Attorney Robert L. Bogen

FAQs


General Questions

Q: If You Are My Attorney, Will I Be Working With You Directly?
A: I am a sole-practitioner. You will be working with either me or my para-legal directly. All legal privileges and confidences pertaining to the attorney-client relationship are preserved. Either one of us is easily accessible by phone or in-office conference. All phone calls will be returned on the same day unless I am in conference or in court, and in any event within 24 hours. You will be kept informed of every important aspect of your case, and copied with all significant incoming or outgoing pleadings, motions, correspondences, and other documents pertaining to your case. All potential resolutions of your case will be discussed with you so that you can make informed decisions.
Q: What Is Your Fee Structure?
A: Generally, the fee structure is based on a competitive hourly rate with an initial retainer amount that is used against the hourly rate. Sometimes, a flat fee may be more practical, or even a hybrid of the two. The initial retainer amount will be based on the time, labor, and skill level needed, as well as the complexity of the case, issues involved, and what is at stake. It cannot be determined until after our initial in-office conference so that I can learn more about your case, and the important and relevant aspects of what it will take to resolve your case. When appropriate, application will be made to the court for an award of fees and costs in your favor and against the other party.
Q: Do You Take Credit Cards?
A: We accept Visa, MasterCard and Discover cards.

Family And Marital Law Questions

Q: What Are The Legal Requirements To Obtain A Dissolution Of Marriage In Florida?
A: Generally, the fee structure is based on a competitive hourly rate with an initial retainer amount that is used against the hourly rate. Sometimes, a flat fee may be more practical, or even a hybrid of the two. The initial retainer amount will be based on the time, labor, and skill level needed, as well as the complexity of the case, issues involved, and what is at stake. It cannot be determined until after our initial in-office conference so that I can learn more about your case, and the important and relevant aspects of what it will take to resolve your case. When appropriate, application will be made to the court for an award of fees and costs in your favor and against the other party.
Q: How Are Marital Assets And Liabilities Distributed Upon A Dissolution Of Marriage In Florida?
A: Florida is an “equitable distribution” state. Generally, marital assets and liabilities are equally distributed. However, there may be a justification for an unequal distribution. Relevant factors that are considered may include but are not limited to the following:

  • Each party’s contribution to the marriage.
  • The relative economic circumstances of the parties.
  • The duration of the marriage.
  • Any interruption of the personal career or educational opportunities of either party.
  • The contribution by one party to the personal career or educational opportunities of the other party.
  • The desirability of having one party retain a particular asset, such as a business, free from interference by the other party.
  • The contribution of each party to the acquisition, enhancement, and production of income, assets, or liabilities.
  • The desirability of retaining the marital home as a residence for any dependent child, or for one of the parties when it would be equitable and financially feasible to do so.
  • The intentional depletion or destruction of marital assets.

