Law Offices of Russo Pelletier & Sullivan: Florida Criminal Law

June 28, 2019

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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Posted at 05:11 PM in DUI Detection and Enforcement, Florida Crimes and Offenses, Florida Criminal Law, Florida Driver Licenses, Florida Traffic Offenses, New Florida Laws and Legislation | Permalink | Comments (0)

Tags: new law, pinellas ticket defense, traffic tickets

May 25, 2018

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.

May 11, 2018

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.

April 04, 2018

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:

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

Posted at 10:08 AM in Alcohol Breath Test Devices, DUI Detection and Enforcement, Florida Crimes and Offenses, Florida Criminal Law, Florida Driver Licenses, Florida DUI Law, Florida Traffic Offenses | Permalink | Comments (0)

Tags: BPO license, DUI

February 02, 2018

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:

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

Posted at 11:06 PM in Alcohol Breath Test Devices, DUI Detection and Enforcement, Florida Criminal Law, Florida DUI Law, Florida Traffic Offenses, Pinellas County Drug Court, Pinellas County Jail, Pinellas County Judges | Permalink | Comments (0)

Tags: DUI, ROR, SCRAM

January 04, 2018

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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Posted at 07:28 PM in Florida Criminal Law, New Florida Laws and Legislation | Permalink | Comments (0)

October 20, 2017

Cost of a DUI in St. Pete Up $500 Because of New Vehicle Impound Law

St. Petersburg, Florida is gaining a reputation for money grabbing in connection with arrests for criminal offenses. Through creative local ordinance legislation they have devised ways to fill the coffers of the city's general fund. In 1999, the St. Petersburg City Council enacted an ordinance directing their police officers to impound any vehicle used in connection with a solicitation for prostitution charge. The ordinance mandated that those arrested for this offense pay a $500 administrative fee to recover their vehicle. The ordinance was expanded to cover drug arrests where a motor vehicle was used in the commission of the crime.

St. Petersburg is at it again with efforts to impose ancillary financial burdens on those persons arrested in their jurisdiction. On October 5, 2017, members of the St. Petersburg City Council passed an amendment to Ordinance 304-H, Section 20-122 of the City Code to add the charge of driving under the influence pursuant to Florida Statute 316.193 as a criteria for motor vehicle seizure, impoundment and a fine. The amendment allows St. Petersburg Police Officers to place an administrative $500 hold on any vehicle involved in a DUI offense. This fine would be in addition to the fees already assessed by the towing company for the retrieval, transportation and storage of the vehicle.

Click this video link to watch the St. Petersburg City Council discussion in their efforts to justify the additional fine. (See Section J-6 at minute 48).

The penalties for DUI in Florida are already highly burdensome. Surprisingly, the city admits that the additional $500 penalty does not represent compensation for the officer’s time and efforts to arrange for the towing of the vehicle. The police agency is already compensated for the time of its officers through the “investigative cost penalties” imposed by the judge on those persons ultimately convicted of DUI. At the council meeting, city officials argued that the new fine was being assessed to deter those arrested for DUI from committing the offense again within St. Petersburg city limits. We find this claim to lack merit, since it is unlikely the new local ordinance would cause a member of the public to consciously choose to consume alcohol in neighboring Clearwater, as opposed to St. Petersburg.

What if My Charge is Later Reduced or I am Not Convicted?

Having your DUI charge reduced to the lesser offense of Reckless Driving carries substantial benefits associated with your privilege to drive,, insurance premium increase ramifications and your criminal record. In addition, avoiding a conviction for the DUI offense will entitle you to a refund from the city for the impound fine previously paid.

Requesting a Civil Hearing in Lieu of Paying the Impound Fine

Rather than summarily paying the impound penalty to secure the release of your vehicle, you can talk to us about your right to challenge the $500 fee by timely requesting a civil preliminary hearing. The law requires that you be notified of your right to a hearing within 2 business days from the date your vehicle was impounded. Thereafter, the hearing challenging the fine must take place before a judicial magistrate within 5 business days.

What Should I Do If My Vehicle Was Impounded for a DUI Offense?

It is important to immediately schedule a free consultation with an experienced St. Petersburg / Clearwater DUI defense attorney. Our lawyers can inform you at which impound lot your vehicle is currently being stored. They can guide you through the steps for retrieving your car after a Pinellas County DUI arrest and discuss your option of requesting a civil hearing.

There are other important deadlines to be aware of when charged with a DUI offense. You only have 10-calendar days from the date of your arrest to challenge the administrative suspension placed on your driver’s license. By timely taking prompt action, most drivers take advantage of a new law that would eliminate any interruptions in their driving privileges. It is important to promptly meet with us to discuss all steps that need to be taken to protect your best interest.

