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Does the car have to be moving for me to be guilty of DUI?

This may surprise you but the answer is no. You can be convicted of DUI in Florida even if you’re not actually driving the car or the key is not in the engine.

The Court and the prosecutor consider whether or not you have the capability to control, direct or use the vehicle.

In otherwise, just being behind the wheel or in the vehicle that is able to run you can be arrested and possibly convicted of DUI in Florida.

If you or a loved one has been arrested for DUI give me a call. I would be happy to help you if I can. 954-982-2124.

Houson R. Lafrance

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What is DUI?

DUI is a shorthand acronym for Driving Under the Influence. In order to be convicted of DUI the State must that a person drove or was in actual physical control of a vehicle and was under the influence of alcohol or chemical substance to the extent their normal faculties were impaired or they blew a .08 or more.

Anyone who blows a .08 or more is presumed to be under the influence of alcohol.

If you or a loved one has been accused of driving under the influence give me a call. I’d like to help you if I can. 954-982-2124.

Houson R. Lafrance

How to Survive a Traffic Stop!

One would be hard press to turn on the news or read their social media timeline and not find something or someone talking about police behavior during a traffic stop. All one has to do is just read the comments and you’d be able to see the clear and sharp divide between people. Despite any view you may have I believe we all can agree that no one wants to lose their life during a traffic stop.

So in order to hopefully help some folks I put together this post. Because some people are surprised to learn that they actually have rights and that there is a limit to what a police officer can and can’t do.

It goes without saying that traffic stops are the most common encounter you’ll have with police officers on the road. Knowing what actions police officers can legally take, and your own obligations, will help you stay calm if you’re pulled over.

If they pull you over, a police officer can legally ask to see the following forms of identification:

  • Your driver’s license
  • Proof of insurance
  • Your vehicle’s registration

These forms of identification allow the police to check whether there are any charges against you and whether you own your vehicle. You have to show these documents if you have them.

Word of advice, do not start searching for you’re documents until the police officers tells you to do so. In light of today’s climate any sudden movement while reaching into your glove box could make it seem like you’re looking for a weapon.

Another piece of advice follow the officer’s instruction. Stay seated with your hands on the steering wheel, unless you are prompted to exit your vehicle. A police officer has the right to ask you to exit your vehicle at any time during a traffic stop, whether you have been placed under arrest or not.

Police questioning

I normally advise people not to talk with police because the police have a tendency to twist words to fit their probable cause. However, in cases of a traffic stop it’s usually better to give short answers to the officer’s questions.

Answer yes or no  and don’t volunteer any extra information. Talking to little at a traffic stop is not as bad as talking to much at a traffic stop.

Searching your person

A police officer has the right to pat you down or frisk you during a traffic stop if they have reasonable suspicion that you are armed or dangerous.

They can also frisk you and any passengers in your car if they believe you might be involved in criminal activity.

Police officers can seize any illegal items that they uncover while frisking you during a traffic stop.

Searching your vehicle

A police officer can ask to search your vehicle if they have reasonable suspicion that it contains evidence of a crime or illegal activity. If you agree to this request, they can conduct their search.

That being said you can always refuse the search but do so without being rude to the officer. The fact that you refused cannot be used against you at trial. However, a police officer can search your vehicle without consent if they have probable cause.

Seizing items in your car

A police officer doesn’t have to search your car to seize items from it. The office can take any illegal thing he sees in plain view. These items might include open cans or bottles of alcohol, illicit drugs, or drug paraphernalia.

The police officer is allowed to open your car door and reach into your vehicle to retrieve the illegal object. Just know if the office does see something in plain view while he is retrieving he can grab whatever else is illegal in the car.

Your behavior during a traffic stop

Attitude is a matter of life or death in a traffic. Be nice and respectful. You will not get any points for cussing out the police officer or just being rude. Your family will appreciate seeing you walking through the door instead of a jail cell or funeral home.

Houson R. Lafrance

Why I Disagree with Judge Hirsch About Stand Your Ground

Recently Judge Milton Hirsch declared the newest version of Florida’s Stand Your Ground law as unconstitutional. The recent change in the law shifted the burden from the defendant to the State to prove by clear and convincing evidence that a Defendant is not justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

In his order declaring the statute unconstitutional Judge Hirsch found that the change to the law was procedural and therefore violated the Florida Constitution.  His separation of powers argument was that it should be the Florida Supreme Court that should create procedure and not the Florida legislature.

