“Street Racing:” What to Know Under Florida State Law

“Street Racing:” What to Know Under Florida State Law

            Under Florida State law, “Racing on Highways” occurs when a defendant competitively drives a vehicle in a speed or acceleration contest, or engages in drag racing, or participates as a passenger or race facilitator. The offense carries penalties of up to 1 year in jail and a driver’s license revocation.

Definition

The offense of Racing on Highways, or “Street Racing,” is defined in Section 316.191 of the Florida Statutes. Under the law, “Racing” potentially includes four categories of conduct:

  • Racing, Competitions, and Exhibitions: defined as driving any vehicle in any race, speed competition, speed contest, drag race, acceleration contest, test of physical endurance, speed exhibition, acceleration exhibition, or driving for the purpose of making a speed record on any highway, roadway, or parking lot;
  • Coordination and Facilitation: participating in, coordinating, facilitating, or collecting moneys at any location for any race, competition, contest, test, or exhibition;
  • Passenger Participation: knowingly riding as a passenger in a race, competition, contest, test, or exhibition; andRacingBlog
  • Traffic Interference: purposefully causing the movement of traffic to slow or stop for any race, competition, contest, test, or exhibition.

Definition of “Drag Race”

             “Drag Race” is defined as the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.

Necessary Conditions to Prove “Street Racing”

To prove the crime of Racing on Highways at trial, the State must establish that the defendant:

  • Drove a motor vehicle in,
  • Participated, coordinated, facilitated, collected monies at the location of,
  • Knowingly rode as a passenger in; [or]
  • Purposefully caused moving traffic to slow or stop for
  • …a race, a drag race, an acceleration contest, a speed competition, a test of physical endurance, a speed exhibition, or an attempt to make a speed record on a highway, road, or parking lot.

Penalties

Florida State law classifies Racing on Highways as a first-degree misdemeanor, with penalties of up to 1 year in jail. In addition to possible incarceration, a plea to the charge of Street Racing will have the following consequences: fines, revocation of license, vehicle impoundment, and the creation of a criminal record.

 Possible Defenses

The possible defenses to Street Racing include, but are not limited to, the following:

  • Police officer did not actually witness or fully witness the incident;
  • Lack of proof of competition;
  • Ordinary traffic infractions mistaken for ‘racing;’
  • Careless driving or other non-criminal traffic maneuvers (i.e. passing, accelerating, changing lanes);
  • Actual speed of the vehicle(s) is not consistent with an allegation of ‘racing.’
  • Lack of proof as to the defendant’s intent;
  • Intent to race on part of the other driver, but not the defendant;
  • Lack of proof that more than 1 vehicle was involved in the alleged ‘competition;’
  • Alleged conduct not encompassed by the statutory definition of ‘race.’

Why You Should Contact an Attorney

            There are many nuances of a Street Racing case to consider before moving forward. My experience as an Assistant State Attorney has exposed me to numerous types of these cases and their commonality lies in their differences. Given the numerous defenses available to contest these charges, an attorney is a vital asset for avoiding a conviction.

If you have question about your Street Racing case please call my office at 407-415-9626 or email me at Jeremiah@JeremiahDAllen.com.

Possession of Drug Paraphernalia: What to Know if You Are Charged in Florida

Possession of Drug Paraphernalia: What to Know if You Are Charged in FloridaBong photo

Under Florida State law, the Possession or Use of Drug Paraphernalia is a first degree misdemeanor, with penalties that may include jail or probation. Drug paraphernalia is any object or material intended for the production, use, or processing of a controlled substance.

Definition

Under Section 893.145 of the Florida Statutes, drug paraphernalia is defined as “all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . .”

There exist many common examples of Drug Paraphernalia, which include:

  • Hypodermic syringes, needles, and other objects used for injecting controlled substances into the human body;
  • Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
  • Rolling papers, cutting devices, testing devices, balloons, and baggies;
  • Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes, with or without screens, permanent screens, hashish heads, or punctured metal bowls;
  • Water pipes, smoking and carburetion masks, other air driven pipes, “roach clips,” bongs, “whip it” devices for expelling nitrous oxide, “crackers,” and vials.

