contacting emergency services, or certain official job-related purposes are specific exceptions to this ban, and cannot be the basis for issuing a citation or punishment. Additionally, the ban only applies if the vehicle is in motion. Accordingly, a phone can be used for any legal purpose at stop lights, stop signs, or any other situation where the speedometer is at 0.

As the new law is set to go into effect, many have praised the Legislature for bringing Florida’s policy in line with the vast majority of other states, while allowing less distracting phone use to rightly remain legal. Some criticism lingers however, as many still fear that this ban will increase racial profiling by the police, and it could disproportionately harm minorities considering the he-said-she-said nature of many potential cases. Some Florida legislators recognized the potential for abuse and passed an amendment which included a requirement that the police record and report the race of all drivers stopped and ticketed under this law. It remains to be seen if such a reporting requirement will be effective at preventing racial profiling.

If you Have been issued a traffic ticket for Texting While Driving or any other traffic offense in Pinellas County, call our office for a free consultation to discuss your options

Our attorneys are highly experienced and top-rated lawyers who appear in the traffic courts in Clearwater and St. Petersburg daily. During your consultation, our team will discuss all of the options that exist and offer our opinion as to the best strategy for your case.

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Our attorneys are highly experienced and top-rated lawyers who appear in the traffic courts in Clearwater and St. Petersburg daily. During your consultation, our team will discuss all of the options that exist and offer our opinion as to the best strategy for your case.

Ten Questions You Should Ask When Hiring a Pinellas DUI Lawyer

    If you were recently arrested for a DUI in Clearwater, St. Petersburg or the surrounding cities of Pinellas County, you will likely be bombarded with advertisements from local (and non-local) attorneys who are offering their services. As with any service related industry, these lawyers have varying degrees of skill, training, experience. The soliciting lawyer will have his or her own reputation within the legal community. It is important for you to ask the right questions before you retain a DUI Defense Attorney.

Below are 10 questions that may aid you in making your decision as to who is the best DUI lawyer to defend your case and seek the best possible outcome:'

1. Is the lawyer a former State Prosecutor?

In our opinion, there is no better way for learning how the prosecutor will analyze and interpret your case than having a former prosecutor as your lawyer. Your attorney will have the benefit of knowing the internal processes and can anticipate the “moves” that the prosecutor will make.

2. What percentage of the lawyer’s practice is dedicated to the defense of DUI cases?There are many lawyers that “handle” DUI cases. There are very few that can say that DUI defense makes up a majority of their practice. So, ask this question: is the attorney a lawyer who handles DUI cases, or is he a DUI Defense lawyer?

3. Does the lawyer belong to any nationwide DUI Defense organizations?One way to distinguish the lawyers that handle DUI cases from a true DUI defense lawyer is to inquire whether the attorney belongs to any nationwide DUI organizations. Membership in organizations such as the DUI Defense Lawyers Association and the National College of DUI Defense often signifies a lawyer who is dedicated to achieving the highest levels of DUI defense.

4. How frequently does the lawyer attend seminars that are dedicated to further the lawyer’s education and effectiveness as an advocate?Competently defending a DUI requires that the advocate constantly further his education by educating himself on this ever-changing area of law. DUI’s require specialized knowledge in search and seizure issues, administrative law, forensic chemistry, toxicology and the Florida rules of Evidence.

5. Has the lawyer been trained in the proper administration of the Intoxilyzer 8000?If your case involves a breath test result that is above a .08, you would be well-advised to seek the assistance of a lawyer who has been trained in the proper administration of breath tests utilizing the Intoxilyzer 8000. After all, if the lawyer is unfamiliar with how to properly administer a breath test, how will he know if the police officer did something wrong that could result in the suppression of the breath test results?

6. Has the attorney been trained in the proper inspection of the Intoxilyzer 8000?To properly defend a DUI case involving a breath test, your DUI defense lawyer should have an expert understanding of the inspection process for the machine. If the breath test device was not properly calibrated and maintained, a skilled advocate may be able to secure the suppression of the breath test results.

7. How many DUI cases has the lawyer taken to trial in the previous five years?The prosecutor on your case will certainly know whether your lawyer is the type of attorney who takes cases to trial, or whether the attorney simply takes the last best deal, and so should you. While the facts of every case are different, you should know whether the lawyer has a reputation for “going the distance” and seeking a Not Guilty verdict when appropriate, or whether the lawyer simply takes the “last best deal.”

8. How many Motions to Suppress or evidentiary hearings relating to DUI cases has the attorney litigated in the previous five years?As noted above, DUI cases are complex. If your lawyer is not regularly litigating DUI cases through evidentiary hearings, it may be a sign that he or she does not have an intimate understanding of search and seizure issues.

9. Did the lawyer’s advertisement list the price of his or her legal service?If you were recently arrested for a DUI, you are likely worried about the cost. Some attorneys take advantage of this fear by advertising a price on their advertising literature. Imagine going to have your car repaired and having the mechanic tell you the price before he looks under the hood. Because every case is different, you want a lawyer who is going to give your case the individual attention it deserves, rather than a “one size fits all” approach.

10. Does the lawyer practice exclusively in Pinellas County, or is his practice spread over a larger geographic area? Every county handles DUI cases differently. Likewise, the judges and prosecutors have varying practice preferences throughout the state. Is your lawyer appearing in front of the Pinellas County traffic court judges regularly, or is Pinellas County just one of many places that the lawyer visits? While there is certainly no such thing as a “home field advantage” in DUI defense, having a lawyer who deals with the same judges and prosecutors every single day provides a level of insight that would otherwise be lacking.

