Tampa Criminal Defense Attorneys - (813) 228-7095
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Editor: Will Hanlon & Charlie Lambert
Profession: Tampa Defense Attorneys
Tampa DUI Attorney Analyzes the Accident Report Privilege and the Insignificance of the "Changing of Hats"
Category: Criminal Law
There aren't very many events in life that rival the terrible feeling of being arrested for Driving Under the Influence. When an accident is involved this experience can many times become even worse. Most lawyers engaged in defending these cases are very familiar with the "Accident Report Privilege" and its repercussions. This article is designed to give some guidance to non-lawyers who have very little knowledge on this law and how it operates.
The accident report privilege springs from every driver's statutory duty to answer questions posed to him/her by law enforcement when they have been involved in an accident. When someone is involved in an accident and law enforcement suspects them of being intoxicated it presents a special problem. The duty to report compels the DUI driver to answer all the officer's questions about the accident, but in the process the answers to those questions could lead to very incriminating statements about a potential criminal charge of DUI. Every person suspected of committing a crime also has a right to be notified of their fifth amendment rights (usually before a "custodial interrogation" or a formal arrest) prior to law enforcement questioning them about the alleged criminal conduct. To address the problem of compelling possible incriminating statements from driver's involved in accidents that could flow from criminal conduct the Florida Legislature enacted the "Accident Report Privilege" (See Florida Statute 316.066(7)). The statute states that statements by a suspected driver to law enforcement during the accident phase of the officer's investigation are privileged and inadmissable against the driver in any trial civil, or criminal. The only exception to that rule involves statements made by the driver to the officer that do not violate the driver's privilege against self-incrimination (this exception can arise when the driver's statment qualifies as an "excited utterance"). In response to this statute law enforcement officers investigate an accident that could involve a criminal traffic charge in a different way. They initially ask questions of the driver during the "accident phase" of their investigation (like they would after any traffic accident). If they become suspicious during the accident phase of their investigation that the driver was involved in criminal conduct (DUI, vehicular manslaughter), they begin the "criminal phase" of their investigation.
The critical question for anyone suspected of being involved in any criminal traffic charge is when does the "accident phase" end, and the "criminal phase" begin. The answer to this question will determine which statements, made by the accused, are admissable. Florida Courts have debated the proper procedure to follow when notifying a driver involved in an accident that the investigation is changing from the accident phase to the criminal phase. For years many courts felt that the "changing of hats" method properly notified the suspected DUI driver involved in a crash that the officer was moving from an accident investigation to a criminal investigation. The "changing of hats" amounts to an officer notifying the driver that, "Mr. Smith, I am now changing from an accident investigation to a criminal investigation, will you answer my questions". The Florida Supreme Court has recognized that the "changing of hats" is an insufficient approach to notify the suspected driver that he or she is no longer compelled to answer the officer's questions pursuant to Florida's duty to report statute. The Florida Supreme Court's position is simple. The focus should be on whether the driver's Fifth Amendment Rights were violated. The only way to adequately notify someone that their duty to report information regarding the accident is over, and they have a right to remain silent is by reading them their Miranda Rights. In their holding the Florida Supreme Court stated the following:
"We hold that the privilege granted by section 316.066 is not applicable in this case where Norstrom was not told that he had to respond to the questions asked by the officers and where Norstrom was given his Miranda rights. Accordingly, we quash the decision of the district court on this issue. Furthermore, we also disapprove its prior decision in West v. State, 553 So.2d 254 (Fla. 4th DCA1989). To clarify our decision, we emphasize that the privilege granted under section 316.066 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that "this is *441 now a criminal investigation," followed immediately by Miranda warnings, before any statement by the defendant may be admitted."
Some prosecutors read the Florida Supreme Court's holding in Norstrom v. State literally, and believe that Miranda is only required when the officer notifies the driver that he/she has a duty to report. The holding in the Norstrom case is clarified in the third district court of appeals decision in State v. Marshall. In a footnote the 3rd DCA gave a clearer meaning to the Florida Supreme Court's statement that a "changing of hats" must occur, and Miranda must be read when the officer proactively notifies the suspected driver that they must answer the investigating officer's questions. In their footnote the 3rd DCA stated the following,
"In so holding, the court pointed out that not only had Norstrom been given his Miranda rights, but also "Norstrom was not told that he had to respond to the questions asked by the officers...." 613 So.2d at 440. The court also stated: Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that "this is now a criminal investigation," followed immediately by Miranda warnings, before any statement by the defendant may be admitted.Id. at 440-41. As we interpret it, the court is addressing the situation which would exist if, during the accident investigation phase, the investigating officer administered Miranda warnings but then at some point also told the reporting person that he or she was required to respond to questions concerning the investigation of the accident. Telling the reporting person that he or she must answer questions during the accident investigation would undo any earlier-administered Miranda warnings. It would be then necessary at the conclusion of the accident investigation to advise the reporting person that the criminal investigation was beginning and to administer new Miranda warnings."