Your Privilege to Drive and Freedom are in Jeopardy.
We Can Help!

The criminal defense attorneys in our office practice exclusively in Pinellas County and have a combined experience of over 25 years representing clients facing a DUI charge. They recognize the importance you place on being able to lawfully operate a motor vehicle. They also realize the stressful situation you may be currently experiencing. See: How to Emotionally Survive a DUI.

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

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
Former State Prosecutors
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Call our office to discuss your options
(727) 578-0303
Free consultations

Visit our Pinellas County DUI Defense Website : www.duistpetersburglawyer.com

Posted at 03:01 PM in Alcohol Breath Test Devices, DUI Detection and Enforcement, Florida Crimes and Offenses, Florida Criminal Law, Florida Driver Licenses, Florida DUI Law, Florida Traffic Offenses, New Florida Laws and Legislation, Recent Court Cases | Permalink | Comments (0)

Tags: Civil Penalty, DUI, Impound, St. Petersburg

August 07, 2017

How to Find Best Pinellas DUI & Criminal Defense Attorney... Ask About Their Training & Experience

Our DUI & criminal defense law firm has been representing clients in Pinellas County for over thirty years. During that time, we have observed a surprising number of new law schools open for business. Scores of new lawyers have entered the local practice of law. But, that does not mean they are all alike. To the contrary, you are likely to be surprised about changes that have taken place in the legal profession.

In a 2014 article we examined the dilemma of a college graduate in choosing to attend a private or public law school in Florida. Today's article delves into a more serious topic that many commentators warn may be effecting the public's best interest.

Can Your Lawyer Think on Your Feet?

The traditional method of teaching law in the United States for the past 100 years has been the Socratic Method. The general public first became aware of this practice as a result of a best selling 1971 novel entitled the "Paper Chase." The book was turned into a movie and the movie became a television series.

Most lawyers consider the Socratic method of teaching a "right of passage" in their pursuit of a Juris Doctorate degree. This advanced degree is a necessary pre-requite to sit for the state Bar examination. The Socratic method entails having the professor choose a law student in the classroom at random. The student is then required to stand and participate with the teacher in a series of continual probing questions about a legal case. The method of teaching was designed to stimulate critical thinking, draw out ideas and advance public speaking skills. The law student in the "hot seat" literally must "think on his feet," much as he would in a courtroom responding to a judge's inquiries or his opponents arguments. Put simply, learning to think like a lawyer is equally as important as learning the law.

The Watering Down of a Legal Education?

If you are contemplating retaining the services of a lawyer, it is imperative that you inquire about their background, education and training. You might conclude there has been a "watering down" in the education of some law school graduates.

Consider these new developments in our legal education system:

Forty-four universities now offer a six year program to achieve both a bachelor and Juris Doctor Degree. The bachelor's degree is awarded after a student concludes his first year of law school. In other words, the first year of law school counts double toward both the undergraduate and post graduate degree. Seven years of education have been summarily shortened to six years.
U.S. News & World Report has surmised that because of student concerns over tuition and the opportunity cost associated with foregoing a salary for three years (typically required to complete a law degree), there has been an emerging trend to develop accelerated Juris Doctorate programs. As a result, twenty one law schools (including one in Florida) now offer an accelerated two year program to secure a juris doctorate degree. Did your prospective attorney participate in legal studies for two or three years?
Currently, there are eighty law schools that offer part time programs. These students work during the day and attend law school at night. Balancing a career and raising a family while attending law school can be very challenging. Typically, three hours of homework and preparation are required for each hour of classroom session time. Showing up for an evening class tired or less than fully prepared does not contribute to a valuable learning experience. Valuable hands-on externships, clinics, and summer clerkships are likely unavailable to a part time law student as they would interfere with his obligations to his employer. It is also important to note that there is a lower admissions criteria for part time law students. This means that the lawyer you are considering may not have been qualified to enter study as a full time law student and was forced to attend part time. The U.S. Department of Labor, Bureau of Labor Statistics estimates that approximately one out of every ten lawyers attended law school on a part time basis.
Did you know that it is now possible to obtain a law degree by limiting your attendance at law school to only on weekends? That's correct, the American Bar Association has approved weekend study for would be lawyers at various law schools nationwide.
If you are concerned about a lawyer who only attended law school on weekends, you should be aware that the "watering down" of a legal education has fallen further down that "slippery slope." William Mitchell Law School, located in St. Paul, Minnesota is the first law school to achieve ABA accreditation for their online law degree. After achieving their online degree, William Mitchell Law School graduates are eligible to take the bar exam in all fifty states.