If you are charged with a DUI in Pinellas County, we are lawyers that can help!

If you are a loved one has been charged with a  DUI in St. Petersburg, Clearwater, Dunedin, Palm Harbor, Oldsmar, Tarpon Springs, Largo, Safety Harbor, Belleair, Indian Rocks, Indian Shores, Redington Shores, Treasure Island, Gulfport, Kenneth City, Pinellas Park, St. Pete Beach, or Tierra Verde, call us at (727) 578-0303. The members of our DUI team have the following credentials:

• Former State Prosecutors
• Member of DUI Defense Lawyers Association
• Member of the National College of DUI Defense
• Trained in breath testing on the Intoxilyzer 8000
• Certified as an inspector of the Intoxilyzer 8000
• Frequent attendees at DUI seminars
• Exclusively Practicing in Pinellas County

 

Related Links:

Best DUI Attorneys
DUI FAQS

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! Call our office today at 727-578-0303. 

Pinellas Deputies Looking for Seatbelt Violators as part of the Click It or Ticket Campaign

 

From May 21, 2018 through June 3, 2018, law enforcement personnel in the St. Petersburg, Clearwater, and surrounding areas of Pinellas County will have a targeted patrol looking for individuals who are not wearing their seatbelts.  During this operation, the officers will be issuing warnings and citations.

Change in the Law Allows Traffic Stops for Seat Belt Violations

On June 30, 2009, the Florida statutes were amended making a seat belt violation a primary offense.  This means that prior to that date, law enforcement could not pull you over for a seat belt violation unless they had observed some other violation at the same time.  However, the change in the law, known as “The Dori Slosberg and Katie Marchetti Safety Belt Law” allows the officers to conduct a traffic stop, detain you, and issue you a citation in the absence of any other traffic or criminal offense.

Traffic Stops for Seat Belt Violations Can Lead to Criminal Arrests

It goes without saying that many times, a problem as minor as a traffic citation can lead to bigger problems, such as an arrest for a criminal offense.  Our attorneys are often contacted by clients who were stopped by the police for a civil traffic infraction, that later led to an arrest.  Such cases can occur when:

• The officer believes that he subject has been drinking or is under the influence of chemical or controlled substances;
• If a search of your “rap sheet” reveals that you have an outstanding warrant for your arrest;
• If the officer “smells marijuana” or otherwise discovers that there are drugs or other contraband within the vehicle; or
• If your driver’s license is suspended.

Seatbelt Violations Will, at the Very Least, Hurt Your Wallet

If you are issued a citation for a violation of Florida’s seatbelt law, you should know that it is not a moving violation and, as a result, does not carry with it the imposition of points against your driver’s license.  However, that does not mean that disobedience of this law is without consequence.  In Pinellas County, the fine associated with a safety belt violation is $116.00, even for a first offender. 

Experienced Pinellas County Defense Lawyers

If you have been arrested for a criminal offense stemming from a seatbelt or other traffic stop, call our office at (727) 578-0303 for a free consultation.  During our meeting, we can discuss the legality of the traffic stop, the best strategy for securing a favorable outcome in your case, and whether you are eligible to have the record of the offense sealed or expunged.

The members of our criminal defense team are former state prosecutors who have a combined twenty-five years of experience handling criminal matters in Pinellas County.

 

Related Links

Your License Plate could get You in Trouble
Getting Arrested for Violation of a Florida Driver's License Restriction

 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! Call our office today at 727-578-0303. 

Attorney Marc Pelletier on WTSP 10 News - Your License Plate Cover Could Result in a Traffic Stop

   Most of our traffic laws in Florida are well-intentioned and are motivated by a desire to protect the motoring public.  On the other hand, the law regarding license plate holders does not appear to have any rational relationship to insuring a safe driving environment. A recent Third District Court of Appeal opinion about this statute leads to the conclusion that it serves no other purpose beyond giving law enforcement the opportunity to pull motorists over who are otherwise obeying Florida’s traffic laws.

The Law

License plate covers are governed by two Florida statutes.  Florida Statute 316.605 provides, in pertinent part, that the license plate shall be fastened to the vehicle in such a “manner as to prevent the plates from swinging, and all letters, numerals, printing, writing, the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear…”

Florida Statute 320.061 provides that “a person may not alter the original appearance of a … license plate …, whether by mutilation, alteration, defacement, or change of color or in any other manner.  A person may not apply or attach a substance, reflective matter, illuminated device, spray, coating, covering or other material onto or around any license plate which interferes with the legibility, angular visibility, or detectability of any feature or detail on the license plate.”

See our previous article: Your Vehicle's Decorative License Plate Frame Could Result in a Traffic Ticket

The Pena Decision

The facts of the Pena case are rather simple, and not in dispute.  The defendant was operating a motor vehicle in the Miami area.  He was stopped by law enforcement after a police officer observed that the vehicle had a metal license plate frame that obscured the words “MyFlorida.com” on the top of the plate and “Sunshine State” on the bottom.  During the traffic stop, law enforcement discovered that the driver had a suspended license.  A subsequent search of the car, based upon “an odor of marijuana” (no marijuana was discovered in the car) revealed the presence of a bag of Alprazolam pills, for which the defendant did not have a prescription.  The defendant’s counsel filed a Motion to Suppress, challenging the legality of the traffic stop.  This motion was granted by the trial court and all evidence, including the pills and confession, were suppressed as “fruit of the poisonous tree.”  Essentially, the Court’s granting of the Motion to Suppress had the effect of dismissing the felony charge against the defendant.  The State then appealed this ruling.