Q: What If We Disagree On Custody Of The Children?
A: It is the public policy of this state that each minor child has frequent and continuing contact with both parents after they separate or divorce. It is further the public policy of this state to encourage parents to share the rights and responsibilities, and joys, of childrearing. Consequently, Florida has done away with notions of “custody” and “visitation,” and instead requires the parties to agree upon, or the court to determine, parental responsibility, a parenting plan, and a time-sharing schedule to govern each parent’s relationship with the children as well as the parents’ relationship with one another pertaining to the children.
Q: What Does 'Shared Parental Responsibility' Mean?
A: “Shared parental responsibility,” as defined by Florida law, means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child, and in which both parents must confer with each other so that major decisions affecting the welfare of their child will be determined jointly. In Florida, “shared parental responsibility” will always be ordered unless it would be detrimental to the best interests of the child. In that case, “sole parental responsibility” will be ordered, which means that one parent makes decisions regarding the minor child. In ordering “shared parental responsibility,” the court may consider the expressed desires of the parents and may grant to one parent the ultimate responsibility over specific aspects of the child’s welfare, or may divide those responsibilities between the parents based on the best interests of the child. Areas of responsibility may include primary residency, education, medical and dental care, or any other responsibilities that the court finds unique to a particular family.
Q: What Is A 'Parenting Plan'?
A: A “parenting plan” is a document created to govern the relationship between the parents relating to decisions that must be made regarding their children. It will address issues concerning, but not limited to, the children’s education, health care, and physical, social, and emotional well-being. It will additionally describe how the parents will share and be responsible for the daily tasks associated with the upbringing of the children; the time-sharing schedule arrangements that specify the time that the children will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the children.
Q: What Is Meant By A 'Time-Sharing Schedule'?
A: A “time-sharing schedule” means a timetable specifies the time, including overnights and holidays, that the children will spend with each parent.
Q: Isn't The Mother Always Given Preference With Regard To Decision-Making And Time-Sharing With The Children?
A: No. Florida law expressly provides that there is no presumption or preference for or against the father or mother of the children with regard to decision-making, time-sharing, or any other aspect of the parenting plan, regardless of the age of the children.
Q: What Factors Are Considered In Determining Parental Responsibility, A Parenting Plan, And A Time-Sharing Schedule?
A: To begin with, the best interest of the children is always paramount and is given primary consideration. Any and all factors which could affect the welfare and interests of the children must be evaluated, including but not limited to:

  • The disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
  • The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  • The disposition of each parent to determine, consider, and act upon the needs of the children as opposed to the needs or desires of the parent.
  • The length of time the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  • The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan.
  • The moral fitness of the parents.
  • The mental and physical health of the parents.
  • The home, school, and community record of the children.
  • The reasonable preference of the children, to the extent that they are of sufficient intelligence, understanding, and experience to express a preference.
  • The knowledge, capacity, and disposition of each parent to be informed of the circumstances of the children, including but not limited to their friends, teachers, medical care providers, daily activities, and favorite things.
  • The disposition of each parent to provide a consistent routine for the children, such as discipline, and daily schedules for homework, meals, and bedtime.
  • The capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the children, and the willingness of each parent to adopt a unified front on all major issues when dealing with the children.
  • Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  • Evidence that either parent has knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  • The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before and during the divorce proceedings, including the extent to which parenting responsibilities were undertaken by third parties.
  • The disposition of each parent to participate and be involved in the children’s school and extracurricular activities.
  • The disposition of each parent to maintain an environment for the children which is free from substance abuse.

The disposition of each parent to protect the children from the ongoing litigation as demonstrated by not discussing the litigation with the children, not sharing documents or electronic media related to the litigation with the children, and refraining from disparaging comments about the other parent to the children. The developmental stages and needs of the children and the disposition of each parent to meet the children’s developmental needs.

Q: Can Parental Responsibility, A Parenting Plan, Or A Time-Sharing Schedule, Once Initially Established, Be Changed Over Time?
A: A determination of parental responsibility, a parenting plan, or a time-sharing schedule may be modified as long as there is a sufficient showing of a substantial, material, and unanticipated change in circumstances, together with a determination that the modification is in the best interests of the children.
Q: What If One Parent Wants To Relocate And Take The Children With Him Or Her?
A: If a parent wants to relocate with the children more than 50 miles away, a court order must be obtained. If the parties are in agreement, they must put the agreement in writing, and the written agreement must make provisions for a time-sharing schedule for the non-relocating parent, as well as describe the transportation arrangements relating to the non-relocating parent’s ability to exercise his or her right of time-sharing with the children. The written agreement would then be ratified by the court. However, if the parents are not in agreement with the proposed relocation of the children, a petition must be filed seeking the approval of the court. In making a determination as to whether to allow such a relocation, the court must evaluate any and all factors bearing upon the best interests of the children, including but not limited to:

