Monday, February 29, 2016

Rape Kits Soon Fast-Tracked in Florida

Attorney General Pam Bondi made rape kit testing a priority this session. This week, the Florida Senate unanimously pushed through a bill that requires testing within 120 days of submission.  The House is pushing through a bill to address funding.   

These bills became a priority after an exposé that revealed thousands of untested kids.  An audit in January revealed more than 13,000 untested rape kits.  The bills author cites justice for the victims as the motive for the bill.  It should be noted, that this bill could also exonerate the accused or convicted.

To keep up to date on the progress, check out EndTheBacklog.org

Erin Andrews' Day in Court

Eight years ago, the very private, and modest sports reporter, Erin Andrews was violated in a way that many of us will never understand.  Not only was she secretly recorded by a serial stalker, but her celebrity worked against her...more than 16 million people (and counting) viewed the illegally recorded video once the word got out that it existed.  Also, it can never be deleted everywhere according to experts.

One incident of video voyeurism is enough to send someone to prison for five years in Florida with enhanced penalties for subsequent offenses.  Whether you are famous or relatively unknown, the act can violate you to your core.  What's worse is when that video is forever memorialized online for the world to see.  The hope for any victim is that the least amount of people possible see it.  

So what do you do?  The local prosecutor will likely take this offense very seriously, and justice will likely be served.  But no justice or amount of money will ever make you whole after such a atrocious invasion of privacy.  It may, however, prevent the responsible parties and third parties from allowing the violation to happen again.

Erin Andrews' trial for the civil lawsuit that she filed against the hotel she was at when the offense occurred started last week.  The hotel, she claims, is to blame because they released her room number to the inquiring criminal who sought her out and followed her there.  A hospitality expert (yep, those exist) testified earlier in the week that giving out that information is a cardinal sin in the hotel industry. 

Last week we heard from her father who explains that Erin Andrews is a shell of the person that she used to be. Today, Erin Andrews will take the stand to explain how this act has forever altered her life and negatively affected her.   Rather than quietly struggle, she is standing up for victims everywhere.   Her struggled has inspired Tennessee legislators to pass a bill requiring that voyeurs register as sex offenders.  It only took them 8 years, $75 million and infinite media attention to make the change.  The point is, that they are making a change.  

Our thoughts and prayers are with Erin Andrews as she pushes through the end of this very public trial.  

If you have been the victim of a crime that was made possible by a third party never held accountable, call us at 904-516-5560 or visit www.plataschott.com.

Sunday, February 28, 2016

50/50 Custody May Soon be the Default in Florida

Family Law is notoriously contentious.  The emotion of a divorce or child custody battle is unlike any other area of law.  The parties intimately know each other and they are most able to annoy/destroy the other party.  The attorneys on either side are generally above the fray, but sometimes even the attorneys can get emotionally involved.  Problems abound.  

The Big Fight:


When children are involved, time-sharing (a/k/a "custody") is generally the main issue. Everyone wants "full custody," "sole custody," which is now called majority time-sharing in Florida even if they don't really want majority time-sharing.  That's what everyone is fighting over.  The time-sharing split affects other parts of child-rearing including whether a parent must pay child support, and whether a parent gets the child-rearing credit for their taxes each year.  

Demanding Majority Time-Sharing:


Guess what?  When you go to court and demand majority time-sharing, you're actually hurting your case. Florida law encourages equal time-sharing, which is still rare.   The law also encourages that the parent support a relationship with the other parent.  This can be very difficult for some parents.

The Pros and Cons of Discretion:


Judges have discretion, which is affected by their personal beliefs on parenting.  This leaves at least one parent unhappy, and every good lawyer knows that you do not want the judge to make the final decision.  No one wins.

One legislator who knows first-hand the pain of a divorce with children is making a move to take away some judicial discretion.  

50/50 Default?


A bill is moving through the Florida Legislature to default time-sharing to equal with the judge's ability to modify based on 22 factors including child's preference, travel time and parent's request. Unfortunately, this is coupled with an alimony overhaul that could lead to it dying.  A 50/50 default is...interesting.  We live in a world where everyone still tends to believe mom is best equipped to raise a child whether they admit it or not.  This is obviously the most equitable start to any divorce.  

