THE FLORIDA LAW BLOG

THE FLORIDA-LAWBLOG

The Florida Lawblog covers current legal topics, and stories of interest to the Florida legal community. Where possible we provide links to other articles, court cases, or reprint articles of interest which have appeared in other publications. Some blog posts may include the opinion of the authors, and readers are encouraged to view the referenced materials and links, and come to their own conclusions.  The Florida Law Blog is published by Charles and Kathryn Scott of the law firm of Scott and Fenderson PA. See www.scottandfenderson.com   You should not rely on any information contained within this site when making legal decisions or handling legal matters.  This site does not constitute legal advice.  Always seek the advice of a lawyer before making any decision or taking any course of action on any legal matter. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide ask us to send you free written information on our qualifications and experience.

DUI - WHAT CONSTITUES A DUI IN FLORIDA?

In this post I will discuss DUI, also known as driving under the influence strictly from the standpoint of the elements and punishment as set forth in Florida law. For more information on DUI defense visit our web site at www.scottandfenderson.com . In Florida the offense is no longer DWI (driving while intoxicated) and the state need not prove that a driver is intoxicated, only that their normal faculties are impaired by drugs or alcohol. If Florida DUI law falls under Florida Statute 316.193 Driving under the influence.

ELEMENTS OF DUI

316.193(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

DUI PENALTIES

(2)(a) Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a violation of subsection (1) shall be punished:

1. By a fine of:

a. Not less than $500 or more than $1,000 for a first conviction.

b. Not less than $1,000 or more than $2,000 for a second conviction; and

2. By imprisonment for:

a. Not more than 6 months for a first conviction.

b. Not more than 9 months for a second conviction.

3. For a second conviction, by mandatory placement for a period of at least 1 year, at the convicted person’s sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July 1, 2003.

(b)1. Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, the court shall order the mandatory placement for a period of not less than 2 years, at the convicted person’s sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July 1, 2003.

2. Any person who is convicted of a third violation of this section for an offense that occurs more than 10 years after the date of a prior conviction for a violation of this section shall be punished by a fine of not less than $2,000 or more than $5,000 and by imprisonment for not more than 12 months. In addition, the court shall order the mandatory placement for a period of at least 2 years, at the convicted person’s sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July 1, 2003.

3. Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine imposed for such fourth or subsequent violation may be not less than $2,000.

(3) Any person:

(a) Who is in violation of subsection (1);

(b) Who operates a vehicle; and

(c) Who, by reason of such operation, causes or contributes to causing:

1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

2. Serious bodily injury to another, as defined in s. 316.1933, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. The death of any human being or unborn quick child commits DUI manslaughter, and commits:

a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

b. A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

(I) At the time of the crash, the person knew, or should have known, that the crash occurred; and

(II) The person failed to give information and render aid as required by s. 316.062.

For purposes of this subsection, the definition of the term "unborn quick child" shall be determined in accordance with the definition of viable fetus as set forth in s. 782.071. A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment of 4 years.

IGNITION INTERLOCK DEVICE

(4) Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-alcohol level of 0.15 or higher, or any person who is convicted of a violation of subsection (1) and who at the time of the offense was accompanied in the vehicle by a person under the age of 18 years, shall be punished:

(a) By a fine of:

1. Not less than $1,000 or more than $2,000 for a first conviction.

2. Not less than $2,000 or more than $4,000 for a second conviction.

3. Not less than $4,000 for a third or subsequent conviction.

(b) By imprisonment for:

1. Not more than 9 months for a first conviction.

2. Not more than 12 months for a second conviction.

For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1) by a person who has a blood-alcohol level or breath-alcohol level of 0.15 or higher.

(c) In addition to the penalties in paragraphs (a) and (b), the court shall order the mandatory placement, at the convicted person’s sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person for not less than 6 continuous months for the first offense and for not less than 2 continuous years for a second offense, when the convicted person qualifies for a permanent or restricted license.