  • The nature, quality, extent of involvement, and duration of the children’s relationship with the parent proposing to relocate, with the non-relocating parent, and with other significant persons in the children’s lives such as siblings, half-siblings, etc.
  • The age and developmental stage of the children, the needs of the children, and the likely impact the relocation will have on the children’s physical, educational, and emotional development, taking into consideration any special needs of the children.
  • The feasibility of preserving the relationship between the non-relocating parent and the children through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the children and the non-relocating parent; and the likelihood of compliance with the substitute arrangements by the relocating parent once he or she is out of the jurisdiction of the court.
  • The children’s preference, taking into consideration their age and maturity.
  • Whether the relocation will enhance the general quality of life for both the parent seeking the relocation and the children, including but not limited to financial or emotional benefits or educational opportunities.
  • The reasons each parent is seeking or opposing the relocation.
  • The current employment and economic circumstances of each parent, and whether the proposed relocation is necessary to improve the economic circumstances of the parent seeking relocation of the children.
  • That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
  • The career and other opportunities available to the objecting parent if the relocation occurs.
  • A history of substance abuse or domestic violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

Q: How Is Child Support Determined?
A: In Florida, child support, as well as child care and health care costs, is determined primarily using statutory numerical guidelines based upon the relative net incomes of the parents. However, there may be a justification to depart from the guidelines based on factors such as the child’s age, station in life, standard of living, or other needs, considered in context with the financial status and ability of each parent. Relevant factors that are considered may include but are not limited to the following:

  • Extraordinary medical, psychological, educational, or dental expenses of the child.
  • Independent income of the child.
  • The historical and regular payment of support for a party’s parent who has a demonstrated need.
  • Seasonal variations in the parties’ incomes or expenses.
  • The age of the child.
  • Special needs of the child that have traditionally been met within the family budget.
  • Total available assets of the parties.
  • The impact of which parent will claim the IRS dependency exemption for the child.
  • Each parent’s participation in the particular shared parenting and visitation arrangement, or other activities of the child.

Q: How May I Qualify For An Increase, Or A Decrease, In Child Support?
A: The court may modify the amount and terms and conditions of the child support payments if the modification is found to be in the child’s best interests, as long as there has been a substantial change in the circumstances of the parties, or the child is still in high school upon turning 18 but is reasonably expected to graduate before turning 19.
Q: Am I Entitled To, Or Obligated To Pay, Alimony?
A: In Florida, the court may grant alimony to either party which may be temporary, bridge-the-gap, rehabilitative, durational, permanent, or lump sum in nature. Relevant factors that are considered in determining whether to award alimony, and the amount and length of any award of alimony, may include but are not limited to the following:

  • The marital standard of living.
  • The duration of the marriage.
  • The age and the physical or emotional condition of the parties.
  • The relative financial resources of the parties.
  • The earning capacity, education, vocational skills, and employability of the parties.
  • Whether a party needs time to acquire sufficient education or training to enable that party to find appropriate employment.
  • Each party’s contribution to the marriage, which may include services rendered in homemaking, child care, or education and career building of the other party.
  • The responsibilities each party will have with regard to their children.
  • The tax treatment to be given to the alimony award.
  • All sources of income available to either party.

Q: How May I Qualify For An Increase Or A Decrease In Alimony?
A: Most forms of alimony may be modified to some degree, in length or duration, upon a sufficient showing of a substantial, material, involuntary, unforeseeable, and permanent change in the circumstances of either party.
Q: How Does ‘Cohabitation’ Without Marriage Affect A Previous Alimony Award?
A: Florida law acknowledges that relationships do exist between an alimony recipient and an unrelated person with whom the alimony recipient resides, and that such relationships could provide economic support equivalent to a marriage. Thus, if such equivalent equitable circumstances are established, the court may reduce or terminate an award of alimony which otherwise would be terminable only upon remarriage. In this regard, the court must determine the nature and extent of the relationship in question, giving consideration to circumstances which include but are not necessarily limited to the following:

  • The length of residency together and the extent to which the couple have held themselves out or conducted themselves as a married couple.
  • The extent to which the couple have pooled their assets or income, have supported one another, or have otherwise exhibited financial interdependence.
  • The extent to which the couple have performed valuable services for one another, or for one another’s company or employer.
  • The extent to which the couple have jointly contributed to the purchase of real or personal property, or have worked together to create or enhance anything of value.
  • The extent to which the couple have any agreement regarding property sharing or support.
  • The extent to which the couple have provided support to each other’s children.

