Wednesday, November 15, 2017

How Do I Approach Defending Criminal Charges?

First, I meet with my potential client to make sure that I am the right lawyer for him or her.  A client needs to feel comfortable with her or her lawyer.  This initial meeting is extremely important.  If at this initial meeting a potential client does not have a gut feeling that the lawyer is the right one for the job, then suggest he or she hire a different lawyer.  The relationship must be one of trust.  Once the engagement agreement is signed, then it is time to get down to the business of defending the case.

I always begin with reading the statute, even if I have read it hundreds of times and I know it like the back of my hand.   The client needs to understand each and every element that the state has the burden of proving.  If the state cannot prove just one of those elements, then their case is over.  Think of it like a table with four legs.  If one of the legs is cut off, then the table falls.  Therefore, it is important to discuss each element of the alleged charge(s) with the client. 

It is very important to gather as much information as possible when discussing each element of the alleged charge(s).  Even though the state has the burden of proving their case, it makes the defense’s job much easier if the client happens to have an alibi or witnesses. 

The next step for me is to think about how the case law and how my client’s rights apply to the situation.  Have his or her rights been violated in any way?  For example, if the situation started because of a traffic stop, was the stop a legal stop?  Did the officer have the right to pull him or her over in the first place? 

During this process I demand discovery from the State.  The State has 15 days to comply with the demand from the date they officially charge a defendant and the date of the demand.  When I receive the State’s witness list, it will have a list of persons they intend to call as witnesses and all exhibits they intend to use in a trial.  The State must list all people and evidence, including exculpatory evidence.  If there are items on this list, like pictures or recorded interviews, I immediately order them from the agency (whichever police department conducted the interview or took the pictures).  This process of ordering all evidence can take a bit of time. 

As it starts to come in, I may discover that I need to order something from another agency.  For example, if my client was a passenger in a vehicle, when I get the police report, I will see the VIN number and tag number on the police report.  I will then need to order a certified copy of the vehicle registration from the Department of Motor Vehicles to prove the vehicle did not belong to my client.  This document may take another 6-8 weeks to arrive. 

Also, when I receive the State’s witness list, I may determine that I need to conduct a deposition of a State witness.  This decision is a delicate one.  A deposition is a sworn, statement given out of court before the attorneys and a court reporter.  Attorneys conduct depositions ahead of a trial to see what a witness might say at trial.  It also allows attorneys to get the witness to commit to a certain statement ahead of time, then if the witness changes his or her mind during the trial, he is perjuring himself.  There is no right or wrong decision in determining whether to conduct a deposition.  It is a strategy and another reason why you need to trust your attorney. 

Once all of the evidence is collected, I sit down with the evidence, the case law, and the statutes, and I think about how the case looks.  Do I think the State will be able to prove its case?  Then I look at the penalties (I have already discussed this with my client in the initial meeting) that my client is facing again.  I have another meeting with my client and go over it all with my client.  The final decision on whether to negotiate a plea or go to trial is ultimately up to my client.  But I do understand that my client is relying on my opinion of the case. That weighs heavily on me and I don’t take it lightly. 


I hope this summary helps you understand what a criminal defense lawyer does to help prepare your case.  If you have been charged with a crime, you need an aggressive, yet compassionate lawyer by your side.  Call Heather Bryan Law today for your consultation, at 863-825-5309, or contact us online.

Tuesday, November 7, 2017

DUI's: What qualifies as a vehicle?

DUI’s have been in the news lately, especially with what seems absurd charges like a DUI on a horse!  One might wonder what qualifies as a vehicle? Can a person get a DUI on a horse? What about a bicycle? What about a golf cart?

The Florida DUI statute states that in order for a person to be found guilty of a DUI, the person must be found to be driving or in actual physical control of a vehicle.  We can discuss “actual physical control” in another blog post, as our purposes here are to define “vehicle.” 

So what is a “vehicle”.  Florida statute defines a vehicle as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices and devices used exclusively upon stationary rails or tracks.”  By this definition a vehicle is any device by which a person or property may be transported.  Devices are manmade.  They are objects.  This definition of a vehicle, which does not include having any sort of motor or engine, allows bicycles to be included in the definition of a vehicle.  Therefore, a person can be found guilty of a DUI on a bicycle.  You can also be found guilty of a DUI on a golf cart, or any other type of device that fits the definition of a vehicle.

