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85.
THE JUDGE RULES: Car Accidents and Legal Responsibility 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
are involved in a car accident. Must you call the police??? Let’s look
at Florida Statutes 316.027-316.070. If
you are involved in a crash in which a person is injured or killed, you
must remain at the scene and give information to a law enforcement
officer. Failure to do so is a felony. The
driver of a vehicle which is in a crash with attended property or an
attended vehicle must stop and give the appropriate information to the
other party. If there are no injuries and the damage is less than $500,
the parties can work it out without police involvement, if they wish. This
can be done only if the vehicles can be driven and the crash did not
involve an intoxicated driver. If they wish to get a report for insurance
purposes, the necessary form can be downloaded from http://www.fhp.state.fl.us/html/crashrep.html.
If the damage appears to be more than $500, or one of the cars cannot be
driven, law enforcement must be called immediately by the quickest means
of communication available. (FS 316.065) Failure to report is a crime. The
driver of a vehicle which is in a crash with unattended property or an
unattended vehicle must stop and attempt to locate the owner. If the owner
cannot be located, the driver’s information must be left in a
conspicuous place and law enforcement must be notified without unnecessary
delay. (FS 316.063) Failure to report and/or leaving the scene of an
accident is a crime. The
information the driver must give includes name, address and the
registration number of the vehicle being driven. Giving information which
the driver knows or should have known is false is a crime. *****(This
example is based on an actual closed case.)***** Dennis
Mancuso was charged with leaving the scene of an accident involving death
or personal injury. Although he said he did not realize it, he struck two
women walking on a dark stretch of Interstate 95 at 4:30 a.m. One woman
was killed and one was seriously injured. Since he knew something
happened, he pulled over on the side of the road and checked out his car.
He saw no debris in the area. He left his disabled car and walked home.
The next day he went to the Police Department to report that his car had
been involved in an accident. He told the police that he heard a loud
noise, everything went black, and his windshield cracked. The
jury was told that it should decide if Mr. Mancuso was involved in an
accident which resulted in death or injury, that he knew or should have
known he was involved in an accident and that he willfully failed to stop
at the scene of the accident. He was found guilty and appealed. The
Justice writing for the Supreme Court of Florida ruled: The jury should
have been instructed that the charge requires proof that the driver knew
of the resulting injury or death or reasonably should have known, not that
he knew there was an accident. Mr. Mancuso is entitled to a new trial.
(652 So2d 370)
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). What
in the world is a “SLAPP” lawsuit and why should you care? “SLAPP”
stands for “Strategic Lawsuits Against Public Participation.” This
subject is all about citizens’ First Amendment rights. A
SLAPP suit is a civil action for damages. It is brought against citizens
or a group of citizens for contacting a public official or informing
people about an issue. It is designed to silence the vocal party or
parties. For
instance, you and several neighbors write a letter to the editor
complaining about Company X allowing its trucks to speed through your
residential neighborhood. Instead of a letter your group could have
circulated a petition, or made phone calls or made speeches at public
meetings. Company X sues you all for defamation, conspiracy, nuisance, and
interference with their economic advantage. You have been “SLAPPed.” SLAPP
suits are rarely successful on their merits. Their purpose is to
discourage people from speaking out. Even if your group wins the lawsuit,
you will have spent time, money and energy defending yourselves. This has
a “chilling” effect on free speech. One
Florida Statute, 720.304, on homeowners’ associations, states that
associations are not to attempt to quiet complainers by filing a SLAPP
suit against them. The court should expeditiously dispose of any SLAPP
suit in a homeowners’ association case. Homeowner’s associations may
not use association funds in prosecuting a SLAPP suit against a parcel
owner. I
found several helpful websites on SLAPP lawsuits. One of the best is
located here: http://www.thefirstamendment.org/antislappresourcecenter.html. Be
prepared. Your free speech could get you SLAPPed. *****(This
example is based on an actual closed case.)***** The
Concerned Citizens of Putnam County filed several petitions with the St.
Johns River Water Management District against the Florida Fern Growers
Association, Inc. The Concerned Citizens had environmental concerns. The
Fern Growers sued the Concerned Citizens for interfering with their
business. The lower court dismissed the Fern Growers’ lawsuit. The
Growers appealed. After
nine pages of complicated discussion, citing other cases and opinions, the
Judge writing for the 5th District Court of Appeal ruled: The right to
petition the government guaranteed to citizens by the United States
Constitution and the Constitution of the state of Florida does not provide
absolute immunity from lawsuits. The Fern Growers allege intentional and
malicious interference with their business. Factual questions must be
addressed as to the mode, manner or purpose of the Citizens’ actions to
determine if they abused the privilege of petitioning government. The case
should not have been dismissed. It should be heard on its merits.