Q: What If I Have No Resources For The Payment Of Attorney's Fees And Costs Of A Dissolution Of Marriage Proceeding?
A: The court may require that one party pay all or a portion of the other party’s attorney’s fees and costs in order to ensure that both parties have similar ability to secure competent legal counsel. The court will consider the parties’ relative financial circumstances, and the reasonableness of the requested fees and costs given the issues of the case.
Q: Can I Get Alimony Or Child Support Without Seeking A Dissolution Of Marriage?
A: Florida law provides for separate maintenance (support), child support, and determinations of primary residential custody unconnected with a dissolution of marriage. The same criteria are applicable as in a dissolution of marriage proceeding. However, there is no six month residency requirement like what would be necessary to file for a dissolution of marriage.
Q: What Is Domestic Violence?
A: In Florida, domestic violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. If law enforcement is called to the scene of a domestic dispute, and there is any evidence of violence having taken place, someone WILL be arrested.
Q: What Can I Do If I Am A Victim Of Domestic Violence?
A: Certainly, in the initial instance, law enforcement should be called to the scene to quiet any violence. If someone is arrested, he or she will spend at least one night in jail and, upon release, will generally be subject to a “no contact” order pending resolution of the criminal case. This means he or she would not be allowed to go back to the residence where the victim resides during the pendency of the criminal case. The matter will then be prosecuted as a crime by the State Attorney’s Office, and appropriate sanctions will be imposed upon a finding of guilt.

Regardless of whether or not an arrest occurs, a victim of domestic violence may seek the issuance of an injunction, temporary or permanent, for protection against domestic violence. Upon such a petition being filed, if it appears to the court from the sworn allegations that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction on the spot, pending a full hearing within 15 days. Such a temporary injunction usually will require the offender to immediately vacate the residence and stay away from the victim at home or work. The police or sheriff will assist the victim in immediately enforcing this order. At the full hearing, the court will hear testimony from both sides and determine whether or not to maintain the injunction, or to make adjustments to the scope and duration of the injunction. Any violation of an injunction for protection against domestic violence is itself a criminal offense.

Q: Do I Need An Attorney For A Family Law Proceeding?
A: Although it is possible to represent yourself in family court, it is not advisable in the vast majority of cases. Should you choose to represent yourself, the court will not be able to assist you with your case in any manner. You will be held to the same requirements of the other party’s attorney with regard to the law, procedure, and all other issues. Should you mishandle your own case due to lack of knowledge or lack of skill, it is unlikely that an attorney will be able to undo your mistakes.
Q: What Is The Key To Choosing The Best Divorce Attorney To Represent Me?
A: Apart from professional excellence, the key is to choose a person with whom you feel most comfortable and confident. You will be working and communicating with this attorney frequently during this difficult, emotional and financially stressful time. Ask yourself the following:

  • Will my attorney listen to what I have to say and address the issues that are important to me?
  • Does my attorney have the necessary litigation and negotiating experience in this field to get me the best result possible?
  • Will my attorney be willing to give me an overview of how the case will proceed and what I can expect?
  • Beware of lawyers who give you one-sided views, or make guarantees that cannot be fulfilled. There are strengths and weaknesses to every case and a good attorney will make you aware of them.

Q: What If My Attorney Is Friendly With My Spouse's Attorney?
A: Attorneys in a particular locale are likely to have many cases against each other over the years. They are also likely to attend the same professional events and may work on committees together. Because they deal with each other day in and day out, they may exchange pleasantries or share a joke. This does not mean that the attorneys are being disloyal to their clients. Your attorney need not dislike or be hostile, rude or mean to the opposing attorney. To the contrary, such behavior frequently harms, rather than helps, your case.
Q: How Long Will The Proceedings Take?
A: It is difficult to foresee how long it will take to complete a case. The truth is that no one can know exactly how much time it will take on any given case, because many factors are out of the control of both the client and the attorney. For instance, family law cases can quickly become contested with little to no prior warning. Also, emotions can run high in many cases, which can cause people to act in ways that unfortunately result in prolonging the process. The time involved is primarily based on four factors:

  • The number and complexity of the contested issues.
  • The intensity of feelings and whether there is an inclination to settle.
  • The attitude and tenacity of your spouse.
  • The tenacity and desire for litigation of your spouse’s lawyer.