That brings us to a horse.  As a defense attorney, I would argue first that the horse is a mammal and not a device.  Therefore, a horse does not fit the definition of a vehicle.  Next, there is an exception within the Motor Vehicle statutes for “animals and animal-drawn vehicles” that allows them to be treated as pedestrians.  Finally within the statute, it states that whenever sidewalks are not provided, pedestrians can walk on the shoulder of a highway on the left side facing traffic. As there are no precedent horse DUI cases that I can find, this particular case should be interesting. 


If you have been charged with a DUI, you need an aggressive attorney by your side.  Call Heather Bryan Law, at 863-825-5309, for your consultation, or contact us online.

Monday, October 30, 2017

Types of Protective Injunctions in Florida

There are 5 very specific types of injunctions, or restraining orders, that you can apply for in Florida.  It is important that you know the difference between them, because if you apply for the wrong one, the injunction can be denied. 

On the other hand, if you are defending against an injunction, that is the first line of defense.  Was the proper injunction applied for? 

Below is a listing of the types of Injunctions in Florida:

1.      Injunction for Protection Against Domestic Violence – This injunction is specifically for persons who have been the victim of domestic violence or who are afraid of imminent domestic violence.  Domestic violence includes assault, battery, sexual battery, stalking, kidnapping, and false imprisonment. A domestic relationship means that the person is either your spouse, former spouse, related to you by blood or marriage, living with you presently, or has lived with you in the past, or the person is the parent of your child(ren) even if you have not lived with the person.  If the person you are attempting to file an injunction for protection against has not hurt you in one of the above listed ways, and you are not in a domestic relationship with that person, then you cannot get this type of injunction. 

2.      Injunction for Protection for Repeat Violence – This injunction is specifically for persons who are victims of repeat violence.  Repeat violence means that two incidents of violence have been committed against you by another person, one of which must have been within 6 months of filing the petition.  Repeat violence includes assault, battery, sexual assault, stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury.  This type of injunction is intended for non-relatives.

3.      Injunction for Protection Against Dating Violence – This injunction is specifically for persons who are victims of dating violence, but who never lived together.  If you are in imminent danger or have been in danger for the past 6 months, this injunction is for you.  The dating relationship must have existed in the past 6 months, the nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties, and the frequency and type of interaction must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.  It does not include violence in a casual acquaintanceship.  This injunction is intended for non-relatives.

4.      Injunction for Protection Against Sexual Violence – This injunction was intended to correspond with an active criminal investigation.  You must have reported the sexual violence to a law enforcement agency and be cooperating in the criminal proceeding (if there is one).  You may file this petition if you are the parent or legal guardian in behalf of your minor child who is living at home and is the victim of sexual violence.  You may also seek this injunction for protection if the offender was sent to prison and you discover that the offender is getting out of prison within 90 days of your petition. 

5.      Injunction for Protection Against Stalking – This injunction is specifically for persons who are victims of repeat harassment, following, or cyberstalking.  Cyberstalking means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving to legitimate purpose.  This injunction is intended for non-relatives.

Whether you are applying for an injunction for protection or you are defending against one, it is important that you have a knowledgeable attorney by your side.  Even though injunctions are civil in nature, injunctions have elements of both family and criminal defense law intertwined.  You should have an experienced family and criminal defense attorney to walk you through the process.  Call Heather Bryan Law today at 863-825-5309, for your consultation, or contact us online


Monday, October 23, 2017

Helping Your Lawyer Prepare For Your Criminal Case

So you have been charged with a criminal offense.  You feel like your world is falling apart.  It is a difficult time that affects every aspect of your life.  You need a knowledgeable and experienced attorney by your side.  Hopefully you have hired one.  

What can you do to help?  There are several things.

First and foremost: do not talk to anyone about your case except your attorney.  You have the right to remain silent.  Use it!  It is extremely damaging to your case if you speak about it with anyone. And it can kill your case if you put anything on social media.  You also have this right even with your attorney.  Your attorney will probably ask you very specific questions.  Think about how your attorney is asking those questions and answer the question that is being asked. 

Think of any evidence that you may have. Although the burden to prove their case is on the State, anything that you may have to disprove the State's case will definitely make things easier.  Do you have any witnesses?  Give their names and contact information to your attorney immediately.  The longer the amount of time that passes may make it difficult for your witnesses to be reached, or their memory may start to fade.  Do you have any documentation that may help like receipts, registrations, leases, or phone records?  For some of these items, certified copies may need to be ordered, and your attorney will need to have the time to do so. 