An appeal of a final order from a felony trial court is filed with the applicable “District Court of Appeal.”  In this particular case which occurred in Miami, the Third District Court of Appeal had jurisdiction over the matter.  The appellate court reversed the decision of the trial court, finding that the 2014 version of the statute specifically prohibited a motorist from obscuring the word “Florida” on his or her license plate.  The court cited to a 1957 Florida Supreme Court case that “the Legislature, under its police power to protect the public from dangerous instrumentalities using the highways, has imposed rigid restraints, regulations, and restrictions upon the use of motor vehicles.

The Legislature Broadened the Scope of this Law

 The court in Pena reversed the trial court because, at the time, Florida Statute 316.605(1) specifically provided that the word “Florida” could not be obstructed.  Effective January 1, 2016, the statute was amended so as to remove the words “and other identification marks upon the plates regarding the word ‘Florida.’”  Thus, this amendment had the effect of prohibiting a motorist from having a license plate that covered any and all “letters, numerals, printing, writing,” etc.

WTSP 10 News Interviews Russo, Pelletier & Sullivan Senior Partner Marc Pelletier

On Wednesday, May 10, 2018, Attorney Marc Pelletier was contacted by WTSP 10 News regarding his input on the recent Pena decision.  Mr. Pelletier offered this practical tip to viewers of the Tampa Bay News outlet: “if you have a license plate cover on your vehicle, take it off.”  With the current state of the law, an obstruction of any number or letter on your license plate, regardless of the readability of the license plate number on the tag, will allow the police to conduct a traffic stop and have non-consensual contact with an otherwise law abiding citizen.

 

If you have been charged with a crime following a traffic stop, we are lawyers that can help!

 If you have been arrested for a criminal offense following a traffic stop, our Pinellas County Criminal Defense team can help.  Call us at 727-578-0303 to schedule a free consultation to discuss how we can best defend your case. 

 

Related Links:

Traffic Ticket Lawyer - Before You Pay... Call Us First
How to Select the Right Pinellas County Attorney

 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! 

Traffic Ticket Lawyer - Before You Pay... Call Us First
How to Select the Right Pinellas County Attorney

 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! 

Traffic Ticket Lawyer - Before You Pay... Call Us First
How to Select the Right Pinellas County Attorney

 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a traffic ticket or a criminal case resulting from a traffic stop in Pinellas County, we can help! 

What Can I Use My Business Purposes Only License For in Florida?

    One of the more common questions that our Pinellas County DUI Defense law firm is asked is “what can I use my business purposes only license for?”  In many cases, our office is able to secure a hardship license after a client is charged with a DUI offense in St. Petersburg, Clearwater and the surrounding area.  This license carries with it a restriction that the client drive for “business purposes only.”  Common questions that we are asked are as follows:

• Can I drive my children to school?
• Is it legal to drive to the gym?
• May I drive my child to a medical appointment?
• Will I be arrested if I drive to DUI school?
• Can I drive to the location where I will perform community service hours?

The truth of the matter is, the legislature has not clearly defined those reasons that an individual may drive.  Florida Statute 322.01(35) defines a “restriction” as a means of prohibition against operating certain types of motor vehicles or a requirement that a driver comply with certain conditions when driving a motor vehicle.  Florida Statute 322.16(b) further provides that “the department may further impose other suitable restrictions on use of the license with respect to time and purpose of use, including, but not limited to, a restriction providing for intrastate operation only, or may impose any other condition or restriction that the department considers necessary for driver improvement, safety, or control of drivers in this state.  Lastly, Florida Statute 322.271(1)(c)(1) provides that “a driving privilege restricted to business purposes only” means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.

A Grey Area of the Law

As you can see, there is not a well-defined list of places that a person operating a business purposes only license may drive, outside of work, school, church and medical appointments.  The vague nature of the statute raises a number of questions.  Does “DUI School” count as “educational purposes?”  Is driving my children to school essential for my livelihood such that it would qualify as an education purpose?  If my doctor says I need to lose 15 pounds, can I drive to the gym for medical purposes?

A great deal of confusion exists with respect to the lawful use of a DUI hardship license. Given the somewhat vague nature of the statute governing permissible use, it is no wonder that we see a wide variety of interpretations by law enforcement. Even driver’s license office personnel will often offer conflicting opinions as to the extent of the permitted use.

You May Have to Convince a Police Officer that you are Driving for a Lawful Purpose

Imagine this scenario:  your church is having a beach baptism ceremony.  You drive to this function using your business purpose only license as it is “for church.” On your way home, an officer pulls you over for running a stop sign.  When the officer runs your license, he sees that your privilege to drive is restricted to “business purposes only.”  You explain to the officer that you are driving home from a church function.  There is one problem: you are wearing a bathing suit.  In this moment, the officer will make a judgement call: does he believe that you were driving for business purposes only, or does he think that you were violating the BPO restriction.  If his decision is the latter, it is possible that you could be arrested for the second-degree misdemeanor offense of Violation of a Driver’s License Restriction pursuant to Florida Statute 322.16(5).

Can I Drive to Purchase Food?

Noticeably absent from the definition of “business purpose only” driving in Florida Statute 322.271(1)(c)(1) is permissive language that allows an individual to drive to purchase food.  Certainly obtaining and eating food is necessary for an individual to “maintain livelihood.”  There are two cases that illustrate the court’s analysis of this very issue. 