By far, the factor that makes lawsuits last longer is the intensity of the feelings between the parties and how much they want to fight.

Q: How Much Will It Cost To Get My Case Resolved?
A: It is difficult to make a realistic estimate of the total fee even when we know what issues are contested, the intensity of the parties’ feelings, and the complexity of the issues. If the parties want to settle, make compromises, and end the matter quickly, they can do so. If the parties do not trust each other, want complete discovery of all assets and liabilities, and argue many issues to the bitter end, the process becomes very long, drawn out, and expensive. Going to trial is almost always more expensive than settling the lawsuit. When we discuss “expensive,” you should be aware that you will “pay” in three unique ways:

  • With your time – Your attorney prepares your lawsuit, but only with your help. You must make a commitment to put time into your case.
  • With your emotions – Going through a divorce is one of the most painful experiences you can have. Your emotions will probably roller-coaster. Often one party raises issues as a way of dragging the matter out to punish the other spouse. The more issues raised, the more painful the process can become.
  • With your pocketbook – You can exercise some control over the issues in your case. You should be prepared to scrutinize the issues at an early stage and determine what issues are important to you and what issues can be settled. If there are concessions you can make that are unimportant to you but important to the other party, this might bring your case to a speedier conclusion and thus reduce your fees. Litigation often begets further litigation.

Q: What Are My Chances Of Winning?
A: “Winning” is certainly a misnomer in the context of a family law case. There are no real “winners” or “losers.” The potential outcome of a case depends on many factors, and a thorough and detailed evaluation is required. Although an experienced and capable attorney can discuss various aspects of a case in detail, often a complete analysis cannot be achieved until the attorney has access to all relevant documents and witnesses. If an attorney guarantees you a certain result or outcome, or fails to conduct a full investigation, seek the assistance of another attorney.
Q: How Should I Deal With My Spouse During The Proceedings?
A: Family law proceedings tend to bring out the worst in people. It is not uncommon for people to make remarks to intimidate, upset, and/or to cause stress for each other. Because of the close relationship the parties previously had with each other, they usually know just which remarks to make and which buttons to push to provoke the maximum desired response. Should you have any concerns about any statements your spouse makes to you, those concerns should be discussed with your attorney. You may be assured that we are not intimidated by such statements or remarks. Our job is to work on your behalf and to take all reasonable and necessary steps to protect your interests and help you obtain your desired results. In the meantime:

  • If love is gone, substitute politeness.
  • Walk away from arguments or conflict.
  • Be skeptical. Most of what is said is meant to deceive you.
  • Keep your cards close to your vest. Do not let your spouse know how much you know.
  • Learn to say, “Talk to your lawyer and have him or her talk to mine.”
  • Expect your spouse to resent your attorney and to attempt to undermine his or her advice and counsel. When in doubt, believe your attorney, not your spouse.
  • Do not enter into private negotiations, make agreements, or sign anything without your attorney’s knowledge and counsel.
  • Do not be intimidated by your spouse if an ultimatum or deadline is given for you to accept or reject an offer. That offer or a better offer, we frequently find, will be available later or, failing same, the court will direct the appropriate fair settlement award to you.
  • Do not rub in your legal victories. Losers try to even up.