Of course, there are critics.  The "best interest of the child" is still the standard.  Passing a child back and forth may not be the best.  Also, for very young children, breastfeeding experts are pointing out the logisticsimpossibilities of this. 

The Verdict?


Some "experts" are saying joint custody is always best, and others are saying joint custody is never best.   The bottom line is that when it comes to an individual child, there cannot be a one-size-fits-all approach.  The system is very flawed, and a judge, lawyer, a hired gun, and sometimes even their parent doesn't know best.  The effort to make the system better is appreciated, but we aren't sold that this is the best start.  

If you have questions about your child-custody battle, call us.  We aren't going to sell you a dream. We are going to be real with you about the Family Courts.  For more information, call 904-516-5560, or visit www.plataschott.com. 


Which parent gets the tax deduction?

April 15 is right around the corner and many of our clients are wondering: who gets to claim the child on their taxes? Parents may claim children under the age of 19, or under the age of 24 if the child is attending school full-time. See the information below to make sure that you are not missing out of your child-rearing credits. 

Is there a court order?


If you do not have a court order regarding time-sharing, then mom is most likely going to be entitled to make the claim. Why? Because if you were married and there is no order, then you are still married and you file jointly.  If you were never married, a child's biological mother is generally undisputed whereas the paternity of a child may have to be established.  


The custodial parent typically gets to claim:


If you have a court order, the parent who has the child the most of the time generally gets to claim unless the order says otherwise.  However, the parent who does not have the child as much, may have a claim if that parent pays most of the child support. 

However, if you have a court order that allows the non-custodial parent to make the claim, this is the process: 

The custodial parent must sign a Form 8332 stating that they will not claim the child for the year.  The non-custodial parent attaches that Form to their own taxes. 

You can download that form here and send it to the other parent. We suggest sending a stamped return envelope so you get it back as soon as possible. Keep in mind that the custodial parent may revoke the Form at any time. If this is in contempt of a court order, call your attorney!  

If you are in the process of negotiating a court order for a parenting plan, and you have negotiated that you are going to get to make a claim as the non-custodial parent, make sure your attorney specifically states in the final order that the other parent must sign the Form 8332 and have it to you no later than January 31st of the year that you are filing your taxes with the child-rearing credit. 


What happens if both parents claim a child on their taxes?


The first person who makes the claim may get the credit, or the IRS may kick both tax returns back and review the claims through the audit process.  If they review it, they will consider, (1) who has majority time-sharing, (2) who makes the most money, and (3) whether both parents are required to file taxes.

Audits are serious and you can be penalized for underpayment if you make a claim when you are not supposed to. Make sure you're within your rights before you make the claim.  

If you are the custodial parent and you are court-ordered to sign the Form 8332, but you refuse, you could be held in contempt of court.


The take-away:


If you are the non-custodial parent and there is no court order about time-sharing, you need to get one done before the end of 2016.  Otherwise that is 19-24 years of missed child-rearing credits. Call a Family Law attorney today to learn your rights.   

If you have more questions about Family Law, call Plata Schott Law today at 904-516-5560.

Friday, February 26, 2016

Client Profiles: A.R.

*Results are not typical. No lawyer can guarantee any particular outcome. Results vary from case to case.*

Mr. R has lived in the United States for 14 years.  He has never been in trouble and maintains steady employment.  He had nothing on his record. Prior to his arrest, Mr. R was working toward taking the Citizenship Test this year. 

In the Fall of 2015, he was pulled over late at night for a suspected DUI.  The only reason that Mr. R was stopped was that Mr. R slowly changed lanes on the Hart Expressway "for no apparent reason" over the course of 12-15 seconds.  When Mr. R was stopped, the officers asked Mr. R to do field sobriety exercises, and he refused.  They asked him to take a breath test, and he refused.  Still, he was arrested for a DUI based on very little evidence that he was impaired.

 It should be noted that it is not a crime to drink alcohol and drive in Florida.  It is a crime to have a blood alcohol content of more than .08 or for your normal faculties to be impaired. Mr. R told the officers that he had one beer at a friends house not long before the stop.  The officer reported that he smelled alcohol and that was the basis for the arrest.  There was simply not enough evidence in this case.  