(5) The court shall place all offenders convicted of violating this section on monthly reporting probation and shall require completion of a substance abuse course conducted by a DUI program licensed by the department under s. 322.292, which must include a psychosocial evaluation of the offender. If the DUI program refers the offender to an authorized substance abuse treatment provider for substance abuse treatment, in addition to any sentence or fine imposed under this section, completion of all such education, evaluation, and treatment is a condition of reporting probation. The offender shall assume reasonable costs for such education, evaluation, and treatment. The referral to treatment resulting from a psychosocial evaluation shall not be waived without a supporting independent psychosocial evaluation conducted by an authorized substance abuse treatment provider appointed by the court, which shall have access to the DUI program’s psychosocial evaluation before the independent psychosocial evaluation is conducted. The court shall review the results and recommendations of both evaluations before determining the request for waiver. The offender shall bear the full cost of this procedure. The term "substance abuse" means the abuse of alcohol or any substance named or described in Schedules I through V of s. 893.03. If an offender referred to treatment under this subsection fails to report for or complete such treatment or fails to complete the DUI program substance abuse education course and evaluation, the DUI program shall notify the court and the department of the failure. Upon receipt of the notice, the department shall cancel the offender’s driving privilege, notwithstanding the terms of the court order or any suspension or revocation of the driving privilege. The department may temporarily reinstate the driving privilege on a restricted basis upon verification from the DUI program that the offender is currently participating in treatment and the DUI education course and evaluation requirement has been completed. If the DUI program notifies the department of the second failure to complete treatment, the department shall reinstate the driving privilege only after notice of completion of treatment from the DUI program. The organization that conducts the substance abuse education and evaluation may not provide required substance abuse treatment unless a waiver has been granted to that organization by the department. A waiver may be granted only if the department determines, in accordance with its rules, that the service provider that conducts the substance abuse education and evaluation is the most appropriate service provider and is licensed under chapter 397 or is exempt from such licensure. A statistical referral report shall be submitted quarterly to the department by each organization authorized to provide services under this section.

(6) With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2), subsection (3), or subsection (4):

(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours. The court may order a defendant to pay a fine of $10 for each hour of public service or community work otherwise required only if the court finds that the residence or location of the defendant at the time public service or community work is required or the defendant’s employment obligations would create an undue hardship for the defendant. However, the total period of probation and incarceration may not exceed 1 year. The court must also, as a condition of probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h).

(b) For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver’s license revocation imposed under s. 322.28(2)(a)2. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.

(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver’s license revocation imposed under s. 322.28(2)(a)3. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.

(d) The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vehicle. The order of impoundment or immobilization must include the name and telephone numbers of all immobilization agencies meeting all of the conditions of subsection (13). Within 7 business days after the date that the court issues the order of impoundment or immobilization, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vehicle, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vehicle.

(e) A person who owns but was not operating the vehicle when the offense occurred may submit to the court a police report indicating that the vehicle was stolen at the time of the offense or documentation of having purchased the vehicle after the offense was committed from an entity other than the defendant or the defendant’s agent. If the court finds that the vehicle was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

(f) A person who owns but was not operating the vehicle when the offense occurred, and whose vehicle was stolen or who purchased the vehicle after the offense was committed directly from the defendant or the defendant’s agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vehicle was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs.

(g) The court shall also dismiss the order of impoundment or immobilization of the vehicle if the court finds that the family of the owner of the vehicle has no other private or public means of transportation.

(h) The court may also dismiss the order of impoundment or immobilization of any vehicles that are owned by the defendant but that are operated solely by the employees of the defendant or any business owned by the defendant.

(i) All costs and fees for the impoundment or immobilization, including the cost of notification, must be paid by the owner of the vehicle or, if the vehicle is leased or rented, by the person leasing or renting the vehicle, unless the impoundment or immobilization order is dismissed. All provisions of s. 713.78 shall apply. The costs and fees for the impoundment or immobilization must be paid directly to the person impounding or immobilizing the vehicle.

(j) The person who owns a vehicle that is impounded or immobilized under this paragraph, or a person who has a lien of record against such a vehicle and who has not requested a review of the impoundment pursuant to paragraph (e), paragraph (f), or paragraph (g), may, within 10 days after the date that person has knowledge of the location of the vehicle, file a complaint in the county in which the owner resides to determine whether the vehicle was wrongfully taken or withheld from the owner or lienholder. Upon the filing of a complaint, the owner or lienholder may have the vehicle released by posting with the court a bond or other adequate security equal to the amount of the costs and fees for impoundment or immobilization, including towing or storage, to ensure the payment of such costs and fees if the owner or lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of the court shall issue a certificate releasing the vehicle. At the time of release, after reasonable inspection, the owner or lienholder must give a receipt to the towing or storage company indicating any loss or damage to the vehicle or to the contents of the vehicle.