Q: How Can We Avoid A Trial?
A: It is always prudent to try to work out a fair and reasonable settlement if possible. An agreement allows the parties to “fine tune” matters between themselves in a way that courts are often unable to do. The court will never know a case as well as the parties and the attorneys do. However, there are times when the case does not settle despite the best efforts of the attorneys and clients. Settlement may be impossible to achieve for several reasons, including the unrealistic expectations of the parties, disputes as to the facts or the law, the existence of novel and as yet undecided issues, or the desire on the part of a party to “punish” the other spouse. In those instances where trial is necessary, we are well qualified to represent you. Our ability to try cases when necessary allows us to negotiate from a position of strength.
Q: What Is Mediation?
A: Mediation is a method of dispute resolution that is an alternative to the more traditional courtroom trial. It is a process whereby the parties, generally with their attorneys, meet with a trained mediator who attempts to help the parties in reaching an agreement. Most family courts will require the parties to attempt to mediate a resolution of disputed issues before bringing the matter to court for a hearing. The mediator tries to facilitate an agreement, but does not force either party to agree. Both parties should make a good-faith attempt to resolve their issues at a mediation. Neither party, however, should feel that an “agreement” is being forced upon him or her. If it is not possible to reach an agreement at mediation, it still may be possible to come to terms before an expensive court hearing. It is not unusual for cases to settle “on the courthouse steps.”

Criminal Law Questions

Q: What Are My Initial ‘Rights’ If I Am Arrested?
A: In 1966, the United States Supreme Court wrote an opinion in the case of Miranda v Arizona, which discussed an arrestee’s initial constitutional rights upon being arrested. These rights have come to be known as the “Miranda” rights. They include the following precepts:

  • You have the right to remain silent and not answer any questions.
  • You have the right to the presence of a lawyer of your choice before you make any statements AND during any questioning.
  • If you cannot afford a lawyer, you are entitled to the presence of a court-appointed lawyer before you make any statements AND during any questioning.
  • Any statement you make must be freely and voluntarily given and of your own free will; no threats or promises can be made to induce you to make a statement.
  • You have the right to stop any questioning at any time and to rely upon your right to remain silent, even if you initially agreed to answer questions.
  • If you exercise your right to remain silent, it cannot be used against you in a court of law; but any statement you do make can and will be used against you in a court of law.

Q: What Should I Know If I Am Arrested?

  • You do not have to talk with or answer questions from a police officer, or give your consent to a request from a police officer to search you, your belongings, your car, or your house.
  • You should not sign anything, such as a statement, a waiver, a consent, or the like, without first seeking counsel from a lawyer.
  • You should not talk to your friends, family, or jail mates about the facts or circumstances leading up to your arrest.
  • You should identify and find any possible witnesses who may be favorable to your case.
  • You should not attempt to represent yourself or go to court without first seeking counsel from a lawyer at your earliest opportunity.
  • When talking with your lawyer, tell him or her everything about your case — the good, the bad, and the ugly.

Q: Why Would I Need An Attorney If I Am Charged With A Criminal Offense?
A: In Florida, a criminal offense may fall into two categories: misdemeanor or felony. Both misdemeanors and felonies have the potential for jail time and probation. Misdemeanors are generally regarded as less serious crimes, but nevertheless require an aggressive defense as they carry a potential maximum jail sentence of up to 1 year in county jail. Felonies are the more serious category of crimes as they carry a potential maximum prison sentence of up to five years, fifteen years, thirty years, life, or even the death penalty, depending upon the nature of the crime. Some felony crimes carry mandatory minimum sentences as well.

It is essential that an accused understands the nature, degree, seriousness, and potential consequences of the charge he or she is facing, as well as any possible defenses to the charge. It is unlikely that the average person could represent himself or herself effectively in court against an experienced prosecutor. The prosecutor knows the law better than the average person and is experienced in these matters. Absent the assistance of experienced counsel, an accused is on an uneven playing field and at a clear disadvantage.

