"I was only drinking at red lights and stop signs, officer!"

I'm sure you heard that creative defense from the Florida man out in Vero Beach when he was stopped for suspicion of DUI. He was stopped after a woman called police to complain about him continually hitting her bumper with his car while waiting in line at the McDonald's driver thru. The police officer showed up and saw a bottle of Jim Beam in the passenger seat next to Earle Stevens, Jr., the driver. According to the officer, as reported in the Orlando Sentinel, the questioning then went something like this: 

"I asked him if he was drinking in the vehicle and he stated, 'No.' When I asked him where he was drinking he stated, 'Stop signs.' He further explained that he was not drinking while the car was moving and only when he stopped for stop signs and traffic signals." 

Thodonal/Getty Images/iStockphoto

Unfortunately for Mr. Stevens, that defense won't hold up even in Florida. While I'm sure the Florida legislators didn't have Mr. Stevens in mind when they wrote the Florida's DUI law, they certainly considered his defense. The Florida statute, located at section 316.193, states: 

"A person is guilty of the offense of driving under the influence...if the person is driving or in actual physical control of a vehicle within this state...."

While there was a witness to Mr. Stevens' driving (the woman he kept running his car into), assume the officer just showed up and saw him sitting in his car with a bottle of Jim Beam. He didn't see Mr. Stevens driving the car, but only came upon him allegedly under the influence and next to an open bottle. This would be a situation where the prosecutor must show that Mr. Stevens was in or on the car and had the capability (or practical ability) to drive it. 

Using the alleged facts of this story (and not commenting on whether he is guilty or not), Mr. Stevens' defense fails in many ways. First, even though he was drinking while stopped, he was still driving while under the influence. But even if Mr. Stevens didn't talk to the officer and admit to having those drinks while stopped, the officer found him in the vehicle, stopped, apparently under the influence of alcohol and with an open bottle of Jim Beam next to him. While a jury could certainly acquit Mr. Stevens (whether it be a lack of other evidence or based on the inherent jury nullification power), the State could proceed with its case based on those facts. 

In fact, there have been cases where actual physical control was found when: a person was lying down in the front seat of a car parked in the parking lot while the engine was off and cold but had keys in the ignition; or if a person was slumped behind the wheel of a parked car and the keys were in his hand; and where a person was found in a stopped car where the keys were not in the ignition but somewhere else in the passenger compartment. In one situation, though, it was found that while the driver passed out in the car, but with the keys outside on the hood of the car, there was not enough for the case to proceed to the jury.

The idea behind actual physical control, according to the legislature, was to prevent impaired people from getting behind the wheel of a car. Unfortunately, an impaired person trying to do the right thing by not driving at all and sleeping it off in the car could still be arrested and prosecuted for DUI. The argument from the State would presumably be that the driver could still drive away while impaired or even that the driver drove impaired to that location and stopped the car. And typically, in these cases of actual physical control, it will be left for the jury to decide. 


George C. Palaidis is a criminal/DUI defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Standing Your Ground...on the Tennis Courts?

Last night I came across an interesting article out of Miami regarding a Stand Your Ground case involving a tennis instructor and a 5 year old student. Yes, that's right, the adult tennis instructor is invoking Stand Your Ground (SYG) immunity in a case where he is alleged to have hit the young boy with the boy's tennis racquet. As always, though, there is more to the story and an actually viable claim for SYG immunity.

According to the defendant, Osmailer Torres, and his attorney, Eduardo Pereira (whom I know and have worked with and consider a fine attorney), the boy had a history of "various violent altercations" against the other tennis students. In this situation, the boy was the "initial aggressor" who, after being separated from the other kids, lifted his racquet "in the air and was poised to strike again against the other students and Mr. Torres." 

In the process of taking away the child's tennis racquet, Torres hit the child causing a bruise on the right arm and a lump on the eyebrow. Torres and his attorney claim it was inadvertent as he tried to protect the other children, while the State Attroney's office claims video of the incident doesn't show the boy aggressively approaching any of the other students. 