Law schools have varying degrees of success in their preparation of students to become effective advocates. Nevertheless, we believe that the "experimental learning" or short cut methods as described above create a crisis of confidence in a law school's ability to train future effective attorneys. In our opinion, if this is the "new normal" of law school education, it represents a poor method of shaping the legal talent pipeline for the needs of the public.

Selecting the Right Attorney...
Ask Us About Our Education & Experience

The lawyers in our St. Petersburg / Clearwater office obtained a four year undergraduate degree and thereafter attended law school in the traditional and rigorous fashion. It is axiomatic that a good legal education can be key to later success in the courtroom. Our attorneys mastered their effectiveness in making legal arguments through the Socratic method of legal education. They benefited from participation in extra curricular legal activities, trial advocacy competitions and judicial clerkships. Before graduating law school they worked as law clerks in a criminal defense firm and completed clinical internships at the Pinellas County State Attorney's Office. Thereafter, they went on to serve as Pinellas County State Prosecutors. You can feel confident that they possess the skills necessary to provide you with highly effective representation.

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
Former State Prosecutors
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Call our office to discuss your options
(727) 578-0303
Free consultations

Visit our Comprehensive Criminal Defense website: www.defensehelp.com
Visit our DUI Defense Website for FAQ: www.duistpetersburglawyer.com

Posted at 09:52 PM in DUI Detection and Enforcement, Florida Crimes and Offenses, Florida Criminal Law, Florida DUI Law, Florida Traffic Offenses, New Florida Laws and Legislation, Pinellas County Drug Court, Prescription Drug Offenses | Permalink | Comments (0)

June 27, 2017

Florida Imposes New Mandatory Prison Sentences for Trafficking of Fentanyl

This month, Governor Rick Scott signed House Bill 477 imposing new minimum mandatory prison sentences on individuals convicted of trafficking in Fentanyl or Carfentanil. See: Drug Trafficking in Florida... A Crime You Thought You Understood. Unsurprisingly, this legislation was passed after the governor had designated Florida's opioid epidemic as a statewide emergency earlier this year.

As the image depicts, Fentanyl and Carfentanil are highly concentrated drugs that require a substantially less quantity to induce similar effects as herion.

Effective October 1, 2017, Florida Judges will be required to impose the following minimum mandatory prison sentences for those individuals found in possession of Fentanyl and Carfentanil:

4 Grams but less than 14 grams – 3 years mandatory prison sentence

14 grams but less than 28 grams– 15 years mandatory prison sentence

28 grams or more – 25 years mandatory prison sentence

Our office has written several past articles and posted website pages on related topics:

Record Pinellas Oxycodone Prosecutions – How Did We Get Here?
Generic Oxycontin Likely to Fuel the Pain Pill Addiction Epidemic
Heroin Now Used As Pain Pill Substitute
Pinellas County Prescription Fraud
Doctor Shopping the St. Petersburg / Clearwater Area
Outstanding Pinellas Warrants for Drug Offenses
Florida Legislature Changes Trafficking in Hydrocodone and Oxycontin Laws
Focusing on the Pill Problem in Pinellas
Oxycodone...A Scavenger Hunt in Pinellas for Those with Addiction
Prescription Drugs - An Open Invitation into Pinellas County's Criminal Justice Center

Understand the Concept of "Mixture" In Drug Trafficking Offenses

Florida drug trafficking laws are written in such a way that if an individual is simply in possession of a threshold amount of a controlled substance it is considered a "trafficking" offense, regardless if he has never participated in the manufacturing or selling of the drug. Further, the total weight calculation is not based solely on the amount of Fentanyl or Carfentanil that the individual may possess. Rather, Florida law considers the entire "mixture" of substances contained in the pills. This means that if 1 gram of Fentanyl is cut with 3 grams of cocaine or Aspirin, the accused would be still subject to the 3 year minimum mandatory prison sentence under the Law.

Possession of Fentanyl vs. Trafficking of Fentanyl

The criminal defense attorneys in our office can encourage the Pinellas prosecutor to amend your charge to the lesser offense of "simple possession." This might be an effective strategy when the following factors are present:

When the Fentanyl was seized by law enforcement, it was not found to be individually packaged, manifesting an intent to sell;
You were not in possession of a significant amount of cash or a firearm suggesting your involvement in the distribution of prescription medication;
At the time of your arrest you never told the police that you intended to sell the pills found in your possession or that you had sold controlled substances in the past;
Your possession was motivated strictly by your need to feed your addiction;
We can prove that you have a legitimate addiction and that the best interest of justice point to the superiority of substance abuse counseling over imprisonment;
No scales, baggies or cutting agents were discovered as evidence in your case;
Your prescription medication addiction may have originated by an initial, lawful prescription provided to you by your physician.