Q: Do I Still Need An Attorney If I Have Not Been Arrested, Accused Or Charged With A Crime?
A: Even though you are not accused or charged with a crime, you may nonetheless be a suspect while law enforcement carries out their investigation. If you are a suspect, you should consult with an attorney before making any statement. What you say, no matter how well intentioned, can be misinterpreted, and may be used as evidence against you later.
Q: Are There Traffic Offenses In Florida That Actually Constitute Crimes Rather Than Civil Traffic Infractions?
A: Yes. Some of the more serious traffic offense are crimes, mostly misdemeanors, but sometimes felonies if there are extenuating circumstances or if you have committed them repeatedly in the past. Just to name a few, driving under the influence is a crime. Reckless driving is a crime. Driving with a suspended driver’s license may be a crime under certain circumstances. Any person who is charged with a criminal traffic offense should seek the advice of counsel at their earliest opportunity in order to preserve and protect their various constitutional and statutory rights.
Q: How Many Alcoholic Beverages May I Drink Before I Am Legally Considered ‘Driving Under The Influence’ In Florida?
A: It is not wise to drink ANY alcoholic beverages within a couple of hours before driving. A lot depends upon your size, your weight, your pattern of drinking and the time of your last drink, when you last ate and how much you ate, and many other variables. You do not have to be “drunk” to be considered “driving under the influence.” Impairment of your normal faculties is all that is required. Additionally, even if your normal faculties do not seem impaired, a blood-alcohol level of 0.08 is sufficient to be legally considered “driving under the influence.” This legal limit is very low for most adults. Moreover, “spiking” of alcohol concentration may occur for a few minutes and place you over the limit even if overall you are not at the limit.
Q: What Do Police Officers Look For With Regard To Apprehending Drivers Impaired By Alcohol Or Drugs?
A: There are numerous cues that might trigger the attention of a police officer to drivers impaired by alcohol or drugs, including but not necessarily limited to the following:

  • Turning abruptly, illegally, or with a wide radius.
  • Straddling, or even tires on, the center or a lane marker.
  • Almost striking an object or another vehicle.
  • Weaving, swerving, or drifting.
  • Driving on other than a designated roadway.
  • Speeding, or driving at too slow a speed (e.g., more than 10 MPH below the speed limit).
  • Accelerating or decelerating rapidly.
  • Braking erratically or stopping inappropriately, or stopping (without cause) in a traffic lane.
  • Following too closely.
  • Driving into opposing or crossing traffic.
  • Signaling inconsistently with your driving actions.
  • Responding slowly to traffic signals, or an officer’s signals.
  • Any moving violation.
  • Headlights off, equipment violations (such as a burned out tail light or license plate light), or an expired registration sticker.
  • Throwing objects out of the car, yelling or leaning out of the window, or any other inappropriate behavior.
  • After a stop, evidence of drinking or drugs inside the car itself, or the smell of alcohol or drugs.

Q: What Signs Of Intoxication Do Police Officers Look For After Stopping A Driver Suspected Of Being Impaired By Alcohol Or Drugs?
A: Again, there are numerous cues that would give rise to a police officer’s suspicions in this regard, including but not limited to the following:

  • The odor of alcohol.
  • Fumbling with your driver’s license, registration, or insurance papers.
  • Slurred speech.
  • Responding slowly to questions, asking to repeat questions, or restating questions.
  • Answering questions incorrectly or inappropriately, or changing answers.
  • Difficulty exiting the car.
  • Swaying, unsteady, leaning on the car for support, balance problems.
  • Slowed reactions or poor coordination.

Q: If I Am Lawfully Stopped Or Arrested In Florida For Driving Under The Influence, Am I Required To Submit To Field Sobriety Tasks?
A: Field sobriety tasks are not required by law. Thus, you are not required to submit to field sobriety tasks that assist officers in making a determination of whether to arrest you for driving under the influence. But if you are nonetheless arrested, the fact that you refused such field sobriety tasks may be used against you in a court of law.
Q: If I Am Lawfully Stopped Or Arrested In Florida For Driving Under The Influence, Am I Required To Submit To A Breathalyzer Test?
A: Breathalyzer tests to determine your blood-alcohol level are required by law if you are lawfully arrested for driving under the influence; and you impliedly consent to those tests by virtue of your operation of a motor vehicle in Florida. The results of those tests can and will be used against you in any criminal prosecution for DUI. Moreover, if you “blow” 0.08 blood alcohol level or higher, the Department of Highway Safety and Motor Vehicles will administratively suspend your driving privileges for a period of six months, even if you are later found not guilty in criminal court of driving under the influence.