I disagree.

A judge should not interfere with with the legislative process. The legislature is the embodiment of the people and if the people say they want the State to have the burden of proof then a Judge should not interfere unless it violates a fundamental right. In my analysis of the change of the law it does not violate a fundamental right instead in protects a scared one, the Fifth Amendment (Cannot be compelled to be a witness against yourself).

Make no mistake I think Judge Hirsch is a great judge who is more right than he is wrong, but in this respect I disagree with him.

Houson R. Lafrance

 

Is There Anything I Can Do After My Homeowner’s Insurance Company Denied or Underpaid My Claim?

I recently had a conversation with a client who has been experiencing issues with her home dealing mostly with a leaky toilet/pipe which is causing mold to grow in one of the downstairs bedrooms. She initially wanted to file suit against the former owner because she believed that there were defects that were intentionally concealed. I must admit I initially agreed.

However, after doing some investigating and legal research I realized the proper party is her own insurance company. I scheduled another meeting with the her and went over the results of my investigation with her. The following is what happened after our conversation:

  1. She hired a remediation company to repair the water damage caused by the leaky pipe.
  2. She hired a mold company to repair and remove the mold in her home.
  3. Both the remediation and mold company worked did the work pursuant to an assignment of benefits. (i.e. she did not have to pay them)
  4. She filed a claim with her insurance company.
  5. The insurance company after their investigation denied her claim.

After her claim was denied a lawsuit was filed on her behalf and the insurance company continued to drag their feet. The remediation and mold company also filed suit against the insurance company because they were obligated to pay both these companies who were working under a valid assignment of benefits contract.

So nine months later she gets a call that her case has settled and that the insurance company would be paying the legal fees. The same thing happened for both the remediation and mold companies.

So to answer the question originally asked… yes hire a lawyer.

If you have had your claim denied or underpaid by your insurance company give me a call (954-982-2124) and mention this blog post. I’ll give you a 25 minute case review at no cost to you.

Houson R. Lafrance

What happens when I’m arrested for DUI?

I often get asked when I speak to the community to explain what happens to someone if they are arrest for DUI in South Florida. I have gotten the question enough times that I decided to put together a quick overview of what happens in most cases.

Initial Arrest – A police officer after pulling you over for some traffic infraction will claim to observe signs that you have been drinking.  The most common signs a police officer will say is odor of alcohol, bloodshot glassy eyes, and slurred speech. Once, the police officer makes those observations they will ask if you would like to perform field sobriety exercises.  The exercises are used to further confirm the officer’s suspicion that you might be driving under the influence. The kind of exercises performed are “walk and turn, finger to nose, one leg stand, and pen test (called HGN). These exercises are normally recorded on the officer’s dash cam.  After performing the test and likely being told you did not “pass.” You will be asked to provide a breath or urine sample. Then you’re going to the jail to be booked.

Bond – Once you’re booked in the county jail you may be given the opportunity to post a bond without having to see the Judge. The amount of bond you pay depends on your criminal history and the level of DUI you’re currently being charged with. For instance a first DUI might have a lower bond then a second or third DUI. When you post bond, you agree to come to all court dates and not commit any crimes.

Arraignment – An arraignment is the first time you will appear in court, a few weeks after your arrest. This is your first chance to answer the charges against you. A judge will ask how you plea and you will tell the judge either guilty, no contest or not guilty. If you plea guilty or no contest the case is over and the judge will sentence you. If you plead not guilty you will be given a future court date (calendar call, docket call, sounding, etc.).

*5 Things You Should Know About Arraignments in Florida*

Calendar Call – If you plead not guilty, you will go to a calendar call. This pretrial hearing is normally where negotiations are done. If the State and you can work out a deal then the case can be resolved that day but if not the case with either be continued or set for trial.

Trial – If the case goes to trial, the State will have to prove you’re guilty beyond a reasonable doubt. They try to prove their case by presenting evidence in the form of witnesses and video.  Your lawyer will typically cross examine their witnesses and discredit their video.