In Allart v. State, 9 Fla. L. Weekly Supp. 399c (Fla. 6^th Cir.Ct.App. June 6, 2002), the Pinellas County Circuit Court reversed the defendant’s conviction for violating his driver’s license restriction for business purpose only driving.  The evidence presented in that case established that, at the time that he was stopped by law enforcement, the defendant was driving to a McDonald’s restaurant.  Although the Circuit Court initially affirmed this conviction, a subsequent rehearing resulted in a reversal of the conviction, on the basis that the evidence submitted that the defendant was driving for a lawful purpose (ie. Getting food at McDonald’s).  In dicta, the Circuit Appellate Court speculated that the defendant was actually driving for a “longer sojourn” than just going to McDonald’s, but such evidence was not before the Court.

In State v. Quiroli, 9 Fla. L. Weekly Supp. 780b (Fla. Palm Beach County Ct. September 12, 2002), the defendant was stopped by law enforcement while driving to Burger King to purchase food.  At the time of driving, the defendant’s license was restricted to business purpose only driving.  The defendant filed a Motion to Dismiss, arguing that the driving at issue was permissible under Florida Statute 322.271.  In granting the defendant’s motion, the court reasoned that “driving necessary to maintain livelihood, includes driving necessary to obtain food.”

Tips for Using your Hardship License

If you are driving on a business purposes only license, every time you operate your vehicle you run the risk of being stopped by law enforcement and questioned regarding the legitimacy of your driving purpose.  For this reason, we have composed the following list of “tips” for driving on a business purpose only license:

• Never drive after having consumed alcohol. The odor of alcohol on your breath is a dead giveaway that you are not driving for a lawful purpose;
• Always look the part. If you are driving to church, it is probably not wise to be wearing a bikini.  If you are going to the grocery store, have a list of groceries on the way there, and bags of groceries on the way home;
• Use direct routes. Don’t let a police officer or the court believe that your driving was part of a longer “sojourn.”  If you are going to the grocery store, utilize the store that is closest to your home;
• If you have a job that requires driving to various locations, have an itinerary with addresses handy in the passenger compartment of your vehicle, preferably on your company letterhead; and
• If you are stopped by the police, be polite! Often times, your attitude will be the difference between a formal arrest, or the issuance of a citation.

If You have been Charged with a DUI or Violation of Driver’s License Restriction,
Hire Experienced Attorneys

The attorneys at Russo, Pelletier & Sullivan have nearly twenty-five combined years of representing clients on Criminal, DUI and traffic related matters in Pinellas County.  Our lawyers regularly appear in front of our local county court judges at the North County Traffic Court facility and the South County Traffic Court facility.

 

 Related Links:

• How to Save Time & Money in a DUI Case
• Get Your Driver's License Back
• Get Your DUI Reduced

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a pending case in Pinellas County, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

 

Pinellas County Arrests Expected to Increase During the Spring Break Season

    As college students and retirees alike flee the cold weather in the north, St. Petersburg and Clearwater is a popular destination that provides sun, beaches, and Major League Baseball Spring Training.  One need only drive on the roads of Pinellas during rush hour this time of year to realize that the congestion and traffic is at its highest point of the year.  With so many additional transplants visiting Pinellas County, it is expected that the number of arrests will also increase.

Common Arrests During Spring Break

A week with no classes, homework, and a lack of supervision often translates into increased, and, at times, excessive alcohol consumption. Of course, when alcohol is consumed, inhibitions are lowered, and often times, poor decisions are made.  During this time of year, we see a spike in arrests for the following offenses:

• Driving Under the Influence;
• Possession of Alcohol by a Minor;
• Disorderly Conduct / Disorderly Intoxication;
• Sale of Alcohol to a Minor; and
• Possession of Marijuana / Possession of Paraphernalia / Possession of a Controlled Substance.

A System Designed to Punish Out of Town Offenders

In Pinellas County, the Sheriff has developed the “Adult Pre-Arrest Diversion” Program (APAD) which provides an alternative for persons charged with a minor offense who has a
relatively clean record.  In a nutshell, an individual charged with a petty crime is given the option to complete 24 hours of community service in lieu of an arrest.  However, this program is only available to those individuals who reside in Pinellas County.  As a result, if you are vacationing in Clearwater or St. Petersburg, you are going to be treated differently, and often times, more harshly, than an individual who committed the same indiscretion who resides within the County.

An Experienced Lawyer Can Help!

There is an old saying about Pinellas County that many people “arrive on vacation, and leave on probation.”  There are a number of ways that our office may be able to assist you in minimizing the impact that a Pinellas County Arrest will have on your life:

• Early Intervention with the Prosecutor: in some cases, our office is able to present mitigating factors to the State in an effort to convince the government to drop the charges against you.
• Pre-Trial Intervention: in other cases, our office can be successful in securing the dismissal of charges against our client by assisting them in applying for and being accepted into the Pre-Trial Intervention (PTI) program. 
• Avoid Coming to Court: In some cases, the best path is to avoid the need to return to Florida by having one of our experienced attorneys negotiate a “plea in absentia” that will allow our client to avoid having to return to Florida to appear in court.
• Withholding of Adjudication: a criminal conviction, even for a minor offense, will likely have a dramatic impact on your life.  In some cases, our office is successful in negotiating a “Withholding of Adjudication,” which allows our client to resolve his / her case without being formally convicted.
• Sealing and Expungement of Arrest Record: there is no question that an increased number of employers, landlords, and educational institutions are checking arrest records.  The sealing or expungement of your arrest will have the effect or removing the record from the Public Database and provide you with the legal authority, in most situations, to truthfully deny that the arrest had occurred.

Call Us for a Free Consultation Today

If you have been charged with a criminal offense in Pinellas County while on vacation, call us for a free consultation today.  Often times, “time is of the essence” for us to secure the best possible outcome for your case. 