We Can Help With Your Controlled Substance Charge

The lawyers in our office are former state prosecutors and are highly experienced in defending drug trafficking charges. You should contact our office to schedule a free initial consultation. At this meeting we can discuss the possibility of challenging the admissibility of the State's evidence. Let us examine an entrapment defense and consider the role that a confidential informant may have played in your arrest. We can discuss the facts of your case and ascertain whether your charge may be a good candidate for an amendment to a "simple possession offense." We can also determine your eligibility to participate in the Pinellas County Drug Court.

What to do if you are arrested for Trafficking in Fentanyl

If you are arrested for the offense of trafficking in Fentanyl in the Clearwater or St. Petersburg area you should contact an experienced Pinellas County criminal defense attorney. We are former state prosecutors that can help.

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
Former State Prosecutors
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Contact our office to discuss your options
(727) 578-0303
Free consultations

Visit our Informative Criminal Defense website: www.defensehelp.com
Visit our Prescription Drug Defense Website: www.floridaprescriptionfraud.com

June 26, 2017

Pinellas County Sheriff’s Office Purchases Evidence Tracer Laser System

This month the Pinellas County Sheriff’s Office purchased a Coherent Inc. TracER™ Laser System for their Forensic Sciences Division. This luminescence device is an 8watt 532nm high performance portable system that will be used at crime scenes to locate trace evidence of fingerprints, skin, body fluids, fibers bone fragments and even narcotics residue. The Tracer Laser System is said to provide law enforcement with an unprecedented level of investigative examination. The intensity of the laser is such that it can locate evidence that could previously go undetected.

How Does the TracER™ Laser System Work?

The instrument weighs under 45 pounds, has an instant on/off capability and operates on AC current in a laboratory setting. However, it also has its own built in battery power supply. This enables the TracER™ to be portable at crime scenes for up to 90 minutes. The battery is capable of recharging through a vehicle’s cigarette lighter. Lasers are considered the optimum light source for non-destructive latent evidence detection. Blocking filters, goggles, a fifteen-foot flexible fiber optic cable and a built-in camera combine to create “spectral brightness” to uncover and to image capture trace evidence. The manufacture promotes the machine by saying that CSI technicians will be able to see more at a crime scenes in less time.

What Other Types of Evidence the Laser Can Uncover?

Gunshot residue
Semen
Blood (Including, old blood covered in fresh paint)

How Can a Laser Impact my Pinellas Criminal Case?

A laser is capable of uncovering both incriminating and exculpatory evidence. “Exculpatory evidence” is evidence that tends to excuse, justify or absolve the alleged fault or guilt of a criminal defendant. The landmark U.S. Supreme Court case of Brady v. Maryland requires the prosecution to turn over exculpatory evidence to your attorney. In fact, the Brady decision says that prosecutors and law enforcement have a “duty” to disclose all material and relevant evidence that is favorable to the accused. The Supreme Court ruled that this obligation is supported by your constitutional right to due process and is consistent with the prosecutor’s obligation to “seek justice.”

The TracER™ has been available to police departments for the past eleven years. The manufacturer’s earlier laser, “The Incriminator” was released for law enforcement use in 1997. This technology has long used by the FBI, the military and other law enforcement agencies across the country. This begs the question as to why it took the PCSO so long to secure this instrument? If the PCSO investigation in your case occurred prior to the purchase of the laser, it could be argued that their investigation was conducted in a slip-sod elementary fashion. The argument goes that “had the laser been employed in your case, it may have uncovered evidence suggesting that the offense was committed by one or more other individuals. This could lead a jury to find “reasonable doubt” in your case, justifying a “not guilty” verdict. Florida’s Standard Jury Instruction Chapter 3.7 states that “A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.” Further, that “If you have a reasonable doubt, you should find the defendant not guilty.”

How Our Clearwater - St. Petersburg Criminal Defense Team Can Help

Attorneys Marc Pelletier and Timothy Sullivan are former State Prosecutors. Their background and experience can be used to evaluate the police practices employed in your case. They can also point to the failure of law enforcement to take steps that would be considered prudent in an otherwise thorough investigation. These Pinellas County defense attorneys are highly dedicated to leaving “no stone unturned” in the meticulous review and preparation of their clients’ cases.

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Contact our office to discuss your options!
(727) 578-0303
Free consultations

Our Website Provides Significant Insight into Florida Criminal charges & Possible Defenses: www.defensehelp.com

Posted at 08:51 PM in Florida Crimes and Offenses, Florida Criminal Law, Search and Seizure | Permalink | Comments (0)

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

Your Privilege to Drive and Freedom are in Jeopardy.
We Can Help!