A typical DUI case takes between 6 to 12 months.

I’ve luckily have had a lot of success defending clients who are charged with DUI. If you or a loved one are currently being charged with a DUI give me a call. I’d like to help if I can.

954-982-2124

Houson R. Lafrance

 

 

How Tiger Woods Proved the State’s case of DUI against Him

tiger-woods-mugshot-super-169

One of the first things I tell clients and potential clients is not to talk to the police. The second thing I tell clients is not to talk to anyone who is not your lawyer about the facts of your case. Tiger Woods violated the second rule when he issued a statement following his arrest for driving under the influence of alcohol. Tiger stated,

I understand the severity of what I did and I take full responsibility for my actions. I want the public to know that alcohol was not involved. What happened was an unexpected reaction to prescribed medications. I didn’t realize the mix of medications affected me so strongly . . .

Why – why – why? Why would his lawyer or publicist allow him to make that statement? Why didn’t anyone advise Tiger to exercise his fundamental right to be silent and hold the State of Florida to its burden of proof at trial?

Tiger’s statement if he decided that he wanted to go to trial can now be offered against him as an admission by a party opponent. If Tiger were to take the stand at trial and profess his innocence the State would then be able to impeach him with his prior inconsistent statement.

I had the opportunity to speak with some colleagues of mine and we all agreed that this was a pretty weak case for the State. My understanding of the facts are that Tiger was prescribed his medication. Which means that the State does not have the presumption that Tiger was driving under the influence of a controlled substance because he blew a .000. Instead the State would have to prove through other evidence that he was impaired.

I have no doubt that Tiger meant well when he made that statement to the public. He was probably thinking about his brand and his sponsors. I hope Tiger or anyone reading this follows two simple rules 1) Do not talk to the police they are not your friend and you cannot talk your way out of handcuffs 2) Do not talk to anyone who is not your lawyer about you case.

Check out my other post about not talking to police below.

https://housonlafrance.com/2017/05/01/to-the-point-dont-talk-to-police/

Houson R. Lafrance

If you’re in Miami-Dade, Broward, or Palm Beach County and you have a legal issue give me a call at 954-982-2124 or email me at hlafrance@cgllawfirm.com.

How Can I Win My Criminal Case?

Fall River Justice Center

Winning at trial is often a rare thing for most criminal defendants because the State either has a confession, witness, or video (or in some instances all three) that can prove beyond a reasonable doubt that the defendant committed the charged offense. Winning at trial is hard…but not impossible.

If you are currently the defendant in a criminal case here are some tips to assist you in preparation for trial:

  1. Hire the Right Lawyer – This is critical because the right lawyer can be all the difference from prison and freedom. The right lawyer is someone who knows what they’re doing and includes you in the process if that is something you want.
  2. Listen to Your Lawyer – If you have done a good job in selecting a lawyer then you should trust him or her to give you the right advice. So if your lawyer tells you for example to stop talking about your case with people you should listen because anything you say to a third person is not privileged.
  3. Be Honest with Your Lawyer – If your lawyer asks you something be honest, do not withhold information because what you think is unimportant may make all the difference in the world.
  4. Ask for a Copy of the Discovery – It is your case so ask your lawyer to give you a copy of the discovery (evidence). This is important because you may notice things that are not correct and can let your lawyer know about it. *Caution* If you notice a mistake or discrepancy don’t be upset if your lawyer tells you its not important *See #2*
  5. Keep In Contact With Your Lawyer – This is often where issues arise in an attorney client relationship. Keep your lawyer updated with your phone number, address, email, and contact information of someone who would be able to find you should contact with you becomes difficult.

These tips cannot guarantee victory but they can help you get a more favorable outcome.

Houson R. Lafrance

A Simple Guide to Hiring the Right Broward County Criminal Defense Lawyer

The right criminal defense lawyer makes a world difference to a case.   The right criminal defense lawyer may be able to persuade the prosecutor to offer probation instead of jail or prison.

The right criminal defense lawyer will be able to spot the legal issues and file a motion to suppress on your behalf.

The right criminal defense lawyer is not afraid to take your case to trial if that is your desire and to represent you to the end. The right criminal defense lawyer is the difference between  freedom or incarceration.