(k) A defendant, in the court’s discretion, may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment.

For the purposes of this section, any conviction for a violation of s. 327.35; a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028; or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section. However, in satisfaction of the fine imposed pursuant to this section, the court may, upon a finding that the defendant is financially unable to pay either all or part of the fine, order that the defendant participate for a specified additional period of time in public service or a community work project in lieu of payment of that portion of the fine which the court determines the defendant is unable to pay. In determining such additional sentence, the court shall consider the amount of the unpaid portion of the fine and the reasonable value of the services to be ordered; however, the court may not compute the reasonable value of services at a rate less than the federal minimum wage at the time of sentencing.

(7) A conviction under this section does not bar any civil suit for damages against the person so convicted.

(8) At the arraignment, or in conjunction with any notice of arraignment provided by the clerk of the court, the clerk shall provide any person charged with a violation of this section with notice that upon conviction the court shall suspend or revoke the offender’s driver’s license and that the offender should make arrangements for transportation at any proceeding in which the court may take such action. Failure to provide such notice does not affect the court’s suspension or revocation of the offender’s driver’s license.

(9) A person who is arrested for a violation of this section may not be released from custody:

(a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired;

(b) Until the person’s blood-alcohol level or breath-alcohol level is less than 0.05; or

(c) Until 8 hours have elapsed from the time the person was arrested.

(10) The rulings of the Department of Highway Safety and Motor Vehicles under s. 322.2615 shall not be considered in any trial for a violation of this section. Testimony or evidence from the administrative proceedings or any written statement submitted by a person in his or her request for administrative review is inadmissible into evidence or for any other purpose in any criminal proceeding, unless timely disclosed in criminal discovery pursuant to Rule 3.220, Florida Rules of Criminal Procedure.

(11) The Department of Highway Safety and Motor Vehicles is directed to adopt rules providing for the implementation of the use of ignition interlock devices.

(12) If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence. However, such evidence may be contradicted or rebutted by other evidence. This presumption may be considered along with any other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence.

(13) If personnel of the circuit court or the sheriff do not immobilize vehicles, only immobilization agencies that meet the conditions of this subsection shall immobilize vehicles in that judicial circuit.

(a) The immobilization agency responsible for immobilizing vehicles in that judicial circuit shall be subject to strict compliance with all of the following conditions and restrictions:

1. Any immobilization agency engaged in the business of immobilizing vehicles shall provide to the clerk of the court a signed affidavit attesting that the agency:

a. Has verifiable experience in immobilizing vehicles;

b. Maintains accurate and complete records of all payments for the immobilization, copies of all documents pertaining to the court’s order of impoundment or immobilization, and any other documents relevant to each immobilization. Such records must be maintained by the immobilization agency for at least 3 years; and

c. Employs and assigns persons to immobilize vehicles that meet the requirements established in subparagraph 2.

2. The person who immobilizes a vehicle must:

a. Not have been adjudicated incapacitated under s. 744.331, or a similar statute in another state, unless his or her capacity has been judicially restored; involuntarily placed in a treatment facility for the mentally ill under chapter 394, or a similar law in any other state, unless his or her competency has been judicially restored; or diagnosed as having an incapacitating mental illness unless a psychologist or psychiatrist licensed in this state certifies that he or she does not currently suffer from the mental illness.

b. Not be a chronic and habitual user of alcoholic beverages to the extent that his or her normal faculties are impaired; not have been committed under chapter 397, former chapter 396, or a similar law in any other state; not have been found to be a habitual offender under s. 856.011(3), or a similar law in any other state; or not have had any convictions under this section, or a similar law in any other state, within 2 years before the affidavit is submitted.

c. Not have been committed for controlled substance abuse or have been found guilty of a crime under chapter 893, or a similar law in any other state, relating to controlled substances in any other state.

d. Not have been found guilty of or entered a plea of guilty or nolo contendere to, regardless of adjudication, or been convicted of a felony, unless his or her civil rights have been restored.

e. Be a citizen or legal resident alien of the United States or have been granted authorization to seek employment in this country by the United States Bureau of Citizenship and Immigration Services.