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). Recently
I attended a witch trial in Colonial Williamsburg. The facts of the case
were based on documentation from a real trial. It was a powerful
experience for me. The performers were excellent. It was the 1700’s and
we were there. The
prosecutor presented his case. A witness testified that the Defendant had
caused his crops to fail and his pigs to die. He admitted that the
Defendant had won a court case against him in the past. His wife testified
that the Defendant caused her to lose a child. She testified that she had
birthed several other children with no problems. She lost this child
because the Defendant was a witch and cursed her. Since
the Defendant had been charged as a witch she was examined by a group of
women. A witch would have the “Devil’s mark” somewhere on her body.
A member of the examining group said she saw the “Devil’s mark” on
the Defendant’s body. She said she stuck a pin in the mark and it did
not bleed and the Defendant did not even feel the pin. The Defendant said
she had the marks since birth. The Defendant could provide no witnesses to
attest to this fact. The
local officials who charged the Defendant put her to the standard test. If
she floated on water, she was a witch. If she sank, she was not a witch.
The affidavit from the officials swore that she floated above the water
and did not even break the surface. The
judge, over the prosecutor’s objection, put the Defendant to another
test in front of us. The judge said that authorities assert that a witch
could not recite the “Lord’s Prayer.” If the Defendant could recite
the prayer, she would provide evidence that she was not a witch. The
Defendant put her hands together and began the prayer. Before she could
finish, she gave a violent shutter and passed out. You could have heard a
pin drop in the courtroom. The judge appeared stunned. He told the Bailiff
to remove the Defendant. The
audience was instructed as to how we were to determine our verdict. It was
not a matter of our opinion on the subject of witchcraft, but had the case
been proven in accordance with the law. The
Bailiff said for all those who voted “not guilty” to raise their hand.
He counted hands. He
said for all those who voted “guilty” to raise their hand. He counted
those hands. The
vote was overwhelmingly for guilty and the judge ruled that she was found
guilty. Every
day judges and juries are asked to separate their personal feelings from
their obligation to the law. Witches in America were burned at the stake
in accordance with the law. We
have checks and balances in our judicial system. The legislature makes the
laws. The officer has charging discretion. The Office of the State
Attorney has charging discretion. The judge reviews legal issues
concerning charges and interprets the law. The judge has some discretion
as to sentencing. Juries review facts. Our system is not perfect but with
a vigilant citizenry, we can hope to burn no more witches at the stake.
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). At
Colonial Williamsburg I heard “Patrick Henry” speak and I was
mesmerized. You can hear one of his speeches by clicking on http://www.history.org/Almanack/people/bios/biohen.cfm.
I was reminded once again that we cannot take our rights for granted. Our
Constitution was signed by our founding fathers before “The Bill Of
Rights” was added. There was an urgency to have a document which would
bind the colonies into a united country. Patrick Henry complained that the
document should not be signed until all rights were guaranteed to
colonists. He analogized that a person would not sign a contract and then
negotiate the terms. Fortunately,
the Constitution was amended to add “The Bill Of Rights.” Those rights
were similar to the rights that the Colony of Virginia had already
adopted. Those rights are part of the magic that is America. The
1st Amendment: free speech, right to assemble, no religion established by
Congress. The
2nd Amendment: the right to bear arms so we would have a well-regulated
militia. The
3rd Amendment: no soldiers quartered in private home uninvited. The
4th Amendment: no unreasonable searches and seizures. The
5th Amendment: grand juries in capital cases, no double jeopardy, no
compelled self-incrimination, due process and eminent domain. The
6th Amendment: a speedy and public trial, an impartial jury, ability to
confront witnesses and call witnesses, and the assistance of counsel. The
7th Amendment: the right to a jury trial in civil cases above a certain
value, a jury’s determination of facts shall not be re-examined in any
court. The
8th Amendment: no excessive bail, no excessive fines, and no cruel and
unusual punishment. The
9th Amendment: the rights of the people are not limited to those
specifically listed. The
10th Amendment: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” *****(This
example is based on an actual closed case.)***** The
Defendant objected to allowing a certain witness to testify against him.