With no evidence of impairment, Mr. R was immediately placed into deportation proceedings because he is not a citizen.  A DUI is a crime of moral turpitude that disqualifies someone from becoming a citizen. However, Mr. R was not convicted of a crime yet.

We provided the State Attorney with mitigation or good information about Mr. R, but the State Attorney was unwilling to make a deal that would keep Mr. R from being deported "because he refused the take a breath test."

We looked closely at the stop and ultimately decided that the officer probably did not have enough to initiate the stop. We argued the motion and the judge agreed, he should not have been stopped.

Mr. R is a free man today who is still entitled to become a citizen.  His story is an important lesson to people arrested for a DUI.  It doesn't take much to be arrested, but it takes a lot for the State to get the conviction for a DUI.  Don't roll over. Fight your DUI!

Thursday, February 25, 2016

What should I do after a crash?

Injured in a car crash?  You're going to be facing a lot of tough options in the next few hours, days, week and possibly months.  Here are our tips for getting through this process.

First thing.


Take photos of everything - the roadway, the cars, the lighting in the area, and the weather.  Photos are the BEST evidence that we can have.  Put the vehicle in a safe place if you own it. 

Then get to a doctor.  You need to make sure that you are OK. You also need to make sure that if you have an injury that doesn't immediately hurt, you can get treatment under your Personal Injury Protection.  You have only 14 days to go to a hospital or doctor to preserve your benefits.   

It was my fault.


You have probably been cited, and individuals are contacting your insurance company.  If you are not insured, you may be sued as an individual if you have significant assets, or maybe not.  You should hire an attorney to handle your traffic citations to mitigate your liability.  If you disagree that you were at fault, contact a Personal Injury attorney who can review the facts.


It was not my fault.


If the driver of the vehicle that hit you or the driver of the vehicle that your were in was at fault, you have the right to be compensated for damages that you sustained as a result of the crash.  Again,  call a Personal Injury attorney as soon as possible.

The insurance company offered me $1,000 to settle today. Should I settle?


NO! You should never settle and waive your rights without talking to a lawyer.  Most lawyers offer a FREE consultation and can advise your properly within 15 minutes.  Take the time to ask before you sign anything

We have heard some crazy stories about insurance companies meeting accident victims in Wal-Mart parking lots to give them $1,000 in return for the victim signing a Release.  A Release is a contract/waiver of the individual's right to pursue additional damages no matter what happens in the future.  While I have not read these back-alley Releases,  I would presume that they also say that the Defendant Driver is not liable.

This is a problem for many reasons.  First, your case is probably worth much more than $1,000.  If the insurance company is hunting your down to make a quick deal, that means that they know you have a claim. The minimum Bodily Injury liability insurance is $10,000 per person per occurrence.  Let's say you have an attorney who charges the standard 33.33% contingency fee.  Your take away compensation from a $10,000 settlement is $6,666.66, which may be applied to outstanding medical bills if applicable, or it's a nontaxable compensation to you.   While no attorney cannot guarantee any particular outcome, we can tell you that there is a reason insurance companies are making these deals within hours of the crash.  Insurance companies are business, and $1,000 is only 10% (or more) of the possible settlement, meaning a 90% profit for insurance. The numbers don't make sense for you.

The other major problem is that your pain and suffering may not manifest for several days, weeks, even months.  Trauma does strange things to the body.  Some people feel pain immediately, but bodies that suffer trauma start degenerating rapidly.  That degeneration may cause pain (or more pain) later.    If your young, this pain could last for decades.  How far will $1,000 get you at the doctors office?  If you're older, you may lose your ability to take care of yourself. How far will $1,000 get you with assistance?  Insurance companies have billions of dollars that are available to people just like you.  Unfortunately, you're not going to see the best pay day unless you get an attorney involved.

I don't want to sue anyone, especially my friend.


Don't worry.  You aren't suing anyone...yet.  Your attorney will drive the car, but you map out the course. Your attorney will always obtain your permission prior to a law suit.  However, pre-litigation (negotiating a deal without a law suit) can accomplish a lot for you.  The attorney will help you obtain treatment from experts who can paint a picture of your injury, and the long term effects of the injuries to establish your damages.  The attorney then conveys that information to the insurance companies and makes your case for settling your case for as much compensation as is available to you.  Again, there is no way to guarantee an outcome, but without an attorney who knows how to sell your case and work hard toward settlement, you may lose thousands of dollars of compensation.