(b) The immobilization agency shall conduct a state criminal history check through the Florida Department of Law Enforcement to ensure that the person hired to immobilize a vehicle meets the requirements in sub-subparagraph (a)2.d.

(c) A person who violates paragraph (a) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(14) As used in this chapter, the term:

(a) "Immobilization," "immobilizing," or "immobilize" means the act of installing a vehicle antitheft device on the steering wheel of a vehicle, the act of placing a tire lock or wheel clamp on a vehicle, or a governmental agency’s act of taking physical possession of the license tag and vehicle registration rendering a vehicle legally inoperable to prevent any person from operating the vehicle pursuant to an order of impoundment or immobilization under subsection (6).

(b) "Immobilization agency" or "immobilization agencies" means any person, firm, company, agency, organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever that meets all of the conditions of subsection (13).

(c) "Impoundment," "impounding," or "impound" means the act of storing a vehicle at a storage facility pursuant to an order of impoundment or immobilization under subsection (6) where the person impounding the vehicle exercises control, supervision, and responsibility over the vehicle.

(d) "Person" means any individual, firm, company, agency, organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever.

History.—s. 1, ch. 71-135; s. 19, ch. 73-331; s. 1, ch. 74-384; s. 1, ch. 76-31; s. 1, ch. 79-408; s. 1, ch. 80-343; s. 2, ch. 82-155; s. 1, ch. 82-403; s. 2, ch. 83-187; s. 1, ch. 83-228; s. 1, ch. 84-359; s. 24, ch. 85-167; s. 2, ch. 85-337; s. 1, ch. 86-296; s. 2, ch. 88-5; s. 5, ch. 88-82; s. 8, ch. 88-196; s. 8, ch. 88-324; s. 60, ch. 88-381; s. 7, ch. 89-3; ss. 1, 18, ch. 91-255; s. 32, ch. 92-78; ss. 1, 11, ch. 93-124; s. 3, ch. 93-246; s. 1, ch. 94-324; s. 895, ch. 95-148; s. 1, ch. 95-186; s. 4, ch. 95-333; s. 12, ch. 95-408; s. 3, ch. 96-330; s. 2, ch. 96-413; s. 48, ch. 97-100; s. 97, ch. 97-264; s. 25, ch. 97-271; ss. 6, 13, ch. 98-324; s. 5, ch. 99-234; s. 139, ch. 99-248; s. 4, ch. 2000-313; s. 10, ch. 2000-320; s. 2, ch. 2002-78; s. 1, ch. 2002-263; s. 1, ch. 2004-379; s. 1, ch. 2005-119; s. 3, ch. 2007-211; s. 29, ch. 2008-111; s. 5, ch. 2008-176; s. 5, ch. 2009-138; s. 10, ch. 2009-206; s. 5, ch. 2010-223.

Note.—Former s. 316.028.

How To Challenge A Red Light Camera Ticket

If you have not received a red light camera ticket, it may only be a matter of time until you do.  We tend to forget about the red light cameras but they are always watching us at intersections. It does not matter if you were driving your car, or loaned it to someone else, the ticket will still come to you, the registered owner of the vehicle.

The violation of red lights is regulated under Florida statute 316.0083, 316.074(1) and 316.075(1).  Violations observed by red light cameras are non moving violations and do not carry points against your license, and cannot be used by insurance companies to raise your rates.

If you want to challenge the ticket as the registered owner you have two options.

Option one

You may prepare and submit a sworn affidavit to the address shown on the notice of violation, that one of several statutory exemptions applies. These exemptions are; (1) that the motor vehicle passed through the intersection in order to yield the right of way to an emergency vehicle, or as part of a funeral procession, or (2) that you passed through the intersection at the direction of a law enforcement officer, or (3) that the vehicle was at the time of the violation, in the care custody or control of another person, or (4) that a uniform traffic citation (ticket) was isued by a law enforceme oficer to the driver of the motor vehicle stated in the notice at the time of the violation. The affidavit must be sworn and notarized.

If you assert that the vehicle was in the care, custody and control of someone else, you must provide the name, address, date of birth, and if known, the drivers license number of the individual driving your car. This will result in the issuance of a uniform traffic citation to the person named in the affidavit.

