106. THE JUDGE RULES: Electric Personal Assistive Mobility Devices

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

By reading Florida Statutes 322.01(26) and 322.03 together, we can conclude that a person does not need a driver’s license to drive a motorized wheelchair. Good news for the many people who depend on power wheelchairs to get around. It was quite a search to find the specific laws.

On the other hand, although I have never seen a Segway except on television or in the newspaper, we have very clear laws on their use. Some emergency providers are using them and in Mt. Dora, they are available to the public for rent or purchase.

Segways are the upright, single person movers which our legislators must think are the way of the future. A Segway is an electric personal assistive mobility device: “any self-balancing, two-nontandem-wheeled device, designed to transport only one person, with an electric propulsion system with average power of 750 watts (1 horsepower), the maximum speed of which, on a paved level surface when powered solely by such a propulsion system while being ridden by an operator who weights 170 pounds, is less than 20 miles per hour. Electric personal assistive mobility devices are not vehicles as defined in this section.” Florida Statutes 316.003(83)

According to Florida Statutes 316.003(21) an electric personal assistive mobility device is not a “motor vehicle.” It does not have to be registered. It does not have to have a tag or insurance. Its operator does not have to have a driver’s license.

316.2068 tells us where electric personal assistive mobility devices can be operated. They can be operated on a road when the speed limit is under 25 mph. They can be operated on a marked bike path. They can be operated anywhere bicycles are permitted. They can be driven across an intersection even if the speed limit is over 25 mph.

A person under 16 must wear a properly fitted bicycle helmet while operating an electric personal assistive mobility device.

The Department of Transportation, a county or a municipality may prohibit the operation of electric personal assistive mobility devices if necessary in the interest of safety. (FS 316.2068[5][6])

*****(This example is based on an actual closed case.)*****

The Plaintiff sued Festival Fun because he was hurt driving one of their little recreational vehicles. The Plaintiff claimed it was a “motor vehicle” and the Defendant said it was not.

The Plaintiff relied on the dangerous instrumentality doctrine which attaches all kinds of liability to all sorts of vehicles. If the vehicle is a “motor vehicle,” it is automatically considered dangerous to others.

The Judge writing for the 4th District Court of Appeal ruled: Just because the item in question is a vehicle and has a motor does not make it a “motor vehicle.” If the particular motorized vehicle in question is excluded or not included in the legal definition of a “motor vehicle,” the dangerous instrumentality doctrine does not apply. The Plaintiff has the burden of proving the vehicle is a “motor vehicle.” (Festival Fun No.4D03-4252)

[Column No. 61 has information regarding Motor Vehicles, Motorcycles, Mopeds, and Scooters.]

107. THE JUDGE RULES: Motorized “Scooters” and More

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

As our community ages we see more and more people needing assistance with mobility. Many people operate a thing with wheels that most of us would call a “scooter.” That name may not be legally correct, but for this column, I shall use that term.

Some law enforcement agencies with whom I have conferred view a handicap “scooter” as a “motorized wheelchair” which does not require a driver’s license to operate and does not need to be tagged. If their understanding is correct, a motorized handicap “scooter” could be operated in a parking lot, driven down sidewalks or across roads. Some agencies view them as undersized motorcycles which cannot be tagged and therefore cannot be operated in parking lots, driven down sidewalks or across roads. Check with your local law enforcement agency for their interpretation.

All agencies agree that no vehicle of any type can be operated by someone who is impaired by alcohol.

All of the handicap “scooters” I have seen are electric and are not specifically addressed in any statute I have found. Gas operated “scooters” are addressed in Florida Statute 320.01[34]. It states that a “motorized disability access vehicle” is one “designed primarily for handicapped individuals with normal upper body abilities and designed to be fueled by gasoline, travel on not more than three wheels, with a motor rated not in excess of 2 brake horsepower and not capable of propelling the vehicle at a speed greater than 30 mph on level ground, and with a power-driven system that functions directly or automatically without clutching or shifting gears by the operator after the drive system is engaged. If an internal combustion engine is used, the displacement may not exceed 50 cubic centimeters.” Motorized disability access vehicles shall be registered in the same manner as motorcycles. (FS 316.2124)

Here are three changes to Florida Statutes which may be of interest to the mobility impaired:

… 316.1303: The definition of a mobility-impaired pedestrian now includes those using guide dogs.

… 319.30: Wheelchair access vehicles with damage greater than 80% of their value may be repaired if they can be made safe. A new title will be issued for the rebuilt vehicle labeling it an insurance declared total loss.

… 320.0843: The person who is eligible for a license plate with a wheelchair symbol must be listed on the registration certificate.

*****(This example is based on an actual closed case.)*****

While operating a “Go-Ped,” Corine Riley received a criminal charge of Driving While License Suspended. She filed a Motion To Dismiss because she says a “Go-Ped” is not a motor vehicle and one does not need a driver’s license to drive it on the road.