Penalties

Under Florida State law, possession or use of drug paraphernalia is classified as a first-degree misdemeanor, with penalties that may include up to one year in jail or 12 months probation, as well as a $1,000 fine. Should you be placed on probation you will, most likely, have to subject yourself to random drug screening.

Possible Defenses

There are many possible defenses to combat drug paraphernalia charges. Sometimes, the conduct of the arresting Law Enforcement officer(s) can violate your Fourth Amendment Constitutional rights to unwarranted search and seizure. Other possible defenses include, but are not limited to:

  • Was the accused the only person in the car or dwelling?
  • Was the accused in exclusive or constructive possession?
  • Were the items found on the accused’s person, or were they located in a place where multiple persons had joint access?
  • Was the accused driving the car, or did the accused have the authority to maintain control over or manage the premises?
  • Can the State prove that the accused had knowledge of the presence of the paraphernalia?

Contact an Attorney

There are many nuances of a drug paraphernalia possession case to consider before moving forward. My experience as an Assistant State Attorney has exposed me to numerous types of these cases and their commonality lies in their differences. Given the numerous defenses available to contest these charges, an attorney is a vital asset for avoiding a conviction.

If you have question about your drug paraphernalia possession case please call my office at 407-415-9626 or email me at Jeremiah@JeremiahDAllen.com.

Possession of Drug Paraphernalia

Possession of Drug Paraphernalia

Child Neglect: What to Know if You’re Charged in Florida

Child Neglect: What to Know if You’re Charged in Florida

During my time as an Assistant State Attorney, one of the most shocking and heartbreaking cases you could be presented with often involved elements of child neglect. Because our children are vulnerable and defenseless, child neglect charges are some of the most vigorously prosecuted charges under Florida State law. If you are charged with child neglect it is of the utmost importance that you contact an attorney as quickly as possible so that they can examine the nuances of your case and construct an appropriate legal strategy to ensure that you, and your child, remain safe and protected.

What is “Child Neglect”

The offense of child neglect is defined under Section 827.03, Florida Statutes. Under the law, “neglect of child” means “[a] caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health,” including, but not limited to:

  • Food and nutrition;
  • Clothing;
  • Shelter;
  • Supervision;
  • Medicine and medical services that a prudent person would consider essential for the wellbeing of the child.

Child Neglect may also occur as a result of “[a] caregiver’s failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person.”

What is Required to Prove “Child Neglect?”

In order to prove the crime of child neglect in Florida, the State must establish the following three elements beyond a reasonable doubt:

  1. The defendant: (a) willfully or by culpable negligence failed or omitted to provide the alleged victim with the care, supervision, and services necessary to maintain the victim’s physical or mental health; or (b) failed to make a reasonable effort to protect the alleged victim from abuse, neglect, or exploitation by another person;
  2. The defendant was the “caregiver” for the alleged victim; and
  3. The alleged victim was under 18 years of age.

 

What is “Culpable Negligence?”

 

“Culpable negligence” involves a higher degree of fault or responsibility than ordinary civil negligence. Culpable negligence is defined as a “failure to use reasonable care on behalf of another when such failure is gross or flagrant. The negligence must be committed with an utter disregard for the safety of others.” “Culpable negligence” involves consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

What is a “Caregiver?”

Florida State law requires that the defendant be a “caregiver,” which is defined as a parent, adult household member, or other person responsible for the child’s welfare.

Penalties for “Child Neglect”

All charges of “Neglect of a Child” are felonies. Where the neglect or abuse does not result in great bodily harm (or permanent disability or disfigurement), the charge is a third degree felony, which carries with it penalties of up to 5 years in prison or 5 years of probation and a $5,000 fine. Where great bodily harm does occur, the charge is a second-degree felony and is punishable by up to 15 years in prison or 15 years probation and a $10,000 fine. Carrying a conviction of “Child Neglect” on your criminal record could negatively impact your parental rights, as well as your ability to adopt and foster children.