While you may withdraw your “implied consent” to a breathalyzer test, it is not without consequences. Not only may a refusal to submit to such tests be used against you in any criminal prosecution for DUI but, completely separate from the criminal prosecution for DUI, the Department of Highway Safety and Motor Vehicles will administratively suspend your driving privileges for one year, even if you are later found not guilty in criminal court of driving under the influence. This one year administrative suspension increases to a period of 18 months if you have refused a breathalyzer test in a previous incident. Additionally, such a “second time refusal” also constitutes a misdemeanor offense in and of itself.

It should be noted that a driver can challenge an administrative suspension of his or her drivers license based primarily upon procedural grounds, and in many cases it is possible to obtain a “work” or “hardship” drivers permit during the period of suspension.

Q: Should I Get An Attorney If I Have Been Arrested For Driving Under The Influence?
A: Although you are not required to have an attorney, it is a good idea to retain one if you have been arrested for DUI, particularly if someone was seriously injured or killed. DUI laws are strictly enforced. While there may be some arguments that you can make in your defense, or mistakes that were made by the police, your chances of successfully making those arguments or finding those mistakes are much higher if you have an attorney assisting you sooner, rather than later. If you are facing a DUI charge, an attorney may be your only hope for avoiding or reducing the penalties or imprisonment you face.
Q: Are There Driver's License Consequences In Florida If I Am Convicted Of A Drug Offense?
A: Yes. If you are convicted of possession, sale, or trafficking of an illicit drug, or even of participating in a conspiracy, the court is required to direct the Department of Highway Safety and Motor Vehicles to revoke your driving privileges for two years.
Q: May I Get My Criminal History Records Sealed Or Expunged?
A: Florida law provides an avenue for the sealing or expunction of certain eligible criminal history records. Even if it is an eligible criminal history record and one qualifies for a sealing or expunction, it is within the sole discretion of the court to grant or deny the request.

To qualify for a sealing of an eligible criminal history record, one must not have been adjudicated guilty or delinquent with regard to the arrest or alleged criminal activity to which the request for sealing pertains, and one must not have previously secured a sealing or expunction of a criminal history record. An expunction differs from a sealing in that an expunction in most cases results in the physical destruction or obliteration of the criminal history record. To qualify for an expunction, the criminal history record must be sealed for at least ten years, but one is not required to wait the ten year period if the arrest or alleged criminal activity to which the request for expunction pertains resulted in a dismissal prior to trial, adjudication, or the withholding of adjudication.

There are various procedural hurdles to overcome in order to secure a sealing or expunction of a criminal history record, but if successful, a sealing or expunction of a criminal history record allows the person to lawfully deny or fail to acknowledge the existence of the criminal history record (with very limited exceptions), and the person may not be held under Florida law to have committed perjury for so denying or failing to acknowledge the criminal history record.

Appellate Law Questions

Q: What Is An Appeal?
A: An appeal is a request to a higher court to review a decision made in a completed trial or proceeding. Appeals are based upon the “record” in the case as it occurred in the trial court. A court of appeal does not hear testimony, consider new evidence, or retry cases. Appeals tend to be technical and time consuming, but can reap great rewards for those aggrieved by a judgment or erroneously convicted.
Q: What Issues Can A Court Of Appeal Hear?
A: A court of appeal decides questions of law, as opposed to questions of fact, such as whether the trial judge applied the law correctly to the facts that were found to exist by the trial judge or jury after hearing and considering all the evidence (including conflicting evidence). It does not overturn findings of fact unless there was NO competent evidence presented in support of those facts. Issues commonly brought to a court of appeal for review may include legal errors such as incorrect rulings on the admissibility of evidence, an incorrect application of a law or regulation, improper jury instructions, insufficient evidence to support the judgment, or an incorrect failure to consider evidence that would have impacted the judgment.

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