Attorneys Marc Pelletier and Timothy Sullivan have a combined twenty-five years practicing criminal law in Pinellas County.  If you have already returned home, our office will secure the records relating to your case from the Clerk of the Court and schedule a phone conference with one of our experienced defense lawyers to discuss all of the options that exist in your case.  Call us today at 727-578-0303 to schedule a free consultation.

 

 Related Links:

• Avoiding Social Media after an Arrest
• Notice to Appear

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you were arrested or given a Notice to Appear during Spring Break and have a pending case in Pinellas County, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

Visit our dedicated criminal defense or DUI website for more information on your particular charge. 

www.defensehelp.com 

www.duistpetersburglawyer.com 

How to Get My SCRAM Bracelet Off

   If you were recently arrested in St. Petersburg, Clearwater or the surrounding areas of Pinellas County for an alcohol related offense, such as a DUI, you may have been ordered to wear a “Continuous Alcohol Monitor” (CAM).

After your arrest, you would have appeared in front of a Judge for an “Advisory Hearing”. At this legal proceeding, the judge made a preliminary determination of whether you qualified for the services of the Public Defender’s Office and addressed the issue of setting a reasonable bond or ROR in your case. You should know, that in addition to setting a bond/ROR, the judge has the authority to impose other conditions of your release.  For example, the judge might order:

•         No consumption of alcohol;
•         No driving until you have secured a hardship license;
•         A curfew;
•         No Contact with the Victim (common in Domestic Battery cases).

The lawyers in our office have noticed a rising trend in judge’s ordering that defendants wear a SCRAM as a condition of their release. This is true even in those cases where an individual has no prior record of arrest. We suspect  that the Pinellas County Sheriff’s Office recent purchase of additional SCRAM devices has been the motivating factor. The PCSO charges an administrative fee of $10 per day for individuals ordered to wear this device. The wholesale ordering of a SCRAM at Advisory Hearings may be interpreted as the county’s effort to secure a return on their investment. These fees can become quite expensive, since the average DUI case can last between 4-6 months prior to a resolution.

 

Why Was I Ordered to Wear the SCRAM?

There are some fact patterns that may cause the judge to have concerns that the subject’s continued consumption of alcohol could pose a danger to the community.  Common cases that result in a SCRAM monitor being ordered may involve a subject with:

• Prior DUI convictions;
  
• A high breath or blood test reading;
• A crash, accident, injuries; or
• Minors were located in the vehicle at the time of the subject’s arrest.

 That being said, our office has encountered many cases that do not have these “aggravating” factors, yet the Defendant was still ordered by the judge to wear the SCRAM monitor.

 

 How Does the Monitor Work?

   SCRAM monitors are worn on the ankle and measure transdermal alcohol levels.  If you have smelled alcohol on a person after a night of drinking, you already have the premise of how this device operates.  After alcohol is consumed, it is absorbed into the bloodstream.  Alcohol gets metabolized through the liver, eliminated through the urinary tract, and some is passed through the skin through sweat.  The CAM device measures alcohol that passes through a subject’s pores through the sweating process. The SCRAM monitor measures alcohol levels continuously without a requirement that the subject participate in testing.

 

What Happens if I Test Positive for Alcohol?

If the device detects alcohol, a report will be electronically generated that is subject to an initial review by a member of the Pinellas County Sheriff’s Office “Pre-Trial Services” Division.  A decision is made whether it was a “confirmed alcohol consumption event” or an “environmental alcohol contact” event.  When looking at the data, a confirmed alcohol consumption event will show a rise in blood alcohol, and then a steady decline in alcohol levels as the subject absorbs and eliminates the alcohol.  An environmental alcohol contact event will show a sudden peak, and a sudden decline in alcohol level.

If the PCSO Pre-Trial Services division determines that an alcohol consumption event occurred, a warrant for your  arrest will be signed by the judge assigned to your case for violation of a condition of your of Pre-Trial Release.

 

 Could I have Avoided Being Ordered to Wear a Scram Device?

You could have avoided a Scram monitor requirement if you had achieved your release from the Pinellas County Jail before the advisory hearing. This can be accomplished in many DUI cases by posting a cash or surety bond after being booked in the Pinellas County Jail. If a bond is promptly posted, the subject will normally be released prior to the advisory hearing.By not having to appear before the judge, the individual will have side-stepped any SCRAM requirement.

 

 Can I Lawfully Get My SCRAM Alcohol Monitor Removed?

If a SCRAM monitor has been ordered in your case, an experienced Pinellas County DUI Defense Attorney can file a “Motion to Modify the Conditions of your Pre-Trial Release.” Our office routinely files written motions outlining our arguments as to why the  removal of the Scram device is appropriate in our clients’ cases. Thereafter, our office will schedule a hearing with the the Judge assigned to your case. At the hearing, the judge will:

• Examine your success thus far in avoiding the consumption of alcohol;
• Consider the absence of any of the aforementioned “aggravated circumstances”;
• Review the court records to see if you have been re-arrested or charged with a new criminal offense;
• Make an inquiry if you have had contact with a prohibited person or place;
• Acted in a responsible manner that demonstrates your respect for the court system. (For example, retained an attorney, registered for a DUI course if appropriate, or participated in an alcohol / substance abuse evaluation at the direction of your lawyer.)  
• Consider any special aspects of your occupation that could be adversely impacted by having to wear the Scram device.

It is important to recognize that the ordering of a SCRAM device at the advisory hearing is often accomplished in a perfunctory summary fashion. The brief nature of these first appearance hearings does not afford the judge the opportunity to fully consider all relevant factors. For this reason, it is not uncommon for the court to delete the SCRAM requirement after being fully apprised of factors that support our argument that that he does not pose a future risk of harm to members of the public.