It is also important to stay in contact with your attorney.  Keep him or her updated with contact information.  You may have an unexpected court date arise, the state may disclose evidence at the last minute, or any number of things can happen to where your attorney needs to speak with you right away.

The most important thing that you can do is listen to the advise of your attorney.  Your attorney knows the rules of procedure and the rules of evidence.  What you believe may be important, unfortunately may not be admissible or legally relevant.  It is imperative that you have a relationship of trust with your attorney.

If you have been charged with a criminal offense, contact Heather Bryan Law for your consultation online, or call 863-825-5309.

Friday, October 6, 2017

Marijuana and Decriminalization in Florida

The process of decriminalization of marijuana in Florida is slow, but occurring.  In all there are 14, counties, cities, and/or municipalities that have passed ordinances that give police officers the option to issue civil citations or fines rather than arrest a person who is caught with 20 grams or less of marijuana. It is important to note that in these cities or counties, the choice still lies with the individual officer whether to issue the citation or make an arrest for misdemeanor possession.  Each place’s ordinance varies, so it is important to read the specific ordinance.  Below is a list of places thus far that have passed such ordinances with links to more specific information about the ordinances.


On a national level, twenty states have enacted legislation decriminalizing possession under specific circumstances.  However, in Florida, there has been a resistance among the voters at the state level.  Arguments for decriminalization include: 1) law enforcement should use their time going after much more serious matters and criminalization is expensive, including the cost of prosecution, 2) the idea that legalization would lead to higher crime has been rebutted by data in Colorado, 3) marijuana is (relatively) harmless, and 4) minorities are arrested and charged for possession at a much higher rate than whites.

Here in Polk County, possession of marijuana is still aggressively prosecuted as a first-degree misdemeanor.  If you are in possession of less than 20 grams, you can face up to 365 days in Polk County Jail. 

If you have been charged with possession of cannabis, or any other drug crime, contact Heather Bryan Law for your consultation today at 863-825-5309, or contact us online


Friday, September 22, 2017

StingRays and Your Right to Privacy

In 2014, the Florida Supreme Court protected privacy by ruling that it is a violation of the Fourth Amendment to track cell phone location data without a warrant.  Police departments in Florida and around the country have been using metadata from cell phones to track a person’s location in real time without obtaining warrant.  The ruling also covered the use of StingRays, a technology often used by law enforcement to track people.  This device tricks cellphones into sending it their location information, as it is a cell-site simulator.     

The ACLU defended the 2014 Florida decision by saying that it not only gives location information, but the most private information in our lives—like doctor’s visits. 

Even though this has been the ruling in Florida since 2014, other states have continued to use StingRays.  However, on September 21, 2017, an appellate court in D.C. ruled with Florida, finding that warrants must be issued prior to StingRays being used.  This ruling is now the fourth such ruling in the country.

There are still 72 simulators in 24 states according to the ACLU; and there could be many more.  It looks like this issue could go before the highest court in the land for a final decision. 

If you have been charged with a criminal offense, you need the help of an experienced criminal attorney to stand beside you and fight for you.  Contact Heather Bryan Law for your consultation today, at 863-825-5309.

Wednesday, August 16, 2017

Ways to Sabotage Your Own Criminal Defense

It may seem like common sense to not want to sabotage you own criminal case, but people frequently do things than can damage their own defense.  Below are the top issues that I have seen to cause problems for clients’ cases:

5. Party Like a Rock Star
Your goal during your criminal case is to remain free of any drama.  If you are out drinking, you can end up in a situation which may lead to activities or situations which allowed your criminal charges in the first place.  Drinking may even be a violation of your pretrial release depending upon your charge.  If this is the case, you may find your bond revoked and there will be nothing that your attorney can do to help you. 

4. Fail to Show Up
Failure to show up for Court is a HUGE issue.  We all have unavoidable issues or accidents arise.  And if that happens once, it is explainable to a judge.  You may get a capias issued, but your attorney can more than likely get it withdrawn.  However, if you are habitually late for court, or fail to appear, your bond will probably be revoked and you will find yourself sitting in jail until your case is resolved.  The same goes for meeting with your attorney.  Your attorney is there to help you.  Your attorney cannot help you if you are constantly late or do not show for appointments.