The problem is that many prosecutors feel the only time that Miranda is necessary is when the officer proactively notifies the suspected driver that he or she must answer questions pursuant to the "duty to report" statute. However, the 3rd District Court of Appeals interpretation of the Norstrom holding in Marshall should be accepted by all courts in the State of Florida because the Florida Supreme Court adopted the Marshall opinion. This in effect makes Marshall, and the third district's interpretation of the holding in Norstrom the law in the State of Florida.
For more information on DUI link to our website.
Tampa Man Cleared of Sexual Abuse on Child
Category: Recent Wins
Our Client was falsely accused of child abuse by his brother's wife during a bitter divorce. In an effort to gain primary custody of their young children, the wife made false allegations that her daughter had been sexually abused by our Client, the young girl's uncle. The wife made a tape recording describing the alleged abuse and sent it to DCF. Eventually we were able to expose her lies, and have the charges dropped.
To read much more about this case and other child abuse cases visit our website.
Juvenile Battery Case Dismissed in Tampa
Our juvenile client was arrested after his sister called police and alleged that he struck her. In actualitly, the sister had initiated the fight. Despite the parent's wishes, the client's case was funneled into a juvenile diversion program where he was required to attend mandatory counselling sessions. Eventually his parents notified our office and we were able to explain the real story to the State Attorney's Offiice and get the case dismissed.
To read more about this case and other like it, visit our website.
Tampa Criminal Lawyer Forces Dismissal on Juvenile's Felony Marijuana Charge
Category: Criminal Law
The Tampa Police Department responded to a fight near Jesuit Highschool on the night of Gasparilla. Our client's brother was involved in an altercation at a nearby park. During the altercation our client's boyfriend was struck with a beer bottle. In an effort to defend himself he mistakenly struck our client's brother and law enforcement was called out to the scene. Tampa Air Patrol apparently witnessed our client and her boyfriend flee when the crowd scattered. They reported both suspects to patrol units on the ground. When law enforcement came into contact with our client she was walking eastbound on Osborne from Himes Avenue. Based on the information transmitted to them from the helicopter our client and her boyfriend were stopped by ground units and searched. The search of our client revealed a felony amount of marijauna, and a scale. We took the stopping officer's sworn deposition, and filed a motion to suppress the drugs collected by Tampa Police, claiming the temporary detention was unlawful. The State Attorney stood silent on our Motion To Suppress and all the charges were dismissed. To find out what circumstances caused the officer's unlawful detention of our client link to our website.
Tampa Criminal Attorney Forces Dismissal of Domestic Violence Charge in Plant City/Dade City
The client was charged with domestic battery in Plant City. The victim of the alleged battery also filed a petition for protection against domestic violence. She reported her injuries to police while she was in the Pasco Regional Hospital. Initially, police were unaware of her true motives when they reported to the hospital to take her statement. It was later revealed that the allegations were an act of retaliation on the part of the victim and the charge against our client was dismissed. Unfortunately, the client failed to retain us to defend him against the petition for the domestic violence injunction in Dade City. Judge Lynn Tepper ordered the injunction against our client because he failed to present critical evidence to the Court about his ex-girlfriend's motives. In this case the injunction was ordered before the client ever decided to retain our office. If you have been served with an injunction NEVER take it lightly. Injunctions can have far-reaching effects for you and your family. To learn more about domestic battery and injunctions link to our website.
Tampa Sexual Violence Injunction Attorney Forces a Dismissal of Petitioner/Mother's Injunction (Plant City)
Category: Criminal Law
We defended the client from criminal sexual battery charges supposedly perpetrated against his 6 year old daughter. False charges are more common in sex cases than any other type of criminal offense. Unfortunately, just a criminal investigation for a sex crime can have a dramatic impact on the accused's life. This particular case involves a scenario that we see quite often. A former spouse or alienated parent attempts to file an injunction of some type to destroy the parent's relationship with his/her child. This case involved a petition for an injunction against sexual violence against the father where the mother claimed the father, "Put his penis into his daughter's mouth on more than one occassion as a form of punishment". During the criminal investigation it was revealed that the mother/petitioner was coaching her daughter to make these false allegations.