 

Can Wearing a SCRAM Monitor Help My Case?

This evidence can sometimes be helpful in demonstrating that our client does not have an alcohol addiction, since they have refrained from using alcohol. The argument that follows is that his arrest was an isolated incident that is not likely to reoccur. In some cases, our client’s successful completion of a period of SCRAM monitoring can be used in our argument to the State that a Reduction of his DUI charge to the lesser offense of Reckless Driving is appropriate. The facts of every case are unique and the early advice of your lawyer can be highly beneficial.

Experienced Attorneys Who Can Help?

Our attorneys have nearly twenty-five years combined experience handling DUI and Criminal Defense matters.  Call our office for a free consultation today.

 Related Links:

• How to Save Time & Money in a DUI Case
• Get Your DUI Reduced
• DUI Drugs and Medication

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have been ordered to wear a SCRAM monitor and have a pending case in Pinellas County, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

Visit our dedicated criminal defense or DUI website for more information on your particular charge. 

www.defensehelp.com 

www.duistpetersburglawyer.com 

Avoiding Social Media and Publicity After Arrest in Florida

Avoiding Publicity and Social Media

Be Careful What You Do or Say…It Can Come Back to Haunt You…While your criminal charge is pending, avoiding publicity after arrest is essential. You can achieve this by carefully monitoring your behavior and statements. Anything you do or say could later be reported to the court and used:

• As incriminating statements in an effort to convict you;
• As an aggravating factor at sentencing in an effort to show your lack of remorse;
• As evidence that while your case was pending, you continued to violate the law.

Tell Your Story Only to Your Lawyer

   When facing criminal charges, you should only speak about the facts of your case to your attorney. Statements given to your attorney are protected under the attorney client privilege and can never be used against you. However, this privilege does not apply if you tell somebody else the same information. Even though you may fully trust your family and friends, any conversations between you and them are not privileged communications. As a result, your conversations with them could possibly be used against you in court. Making statements to family or friends could therefore place them in a delicate position and subject them to being called as a witness against you. If you tell your story to a third party it could also end up in the local newspaper or appear in other forms of media. Hundreds of people are arrested each day. Just because you were arrested, doesn’t mean your case will be the focus of a Tampa Bay Times article. To the contrary, the sheer number of Pinellas County arrests makes the job of sifting out news worthy stories a daunting task for newspaper reporters. Click Here to view Pinellas County Jail Online Inmate Inquiry Page. The news media is therefore very dependent upon both anonymous and identified tipsters to bring an interesting recent arrest to their attention. Telling your story to someone other than your lawyer only invites trouble

Read Our Article on Handling Calls From the Pinellas County Jail

Maintaining a Low Profile: Stay Away From the Internet

Many users of MySpace, Facebook, online blogs, or other online social websites, mistakenly believe that their site is private. However, state prosecutors have increasingly been using incriminating statements on these sites to help convict defendants or seek an enhanced sentence after trial. There have been several cases where defendants have left their guard down and confessed online to committing a crime. Others have detailed their methods of initially avoiding arrest or posted pictures of the crime scene. These indiscretions led, of course, to easy convictions for the prosecutor.

Search Warrants & Your Private or Restricted Internet Entries

Law enforcement officers are aggressively searching privately restricted areas of the internet for incriminating evidence through the use of a search warrant. Young adults are the most likely candidates to post such information online. Many teenagers have been caught posting pictures of underage drinking and illegal drug use. Users often believe that only their “invited” peers can view the information they have posted. However, law enforcement agencies have repeatedly proven this not to be the case. Don’t make your case worse by posting information about you or your pending criminal matter. This is an area of communication critical to avoiding publicity after arrest. You should resist sharing such information as it could greatly assist law enforcement and the Pinellas County State Attorney’s Office in securing a conviction or a lengthier sentence. Remaining quiet about your case also affords your attorney greater latitude in explaining or mitigating your conduct to the judge.

We Routinely Counsel Our Clients on Ways to Avoid Post-Arrest Publicity

We can not only discuss the facts of your case and appropriate defenses, but also counsel you on steps to avoiding publicity after your arrest. If you have been charged with a criminal offense in St. Petersburg, Clearwater, or other areas of Pinellas County, we can help! Our office can assist you in dealing with the legal challenges and your practical concerns associated with this difficult time.

 

Related Links:

• Felonies
• Misdemeanors
• Domestic Battery
• Outstanding Arrest Warrants
• Avoiding Conviction
• Sealing or Expungment of Criminal Records

 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have been arrested in the St. Petersburg/Clearwater area, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

Visit our dedicated criminal defense or DUI website for more information on your particular charge. 

www.defensehelp.com 

www.duistpetersburglawyer.com 

 

Florida Legislature Makes Third Attempt To Pass Adult Pre-Arrest Diversion

Pre Arrest versus Post Arrest Diversion

Diversion programs are designed within the the criminal justice system to avoid a formal conviction. A pre-arrest diversion program for minors was approved by the Florida Legislature many years ago. "Pre-arrest" avoids a formal arrest and most importantly, a judicial record of that arrest.  Although adults can take advantage of post-arrest diversion programs, a law approving a pre-arrest diversion program for adults has never existed. The rationale is likely that adults should be held to a higher standard than juveniles and adults could still take advantage of the "post arrest" Pre-trial intervention program (P.T.I.). Successful completion of PTI results in a dismissal of the charge and eligibility to have the criminal records expunged.     

Florida's Failure to Pass Enabling Legislation for APAD - Three Times a Charm? 