Possible Defense Strategy

There are many approaches that you can take to defending an allegation of child neglect. Because each case is different, it is important to consult with an attorney to go over the nuances of your individual case and ensure that your situation is covered. Possible strategies include:

  • The defendant’s acts or omissions do not amount to culpable negligence
  • The defendant’s acts were not willful, or sufficiently flagrant or negligent
  • The defendant used reasonable efforts to protect the child from abuse or neglect
  • The incident occurred as a result of an accident, mistake of fact, or misunderstanding

Why You Should Contact an Attorney

There are many nuances of a potential case of “Neglect of a Child” to consider before moving forward. My experience as an Assistant State Attorney has exposed me to numerous types of these cases and their commonality lies in their differences. Given the numerous defenses available to contest these charges, an attorney is a vital asset for avoiding a conviction.

If you have question about your child neglect case please call my office at 407-415-9626 or email me at Jeremiah@JeremiahDAllen.com.

Resisting Arrest Without Violence: What to Know About Your Case

Resisting Arrest Without Violence: What to Know About Your Case

Under Florida State law, resisting a Law Enforcement Officer Without Violence is any non-violent obstruction of a law enforcement officer during the execution of a legal duty, including arrest. Resisting Without Violence is a first-degree misdemeanor, with penalties of up to 1 year in jail or 12 months probation, and a $1,000 fine. Obstruction Resisting Without Violence

Definition

Resisting a Law Enforcement Officer Without Violence is any non-violent interference directed at a police officer who is acting pursuant to a legitimate law enforcement function. The definition can be found under Section 843.02 of the Florida Statutes: “Whoever shall resist, obstruct, or oppose any officer or other person legally authorized to execute process . . . In the law execution of a legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . .” In many criminal cases, Resisting an Officer Without Violence is a type of offense that is tacked on by police to supplement other charges, such as after you have been arrested on a drug or battery charge. This “coupling of charges” increases the likelihood of conviction.

Necessary Conditions to Sustain Conviction

             In order to prove this charge at trial, the State must establish the following four elements beyond a reasonable doubt:

  1. The defendant resisted, obstructed, or opposed a law enforcement officer;
  2. At the time, the officer was engaged in the execution of legal process or the lawful execution of a legal duty;
  3. The officer was a person legally authorized to execute process; and
  4. At the time, the defendant knew that the person resisted, obstructed, or opposed was in fact an officer or other person legally authorized to execute process.

The Broadness and Scope of “Resistance”

Even seemingly minor actions by a suspect or arrestee can constitute “resistance” within the meaning of the Statute. There are many common examples including, but not limited to, tensing arms while being handcuffed, not obeying verbal commands, refusing to stand, walk, or sit, providing false information, and concealing evidence.

Penalties for Resisting an Officer

Resisting a Law Enforcement Officer Without Violence is classified as a first-degree misdemeanor and is punishable by up to one year in jail and a $1,000 fine. It is common for first-time offenders, with no prior criminal record, to receive probation alone for this offense. Even if that is the case, however, these offenders will still have the charge placed on their criminal record, which can have wide-ranging implications for job prospects and personal matters. What’s more, if verbal abuse or especially heinous taunting or disrespect is present, it is likely that prosecutors will seek jail time even for first time offenders. The likelihood of jail time is greatly exacerbated for those with a prior criminal record that are facing this charge.

Possible Defense Strategies

            Each case is different and the nuances between them will determine which is the best legal defense strategy to undertake. That is why it is important to consult with an attorney if facing this charge. Possible strategies include, but are not limited to:

Disputing “Resistance”

In order to sustain a conviction for Resisting Without Violence, a defendant’s actions must amount to actual opposition or obstruction. This is a factual determination left for the jury. Perception of “resistance” is insufficient to carry this charge. Often, the officer’s allegations do not rise to the level of actual resistance.

Involuntary Actions/Reflexes

             “Resistance” may, also, have come about through an involuntary reaction or reflex by the defendant. Often, due to the adrenaline of the situation, the pain caused by handcuffs or an “arm takedown,” and/or the physiological status of the defendant, muscle tension and spasms can occur. Sometimes these are interpreted by the arresting Law Enforcement Officer as “resistance” but this charge cannot be carried if it is established that the physical actions of the defendant were carried out involuntarily due to natural reflexes.