If your vehicle was stolen then the affidavit must include a copy of the police report showing the vehicle to have been stolen. If you assert that a uniform traffic citation was issued to the driver, you must include the serial number of the citation with the affidavit.

Option two

If you fail to either pay the fine, or submit the required affidavit then a uniform traffic citation will be issued to you, and then the usual remedies specified in Florida Statute 318.14 will apply, which includes the right to have a hearing before a designated official who shall determine whether an infraction has been committed, and either dismisses the infraction or imposes  penalties as allowed under the law, which may include additional civil penalties not to exceed $500.00, and court fees and costs. A video and photos of your vehicle running the red light may be offered in evidence at a hearing on the violation.

If you elect to submit an affidavit keep in mind that the submission of a false affidavit is a misdemeanor of the second degree punishable by up to 60 days in jail and or a fine not to exceed $500.00.  If you submit an affidavit you should do so no less than eight (8) days prior to the due date specified in the notice of violation.

Florida Don't Text And Drive Law Signed by Governor Scott

Gov. Rick Scott signed the ban into law Tuesday. The ban prohibits motorists from using cell phones to text or email while operating a vehicle in most circumstances. Drivers can continue to use phones for navigation, weather and to listen to the radio, and they can also use talk-to-text devices such as the iPhone.

Law enforcement can pull a driver over only if they've committed some other infraction, such as speeding. They also cannot require motorists to hand over their phone as proof they've been texting or emailing. The law carries a first-time fine of $30.

Florida becomes the 41st state to ban texting while driving. Scott signed the bill (SB 52) into law at Alonzo and Tracy Mourning High School. "Just the fact that it'll be illegal to text and drive, I think that's going to stop our teenagers, stop citizens from texting and driving," Scott said. "We're going to monitor this."

Last week, Scott vetoed $1 million that was inserted into the state budget for a marketing campaign to explain the ban. He said Tuesday the money did not meet his criteria of being good for education or keeping the cost of living low.

The legislature has tried for five years to ban texting in Florida even though most Floridians support a texting while driving ban.

Texting contributed to at least 189 crashes in Florida in 2012, according to the Florida Department of Highway Safety and Motor Vehicles. Nationwide, more than 100,000 crashes a year involve drivers who are texting, according to the National Safety Council.

At Scott and Fenderson PA, We have been campaigning against texting and driving for several years and have a bumper sticker available at our office for free.

CLIMATE CHANGE IS NOT A MYTH!

I don’t normally discuss political issues here, however there are important legal issues that need to be addressed related to global warming.

Former Vice President Al Gore was right on point in his film "An Inconvenient Truth" released in May 2006. An Inconvenient Truth recorded a multi-media presentation hosted by Gore in which he discusses the scientific facts behind global warming, explains how it has already begun to affect our environment, talks about the disastrous consequences if the world's governments and citizens do not act, and shares what each individual can do to help protect the Earth for this and future generations.

Global warming is real. Climate change is happening. Carbon dioxide in the air is increasing, and is at a higher level than it has been for the past 3 million years and the higher level of carbon dioxide is increasingly heating up the planet at a rate faster than in the past 11,000 years.

Unfortunately many politicians vocally denying global warming, are heavily funded by fossil fuel interests, or lead institutes funded that way. Politicians have created a fake controversy claiming that global warming is a myth and not based on real science and this myth has been spread over the internet to the point that the public perception is that there is some controversy about global warming. As a result, the public perception is skewed, people believe that there is a controversy about global warming. The only controversy is a manufactured one; made up by people who are basing it on ideology, not facts, evidence, and science. Self serving individuals that know in the back of their mind that they are ignoring what may be the largest crisis this world has ever known for their own personal gain.