The Florida legislature has twice before attempted to pass legislation approving a pre-arrest diversion program for adults: 

The unconventional law was first proposed under House Bill 1031 and Senate Bill 618. The House of Representatives Staff Analysis for CS/HB 1031 rightly    pointed out that although pre-arrest diversion programs for juveniles are approved by Florida law, pre-arrest diversion programs for adults” have never been authorized.  

One can only surmise that Pinellas county officials felt very confident that the law would pass. In anticipation of the legislation, Pinellas spent significant      money and effort creating the "Adult Pre-Arrest Diversion program (APAD). See Video: You Paid For It: $300,000 Pinellas Arrest Diversion Program Sidesteps Justice System. Unfortunately, Pinellas "lost the bet" since the adult pre-arrest diversion program legislation failed on 3/11/16. Despite the failure to procure an enabling act for APAD and without lawful authorization, on October 17th, 2016 the Pinellas County Sheriff's Office elected to still go ahead with their APAD program. (Read a comprehensive article on how the APAD program works and the constitutional issues raised because of the absence of authorizing legislation.)

A second attempt to pass legislation approving an adult pre arrest diversion program failed again on 5/5/17. This similar law was proposed under House Bill 367 and Senate Bill 448.

Today, Florida State Representative Larry Ahern filed House Bill 1197 which is a companion to Senate Bill 1392 filed late last week.These Bills represent yet a third effort to pass APAD legislation.

How New House Bill 1197 Differs from Pinellas APAD

• No Florida law exists giving Pinellas County the authority to create, adopt and administer their current APAD program. Because the Pinellas program is operating without the sanction of the legislature, the program is violating several constitutional protections. This proposed legislation would give the county the authority to enact an APAD program that complies with the proposed new Florida law. (See: lines 1-89)
• The House Bill encourages all counties to share data about APAD participants with other Florida counties. Currently, Pinellas county is operating in the dark and may be admitting individuals into their APAD program who would otherwise be ineligible because of their earlier participation in the Leon county APAD program. (See lines 89-91) The House Bill seeks to correct this deficiency by requiring the program to electronically provide the Clerk of Court with each participant’s personal identification information which is required to be maintained in a statewide database.  (see lines 139-149)
• In Pinellas county, law enforcement officers have no discretion and are required to divert all qualifying individuals into the APAD program. Under the House Bill, law enforcement officers can examine the facts and circumstances of each case and exercise their discretion in deciding which cases are APAD appropriate. (See: Lines 95-99)
• The House Bill mandates that only certain individuals are charged with the development and implementation of the APAD program. It does not authorize law enforcement authorities or the Chief Judge of each county to become involved in this process. In Pinellas County, the Chief Judge, Pinellas County Sherriff and all Chiefs of local Police Departments are signatories of the APAD administrative order and APAD operational guidelines. (See; lines 124-134)
• The House Bill mandates that in the creation of the APAD program, the authorized representatives creating the program must solicit input from other interested stake holders. In creating the Pinellas County APAD program, several stakeholders were never contacted. These include the criminal defense bar, the Pinellas Association of Criminal Defense Lawyers, the St. Petersburg Bar Association, The Clearwater Bar Association, the Barney Masterson Inn of Court and the Pinellas County Trial Lawyers Association.  (See: lines 134-135) 
• The House Bill enables successful APAD participants to have records related to their case “sealed.” No such provision in the law currently exists. Accordingly, the records of APAD participants are presently available through a simple Public Records Request under Florida Statute Chapter 119.(See lines: 166-172)

How Senate Bill 1392 Differs from House Bill 1197

• The Senate Bill includes law enforcement agencies among those charged with the task of developing and implementing the APAD program. (See: SB lines 104-108) The House Bill excludes law enforcement. Neither the Senate Bill or House Bill authorize the Chief Circuit Judge’s participation.
• The House Bill requires input from other stakeholders. The Senate Bill merely states that such input “may be solicited.” (See SB lines 276-278)
• The Senate Bill discusses pre-existing APAD programs and requires a review by the State Attorney to ensure that their program is “substantially similar” to the model program defined by the new law. (See: SB lines 127-136 and lines 295-310) The House Bill is rightfully silent on the treatment of pre-existing APAD programs since without the passage of the proposed legislation, prior authority for a county to operate an APAD program did not exist.

Our office has consistently opposed the operation of the APAD Program in Pinellas County because it was never created or authorized by state lawmakers. As a result, the court system and the protections of the Federal and Florida Constitutions are regularly side-stepped due to unequal application, errors, omissions, and a lack of any mechanism to correct problems that regularly arise. Although new state legislation would be a "start" towards a more appropriate method of addressing misdemeanor offenders, there are many protections missing in the pending legislative bills. If the Florida Legislature is serious about creating a fair and just "Pre-Arrest Diversion Program" for adults, it should give greater consideration to uniform procedures and implement strict statewide guidelines to prevent abuse and discrimination. As it stands right now, these pending bills are little more than an attempt to retroactively "rubber stamp" the troubled Pinellas APAD Program.

 

 

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Will APAD Program Result in Elimination of a Pinellas County Judge?
Video: How Pinellas Law Enforcement Makes an APAD Referral 

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Should I agree to Take a Urine Test if Arrested for DUI in Florida?

One of the most common questions that any DUI Defense Attorney is asked is “Should I Take the Breath Test?”  A less common  question, is “Should I Submit to Urine Testing” if arrested for a DUI offense.

 

Why Would the Police Ask for a Urine Specimen?

While most people are familiar with the idea that if they are arrested for Driving Under the Influence in St. Petersburg or Clearwater, Florida, the police will request a breath test, fewer people are aware that law enforcement may also request that you submit to urine testing.