How much will this cost me? 


If you settle too soon, it could cost you a lot.  If you go to an attorney, Florida attorneys typically charge 33.33% of the recovered amount as their fee. Meaning, they have an interest in getting you the most money possible.  

You are responsible for the fees and costs, and this is where it can get expensive so it's most important to hire an attorney who will make every effort to keep your costs low.  For example, is your attorney's office paperless?  Do they use the most expensive court reporters and experts? Are they consulting you before they pay for things? Are they challenging big bills or paying without question? 

The attorney will generally front the costs, but you repay the attorney at the end. A full trial typically costs any where from $50,000 to $100,000.  However, if your attorney negotiates a settlement and based on their experience they advise you to take it because the cost of litigation will likely exceed recover, the attorney may require you to pay the costs or terminate representation.  For example, if you're offered $100,000 and the attorney doesn't think your case is worth much more, but you want a trial, the attorney may say it doesn't make sense.  

A typical closing statement will look something like this:
Settlement: $10,000 (this is what the insurance company agreed to pay and you agreed to accept. This money is paid into the attorney's trust account to be divided up appropriately. Don't worry- the Florida Bar heavily regulates the handling of this money and they attorney has a lot to lose by misappropriating this money.)
Less Attorney's Fees: $3,333.33 (this is 33.33% of the total settlement. It always is the first amount taken out. Costs come our of the subtotal)
Subtotal: $6666.67 (this is your money, but what you owe your attorney and doctors will come out before your can get a check.)
Less Authorized Medical Payments: $1000 (this is money that you owe your doctors for treatment. The doctor probably put a lien on your recovery when they found out that you had an attorney so the attorney has to pay them before you can be paid.)
Less advanced costs: $250 (printing, copying, payments for records, and mailing.)
Total to client: $5,416.67 (this is yours to keep and use as you wish. Your debts related to the case should be paid. you will not be taxed on this money. Keep in mind however that it should be used for future medical care.) 


How can I get treated for my injuries?



Many doctors will treat you without payment if there is compensation available to you and your injuries make it clear that you're entitled to compensation.  You also may have Personal Injury Protection (PIP) benefits. You will still owe 20% of the bill or the deductible if you don't have Medical Payment. Take a look at your policy today and make sure that you are fully covered!  

You may want to ask your attorney who they recommend that you treat with. Not all doctors know how to properly work-up the medical records that will ultimately be used for the personal injury claim.  You don't want your doctor's mistake to cost you money later on. 

Did we say hire a lawyer? 


We cannot stress this enough.  You don't have to make a claim, and you do not have to sue anyone.  You just need to make sure that you have a conversation and you understand your rights.  If you don't take the time to talk to a lawyer, you could be losing thousands, hundreds of thousands and some times millions. There is no shame in being fairly compensated.  

If you have been injured in a car accident, call Plata Schott Law today at 904-516-5560 or email us at contact@plataschott.com.  No car? In the hospital? No problem. We will work with you to make a consultation convenient for you. 





Wednesday, February 24, 2016

Can my driving record be sealed or expunged?

Your driving record is not the same as a criminal record. The Florida Department of Highway Safety and Motor Vehicles maintains your driving record. The Florida law that provides an opportunity to expunge your records is only for a criminal record.  Therefore, you cannot seal or expunge your driving record.

Monday, February 22, 2016

Why won't Apple just unlock that iPhone?

Unless you've been living under a rock or (or you don't have an iPhone), you might have heard that the FBI really wants needs Apple, the manufacture of the iPhone that the San Bernardino terrorists used for their horrific attack in 2015.   Apparently, they cannot hack the phone (although, in a VERY interesting twist of fate, America's most wanted "traitor" says he may be able to help).  I am wondering if they Googled the issue, or asked their friendly Genius Bar man.  I swear they once told me how to bypass the code.

Why won't they just do it? For the victims and the families of the victims?!