So here are some things you should keep in mind when hiring a criminal defense lawyer in Broward County, Florida.

Does the lawyer focus solely on criminal defense or does he practice a little bit of everything?

  • It is okay if the lawyer you are considering for hire practices one or two other practices areas because the reality of being a lawyer is being able to do more than one thing keeps the lights on and the family feed. However, someone who practices criminal defense along with 10 other practice areas may not be the most skilled at criminal law since they are juggling so many practice areas. You want someone who has the time and skill to constantly refine his criminal defense practice.

Does the lawyer have experience writing and arguing motion in court?

  • An often neglected consideration when hiring a lawyer is whether or not the he or she can write a legal motion. A poorly written motion is not persuasive nor does it give the judge the legal precedent to rule in your favor. In addition, a lawyer must be able to argue his motion in front of the judge in close cases a good advocate may be enough to tip the scales in your favor. Lastly, a good lawyer would be able to effectively cross examine the witness to elicit favorable facts.

Is the lawyer a plea lawyer or a trial lawyer?

  •  There is a difference. Some lawyers will take cases just to plea you out and not have to do much else. For people who do not want to go to trial and just want a good deal this type of lawyer maybe perfect for them. However, issues arise when the prosecutor does not want to give you a fair plea deal and your lawyer is unwilling to go to trial. A trial lawyer on the other hand can plea you out just the same but if the plea offer is unreasonable they are not afraid to go to trial. A trial lawyer has experience and success taking cases to trial.

Is you criminal defense lawyer cheap?

  • You get what you pay for . . . I have had the experience of dealing with people who are shopping around for the best deal. I say good luck to them. In fact, I wish to share a story about one prospective client who reached out to me and wanted to hire me but decided that might price was to high for her. She decided to hire someone else and when I walked into court for another matter in front of the same judge she admittedly asked me to take her case because she felt like she was getting a raw deal from the prosecutor (they wanted her to go to prison). Could I have done better? I do not know but what I do know is the moment prosecutors are being unreasonable I gear up for trial and make them earn every day they are seeking.

Hiring a lawyer is an important decision. Do your research. And if you or a loved one are facing criminal charges in Broward County, Miami-Dade County or Palm Beach County give me a call 954-982-2124 or email me at hlafrance@cgllawfirm.com.

I’d love to help you if I can.

Houson R. Lafrance

5 Things You Should Know About Arraignments in Florida

An arraignment is usually a defendant’s first chance to formally hear the charges against them. What usually happens is the Judge will call the defendant’s name and the Defendant will walk up to the podium where the Judge will read the charges and ask the Defendant “What do you plea?”

  1. An arraignment is the first time a defendant will be told the charge against them. A judge read’s the probable cause affidavit in open court and asks the defendant a series of questions.
  2. The first question is typically does the defendant have a lawyer and if not do they intend to hire a private attorney or utilize the services of the public defender.
  3. After asking about the lawyer, the Judge will ask how does the defendant plea? At that point the defendant can plead 1) guilty as charged; 2) no contest; 3) not guilty or 4) stand mute – at which the judge would enter a plea on behalf of the defendant of not guilty.
  4. At arraignment the prosecutor will typically make an offer to resolve the case – this is called a plea offer. The plea offer can be pretrial diversion, court cost, community, service, probation or jail. The type of plea offer a defendant is given is based on a number of factors such as the type of crime committed, the input of the victim, the defendant’s criminal history, and whether there are any issues within the case.
  5. The Judge can make you an offer. A lot people do not realize this but if you do not like what the state is offering you, you could always ask the judge to make you a plea offer. This can be done in two ways: 1) An open plea where you throw yourself at the mercy of the court or 2) inviting the court into negotiations which typically happens when the prosecutor and you disagree on a term of the agreement.

Arraignments are usually intimidating because there is always the fear of the unknown. Arraignment is not quite the most critical point in a case but it does set the tone. If you’re about to go to court for an arraignment keep this post in mind.

Don’t be afraid to ask the public defender for help if you need.

If you or a loved one are facing criminal charges in Broward County, Miami-Dade County, or Palm Beach County give me a call at 954-982-2124 or email me at hlafrance@cgllawfirm.com.

I’d love to see if I can help.

Houson R. Lafrance