Here's the nuance in SYG that you may not have seen before: the law allows a person to use force against another if that person reasonably believes the force "is necessary to defend himself or herself or another against" the imminent use of unlawful force. See, Fla. Stat. § 776.012(1). In other words, a person can use force in defending others against another attacking them. 

So while it may not seem reasonable that Torres defending himself from a 5 year old swinging a tennis racquet, it is certainly reasonable that he was defending other children from the actions of this boy and in the process of using force to remove the racquet from the boy's hands may have caused some injuries. According to Assistant State Attorney Gabriela Plasencia, however, the State doesn't believe Torres was acting under any imminent threat of danger to himself or others based on the video.

The case certainly changes once more of the facts are known and that the SYG law protects those who also defend others.  

The hearing on the SYG motion is set early next year before Judge Oscar Rodriguez-Fonts. It will be interesting to see what the happens at the hearing.

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

A Primer on Probation, Courtesy of Meek Mill

I’m sure we all woke up this morning shocked to hear that rapper Meek Mill had been sentenced to prison time following separate arrests while on probation. While some of you may not be aware of who Meek Mill is (previously with Miami-based rapper Rick Ross’ Maybach Music Group and now with Jay-Z’s Roc Nation), what happened to him on probation is what I want to discuss.

Photo: Matt Rourke, AP

Arrested and charged on drug and weapons charges back in 2008, Mill took a guilty plea that resulted in eight months prison followed by five years of probation.  That’s where his problems really begin. Probation is extremely difficult for anyone to do, let alone someone in the limelight.

In Florida, for example, a judge can sentence a defendant to an amount of time of probation up to the maximum possible sentence the law allows on the charge. For example, if someone is charged with a third degree felony which is punishable by up to 5 years, the judge could sentence the defendant to 5 years of probation.

While on probation, many limitations and requirements are placed upon the defendant, which often lead to violations of probation. For example, the probationer (someone on probation) must check in with the probation officer once a month, undergo drug testing, not leave the county of residence without prior permission, pay the costs of testing and probation, usually attend classes related to the crime, and of course not commit any new law violations. A violation of any one of these (or any other additional condition the judge adds) can expose the probationer to the maximum sentence allowed under the law.

A probationer on one year of probation for a third degree felony would be facing up to five years in prison on a violation for any of those terms of probation. And the time served out on probation doesn’t count towards that prison sentence.

Probation, though, also gives a judge a great deal of flexibility. A judge can do what the judge initially did in Mill’s case: after he violated by travelling without permission, the judge extended the probation to 10 years (and added another 5 months in prison).

Mill continued having issues while on probation and the judge, by my view, was a little more lenient than others with how he handled it. In March Mill was arrested for a fight at an airport, and in October for reckless driving. Though the March charges were dropped, he pleaded guilty to the reckless driving charge. Those two incidents were all Judge Genece Brinkley needed.

As Mill’s case shows, a judge can still find that there has been a violation of probation even if the criminal charges on the new law violation are dropped. All a judge needs is probable cause that the new violation occurred (the same standard to make an arrest) and the judge can modify, extend, or revoke the probation and, in the case of revocation, sentence the probationer to a term of time in prison. Mill’s guilty plea to the reckless driving also didn’t help, but wasn’t the sole reason.

This is why probation is often called “prison on layaway.” An offer is made of little to no jail time, followed by so many years of probation. The probationer, to quote Meek Mill, probably thinks "Sounds like a bargain to me."1 

And as often happens, some violation down the road exposes the probationer to the maximum incarceration time allowed by statute which s/he thought was going to be avoided by taking the initial plea offer. That appears to be the case now with Mill. The judge worked with him through all of the previous violations, but ultimately revoked the probation and sentenced him to 2-4 years in prison.

That’s why it’s important, if you violate probation, to have your attorney reach out to the probation officer and state attorney to begin negotiating out the best possible resolution. It is better to resolve the violations if you can before getting in front of a judge at a violation of probation hearing, because at least you have a chance to bargain to get a result you can handle. 