The trial court agreed and did not allow the witness. The Office of the
State Attorney appealed. The
judge writing for the 5th District Court of Appeal ruled: The right to
call witnesses is one of the most important due process rights. A witness
should only be excluded under limited circumstances. In this case, the
State was deprived of its right to a fair trial. (855 So2 157)
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
reader asked me about the “right to privacy.” He said the word
“privacy” is never used in the United States Constitution. What makes
it a “right?” The United States Constitution addresses searches and the rules which must be followed for a legal search. The Constitution addresses other areas which could fall under the privacy label. In addition, the 10th Amendment to the United States Constitution gives powers to the states [see column No. 88 on this website for more on The Bill Of Rights]. The states could add other rights. With its power, Florida adopted its own Constitution. The
Preamble states: “We, the people of the State of Florida, being grateful
to Almighty God for our constitutional liberty, in order to secure its
benefits, perfect our government, insure domestic tranquility, maintain
public order, and guarantee equal civil and political rights to all, do
ordain and establish this constitution.” As
published in Florida Statutes 2004, Article 1 of the Florida Constitution
has 25 listed rights. Number 23 is the right to privacy. “Every natural
person has the right to be let alone and free from governmental intrusion
into the person’s private life except as otherwise provided herein. This
section shall not be construed to limit the public’s right of access to
public records and meetings as provided by law.” It
is left to judges and juries to interpret the intent of the legislators in
the wording of the privacy law. It
is interesting to note that the Florida Constitution has been amended at
least 103 times in the last 34 years while the United States Constitution
has only been amended 27 times in 215 years! The
Florida Constitution is supposedly, the easiest constitution in America to
amend. *****(This
example is based on an actual closed case.)***** Guadalupe
Reyes was charged with attempted sexual battery on a person less than 12
years old. He pled guilty to the charge. The judge declared him to be a
sexual predator. The judge ordered him to register pursuant to the Sexual
Predator Act. Defendant Reyes objected claiming that the requirement
violated his constitutional right to privacy. The
judge writing for the 4th District Court of Appeal ruled: The purpose of
the Sexual Predator Act and its registration requirement are of
sufficiently compelling state interest to justify such an intrusion on a
sexual predator’s privacy. This includes the right of the state to
notify the public as to the location of sexual predators in their
community. The order of the lower court is affirmed. (854 So2 816)
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). Last
year, I wrote a column on self-defense [column
No. 52]. Much of the information in that
column will be obsolete as of October 1, 2005. Here is my new and revised
column. The
new law states that the Legislature finds that law-abiding citizens should
be allowed to protect themselves, their families and others from intruders
and attackers. The Constitution guarantees the right of the people to bear
arms in their defense. People should have a right to remain unmolested in
their homes and vehicles. No person should have to surrender his or her
safety to a criminal. No person should be required to retreat in the face
of an attack. After
October, 2005, a person in Florida has no duty to retreat if he or she is
the victim of imminent force. If he or she is in a place lawfully, he or
she may meet force with force except against a law enforcement officer.
Under the old law, if a person punched you, you were to leave, if you
could, and call law enforcement to handle it. The new law seems to state
that now you can punch back without being charged with a crime. Before, if
you punched back, you could have been charged with an affray. The affray
charge meant that you were participating in a fight when you could have
retreated. A
new statute, Section 776.013, was created to spell out the new home
protection laws. A person can use defensive force likely to cause death or
great bodily harm to another if he or she has a reasonable fear of
imminent peril of death or great bodily harm. The fear is presumed to be
reasonable if the person against whom the defensive force was used was
unlawfully in or attempting to get in the victim’s dwelling or occupied
vehicle. A person who unlawfully and by force enters or attempts to enter
a person’s dwelling or occupied vehicle is presumed to be doing so with
the intent to commit an unlawful act involving force or violence. Does
this mean that you can shoot an unarmed burglar in your own home in the
middle of the night? Does this mean you can shoot someone trying to get in
your window? Courts will begin to interpret the intent of the law as cases
go to trial. A
person is justified in the use of deadly force AND DOES NOT HAVE A DUTY TO
RETREAT if he or she believes that such force is necessary to prevent
imminent death or great bodily harm to himself or herself or ANOTHER or to
prevent the imminent commission of a forcible felony. A
person who uses justified force in self-defense is immune from criminal
prosecution. A law enforcement agency may investigate the use of force but
may not arrest the person who used the force unless they determine it was
unlawful. Since
the changes to the self-defense law do not go into effect until October 1,
2005, there are no rulings at this time. |
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