3. Post It on Social Media
We all love posting our lives on social media.  I am posting this blog on social media.  However, #IJustGotArrested is not advisable.  You have the right to remain silent.  Use it.  Anything that you post will be used against you.  The State Attorney’s Office is constantly searching social media for anything about you.  In addition, your privacy settings do not matter. The courts have consistently ruled that if you are posting it, they can get it, regardless of your privacy settings.

2. Not Retaining Counsel
Some people make the mistake of thinking that they can handle their case themselves, without the help of an attorney.  There are many technical aspects to the law, including the evidence code, administrative license issues, sentencing laws, etc., that are overwhelming and complicated.  When you fail to obtain counsel, you are not making informed decisions.  You may think you know your basic rights, and I am certain that you do. However, you cannot put a price on your liberty.  Hire the lawyer

1. Picking up New Charges
Some people just gravitate towards trouble.  They continue to hang around with the same crowd or continue the same pattern of behavior that got them into the situation to begin with.  Stay away from these people!  For example, if you have domestic violence battery charges that a significant other has alleged, that significant other has signed a waiver of prosecution, and you are allowed contact, you should probably still stay away from that person until the case is over.  Even though the court is allowing contact, it is obvious that you and that person have some sort of issue that needs to be worked out.  If that person makes another allegation, your pretrial release will likely be revoked, you will have another domestic violence battery charge, and you will likely be “parkered,” meaning you will be held no bond until the cases are resolved.  It is imperative that you be very careful about who you are around and what you are doing while you are on pretrial release!


If you have been charged with a crime, you need the help of an aggressive and experienced criminal defense attorney who will stand by your side and protect your rights.  Call Heather Bryan Law today for your consultation at 863-825-5309, or contact us online.

Friday, August 4, 2017

"Sexting" and Florida Law

Yes, “sexting” has been defined by Florida law and can been found in Florida Statutes section 847.0141.  Sexting is when a minor uses an electronic device to transmit a photo or video which depicts nudity and is considered harmful.  It is against the law to solicit and to be the recipient if the recipient does not report specifically to the minor’s legal guardian or to a school or law enforcement official within 24 hours. 

A first-time offense is a noncriminal violation.  The minor will receive 8 hours of community service work or pay a $60 civil penalty.    A second-time offense is a first-degree misdemeanor and a subsequent offense is a third-degree felony.   

Young adults who may have turned 18, but are still in high school, who engage in the same sort of behavior described above, could be charged with an even more serious sex crime and could possibly be labelled a sex offender the rest of their lives. 

Finding a place to live, a job, and other activities of daily live can become nearly impossible.  If you fail to register, you can be charged with a new felony crime—failure to register as a sex offender.

Florida does have the “Romeo and Juliet” statute to address concerns about high school age youth being labelled as sexual offenders or sexual predators as a result of participating in a consensual sexual relationship.  The stigma and life-long consequences that come with such a classification affect every aspect of life.

The registry provides no clear distinction between the young “Romeo and Juliet” sex offenders who had consensual sex and the true offenders who harm children and pose a risk to society.  Section 943.04354 creates a mechanism for this group of offenders to file a motion or petition in state court for removal of the registration requirement if the offender meets certain criteria.  The law only addresses the registry requirement and does not make the offense legal. 


If you have been charged with a sexual offense or need help filing a petition under the “Romeo and Juliet” statute, contact Heather Bryan Law online today for your confidential consultation, or call 863-825-5309.

Monday, July 31, 2017

What is Pretrial Diversion?

Pretrial Diversion programs are available usually only to first time offenders to resolve their cases and successful completion results in the State dropping the charges.  The qualifications for these programs do differ from county to county. 

First and foremost, the crime the defendant is accused of usually must be a misdemeanor.  In Polk County, the most common charges that defendants are offered diversion for are possession of cannabis, driving while license suspended or revoked, and domestic violence battery.  The second qualification is that the defendant must not have been found guilty of a prior offense. 

Diversion usually consists of an evaluation and some sort of counseling, depending upon the charge.  It might even consist of drug testing.  The defendant must pay for the diversion program and all related testing.  The program takes anywhere from a couple of months to about 6 months. 
If the defendant can meet the qualifications of the diversion program and successfully complete the diversion program, the State Attorney’s Office will drop the charges. 


