73. THE JUDGE RULES: Driving Rules for Funeral Processions and Emergency 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).

A Lake County Deputy Sheriff was killed in the line of duty. A sadness is shared by the community. Thousands showed their respect to the family and other law enforcement personnel by attending the funeral. Officers from around the state formed a very long funeral procession. It went down major roadways and lasted an hour. Everyone on the road needed to understand the special rules for funeral processions and emergency vehicles.

Drivers and pedestrians must yield the right of way to a funeral procession. No matter what the traffic control device indicates, no matter what the street markings might indicate, a funeral procession shall have the right of way. The procession can continue through an intersection even if the light changes.

It is a courtesy to pull over for a funeral procession even if you are not in their right of way.

Those in the procession would still have to yield to an emergency vehicle. They must obey a law enforcement officer’s commands. They must exercise due care. Those in the procession must follow the preceding vehicle in the funeral procession as closely as is practical and safe. Each vehicle in the procession shall have its headlights on and may use flashing hazard lights.

There may also be emergency vehicles on the road. Drivers are required to pull over for emergency vehicles. If an emergency vehicle is approaching, a driver shall immediately pull over as safely as possible and remain stopped until the emergency vehicle has passed. Other vehicles should allow the stopped vehicle to pull back into the roadway after the emergency vehicle has passed.

If an emergency vehicle is on the side of the road, drivers shall vacate the lane closest to the emergency vehicle if possible. If the lane cannot be vacated, the driver should slow down to a speed that is at least 20 miles per hour below the speed limit. If the posted speed limit is less than 25 miles per hour, the driver should slow down to 5 miles per hour.

Be careful and patient if a funeral procession or an emergency vehicle impacts your driving.

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

A funeral director led a funeral procession. Agents of the funeral home had organized the procession. All participants were advised to turn on their headlights. As the procession approached Davis Street, the lead driver eased into the intersection. He signaled for other non-procession traffic to stop. He proceeded through the intersection and the rest of the procession followed. A car hit the vehicle of a member of the procession. He sued the funeral home for not providing adequate protection for the participants in the funeral procession.

The judge writing for the 1st District Court of Appeal ruled: The funeral director in the lead car did not have a duty to see that all the cars following him in the procession crossed the intersection safely. Each car in the procession had a duty to exercise due care to avoid a collision. The lawsuit against the funeral home is dismissed. 411 So2d 273

74. THE JUDGE RULES: Authority and Jurisdiction

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 a county judge I can only hear cases in Lake County unless I get a special order to expand my authority. It works the same way with Lake County Deputies. Their authority only covers all of Lake County unless a special order gives them the authority to act in another county.

Municipal officers only have authority to act in their own cities unless there is a special order to give them authority to act outside their cities.

Three exceptions to the limited authority of law enforcement might be fresh pursuit, fellow officer’s command and citizen’s arrest.

1.) An officer is in fresh pursuit (FS 901.25, 941.37) when he sees certain illegal acts in his jurisdiction and follows the suspect out of the officer’s jurisdiction. The officer may arrest the person outside his jurisdiction for those specified illegal acts, if the offense took place within his jurisdiction.

2.) An officer making a lawful arrest can command the aid of others necessary to make the arrest. If a Lake County Deputy is having difficulty arresting Mr. DUI, he could command an officer from the nearest city to help him. That officer would then have arrest powers. (FS 901.18)

3.) Another exception could be “citizen’s arrest.” Under certain circumstances a person can arrest another without the authority of a badge. With a “citizen’s arrest,” jurisdiction does not matter.

A Florida Highway Patrol Trooper has arrest powers throughout the state in every county and every city. A federal law enforcement officer has arrest powers in every state in the country.

Unless an officer is where he or she has authority, he or she usually does not have arrest powers unless the case falls into one of the exceptions.

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

Officer Long from Altamonte Springs was called to the scene of a motor vehicle crash. Maitland Fire and Rescue was already at the scene when he arrived. The paramedics advised that they smelled alcohol on the Defendant. Officer Long observed that the vehicle had come to rest in the City of Maitland after hitting a curb in the City of Altamonte Springs and spinning out of control for about 270 feet. Officer Long charged the Defendant with DUI. The Defendant argues that the officer was outside his jurisdictional limits. He had no authority to investigate the crash which took place in Maitland. He further argues that the officer had no authority to arrest him for DUI.