I cringe to say this, but it's a slippery slope.  The masses are currently outraged that Apple won't do it in this case... but hold on.  There is no urgency here.  The damage is done.  The suspects are dead. They acted alone.  Who benefits from Apple creating new technology specifically for the government to use "just this once?"  Answer: the Government.  They would have the tool to hack all iPhones, and that is the problem.  

The Court of Public Opinion tends to fuel what we as a society through our government should and should not do.   If we have another domestic terror attack, the public outcry may lead to many individuals losing their civil rights.  Or will it? 

The case for the technology:

Apple made a solid product.  The Founding Fathers also made a solid product.  The Constitution protects us from unlawful search and seizure.  Therefore, the police need warrants to search your phone based on probable cause that something related to your alleged crime is in the phone.  (Free legal advice: Never consent to a search and never give your passcode or passwords).  

So if the police have gone through the proper channels, then your rights aren't being violated.  The problem is that they simply can't do it alone.  Should we help?  No one has to, but if someone like Apple wanted to, they certainly could.  But they do not. 

The problem remains:

Apple is a private company. They have politely declined to help.  Sorry, FBI.  So this issue is no longer about the privacy of the iPhone owner, but the privacy and freedom of the private company to act or choose not to act.  I fail to see how forcing anyone (companies are "people" too) to help the government is OK.  The battle wages on.  But it will be shocking to see if Apple is ordered to act and will create a very scary precedent if it happens. 

Crumb Rubber: Is it dangerous for my child? What can I do?

In 2014, NBC Nightly News started an expose on crumb rubber athletic fields that were growing in popularity around the United States.  These artificial, nylon turf fields required faux dirt, which manufacturers got from ground tires.  Recycling at this best.

However, one soccer coach, Amy Griffin of the University of Washington in Seattle made a startling discovery.  Nearly a dozen former players (mostly goalies) had developed cancer. Most recently, two goalies were suffering from non-Hodgkin's lymphoma.  Jordan was diagnosed at 21 and had been playing goalie, rolling around in crumb rubber since age 12. In all, Griffin had a list of 38, 34 of which were her soccer players.  She has a feeling that "those black dots" were to blame.


Cancer Cluster:


When incidents of cancer in a certain demographic becomes statistically significant, it's called a "cancer cluster." It's also helpful if the cancer is the same type of cancer for the entire cluster. "Statistically significant" means that the rate of occurrence is significantly more than what you would expect to see in a similar group.   For example, Camp LeJeune experienced a cancer cluster, but the 

Recognition as a cancer cluster means that the Center for Disease Control and Prevention (CDC), Office of Occupational Medicine Occupational Safety and Health Administration (OSHA) U.S. Department of Labor, and the Environmental Protection Agency (EPA) may investigate and possibly hold the liable parties responsible.

Personal Recourse for Cancer Clusters:


If you or your family becomes a victim of a suspected or confirmed cancer cluster, you may have the ability to sue the responsible company or entity.  I say company because history has shown that cancer clusters develop after high levels of contaminants are improperly disposed...into water sources, public parks, or land later sold.  Mostly private for-profit companies are to blame. 

There are several causes of action or reasons for the law suit including, wrongful death, strict liability, negligence and other violations of federal and state specific law.  Law suits are typically handled on a contingency fee basis, meaning the plaintiffs (injured party) does not pay for the attorney fees and costs up-front. The law firm fronts the costs and the plaintiff pays the attorney a percentage of the recovered amount and pays back the costs of litigation.  If you have ever seen A Civil Action, you know that these cases are very, very expensive to litigate.  

The Importance of Experts: 


Some plaintiffs have prevailed, others have lost cases early on for lack of evidence linking the wrongful acts to the cause of the cancer.   Evidence starts from the moment some one gets sick, however the extent of the sickness may not be known for years.  Every jurisdiction has a Statute of Limitation and Statute of Repose that keeps the clock ticking. So experts need to work quickly and efficiently. 


What should I do? 



Don't live in fear, but monitor your child's health.  Pay attention.  If you child gets sick, make connections to exposure and talk to other people going through the same thing.  If you think you have a case, call a lawyer today. 


Sunday, February 21, 2016

Can I be forced to testify against my husband or wife?