Why You Should Contact an Attorney if Facing this Charge

There are many nuances of a potential case of Resisting Arrest Without Violence to consider before moving forward. My experience as an Assistant State Attorney has exposed me to numerous types of these cases and their commonality lies in their differences. Given the numerous defenses available to contest these charges, an attorney is a vital asset for avoiding a conviction

If you have question about your Resisting Arrest Without Violence case please call my office at 407-415-9626 or email me at Jeremiah@JeremiahDAllen.com.

 

Disorderly Conduct: What to Know When You’re Charged with “Breaching the Peace”

Disorderly Conduct: What to Know When You’re Charged with “Breaching the Peace”

Criminal Defense Attorney

What is “Disorderly Conduct?”

 The definition of “Disorderly Conduct” under Florida State law is when an individual disturbs the peace and quiet of the public, outrages public decency, or engages in fighting.  The offense is classified as a second-degree misdemeanor, with penalties that may include jail, probation, and the creation of a permanent criminal record.

“Disorderly Conduct,” or “breach of the peace,” is found under Section 877.03 of the Florida Statutes. This offense includes any and all acts deemed sufficient to “corrupt the public morals,” “outrage the sense of public decency,” or “affect the peace and quiet of persons” who observe or are impacted by the act. This offense also includes brawling, fighting, and general physical misconduct. It is important to note that the determinants of this charge are extremely broad, which is why it is always important to have a trusted attorney review your individual case in the context of its larger implications.

 Possible Penalties if You’ve “Breached the Peace”

 The penalties for disorderly conduct or breach of the peace include up to sixty (60) days in jail or six (6) months of probation, in addition to a $500.00 fine. Bear in mind, however, that these are the statutory maximums that are available for the charge and charges can depend on your criminal history. This is why it is critical you consult an attorney for your case. If you are a first time offender the real risk, however, is the creation of a permanent criminal record. This can significantly impact your life moving forward when it comes to job, social, and economic pursuits.

 Defense Strategy

 Disorderly conduct is one of the most defendable charges in all of Florida criminal law. Despite the broad wording of the statute, a conviction generally cannot stand where the accused merely creates an annoyance, uses profanity, causes a crowd to gather, or displays a belligerent attitude. Simple verbal misconduct is also an insufficient basis for a conviction.

Verbal Conduct- The Protection of Your First Amendment Right to Freedom of Speech

Where a defendant engages in purely verbal conduct, the First Amendment to the United States Constitution limits the application of Florida’s disorderly conduct statute to so-called “fighting words” or “words like shouts of ‘fire’ in a crowded theater.”

“Fighting words” are words, which, by their very invocation, inflict injury or immediately disturb the peace. This contrasts with “shouts of ‘fire’” in that, the latter, refers to false invocations or claims, known to be false, and carry physical harm in their definition. It is important to note that words, themselves, are insufficient to carry a conviction for disorderly conduct.

 Loudness and Belligerence

As noted previously, words alone are insufficient to carry the charge of disorderly conduct or breach of the peace to conviction. Similarly, merely yelling or acting in a belligerent way is not a sufficient condition for carrying this charge to conviction.

Self-Defense

Although this is commonly invoked as a legal defense for charges such as disorderly conduct or breach of the peace, that does not take away from its validity. This defense strategy only applies if the defendant did not provoke the fight or scene themselves. Once evidence of self-defense has been established, the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense falls on the State to sustain a conviction.

Why You Need Legal Representation in this Case

 The umbrella of “disorderly conduct” and “breach of the peace” is purposefully vague and there are many nuances of a potential case to consider before moving forward. My experience as an Assistant State Attorney has exposed me to numerous types of these cases and their commonality lies in their differences. Given the numerous defenses available to contest these charges, an attorney is a vital asset for avoiding a conviction.

If you have question about your disorderly conduct of breach of the peace case please call my office at 407-415-9626 or email me at Jeremiah@JeremiahDAllen.com.