The Judge writing for the 2nd District Court of Appeal ruled: While it may defy common sense, the law is clear that a “Go-Ped” is a motor vehicle and requires a valid driver’s license for its operation. Judges cannot rewrite laws. The Motion To Dismiss is denied. (698 So2 374)

[Column No. 61 has more information regarding Motor Vehicles, Motorcycles, Mopeds, and Scooters.]

108. THE JUDGE RULES: Windshields and More

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

You must have a windshield on your car or truck if you drive it on a Florida road.

Florida Statutes 316.2952 directs that your windshield must have a safety glaze. It cannot be obstructed by anything but a sunscreen strip at the top, a required document or a device for toll paying. It shall have a working windshield wiper. Sounds simple enough but as usual, it is not.

Florida Statutes 316.610 makes it unlawful to knowingly drive a vehicle in such an unsafe condition that it endangers any person or property.

*****(These examples are based on actual closed cases.)*****

1. An officer stopped Hilton to give him a ticket for a cracked windshield. The officer spotted a gun in Hilton’s car. Upon further search, 40 bags of marijuana were discovered. Hilton filed a Motion claiming the officer had no right to stop him for a cracked windshield.

The Judge writing for the 2nd District Court of Appeal ruled: An officer has a right to stop a vehicle with a cracked windshield in order to inspect it for safety purposes. Because a windshield is required by law, it is a violation to drive a vehicle with a windshield that is not in proper condition. Hilton’s Motion is denied. 30 FLW D453

2. An officer stopped Burke for a cracked windshield. Burke filed a Motion claiming the officer had no right to stop him for a cracked windshield. At the hearing, the officer could not remember the details about the crack in the windshield because he had stopped so many cars since that one. He could only remember that it was badly cracked.

The Judge writing for the 4th District Court of Appeal ruled: The State could not prove that the crack in the windshield was a safety problem. The stop was no good. Burke’s Motion is granted. 30 FLW D1435

3. A Deputy saw a cracked or broken windshield and stopped the vehicle. As he was investigating the 14-inch crack in the windshield, he smelled marijuana. Howard was arrested for marijuana charges. He filed a Motion claiming that the deputy had no right to stop him for a cracked windshield.

The Judge writing for the 1st District Court of Appeal ruled: We are aware the 2nd DCA and the 4th DCA do not agree. We invite a higher court to review the conflicting decisions. We agree with the court in the Hilton case. We believe the officer has a right to make the stop to investigate a cracked windshield no matter how serious the crack. 30 FLW D1896

4. The officer stopped the motor home for a cracked windshield. Mr. and Mrs. Breed filed a Motion claiming that the officer had no right to stop them for a cracked windshield.

The Judge writing for our 5th District Court of Appeal ruled: A stop of a motor vehicle for a cracked windshield is valid. 30 FLW D1457

109. THE JUDGE RULES: Changes in Traffic Laws

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

This column will highlight some changes in traffic laws. For more information you can look up the statutes online. I have paraphrased them based on my current understanding.

Florida Statutes 316.191: The vehicle of a driver sentenced on the charge of Racing On A Highway may be impounded for ten business days.

318.18: The fine and points for failing to stop at a traffic signal are increased. Two convictions within 12 months will result in the suspension of the driver’s license unless he or she completes a driving improvement course.

316.083 and 316.155: A turn signal is required when overtaking a vehicle and when changing lanes.

316.3045: It is a violation for a sound-making device to be plainly audible from 25 feet.

318.14 and 318.21: $1000 shall be added to any civil penalty imposed for a traffic infraction which resulted in a death and the driver’s license shall be suspended for 6 months. $500 and a 3-month driver’s license suspension shall be added to any civil penalty for an infraction which resulted in serious bodily injury.

316.183: If the speed limit is 70 mph, the minimum speed shall be 50.

316.1936: A class D license will no longer exist.

322.54: A class C license is required if the vehicle being driven has a gross vehicle weight less than 26,001 pounds and holds more than 15 passengers.

322.051 and 322.142: A full face photograph is required for an identification card or driver’s license no matter what a person’s religious beliefs are.

316.614: A driver may be stopped if anyone in the vehicle under 18 is not properly seat-belted.

903.286: Requires the Clerk of Courts to deduct court debt from cash bonds.

*****(This example is based on an actual closed case.)*****

A young man was arrested for a traffic offense. The Defendant’s father bonded him out of jail for $250 cash. The Defendant was later found guilty and fined $180 and ordered to pay mandatory costs of $210. The Defendant and his father wanted the cash bond back since the Defendant appeared when scheduled. The Defendant said he would make payments on the fine and mandatory costs.

Judge Miller ruled: Florida Statutes 903.286 now requires the Clerk of Court to deduct the mandatory costs and monetary penalties from any cash bond even if the Defendant appeared when scheduled. The Clerk keeps the cash bond. The Defendant can repay his father.