Bill Cosby's wife, Camille Cosby was been ordered to testify in her husband's defamation case on Monday, February 21, 2016.  The court order required Mrs. Cosby to be sworn in, and give some testimony.  The court order did acknowledge some privilege, but said that she couldn't decline to answer any questions with a blanket "privilege" argument. 

At the 11th hour, Cosby's attorneys got the court to delay the deposition and hold a hearing on the morning of the deposition. 

Married folks may be wondering, how?  "I thought that I couldn't be forced to testify against my spouse." or "I thought my spouse was not allowed to testify against me" 

First and foremost, privilege protects communication not visual observations.  Spousal Privilege is based in common law (the historical legal principals that are the foundation for our legal system).  Most states have codified the common law into a statute or written law.   So you can be compelled to talk about what you saw, or overheard, but not what you were specifically told in confidence. 

The second issue you have to legally be married.   This may seem very common sense, but you would be surprised.  Many people claim to be married because they have been together for so long,  or they are mistaken about common-law marriage.  In Florida, there is no automatic marriage.  Also, you cannot get married after the event and use your new marriage to keep spousal confidences.  

Finally, there are exceptions.  In Florida, the statute protects the privilege and provides three exceptions for when the privilege is waived:  (1) the spouses sue each other, (2) one spouse is a defendant in a criminal case where the other spouse is a victim, and (3) the defendant spouse waives the privilege and offers the testimony.  Most state law and Federal law are similar. 

So if you think you're off the hook to testify against your spouse,  think again.   And if you find yourself in this position, you should certainly consult your own attorney to make sure that you are not incriminating yourself, which is prevented under the 5th Amendment privilege. 

If you have any questions, or for more information, call 904-516-5560 or visit www.plataschott.com.


Monday, February 15, 2016

Happy Birthday is Free!



For years, Warner/Chappell Music company has collected more than $2 million in royalties annually for the copyrights to "Happy Birthday to You."  Like everything else, intellectual property (intangible property) may be owned.  For nearly the last century, Warner/ Chappell and other companies have bought and sold ownership and enforced their ownership. 

Finally, someone challenged this, which is not surprising. Lo and behold, a court in California determined last week that no one owns Happy Birthday.  In fact, Warner/Chappell Music now has to repay millions that they "earned" from enforcing the copyright. 

So feel free to sing away at the next birthday party without fear of being sued!

Can the jail secretly record inmates everywhere?

Recently, the State Attorney's Office in and for the Fourth Judicial Circuit of Florida outed themselves and revealed that they have started recording inmates everywhere in the Duval county pre-trial detention facility.  While recording, they reveal that they have recorded a confession by Donald Smith, the defendant in the murder of Cherish Perrywinkle.  Furthermore, the State intends to use the recording at trial.  

But the question remains...can they use it?  Of course they can, but the question goes a little further... can they legally use it without it becoming a reason that the case comes back on appeal.   When looking at this issue, the Court will consider the defendant's Constitutional rights.  Specifically, the question will rest on the Fourth Amendment rights against unlawful search and seizure, and the Fifth and Sixth Amendment rights to counsel (an attorney). 

The United States Supreme Court (USSCT) has said two important things on this subject.  First, inmates have no reasonable expectation of privacy in jail.   This is exactly what the State is saying to justify the use of the tape under the Fourth Amendment.  If you have no expectation of privacy, any search or seizure is lawful.   However, the USSCT has also said,  "Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime."    The law clearly states, any secret recording.  Therefore, the State may have a problem. 

Eventually both sides will make arguments to the trial judge, who will rule on the admissibility.   Depending on what the judge decides, the evidence may be used or is excluded.  If the evidence is admissible, the State has to decide if they introduce it or not.  So do they need it?  Mr. Smith has allegedly made several confessions.  He allegedly showed the police where to find the body of Cherish.  The State probably has enough.  The risk of using evidence that is not clearly admissible is that the entire case may have to be re-tried in several years if appellate courts determine that the evidence should not have come in.  

In a case as painful and horrific as this one, it would be unwise for the State to risk a very expensive re-trial on evidence that probably won't enhance the evidence in the case.   We will just have to wait and see...

How will the United States Supreme Court change without Justice Scalia?