No Formal criminal charges were filed against our client. After resolving the criminal case we moved the domestic relations court in Plant City to Dismiss the injunction against sexual violence. Link to our website to find out the powerful defenses available to the respondent/parent when another parent petitions the court for an injunction against sexual violence.
Tampa Man Cleared of Rape Allegations
Category: Recent Wins
Our client was accused of sexually assaulting his son's girlfriend. The client's son had been dating the girlfriend for several months. She worked at their family business, and was treated as a member of the family. The alleged assault reportedly took place after a funeral, when the client had offered the girlfriend a ride home. There was no physical evidence and our client adamantly denied the allegations. The family suspected that the girlfriend had ulterior motives related to the business. Through further investigation, it was discovered that she had made false allegations against another man in the past. By communicating this information to the State Attorney's office and law enforcement, we were able to ensure that no charges were formally filed against out client.
Read more about this case on our website.
Possession of Marijuana Charge Dropped Day of Trial
Category: Recent Wins
Facts: Cllient was sitting in a parked car in the parking lot of a gas station when a false alarm went out to police indicating that a the gas station had been robbed. Police immediately arrived on the scene and surrounded the vehicle. As the police began to secure the area, the client was extracted from the vehicle and searched. A small amount of marijuana was located in the clients back pocket and he was subsequently arrested.
Result: Ultimately, the State Attroney agreed that the search was illegal under the circumstances and pursuant to negotiation the case was dismissed on the day of trial.
To read more about this case and others like it visit our website.
Burglary Charges Dismissed in Juvenile Court-Tampa Criminal Attorney
Category: Recent Wins
The client was implicated by co-defendants during an investigation of a rash of burglaries by the Tampa Police Department. Cooperating co-defendants can make the defense of any client difficult. However, in this case Tampa Police still had difficulty connecting our client to many of the crimes involved in their investigation. See our website for more discussion on how this juvenile case was resolved.
Aggravated Assault With a Firearm Charge is Dismissed at Pre-Filing by Tampa Criminal Attorney
Category: Criminal Law
The client was confronted by a Tampa Police Detective after an altercation at a local gas station. He was driving a vehicle when a co-defendant jumped in and started firing a pistol in the air. The client initially refused to talk to the police, but became extremely nervous when the police began to threaten him with criminal charges for assisting the shooter. He told his father, and our office was retained to resolve the case. As is many times the case, the police detective told the young man that retaining a criminal lawyer was not necessary. Some criminal suspects choose to believe police. They sit down and discuss their entire case with law enforcement without counsel. It is never a good idea to trust a police officer when he claims the hiring of a lawyer is unnecessary. It may sound obvious, but we find ourselves constantly reminding people of a very simple fact:
If your being confronted by law enforcement about your involvement in a criminal offense you need a criminal defense attorney.
Many people do not realize that law enforcement has no obligation to be honest with you regarding your culpability in a criminal investigation, or your possible exposure to incarceration. Link to our website to review more details about this case, and when to hire a criminal lawyer.
Tampa DUI Attorney gets Reckless on Refusal in Orlando
Category: DUI
The client was arrested for DUI in Orlando. She, and her sixteen year old daughter were on their way home from a rock concert when the trooper stopped her vehicle for erractic driving. The client had no familiarity with Orlando, and became very lost when she tried to read her mapquest directions backwards on the ride back to Tampa. After the initial stop the client performed field sobriety tests, was arrested for DUI, and then transported to the jail. When she was asked to perform the breathalyzer she refused. Link to our website and you can read a summarized version of our letter to the prosecutor. The letter requests the prosecotor to reduce the charge to reckless driving. While our client's performance on the field sobriety tests was poor, the letter gives you insite into how her performance could be affected by the conditions of the area that the trooper chose to administer the tests.
RESULT: She plead to reckless driving, and the conviction was withheld. In other words, she received no points on her driving record.
Tampa Man Wins DV Battery Trial
Category: Recent Wins
Our client was accused of choking his wife during an argument. The allegations against our client were false, and were being used to gain leverage in a pending divorce. Our client had no criminal history and no history of violence. His wife, on the other hand, had ongoing mental health issues and a history of substance abuse. The State refused to drop the charges due to photographs that allegedly showed bruises consistent with the wife's story. At trial, the State was unable to introduce the photos. The credibility of the wife was called into question, due to inconsistencies in her testimony. The client was eventually found not guilty.
To read more about this case and others like it visit out website.