A new study has just come out that looked at nearly 12,000 professional scientific journal papers about global warming, and found that — of the papers expressing a stance on global warming — 97 percent endorse both the reality of global warming and the fact that humans are causing it. The study found the papers by searching on the terms "global warming" and "global climate change." The study determined that 97.1 percent of the published research papers endorsed the consensus that humans are causing global warming. They contacted 8,500 authors of the papers in question and asked them to self-rate those papers. They received responses from 1,200 authors, and 97.2 percent of the authors endorse the consensus. The majority of scientists who conduct climatological research and publish their results in professional journals say humans are the cause of global warming. There is no controversy among actual climate scientists about this. The controversy is among politicians and others funded by fossil fuel interests. Here is a link to the study http://iopscience.iop.org/1748-9326/8/2/024024/article

Environmental Law Issues

The Environmental Protection Agency. The EPA is developing standards for greenhouse gas emissions from mobile and stationary sources under the Clean Air Act. Below are the key proposed or completed actions taken to implement Clean Air Act requirements for carbon pollution and other greenhouse gases.

A summary of EPA's efforts to reduce carbon pollution is also available in testimony by Gina McCarthy, Assistant Administrator for EPA's Office of Air and Radiation, to Congress on June 29, 2012. (16 pp,105 K, About PDF)

Greenhouse Gas Endangerment Findings

On December 7, 2009, Administrator Lisa Jackson signed a final action, under Section 202(a) of the Clean Air Act, finding that six key well-mixed greenhouse gases constitute a threat to public health and welfare, and that the combined emissions from motor vehicles cause and contribute to the climate change problem. Learn more about the Greenhouse Gas Endangerment and Cause or Contribute Findings.

Transportation/Mobile Sources

EPA and NHTSA Standards to Cut Greenhouse Gas Emissions and Fuel Use for New Motor Vehicles. EPA and the National Highway Traffic Safety Administration (NHTSA) are taking coordinated steps to enable the production of a new generation of clean vehicles-- from the smallest cars to the largest trucks--through reduced greenhouse gas emissions and improved fuel use. Together, the enacted and proposed standards are expected to save more than six billion barrels of oil through 2025 and reduce more than 3,100 million metric tons of carbon dioxide emissions. Learn more about standards and regulations for controlling greenhouse gas emissions from new motor vehicles and engines.

Renewable Fuel Standard Program

EPA is also responsible for developing and implementing regulations to ensure that transportation fuel sold in the United States contains a minimum volume of renewable fuel. By 2022, the Renewable Fuel Standard (RFS) program will reduce greenhouse gas emissions by 138 million metric tons, about the annual emissions of 27 million passenger vehicles, replacing about seven percent of expected annual diesel consumption and decreasing oil imports by $41.5 billion.

Stationary Sources

Proposed Carbon Pollution Standard for New Power Plants

On March 27, 2012, EPA proposed a Carbon Pollution Standard for New Power Plants that would, for the first time, set national limits on the amount of carbon pollution that power plants can emit. The proposed rule, which applies only to new fossil-fuel-fired electric utility generating units, will help ensure that current progress continues toward a cleaner, safer, and more modern power sector.

Final Greenhouse Gas Tailoring Rule

On May 13, 2010, EPA set greenhouse gas emissions thresholds to define when permits under the New Source Review Prevention of Significant Deterioration (PSD) and Title V Operating Permit programs are required for new and existing industrial facilities. This final rule "tailors" the requirements of these Clean Air Act permitting programs to limit covered facilities to the nation's largest greenhouse gas emitters: power plants, refineries, and cement production facilities.

Timing of Applicability of the PSD Permitting Program to Greenhouse Gases

On March 29, 2010, EPA completed its reconsideration of the December 18, 2008 memorandum entitled "EPA's Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program" (the so-called "Johnson memo"). The final action confirmed that any new pollutants that EPA may regulate becomes covered under the PSD program on the date when the EPA rule regulating that new pollutant takes effect. The final action then clarified that for greenhouse gases, the effective date would be January 2, 2011, when the cars rule took effect.

Emissions Reporting

Greenhouse Gas Reporting Program

The Greenhouse Gas Reporting Program collects greenhouse gas data from large emission sources across a range of industry sectors, as well as suppliers of products that would emit greenhouse gases if released or combusted. Greenhouse gas data are available through the Greenhouse Gas Reporting Program Data Publication Tool.

Other Related Actions

Oil and Natural Gas Air Pollution Standards

On April 18, 2012, EPA finalized cost effective regulations to reduce harmful air pollution from the oil and natural gas industry, while allowing continued, responsible growth in U.S. oil and natural gas production. The final rules are expected to yield a nearly 95 percent reduction in VOC emissions from more than 11,000 new hydraulically fractured gas wells each year. The rules will also reduce air toxics and emissions of methane, a potent greenhouse gas.