Sadly, we lost a United States Supreme Court (USSCT) Justice Antonin Scalia on February 13, 2016.  This is the first time that a Justice has died while on the bench in 10 years. However, this is the first Justice to die in session in 70 years.   

Session begins the first Monday in October and runs through the summer.  Arguments are heard then the justices who hear the argument may join in the Opinion or Court ruling.   There are specifically an odd number of justices to avoid ties.  With an even number of justices, ties are more likely and that is  a problem.  Ties mean that the USCCT accomplished nothing, and that it is as if the hearing never took place.   This is concerning because it is very hard to get the USSCT to grant cert (certiorari), or agree to hear an issue.  The Court only chooses the most important issues to hear.   So, for a party to come all the way to the USSCT and have a tie, much has been wasted and the lower court's ruling remains the law.    

The need to replace Justice Scalia is very important.  The President nominates any qualified person (doesn't have to be a judge or even a lawyer).  The Senate Judiciary Committee then interviews the candidate and votes to approve or deny the nomination.  This has become a very political process unfortunately.   

Because justices are on the bench for life, we see decades of trends in the Court Opinions.  While the Republicans control the Senate Judiciary, they want to make sure a "conservative" justice is selected, and the Democrats want more liberal justices.  Right now there is a 4/4 split in the liberal and conservative line.  

But when it comes to USSCT Justices, "liberal" and "conservative" are not the best labels.   While the Court has people who are personally liberal and conservative, Justices are a rare breed.  The oaths of the judiciary prevent them from engaging in partisan politics.  So their conservative or liberal labels don't come from their party affiliation, but rather how they interpret the law.

Back to Scalia:  Scalia was considered the MOST conservative of the justices next to Justice Thomas.   He wrote more options and more dissents than anyone with whom he shared the bench.  And he was an entertaining dissenter.  He wrote scathing criticism of the majority options with which he did not agree, and law students everywhere will thank him in perpetuity.

At the time of his appointment, he was paving the way for diversity, as he was the first Italian-American appointed to the Bench, a devout Catholic (with nine children), and very opposed to abortion and Roe v. Wade.   None of these qualities made him a conservative justice. 

Justice Scalia was a strict constructionist or originalist.  He did not agree that the Law is a living thing.  The Constitution was not alive in Scalia's eyes. Justice Scalia vehemently believed in the Separation of Powers, and that the Judiciary's job was to say what the law is, not what the justices interpreted the law to be or thought the law should be.  (The legislature writes the law, and the executive branch enforces the law). The text of the Constitution, he believed should be translated to the meaning that the Authors would have understood at the time it was written.  So while Scalia was given the conservative rep, he really was just a voice for the liberals of 1787.  

He did not agree with looking at legislative intent.  Scalia believed that the plain reading of any statute should convey intent.  He knew the law, and he made no mystery of where he stood in oral arguments.  He spent oral arguments challenging the attorneys and making his case to his fellow Justices.  

Scalia was criticized for being conservative in a negative way in modern time especially on his position on issues like affirmative action.  But Scalia was a patriot and he believed that we are all one race: American.  

He firmly believed in the democratic process.  For every ideology that he said the Founding Fathers did not write into the Constitution, he encouraged citizens to vote the same into law to show that the People truly wanted that to be the law.  

His strict view of the law was an important element of the Court.  He kept the Court in check in many regards.  With nothing but like-minded people on the Court, America would be in jeopardy.  The balance of ideologies and interpretation is important to the process.  We should encourage our Senate to replace Justice Scalia as soon as possible to ensure that our Court can continue to function as our Founders intended. 

Although Justice Scalia is no longer with us, his legacy on the Court is forever stamped on the history of America as a reminder that no matter where the future takes us,  we never lose sight of the words that our Founders wrote to create this great nation. 




Thursday, February 4, 2016

The police did not read my Miranda warning after I was arrested. Will my case be dropped?

We get this question a lot. The short answer is probably not.

When you are in custody and the police interrogate you, they have to advise your of your rights prior to the interrogation.  If they do not advise you, anything you say can be suppressed (ruled inadmissible) and the State cannot use it. Sometimes, any evidence gathered as a result of the statements can also be suppressed. 