For a person who has never been in trouble and wants to avoid a trial, diversion is an excellent option.  Contact Heather Bryan Law online or call 863-825-5309, today for your consultation.

Thursday, July 27, 2017

Body and Dash Cameras

One of the first conversations I usually have with my clients that hire me for their criminal case here in Polk County usually involves something like, “get the body camera or dash camera footage; it will show you what happened.” Unfortunately, here in Polk County, there are no body cameras or dash cameras.  Our Sheriff has made it abundantly clear that he does not support such technology.

However, the National Association of Criminal Defense Lawyers released a report entitled “Policing Body Cameras: Policies and Procedures to Safety the Right of the Accused.”  This report supports police agencies using such technology and makes several recommendations for police departments including:

·        Having clear policies in place that establish when officers are to begin recording (not leaving it up to individual officers).

  • ·        Recordings should be stored for specific time periods and long enough for the accused to support his or her defense.

  • ·        Allowing the accused prompt access to the recordings.

  • ·        Officers should not have access to the videos prior to preparing their reports.

  • ·        Officers should not have access to the videos after encounters in order to bring additional charges.


This advice, and more, comes from legal scholars and criminal justice experts.

Larger cities across our country are beginning to come on board with body cameras and dash cameras.  Unfortunately, there is no uniform set of rules for the use of the technology.  Officers tend to not turn their body cameras on, in some circumstances, until after the event has taken place. 

After the recent shooting of the Australian woman by a Minneapolis officer, the technology depends on officers turning on their devices immediately upon dispatch.

These cameras are not intended to catch officers’ bad behavior.  In fact, this technology can protect officers from being unfairly accused.  They can clear officers when officers are doing exactly what they are supposed to be doing. 

If you are pulled over for a traffic stop, make sure you are respectful and cooperative while still maintaining your rights.  Read my other blog posts on saying no to searches and videotaping the police.


If you have been charged with a crime, you need an experienced criminal defense attorney who will protect your rights and fight for you. Contact Heather Bryan law today online, or call 863-825-5309, for your consultation.

Thursday, June 15, 2017

Why I Do What I Do

I am often asked one of several questions by people with no understanding of what I do:
I am very proud of what I do.  I work each and every day to protect people and their Constitutional rights.  I protect them from an overzealous government.  I protect innocent people and people who have made mistakes.  And make no doubt about it, everyone makes mistakes.  

I have always been a public servant. I worked for over ten years as a public school teacher.  There did come a point however, when I decided I needed to do more.  I saw kids that I could not reach. They were not going to do their homework for me or learn from me when they weren't safe at home (think back to Maslow's hierarchy of needs).  

When I started law school, I immediately became an intern at the Public Defender's Office.  My first week on the job I saw a ten-year old in handcuffs. I cried.  This wasn't justice.  I knew at that moment, that this area of the law was what I was meant for.  

It was also through my work at the Public Defender's Office that I met James Bain.  Through a joint effort of the PD's office and the Innocence Project, he was exonerated after 35 years in prison for a crime he did not commit.  He is such a wonderful man. He has no hate in his heart.  It is truly amazing.

I have represented people who have been harassed for no reason by our government simply because they looked different or poor or "like trouble."  I have represented people whom I know were completely innocent of what they were accused of, yet their lives were potentially ruined because of the stigma.  

And yes, I have represented people whom I have no idea if they were guilty or not.  But that is not my job.  My job is to protect their rights.  Every person in this country has certain rights and protections guaranteed by our Constitution. The Constitution is not a technicality.  These rights are not only given to innocent people--they are given and guaranteed to all people.  If those protections are eroded, our country as a whole has lost. Whose rights will they come after next?

If you are in need of a criminal defense attorney, contact Heather Bryan Law online, or call her today at 863-825-5309.