Tampa Man Acquitted at Domestic Violence Battery Trial
Category: Domestic Violence
Our client was accused of head-butting his wife during an argument. Our client adamantly denied ever hitting, much less head-butting his wife. At trial it was his word versus her word. On cross examination of the wife, we were able to elicit several facts that dmaged the credibility of her story. She admited to drinking liquor immediately prior to the incident, as well as a history of mental illness. At the conclusion of the trial, the State failed to prove it's case beyond a reasonable doubt, and the client was found not guilty of Domestic Violence Battery.
For more information on this case and others like it visit our website.
Domestic Violence Charges "No Filed" Through Investigation by Tampa Criminal Attorney
Category: Domestic Violence
The Client/defendant became very intoxicated and struck his wife. She received a number of bruises, and his children witnessed the incident. The situation was very serious for our client, in that he was currently on felony probation when the domestic battery allegedly occurred. Just an arrest could have put him in jail for a new law violation while on probation. After contacting his wife's divorce attorney, and conducting more investigation we were able to convince the State to "No File" the charges. To find out more about the pre-filing process and why it is important to retain your criminal attorney as soon as possible link to our website.
Tampa DUI Attorney Gets Reckless on .166 and .167
Category: DUI
The client was driving his vehicle on Channelside Drive when he was pulled over for failing to maintain a single lane. According to the tampa police officer our client's vehicle continued to drift from lane to lane before he finally stopped him at 19th Street and Adamo Drive. After exiting his vehicle he was asked to perform a number of field sobriety tests which the officer felt he failed. The client was transported to the Orient Road Jail where he agreed to submit to the breathalyzer. He blew .166 and .167. The legal limit in the State of Florida is .08. For more information about how we convinced the State Attorney to reduce this charge to a reckless driving link to our website.
Tampa Domestic Violence Injunction Attorney Forces Dismissal Where Petitioner Fails to Establish Jurisdiction
Category: Domestic Violence
The client/respondent was a United States Navy military police officer stationed out of Portsmouth, Virginia. Between 1999 and 2000 he had a relationship with the petitioner that resulted in the birth of his son. After a period of time the client separated from the petitioner and she took the child to California. As years past the x-girlfriend made it very difficult for the father to see his son, but eventually he was able to make contact. Although the client met someone else and got married, he remained devoted to his son. In August of 2008 the petitioner/x-girlfriend agreed that the child could fly up to Virginia to visit his father. Shortly after the boy returned the mother claimed that the father had sexually molested their son during his visit to Portsmouth, Virginia. The petitioner/x-girlfriend/mother filed a petition for an injunction against domestic violence on behalf of her son in Tampa, Florida. The findings made by a number of government agencies led us to believe that the mother coached her son to make these allegations when she learned how much the child enjoyed being with his father. Obviously, an injunction of this type would permanently destroy any relationship between our client and his son. We believe the intent of the x-girlfriend/ petitioner was to convince the judge in the injunction court to enter a permanent injunction to protect her son(involving these allegations of sexual abuse against the child), and then use it in a custody dispute in front of a different family law judge. This practice is far too commonplace in domestic violence injunction court. The issue is not a threat to the petitioner, but an attempt to get an advantage in a custody dispute. Unfortunately, many times family law/divorce attorneys play a major role in these types of frivolous actions. The facts of this case ultimately led us to file a motion to DISMISS which the Court GRANTED. To find out more about the questionable tactics that many family law/divorce lawyers employ in an attempt to get the upperhand in a custody dispute link to our website.
Tampa Child Abuse Attorney Gets Charges Dismissed at Pre-Filing
Category: Criminal Law
The client was the victim's brother. His sister was in her senior year of highschool when the family started noticing a number of behavioral problems. She began disappearing after school, and made the rest of her family very concerned for her well-being. One day after school the client began arguing with his sister about her behavior. The verbal altercation eventually escalated into a fight. First, our client pushed his sister, and we she attempted to defend herself he began striking her with his belt. The client came to our office shortly after child protective services appeared at their home. After discussions with the client we addressed the State Attorney before formal child abuse charges were filed. To find out how this charge was dismissed, and why it is so important to retain your criminal lawyer as you feel you have become the subject of a criminal investigation link to our website.
Tampa Domestic Violence Attorney Convinces Court to Deny Petition for Injunction (Plant City)
Category: Domestic Violence
The client/respondent was a law enforcement officer with the Seminole Police Department in Tampa, Florida. His ex-girlfriend/petitioner was also employed by the Seminole Police Department. During their relationship they had a child together. At the time the petition was filed the boy was two years of age. The petitioner in this case, unfortunately, represents a very large group of people who often times petition the Domestic Violence Relations Court for a domestic violence injunction in an attempt to gain an advantage in a custody dispute. Her one and only concern in filing the injunction had nothing to do with fearing our client/respondent. She wanted to gain leverage in front of the Family Law judge. To find how filing frivolous peititons for injunctions and false criminal charges can ultimatley backfire on the parent utilizing this strategy link to our website.