That doesn't mean that the State cannot prove the case. If police witness a crime, they do not need your confession to prosecute you.  Many times (especially in drug cases and weapons offenses) the police don't ask you anything because they don't need to investigate. They have probable cause to arrest, they arrest, they bring you to jail and do no more. 

This analysis is very fact specific.  If you would like to know more about your case specifically, you can call an attorney to review your case in a consultation.

Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com. 


Wednesday, February 3, 2016

Can I drop the domestic battery charges against my family member?

Sometimes families fight. Sometimes those fights get physical. Sometimes the police are called and someone is arrested even if the "victim" did not request police or that the primary aggressor be arrested.  The family is left wondering, "how did this happen?" and "how do we get the charges dropped?"

When police get involved, unfortunately people get arrested.  Of course, they need probable cause to arrest someone, but there seems to always be probable cause when families fight.  Once an arrest is made and the booking report is completed and forwarded to a young State Attorney's desk.  The prosecutors job is simply to convict people for crimes and punish them for the most amount of time possible.  Florida's adult criminal punishment system serves one purpose: punish.   911 is not used to "get help" for your disturbed or mentally ill loved one.  911 is to alert authorities to crimes.  And crimes are punished in the State of Florida.  The question for the prosecutor is, "to file or not to file?"

When making a filing decision (which can take up to 40 days if the person is incarcerated and more time if the person is out of custody), the prosecutor may call the victim and find out what they want to do. They may call the victim who does not want to press charges and explain that the victim will be compelled to testify whether they want to or not. That mean that the witness will be subpoenaed/ordered to court and put on the stand to testify truthfully against the defendant.  If the victim or witness refuses, the judge may hold them in contempt of court and put them in jail until the testify, OR if the victim or witness lies on the stand, they could be charged with perjury, a felony charge.  And if the State doesn't call you, the Defense attorney certainly will.  Some state attorneys will honor your request if this is a first offense or minor.  If a weapon was involved, your loved one may have a big problem.

Hiring an attorney for the family member is a good start.  The prosecutor will take an attorney's call and listen to what happened.  But if you were the "victim," you may want your own attorney to advise you in case you've also committed a crime (battery, lying to police, et cetera).  The attorney may be able to convince the prosecutor to divert the case into a program. Diversion programs could lead to dropped charges.  

Many prosecutors have "victim advocates."  If you are the "victim" this is the person that you need to speak to. They assess your desire to have the case dropped and may also sell that to the prosecutor on your behalf. But the fact remains, once the police get involved, the victim's desire is not the final say in prosecution. It is merely a consideration. 

If you don't want to see a loved one prosecuted, don't call the police.  If someone else calls the police, remember that you cannot lie to the police. However, you  can invoke your right to remain silent, you do not have to let them inside the house, and you may call an attorney prior to speaking to police.  

Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com. 

Can I drink on DUI probation?

Many clients wonder whether their probation for misdemeanor Driving under the Influence (DUI) in Florida also includes no alcohol consumption.  While every case is different, it is important to keep a few things in mind.

(1) You live by the Rules:

The Probation Order will clearly outline what you can and cannot do.  Get it. Read it. Memorize it.  If there are ambiguities like "follow standard conditions," ask your attorney or probation officer to explain what the term means.  If you want to know if you can drink, you can always ask.

(2)  Your new best friend.

Your probation officer (PO) has a lot of discretion to violate you or not violate you.  If the PO doesn't like you (because you don't do what your supposed to, you have an attitude, or you simply rub them the wrong way) life can be more difficult.  It's best to work with your PO to stay on their good side.  There is no time like the present to get your life together and be on top of your probation and cut out alcohol for a few months.

(3) Your Jury, Judge and Executioner:

If you violate probation, the same judge who knew the facts of your case and possibly how belligerent and drunk you got, heard all the excuses, gave you probation rather than jail time is the same person that you'll be asking for a second (or third) chance.  Just like your probation officer, it's best to keep the judge on your good side.  If you are violated for drinking, or worse, an alcohol related offense, the judge will probably be less willing to give you a break.

(4) Common sense:

You got a DUI.  Although anyone can find themselves facings a DUI, alcohol directly put you in this situation.  It's better to avoid it. 

If you are facing a violation, call an attorney. 

Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com.