Tuesday, June 6, 2017

Common Offenses With Driver's License Suspensions and Revocations

Offense
Suspension
Murder resulting from operation of a motor vehicle; DUI manslaughter where conviction represents a subsequent DUI-related conviction; 4th DUI (See section 322.26, Florida Statutes)
Permanent revocation
Any felony where a motor vehicle is used; failure to stop and render aid when required in a crash resulting in death or personal injury; perjury to the Department under 322.26; conviction of 3 charges of reckless driving within 3 months; conviction of lewdness or prostitution with the use of a motor vehicle; conviction of any offense where there is the use of a motor vehicle and the Court feels it warrants the revocation of driving; fraudulent insurance claims (See section 322.26, Florida Statutes)
Indefinite revocation
DUI; Refusal (See section 316.193, Florida Statutes)
Anywhere from 6 months to permanent revocation
Fleeing/Eluding law enforcement (See section 316.1935, Florida Statutes)
Anywhere from 1 year to 5 year suspension
Possession of Controlled Substances (See section 322.055, Florida Statutes)
1 year suspension
Theft (See section 812.014, Florida Statutes)
Anywhere from 6 months to 1 year suspension
Racing on Highways (See section 316.191, Florida Statutes)
1 year suspension
Habitual Traffic Offender (HTO) (See section 322.264, Florida Statutes)
5 year suspension
Suspended until paid

If you have been given a citation or charged with a crime, or need help getting a hardship license, you need the help of an experienced attorney to stand beside you.  Contact Heather Bryan Law today for your confidential consultation, at 863-825-5309

Friday, June 2, 2017

You Have A Right To Remain Silent...Use It!



Our founding fathers very specifically crafted the protection against self-incrimination located in the Fifth Amendment with a purpose.  The protection dates back to English common law when the courts sought to prohibit the use of inquisitorial methods of interrogation.  By the late 1700's, Parliament had begun to recognize the presumption of innocence.  Of course, these ideas were carried over into colonial America and adopted into our Constitution. Through decisions of our Supreme Court, the protection of the Fifth has been well grounded and preserved.  Justice Frankfurter, in Ullmann v. United States, 35 U.S. 422 (1956), stated:

"This constitutional protection must not be interpreted in a hostile...spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States."

There is no shame or presumption that a person must have done something wrong or must have something to hide just because someone utilizes his or her constitutional right to remain silent.

In fact, I would advise you to never speak to law enforcement without having a lawyer present. Far too often, your words will get turned in such a way that you never intended.  People tend to believe that since they are innocent and have nothing to hide, it is okay to speak to law enforcement.  Then the next thing, they know, they are in handcuffs, being charged with a crime that they did not commit.  You have the protection of the Fifth Amendment for a reason. Use it!

If you have been charged with a crime, or need experienced representation for a legal matter, contact Heather Bryan Law online or call 863-825-5309 for a consultation.


Tuesday, May 16, 2017

To Blow or Not to Blow...

If you have been pulled over for a DUI, failed the field sobriety exercises, and told you are under arrest, the next step is submission to a breath test.  You will be asked if you will submit to a breath test.  You can refuse.  You have to determine if this is the best choice for you in the moment.  

If you refuse to submit to a breath test, your driver's license will automatically be suspended for a year in Florida.  If it is your second refusal, the Department will suspend your driver's license for 18 months and the State Attorney's office can charge you with a first-degree misdemeanor just for the refusal.  Driving is considered a privilege in Florida, not a right.

DUIs can be proven without a BAC, blood alcohol content level. The statute reads that a person is guilty of driving under the influence if the person:

1) is in actual physical control of a vehicle, AND

2) a) the person is under the influence of alcoholic beverages, any chemical substance in section 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

   b) the person has a blood alcohol level of 0.08 or more; OR

   c) the person has a breath alcohol level or 0.08 or more.

Therefore, in addition to number 1, only a, b, or c needs to be met.  If you find yourself in this situation, it is imperative that you hire an experienced defense attorney to help you defend against your DUI charges. There may be issues with your traffic stop to begin with.  Did the officer have probable cause to pull you over?  Is there a motion to suppress issue?  If you did submit to a breath test, were there any technical issues with the machine?  These are all issues that an experienced DUI attorney can help you with.

Contact Heather Bryan Law today at 863-825-5309, or online, for your consultation.  We are here to help!

Thursday, May 4, 2017

Think Before You Post

Documenting our lives on social media has become second nature.  When an event occurs, we immediately take a picture and post it to some sort of social media account.  Most people do not consider the legal consequences of what they put on their social media accounts.

I recently put a meme on Instagram that read, “Dance like no one is watching; email like it may one day be read aloud in a deposition.”  I would apply this quote to all social media outlets.  If you would not want what you are about to post to be read aloud in a deposition or shown to a jury one day in open court, it is probably best not to post it.

The courts have had to rule on privacy issues when it comes to Facebook and other social media outlets.  The trend has been, in federal courts and in Florida, that if you choose to post something on social media, you are waiving your privacy, even if you have your privacy settings set to the most private.  The courts have rationalized that you are putting it out there for the world to see; and therefore, you are waiving your constitutional privacy rights.