The Judge writing for the 5th District Court of Appeal ruled: There was competent evidence to conclude that the Defendant lost control of his vehicle in Altamonte Springs before he slid into Maitland. Officer Long investigated a crime of DUI which occurred in his city as he had the authority to do. Officer Long acted properly. (30 FLW D115)

75. THE JUDGE RULES: Law on Negligence

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Most of us leave our garbage cans near the road on trash pickup day. Let’s say that I don’t take my garbage can in right after it is emptied. Two people drive by and smash my garbage can with a baseball bat. They are found guilty of criminal mischief. They are ordered to pay me the fair market value of my garbage can jointly and severally. That means each of them is responsible for the whole debt. I can’t get paid twice, but I can go after either one of them for all the money.

Let’s say I don’t take my garbage can in right after it is emptied and it rolls into the road. Mr. Smith is going a little too fast and he isn’t paying close enough attention. He can’t stop in time. He runs over my garbage can. I sue him for negligence. He should have been more careful. My garbage can was worth $100 and I want him to pay me.

In a civil negligence case a judge may consider Florida Statute 768. The court is to enter judgment on each party on the basis of each party’s percentage of fault. “Any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and non-economic damages for an injury attributable to the claimant’s contributory fault.” The judge could find that the damage was 50% my fault and award me only $50. Or the judge could find it was 90% my fault and award me $10. The driver could have counter-sued me for the damage to his car. He could claim I was negligent in leaving the garbage can out. The same proportion could hold true for the damages to the driver’s car. We could each sue the garbage pickup person for leaving the can on its side so that it would roll with a good wind. FS 768.81 attempts to establish a formula for apportionment of damages. It is complicated but important to read if you are involved in a negligence lawsuit.

Years ago if a child darted in front of a car, the driver often won the lawsuit without a trial. It was the child’s fault for darting into the road. Now we have the doctrine of comparative negligence. The question must be answered as to whether the driver had any fault. (29 FLW D2739) Damages would be apportioned based on fault.

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

A man committed suicide by running in front of a tractor trailer driven by Mr. Rowell at 70 miles per hour down an interstate highway. The brakes of the tractor trailer locked and it swerved and struck a vehicle driven by Mr. Salinas. Mr. Salinas sued Mr. Rowell for allowing the tractor trailer’s brakes to lock which caused it to crash into Mr. Salinas. On the verdict form, the court listed the name of the person who committed suicide, so that the jury could apportion fault between him and the other parties. Mr. Salinas objected and appealed.

The Judge writing for the 1st District Court of Appeal ruled: The lower court erred in listing the name of the man who committed suicide. His act was deliberate and not negligent. The jury should not have the opportunity to apportion fault with him in this negligence lawsuit. (30 FLW D79)

76. THE JUDGE RULES: The Right to Remain Silent, and When You Can’t

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 have a right to remain silent, anything you say can and will be used against you.” (Commonly known as Miranda warnings.) Sometimes your silence can get you in trouble and sometimes your silence cannot be used against you.

It could be used against you if an officer in the legal execution of his duty such as in a traffic stop asks you to identify yourself. If you refuse you might be charged with obstructing a law enforcement officer. At your trial the jury could hear that you refused to give the required information.

If an officer is investigating a loitering and prowling, you must identify yourself and explain why you are at the place in question. If you refuse, you could be arrested and the jury could hear that your refused to give the required information needed to dispel any alarm.

When you are subpoenaed you are sworn or affirmed to answer truthfully. You have a Constitutional right to refrain from saying things which could incriminate you. Otherwise, you are usually compelled to testify and cannot legally remain silent.

A Defendant does not have to testify. The jury instructions direct, “In every criminal proceeding, a Defendant has the absolute right to remain silent. At no time is it the duty of the Defendant to prove his innocence. From the exercise of a Defendant’s right to remain silent, a jury is not permitted to draw any inference of guilt and the fact that the Defendant did not take the witness stand must not influence your verdict in any manner whatsoever.”

A married couple may have a limited privilege not to testify against each other.

A person can waive his or her right to silence.

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

Ronald Robbins got into a fight with Starkey and Coffman. Robbins ended up shooting Starkey who died from the injuries. Robbins told the police that Starkey and Coffman had hit him with bottles and sticks. Robbins was charged with second-degree murder.

At his trial, Robbins told the jury that he was threatened by a knife in addition to the other weapons. The prosecutor pointed out to the jury that the Defendant never mentioned a knife to law enforcement. The Defense objected that the prosecutor was commenting on the Defendant’s right to remain silent. The Court denied the objection and the Defendant appealed.