Geologic Sequestration of Carbon Dioxide

Geologic sequestration is the process of injecting carbon dioxide (CO2) from a source, such as a coal-fired electric generating power plant, into a well thousands of feet underground and sequestering the CO2 underground indefinitely. With proper site selection and management, geologic sequestration could play a major role in reducing emissions of CO2. EPA has finalized requirements for geologic sequestration, including the development of a new class of wells, Class VI, under the authority of the Safe Drinking Water Act's Underground Injection Control Program. Learn more about EPA's rulemakings on geologic sequestration under the Safe Drinking Water Act.

Waste Energy Recovery Registry

On July 23, 2009, EPA published a rule that proposes to establish the criteria for including sources or sites in a Registry of Recoverable Waste Energy Sources (Registry), as required by the Energy Independence and Security Act of 2007. The agency is also proposing the Survey processes by which EPA will collect data and populate the Registry. The proposed rule would apply to major industrial and large commercial sources as defined by EPA in the rule making.

　

　

　

　

Don't Text and Drive

Study: Texting while driving now leading cause of death for teen drivers

Newsday McClatchyTribune

Thursday, May 9, 2013 4:30am

NEW YORK — Texting while driving has become a greater hazard than drinking and driving among teenagers who openly acknowledge sending and reading text messages while behind the wheel of a moving vehicle. Researchers at Cohen Children's Medical Center in New York estimate more than 3,000 annual teen deaths nationwide from texting and 300,000 injuries. The habit now surpasses the number of teens who drink and drive, researchers say. An estimated 2,700 young people die each year as a result of driving under the influence of alcohol and 282,000 are treated in emergency rooms for injuries suffered in motor-vehicle crashes, according to the Centers for Disease Control and Prevention. Dr. Andrew Adesman and a team of Cohen investigators found that while driving between September 2010 and December 2011, among 8,947 teenagers aged 15-18 nationwide, an estimated 49 percent of boys admitted to texting while driving compared with 45 percent of girls. The National Highway Traffic Safety Administration acknowledged Wednesday that distracted driving of all kinds, including the use of handheld cellphones, is a growing hazard. Observational surveys cited by the agency suggest more than 100,000 drivers are texting at any given daylight moment, while more than 600,000 drivers are using handheld phones while operating a car.

Linda Hunsinger Wins Joyce Ann Nelle Memorial Scholarship Award

Our paralegal, Linda Hunsinger has been awarded the Joyce Ann Nelle Memorial Scholarship Award today by the St.Petersburg Bar Foundation.  This scholarship is for demonstrating the highest standards of professionalism and outstanding promise as a legal assistant though her studies at St.Petersburg College Legal Assistant Program.

CLAIMS ADJUSTERS ETHICAL OBLIGATION

What is a claims adjuster and what ethical obligations are they supposed to follow?

Claims adjusters work for insurance companies, as such they have an inherent conflict of interest when dealing with claimants. The adjuster is there to protect the interests of their employer. Often claimants believe that the insurance adjuster has their best interests in mind, but this is simply not the case. Claims adjusters job is to limit the amount of money they pay out on claims, to pay as little as possible on each and every claim so as to maximize the profitability of the insurance company.

As a lawyer, I have had many clients come to me over the years telling me the same story, that a claims adjuster contacted them after their accident and offered to give them a check the same day or the day after their accident. Often these checks are for minimal amounts like $300 and include full and final releases of all property damage and bodily injury claims against their insured. Should an adjuster be allowed to engage in this type of behavior? The Florida Administrative code would say the answer is a big NO.

Here is the language from Florida Administrative code Section 4(4)(l)

"An adjuster shall not attempt to negotiate with or obtain any

statement from a claimant or witness at a time that the claimant

or witness is, or would reasonably be expected to be, in shock or

serious mental or emotional distress as a result of physical, mental,

or emotional trauma associated with a loss. Further, the adjuster shall

not conclude a settlement when such settlement would be

disadvantageous or to the detriment of a claimant who is in the

traumatic or distressed state described above".