For example, if you have been injured in a car accident and are involved in personal injury litigation, defense counsel will more than likely request that you produce all social media pictures from the date of injury to present.  The courts have ruled this request is relevant as it can show whether in fact you are injured.

Courts have issued similar rulings in all types of litigation from family cases to criminal cases.  There must be a finding of relevance, which is not hard to do.

One final piece of advice, if you know you are preparing for litigation, it is a very bad idea, to think, “I need to clean up my social media accounts.”  If you start deleting posts and pictures, you are destroying potential evidence.  This could get you into more trouble, and is potentially illegal.  Keep your accounts to the most secure settings, and just think before you post.

Heather Bryan is an experienced criminal and family lawyer.  Contact us online or call us at 863-825-5309 for your consultation.

Tuesday, April 25, 2017

Is It Possible to Reinstate My Driver's License After A DUI Conviction?

Yes, for most people it is possible to reinstate your driver's license.

If you make a mistake and only have one DUI conviction, Florida statute requires the revocation of your driver’s license for 180 days to 1 year.  Sometime prior to the expiration of the revocation period, you may apply for hardship license.  In order to be approved for a hardship license, you must first complete DUI School and treatment, if required.

If you have a second DUI conviction outside of a five-year period, Florida statute requires the revocation of your driver’s license for 180 days to 1 year.  Unfortunately, you are NOT permitted to reinstate early for a hardship license.  You must wait the full period of time in which the judge suspends your license before applying for reinstatement of your driver’s license.

If you have a second DUI conviction within a five-year period, Florida statute requires the revocation of your driver’s license for 5 years.  You are permitted to apply for a hardship license after one year from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program.

If you have a third DUI conviction within a ten-year period, Florida statute requires the revocation of your driver’s license for 10 years.  You are permitted to apply for a hardship license after two years from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program.

If you have a fourth DUI conviction, Florida statute requires the permanent revocation of your driver’s license.  You are permitted to apply for a hardship license after five years from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program.

If you are convicted of DUI Manslaughter, Florida statute requires permanent revocation of your driver’s license.  You are permitted to apply for a hardship license after five years from the effective revocation date.  All required treatment and DUI School must be completed and you must have a recommendation from the Special Supervision Services Program.

If you are convicted of DUI Manslaughter after a prior DUI conviction, Florida statute requires a permanent revocation of your driver’s license and you are NOT permitted to apply for a hardship license.

If you never apply for a hardship license and just wait to reinstate your license, you will still be required to show proof of enrollment in the DUI school and treatment.  If you fail to complete school and treatment within 90 days, the Department of Motor Vehicles can suspend your driver’s license.

Also, when you are reinstated, you must take the required driver’s exam, pay all fees, and provide proof of bodily injury liability insurance in the amount of $100,000 per person and $300,000 per occurrence and property damage liability insurance in the amount of $50,000.

If you have been charged with a DUI, you need an experienced DUI attorney as your advocate. Contact Heather Bryan Law online or call 863-825-5309 for your personal and confidential consultation.

Monday, April 17, 2017

Defending Against Domestic Violence Charges

Domestic Violence abuse is a serious allegation and nothing to joke about.  The unfortunate truth is that many innocent people are falsely accused each year of domestic violence crimes. The reason is because all it takes is a phone call to 911 and an allegation, and someone is going to jail.

For example, the definition of domestic violence battery is any actual and intentional touching or striking of another person without consent, or the intentional causing of bodily harm to another person (a family or household member).  As you can see, nowhere in the definition does it say that the alleged victim must have actually been harmed.  The statute uses the word "or."  Because of this language, a "he said / she said" situation may occur, and someone ends up getting arrested and charged with domestic violence battery.

In addition, the decision to prosecute is not up to the alleged victim.  That decision is ultimately up to the State Attorney's office.  The State of Florida, and in particular, Polk County, aggressively pursues these charges.  The prosecutor may still file charges against a defendant and prosecute a defendant even if the alleged victim signs a waiver of prosecution. The State has even been known to go after alleged victims for not being cooperative.  If an alleged victim does not show up for court, the State may have the police pick them up and hold them in contempt for not abiding by a subpoena.