The Judge writing for the 5th District Court of Appeal ruled: The prosecutor’s comments to the jury were improper comments on the Defendant’s right to remain silent. The Defendant was denied a fair trial and is entitled to a new one. (30 FLW D65)

77. THE JUDGE RULES: Custody of Children

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).

It may take a village to raise a child but somebody has to have custody.

In Florida, if the parents are not married, the mother is the natural guardian of the child. Unless she is unfit, she should get custody of her child unless a court rules otherwise. Boyfriend and girlfriend break up and he wants to take the child. The police are called. Without a court order to the contrary, unless the mother is unfit, she gets the child. The father can go to court later.

If the parents are/were married, they can agree to custody or residential placement. If they cannot agree, a court will decide. This is usually done in a divorce but it can be done at other hearings such as an Injunction For Protection hearing.

In making the custody decision, the court is to determine the placement which is in the child’s best interest. The court should determine which parent is more likely to allow the child frequent and continuing contact with the non-residential parent. Is there a bond of love and affection between the parent and child? Can the parent provide for the child? Continuity of placement may be considered. Moral, mental and physical fitness of the parent may be evaluated. The preference of the child may be considered. The court will consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. Domestic violence issues will be a factor.

Florida Statute 751 addresses temporary custody of minor children by their extended family. This could include a man who believes he is the father but cannot prove it because the mother is not available.

An infant abandoned pursuant to FS 63.0423 is placed with a licensed child-placing agency which shall have custody until further order of the court.

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

Mrs. Kaschak was awarded primary residential responsibility for the children in the divorce. She was to allow the father to have visitation. Mr. Kaschak took her back to court because she refused to let him exercise his visitation rights.

The Judge writing for the 1st District Court of Appeal ruled: When a custodial parent refuses to honor a non-custodial parent’s visitation rights without proper cause, the court shall award the non-custodial parent a sufficient amount of time to make up for the lost visits. The court may award custody or rotating custody, or primary residence to the non-custodial parent, if the award is in the best interest of the child. Because Mrs. Kaschak denied the father his visitation rights without proper cause, it is appropriate to give the father primary residential responsibility. (30 FLW D78)

78. THE JUDGE RULES: Volunteer Bailiffs and Volunteer Mediators

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).

The volunteers at the Lake County Courthouse are extraordinary. I work with two groups, volunteer bailiffs and volunteer mediators.

At a typical arraignment day about 85 people appear. Some do not speak English, some are nervous, some are confused, all would rather be somewhere else. The volunteer bailiffs assist the courtroom deputy. They organize the Defendants and seat them in the courtroom. They get the Defendants’ names and bring me the files. They help the Defendants understand what is going on. They help the Defendants get the correct paperwork. They give Defendants directions to other places. One of the volunteers translates for us. They work almost every Wednesday and they work non-stop for hours. They are amazing. I thank them from the bottom of my heart.

The volunteer mediators are an unbelievable group. On their own time and with their own money they take the courses necessary to become certified mediators. Then they must be re-certified every two years. They must have 16 hours of continuing education and 4 hours of that must be in ethics. They mediate cases for which the damages are up to $5000 and would be heard in small claims court.

42.5% of the cases are over a loan. 19% of the cases they mediate are over non payment for goods and 12% for non payment of services. Auto repairs make up 4% of their cases. Breach of Contract cases account for 5%. Other cases include property disputes, animal disputes, bad checks and more.

In 2004, they mediated 764 small claims cases. A remarkable 76.2% of the cases they mediated were settled. Those are cases that a judge will never have to see. Think of the hours they have saved your county court judges. They have helped us handle the caseload without a third county judge. Think of the dollars that they have saved the county.

Their volunteer director is Gil Fayerman. He and his team deserve our admiration and gratitude. Thank you, Lake County Mediators. You really make a difference.

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

The parties entered into a mediated settlement agreement. P was to pay R within a specified time. The court retained jurisdiction to enforce the terms of the agreement. P paid the money on time but R wanted P to produce some additional paperwork. P refused to provide the additional paperwork. R filed a motion to have the court force P to provide the documents.

The Judge writing for the 2nd District Court of Appeal ruled: The court only has jurisdiction to enforce the exact terms of the mediated agreement. The terms cannot be expanded. While R can file a new lawsuit, the court, in this lawsuit, cannot make P file the papers because that condition was not part of the mediated agreement. (30 FLW D213)