1 Meek Mill. "I'm Leanin (Intro)." Dreamchasers 3, Maybach Music Group and Dream Chasers Records, 2013. 

George C. Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Stand Your Ground Immunity Isn't as Immune as You Thought

You might determined immune from prosecution for standing your ground, but you can still be sued. That’s the message from the Florida Supreme Court last week in the newest ruling deciphering Florida’s Stand Your Ground law. In Ketan Kumar v. Nirav C. Patel, SC16-1457, the Court held that immunity granted in a criminal case based on the Stand Your Ground law does not also confer immunity in the related civil case.

The facts follow the general pattern of most in Stand Your Ground cases. Without provocation, Kumar attacked Patel at a Tampa bar. In response, Patel struck Kumar in the head with a drinking glass, which shattered on impact. Patel was charged in criminal court where he then filed a motion to dismiss based on Stand Your Ground immunity. The criminal court judge granted immunity and dismissed the case after an evidentiary hearing on the motion where witnesses testified as to what occurred.

While the criminal case was pending, Kumar filed a civil lawsuit against Patel seeking monetary damages for battery and negligence. The civil trial judge, though, decided not to follow the criminal judge’s immunity determination and ordered a separate Stand Your Ground evidentiary hearing in the civil case, resulting in Patel’s appeal. The Second District Court of Appeal, in Patel v. Kumar, held that the immunity determination by the criminal court judge conferred immunity in the civil case also, thereby preventing the civil case from proceeding.

The Supreme Court took the case up because it conflicted with the Third District Court of Appeal in Miami-Dade County, which had previously held in Professional Roofing & Sales, Inc. v. Flemmings that an immunity determination by a criminal court judge did not apply to the related civil court case, allowing the civil case to proceed and a separate hearing on immunity before the civil judge.

The Supreme Court, siding with the Third District, held that the immunity determination by a judge in one case did not automatically confer immunity in the other case. The decision, written by Justice Alan Lawson, listed many factors, of which all were largely based on ambiguities in the statute and lack of clarity from the Legislature. In analyzing the statute, the Court determined that the Legislature implied there would be separate determinations in civil and criminal courts when it allowed for an award of attorney’s fees and costs in a separate civil proceeding. The Court also noted that the 2017 amendment of the statute created different burdens of proof for determining criminal and civil immunity, again implying separate determinations without explicitly saying so.

The Court also found that the Legislature did not expressly abrogate the common-law doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion), and thus each still applied to a determination on Stand Your Ground Immunity. To the non-legal readers, res judicata and collateral estoppel essentially stand for the premise that a claim or issue that has been decided by one court can’t be brought up again and re-litigated when certain factors are met. Those factors include the same issue or thing being litigated over, “mutuality of parties,” and a full and fair opportunity to litigate the issue in the prior proceeding.

A key element in both res judicata and collateral estoppel that is critical to a Stand Your Ground case is the element of “mutuality of parties.” Unless the same parties participated in the prior litigation that resulted in the judgment or determination, the determination isn’t binding in any other litigation. The element of “mutuality of parties” thus requires both Patel and Kumar be parties in the criminal case AND the civil case. In the criminal prosecution, though, the State of Florida, not Kumar, was the opposing party to Patel. Kumar was of course the witness/victim, but he was not an actual party to the criminal prosecution. Because of that, the criminal determination as to immunity could be re-litigated in the civil case since the element of mutuality of parties was not met.

Both the Second and Third Districts make compelling arguments in their opinions and I certainly recommend reading both. It seems clear to me, after reading the Supreme Court’s opinion, that the Court is not impressed with the Stand Your Ground law as drafted. The opinion could almost be read as a guide to the legislature in how to revise the law in order to resolve the constant issues that have arisen regarding the law due to its ambiguities.

As a result, though, a party in Florida must now file and litigate separate motions seeking immunity under the Stand Your Ground law in both the criminal and civil case, which could (and likely will) lead to opposing immunity determinations. Look for the Legislature to revisit this issue next session.  

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.