If you have been falsely accused of a domestic violence crime, it is imperative that you have an experienced criminal defense attorney by your side to fight for your rights.  In Florida, even if the judge withholds adjudication, with a guilty or no contest plea, you cannot seal or expunge your arrest, per Section 741.28.  The only way for the arrest to be expunged is for the charges to be dropped.

Contact Heather Bryan Law online today or call us at 863-825-5309 for your free and confidential consultation.  Let us fight for you.

Tuesday, March 28, 2017

You Can Say No

Many people are taught growing up that they must be respectful to police officers and submit to their authority.  Police officers do come into harm's way quite frequently and work hard to protect society as a whole.  However, respecting police officers does not equate giving up your rights.

You have a right to privacy that is specifically protected by the Florida Constitution.  You also have a right to freedom from unreasonable search and seizure .  This right is fundamental as it is guaranteed by the U.S. Constitution's Fourth Amendment.  The police cannot violate this right without a warrant unless one of the following circumstances occurs:

1.  You have given the officer consent to search,
2.  The officer has probable cause to believe there is evidence of a crime in your vehicle (probable cause must come from specific facts and circumstances, rather than simply from the officer's gut feeling or suspicion),
3.  The officer reasonably believes a search is necessary for their own protection, or
4.  You have been arrested and the search is related to that arrest.

If you are stopped and a police officer asks to search your person or your vehicle, you can say no. Now, I highly suggest doing so in a non-threatening, respectful manner.  I might say something such as, "Officer, with all due respect, I am utilizing my 4th Amendment right and denying your request to search my car."  I would then follow up this statement by asking the officer two very important questions: 1) am I being detained, and 2) am I free to leave.

It is important to note, that if you tell the officer he or she cannot search your person or the vehicle, the officer, in Florida, might request a K-9 dog sniff unit to the scene.  Florida law permits the officer to detain you for a very short amount of time to conduct a dog sniff if there is probable cause for the traffic stop in the first place.  However, the amount of time that the officer is allowed to conduct the dog sniff is the amount of time that it takes to write a traffic citation.  It has been found to be unconstitutional for officers to hold you any longer than that and is the grounds for exclusion of evidence.

By staying calm and remembering your rights, you can have successful interactions with police officers.

If you are in need of an experienced criminal defense attorney, contact Heather Bryan Law at 863-825-5309 for your consultation

Tuesday, March 21, 2017

Yes You Can Videotape the Police, But Take Precaution

By now many of you have probably seen the video of the Uber driver/lawyer who was pulled over by police and told he could not record the officer.  The police officer told the lawyer to turn it off or he'd take him to jail.  The police officer also told the lawyer that it was a new law that was recently passed. None of these statements made by the police officer, however, were true.

The lesson here is that the police can lie to you at a traffic stop.  It is important for you to know your rights and remain calm and respectful to prevent unnecessary charges, an arrest, or something worse.

In Florida, you can videotape the police, if they are on duty, in public, and you are not interfering with their ability to do their job.  The Eleventh Circuit Court of Appeals has ruled that people have a First Amendment right to record police in public unless they infringe on an investigation.  There is one gray area, however, and that is with audio.  State law requires consent for audio recordings when there is a reasonable expectation of privacy.  Most experts agree that this requirement pertains to wiretapping and does not apply to the videotaping of police officers that is permitted while they are on duty and in public. But because there has not been a specific ruling for this issue, the Florida Chapter of the ACLU recommends that if an officer tells you not to record audio, turn off the audio.

It is important to remember that just because the law allows you to videotape the police, this does not mean the police will be happy about it or cooperative.  They may even harass or lie to you, as the officer did to the lawyer in the video above.  It is imperative that you remain calm and respectful throughout the encounter.  You want to to show that you are not a threat. The officer will probably ask you what you are doing or why you are recording him or her.  It is best to respond with something such as, "Officer, it is my understanding of Florida law that I am permitted to record on duty police officers in public areas."  If your immediate response is aggressive, you will likely end up on your stomach in handcuffs or worse.

It is also important that you keep a safe distance and do not make any sudden movements. Remember that the law allows you to record only if you do not interfere with the officer's job. Police officers are performing a dangerous jobs and do deal with very real threats.  If you know your rights, know the law, and remain respectful, you can fully exercise your rights with success.

If you need legal advice on a criminal or family law matter, contact an experienced attorney who can help.  Call Heather Bryan Law at 863-825-5309 for your consultation.