Tampa Criminal Attorneys Get Dismissal on Domestic Battery and Marijunana Charges
Category: Recent Wins
The client and his uncle started arguing after the air-conditioner went out in their home. The victim claimed that the client threw him on the ground, and then landed on him breaking his ribs. The police arrived after the victim went to a neighbors house to call 911. After our client gave a statement to police he was arrested, and transported to the Orient Road Jail. Unfortunately, before he left he put on a pair of pants that contained marijuana and he was charged with possession shortly after he arrived at the jail. For more information on how these charges were dismissed visit our website.
Tampa DUI Attorneys Get Reckless Despite Blows of .217 and .226, and Crash
Category: DUI
The client was driving his vehicle in the area of West Linbaugh Avenue when he rear ended another motorist. Shortly after the accident a Hillsborough County Sheriff's Deputy reported to the scene. Our client had been drinking heavily at a local bar before crashing into the other vehicle at a stoplight. When law enforcement arrived our client was standing outside the driver's side of his vehicle. He was asked to perform field sobriety tests, but was unable to complete them. He was arrested for his second DUI within a 5 year period and transported to the Orient Road Jail. After arriving at the jail he consented to the breathalyzer and blew .217 and .226. The legal limit in the State of Florida is .08. For more details on how this client avoided his DUI charge, a jail sentence, a five year suspension of his license, and a $1,000.00 fine, link to our website.
Child Abuse Charge is Avoided by Tampa Criminal Attorney
Category: Recent Wins
The client was alleged to have beaten her grandson with a belt on numerous occasions. She was employed by the Hillsborough County School system which further complicated her situation. Before retaining our office she decided to cooperate with law enforcement and gave a statement. Despite the statement and photographs of the victim we were able to bring about a resolution which should lead to a dismissal of her charges. For more information visit our website.
Tampa Criminal Attorney Prevents Prison Sentence on Lewd and Lascivious Charges
Category: Recent Wins
The client was alleged to have had lewd and lascivious contact with two young females at the Adventure Island Water Park in Tampa, Florida. Both Charges carry a maximum Florida State Prison sentence of 15 years. The incident occurred while standing in line at one of the many rides at the park. The contact was witnessed by numerous independent witnesses, and the client agreed to give a statement to the police. To find out more visit our website.
Carrrying Concealed Weapon Charge Dimissed by Tampa Criminal Attorney
Category: Criminal Law
The client was detained after she attempted to get through security at the Tampa International Airport. She was traveling home to New Hampshire and forgot about a knife that had been left in her purse. Her story is like many others that get arrested with these weapons coming through security. When security questioned her about the knife she could not deny owning the knife. All she could do was tell them that she forgot it was in her bag. To the Airport security personel that fact is unimportant, but to the criminal courts it is extremely important. If you have no knowledge of a weapon in your bag, you cannot be found guilty of being in possession of that weapon. To find out how knowledge plays a role in possession charges and how this client's case was dismissed link to our website.
Tampa Criminal Attorney Gets Cocaine Charge Dismissed
Category: Criminal Law
The client was a passenger in a vehicle when the driver was stopped for DUI. A Tampa Police officer claimed that he requested our client to exit the vehicle for safety reasons. Shortly after the client exited he was patted down for drugs or weapons. During the pat down the officer claimed that the client was holding his legs together. When he finally pulled his legs apart for the pat-down out came a plastic baggie which later tested positive for cocaine. A number of issues arose during this investigation surrounding not only the true owner of the cocaine, but also the actions of law enforcement. To find out how this cocaine charge was DISMISSED link to our website.
State Attorney "No Files" Sexual Battery Charges After Gainesville Criminal Defense Attorney Completes Investigation (Alachua County)
Category: Criminal Law
A six year old girl claimed our client committed sexual battery on her. Sexual Battery carries a life sentence in Florida State Prison if convicted. Our client was a day camp counselor, and it was alleged that he committed this offense during a field trip. Law enforcement continued to use the threat of these charges to try and convince our client to submit to a polygraph administered by them. We advised our client not to submit to law enforcement's polygraph examination due to the circumstances surrounding the case. The State Attorney eventually "no filed" the charges. To get more information about the pitfalls of submitting to law enforcement's polygraph examination link to our website.