110. THE JUDGE RULES: Search and Seizure

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Search and Seizure remains one of the most fought over concepts in our legal system. While we want to be safe from terrorists, we still want our privacy. We don’t want law enforcement officers to overstep their authority. We don’t want to be stopped and searched without a legal basis. Sometimes by enforcing our search and seizure rules, a suspect who is found in possession of drugs cannot be convicted. The results of an illegal search cannot be used against a Defendant. The Judge cannot base the decision upon what is found. The legality of the search itself is the issue.

The consent to search their cars which drivers give to officers does not give the officer the automatic right to frisk the drivers.

A Florida judge has ruled that fans entering a football stadium cannot be frisked without cause. It is less intrusive for people to go through scanning devices. Touching people during a search is more invasive. Other Judges in other states have approved frisking people before they enter stadiums. Miami law enforcement has decided to frisk people whenever they choose for terrorist control. I’m sure that issue will make it to court soon.

In the Breed case (30 FLW D1457), the officer stopped the driver of a motor home for a traffic infraction. The officer asked the driver if he had any weapons. The driver said he had knives in the motor home kitchen. The officer asked if he could look. The driver said, “yes.” The officer entered the motor home to look and continued to look for three hours. Illegal items were found and the driver was arrested. He argued that a 3-hour search in a traffic infraction stop was unreasonable. The appellate court didn’t agree. The search was deemed voluntary.

Higher courts have continuously ruled that law enforcement cannot have a dog sniff the exterior of a house to detect drugs inside but law enforcement can have a dog sniff a vehicle during a lawful traffic stop.

If you are arrested and your car is going to be impounded, law enforcement can do an inventory search of the contents of the vehicle.

*****(This example is based on an actual closed case.)*****

The officer had “reasonable suspicion” and made an investigatory stop of Mr. Collins. When Mr. Collins started to flee, the officer grabbed his jacket. The jacket was left behind as the Defendant ran. The officer searched the jacket and found cocaine. When Mr. Collins was caught he was charged with possession of cocaine. He fought the charge saying that the officer had no right to search his jacket.

The Judge writing for the 2nd District Court of Appeal ruled: Mr. Collins continued to run after the jacket came off in the officer’s hands. Mr. Collins clearly abandoned the jacket. He had no privacy interest in an abandoned jacket. The officer had a right to search the jacket and the evidence found could be used against Mr. Collins. (874 So2d 724)  

[Column No. 8 also has information regarding Search and Seizure.]

111. THE JUDGE RULES: Securing Children in Vehicles

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Failure to properly secure children in a vehicle is now a primary offense. An officer can stop you for not having your child properly restrained and ticket you. Florida Statute 316.613 states that a child through 3 years of age must be in an approved carrier or child seat. All other children under 18 must be properly restrained by a carrier, car seat or seat belt while in a motor vehicle.

Until an infant is at least one year old and at least 20 pounds, he or she must be in a rear-facing car seat in the back seat. Never put an infant in the front seat. The air bag could be deadly to an infant in the front seat. Route the harness straps in the lower slots at or below shoulder level. Keep the harness straps snug and fasten the harness clip at armpit level. Put the car seat carrying handle down. The seat should be at a 45-degree angle. The fit should be tight. The seat should not move more than an inch in any direction.

While a rear-facing car seat is still a good idea, if your child is over 1 year old and is between 20 and 40 pounds, your child can be in a forward facing car seat in the back seat. Route the harness straps in the upper slots at or above shoulder level. Place the car seat in an upright position. Keep the harness straps snug. Fasten the clip at armpit level. The seat should not move more than an inch in any direction.

The National Safe Kids Campaign recommends that each car seat have a tether. The tether is a strap that attaches the top of a car seat to an anchor in the vehicle. It keeps the child’s head from moving forward in a crash.

It is recommended that children between 40 and about 80 pounds travel in booster seats. Children are too small to be properly protected by seatbelts designed for adults. The booster seats must be used with both lap and shoulder belts.

To be protected by a standard seatbelt, a child must be tall enough that his or her knees bend at the edge of the seat while the child is sitting up straight.

Most car seats are used incorrectly. Have a specialist at your local law enforcement agency or fire department check your car seat. Most crashes happen close to home. Even if you are just going a short distance, take the time to correctly secure your child. Don’t allow children to ride unrestrained at any time in any part of the vehicle.

*****(This example is based on an actual closed case.)*****

The Department of Children and Family Services rescued a baby which had been abandoned by an unwed mother. At the weekend emergency hearing, I was asked to do an Order placing the child in temporary shelter care. Much to my surprise, the father of the baby showed up at the hearing. He convinced me that he should have at least temporary custody of his baby. I was ready to hand him the baby. I asked if he had a car seat for the baby. Not only did he not have a car seat for the baby, his car already had more occupants than it could legally transport.

Judge Miller ruled: The baby would be placed in a temporary shelter. The father was ordered to return during regular working hours with a properly installed car seat/carrier for the baby. http://www.safekids.org.  

[Column No. 37 has more information regarding Seatbelt and Child Restraint Laws.]