Florida Statute §316.1932(1)(b) provides that any person who has accepted the privilege to drive in the State of Florida has “impliedly consented” to a test of their urine for the purpose of detecting the presence of chemical or controlled substances if the individual has been lawfully arrested for driving under the influence and law enforcement has probable cause to believe that the individual is impaired by a chemical or controlled substance.

While a breath test is the primary method by which law enforcement would determine a person’s blood alcohol level, the testing of a urine specimen is the primary means by which law enforcement would determine if an individual has consumed a controlled substance or chemical substances.

 

Flaws in Urinalysis Testing

The problem with urine test results is that it only provides historical information.  While a urine test is generally accepted within the scientific community as a reliable method of determining whether or not a substance has been consumed, it is wholly unreliable in determining how recent the substance had been consumed. (See : Urine Testing...Is it Reliable Evidence in a DUI Case?)

There are many substances, such has antidepressants, pain medications and cocaine, that will remain detectable in a subject’s urine sample for up to a week after consumption.  Likewise, marijuana can be detected in a urine sample for up to a month, or even longer, depending on the individual’s body type and frequency of marijuana use. (See: How Long Will a Drug Test Be Positive?)

As a result, the submission of a urine sample could show the presence of a substance that the defendant is not currently under the influence of.  Of course, law enforcement will allege that the subject was impaired by the substance at the time of the arrest.

 

Is there a Benefit to Refusing the Urine Test?

In some cases, there is a tremendous benefit to refusing the urine test.  In order to establish that a defendant is guilty of Driving Under the Influence of a Controlled or Chemical Substance, the State must establish not only that the subject was impaired, but also that the source of the impairment is a substance that is defined by Florida law as a Controlled Substance, pursuant to Chapter 893 of the Florida Statutes, or an illicit chemical substance, as defined by Chapter 877 of the Florida Statutes.

Imagine this scenario:  you take your prescription pain medications.  You then get in a car and, for whatever reason, you are stopped by law enforcement.  The officer believes that you are impaired.  You exercise your right to remain silent and you do not provide the officer with any information as to any medications or other substances that you consumed.  You do not have your prescription medications with you in the car.  After your arrest, you are taken to the police stations and submit to a breath test.  Of course, because you have not consumed any alcohol, the results of the breath test are 0.000.  The officer then requests that you submit to a urine test. 

In this scenario, if you decline to submit to the urine test, the officer and the State Attorney will likely be unable to prove that you are DUI as they will be unable to establish that the source of the alleged impairment was a Controlled or Chemical substance.  In other words, in this scenario, you may arm your attorney with a strong argument to either secure a reduction in charge, a Not Guilty verdict, or an outright dismissal.

 

What Happens if I Refuse the Urine Test?

If you decline to submit to a urine test, the officer who arrested you will file a citation with the DHSMV alleging that you refused urine testing which will contain a “Notice of License Suspension.”  If this is your first and only DUI arrest in your lifetime, a first refusal to submit to a breath or urine test will result in a suspension of your privilege to drive for a period of one year.  If you agree to submit to a urine sample, although you may damage your chances of success in the criminal court, you will not suffer an administrative suspension of your license regardless of what substances are found in your system (though, if you are later convicted of a DUI, you would suffer a license suspension from the criminal court).  If this is your first and only DUI arrest in your lifetime, you would be immediately eligible to apply a hardship license for the entire one year driver’s license suspension.

If your driver’s license has previously been suspended for refusing to submit to a breath, urine or blood test, and you refuse a urine test for the present offense, there are two consequences.  First, you will suffer an eighteen month driver’s license suspension during which time you will be ineligible to obtain a hardship license.  Second, your refusal to submit to chemical testing may result in an additional first degree misdemeanor charge being filed against you for refusal to submit to testing.

 

How do I Protect Myself if I am Unsure if I will Test Positive on the Urine Test?

In some cases, a person is arrested for Driving Under the Influence and they are unsure of whether they will test positive for a controlled substance.  For example, the individual may have smoked marijuana at a party a few weeks ago, or taken an anti-anxiety medication the day before. In this scenario, there is a solution.

Under Florida law, if you submit to the breath and urine tests requested by law enforcement, you are entitled to have an independent blood draw conducted to determine the presence of chemical or controlled substances in your blood.  Although a urine test cannot tell us when a substance was consumed, a blood test is much more accurate for determining how recently a substance had been consumed.  Thus, if you are arrested for DUI, but concerned about the joint that you smoked at a party a few weeks ago, it may be wise to advise the officer “yes, I will submit to the urine test, but I would also like your assistance in obtaining an independent blood test.” 

Obtaining an independent blood test that yields results that demonstrate that you did not have any chemical or controlled substances in your blood stream at the time of your arrest can often be iron-clad affirmative evidence that you were not DUI.

 

What Should I do if I have been Charged with a Drug-Related DUI Offense in Pinellas County?

The DUI defense attorneys in our office are former state prosecutors and have nearly 25 combined years of experience representing individuals arrested for a DUI charge. We limit our practice to only DUI and Criminal Defense and only in Pinellas County. 

Call our office today and schedule a free consultation to discuss the unique facts and circumstances of your case with an experienced DUI lawyer. 

 

Related Links:
Best DUI Lawyer in St. Petersburg, Clearwater, Pinellas
DUI Frequently Asked Questions
Getting Your DUI Reduced
What If I Don't Want to Fight It
How to Save Time and Money 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have been arrested for a DUI, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

Visit our DUI Defense Website for FAQ:  www.duistpetersburglawyer.com