Another common claims adjuster behavior that I see is for the adjuster to do everything they can to delay paying a claim. They often will say that they did not receive records sent to them by the lawyer, even though those records were sent certified mail and the lawyer has a return receipt as proof they were received. Adjusters also will claim that they are seeking prior medical records from the injured person, and despite being provided a signed medical release, six months later the adjuster will claim that they still don’t have the prior records.

This delay tactic is common and is in violation of Florida Administrative code Section 4(4)f), which states:  "An adjuster, upon undertaking the handling of a claim, shall act with dispatch and due diligence in achieving a proper disposition thereof."

Another common tactic is for adjusters to steer claimants away from hiring a lawyer and suggest that they would be better off just settling the claim. This conduct violates Florida Administrative Code section (4)(4)(k) which states:  "An adjuster shall not advise a claimant to refrain from seeking

legal advice, nor advise against the retention of counsel to protect the claimant's interest".

Perhaps the biggest problem that I see as a lawyer is claims adjusters denying claims or low balling the claim in such a manner as to effectively be denying the claim.  When you purchase liability insurance you have a reasonable expectation that your insurance will pay claims in the event that you are at fault in an accident.  When your insurance company does not pay the claim or makes such a low offer to settle that they effectively are denying the claim, you as the insured may find yourself being sued by the injured driver. So instead of protecting you, and paying the claim as you would expect you get a knock on the door from a process server, who then serves you with a lawsuit, which could have been avoided had the adjuster paid the claim. This type of adjuster behavior violates Florida Administrative Code section (4)(4)(c)  which states "An adjuster shall never approach investigations, adjustments, and settlements in a manner prejudicial to the insured".

Has your adjuster has violated these rules? Report violations to the Employee Assistance Office at 850-488-5201or 1-800-342-1741 and speak to an Insurance Analyst/Advisor. Be sure to request that they fill out an official RFA (Request For Assistance) . The official paperwork must be done before any official action be taken.

You can also request that they send the RFA on to the Bureau of Monitoring and Auditing.

Here is the complete Florida Administrative Code Section 4 (of 68 sections) for insurance. Included in it are 4-220.201 Ethical Requirements.

(1) Purpose. This rule sets forth the various ethical considerations and

constraints for various classes of insurance adjusters.

(2) Definitions. The following definitions shall apply for purposes of

this rule.

(a) "Adjuster," when used without further specification, refers to and

includes all types and classes of insurance adjusters,

(company, independent, and public), subject to Chapter 626, Florida

Statutes, and regardless whether resident or nonresident, and

whether permanent, temporary, or emergency licensees.

(b) "Client" refers to and includes both clients and potential clients;

and means any person who consults with or hires an

adjuster to provide adjusting services.

(c) "Department" refers to the Florida Department of Insurance.

(d) "Person" includes natural persons and legal entities.

(3) Violation. Violation of any provision of this rule shall constitute

grounds for administrative action against the licensee,

upon grounds, that include but are not limited to, that the violation

demonstrates a lack of fitness to engage in the business of

insurance. Additionally, a breach of any provision of this rule

constitutes an unfair claims settlement practice.

(4) Code of Ethics.

The work of adjusting insurance claims engages the public trust.

An adjuster must put the duty for fair and honest treatment of the

claimant above the adjuster’s own interests, in every instance. The

following are standards of conduct that define ethical behavior.

(a) An adjuster shall disclose all financial interest in any direct or

indirect aspect of an adjusting transaction. For example: an

adjuster shall not directly or indirectly refer or steer any claimant

needing repairs or other services in connection with a loss to any

person with whom the adjuster has an undisclosed financial interest, or

which person will or is reasonably anticipated to provide the

adjuster any direct or indirect compensation for the referral or for any

resulting business.

(b) An adjuster shall treat all claimants equally. An adjuster shall not

provide favored treatment to any claimant. An adjuster

shall adjust all claims strictly in accordance with the insurance

contract.

(c) An adjuster shall never approach investigations, adjustments, and

settlements in a manner prejudicial to the insured.

(d) An adjuster shall make truthful and unbiased reports of the facts

after making a complete investigation.

(e) An adjuster shall handle every adjustment and settlement with

honesty and integrity and allow a fair adjustment or

settlement to all parties without any remuneration to himself except

that to which he is legally entitled.

(f) An adjuster, upon undertaking the handling of a claim, shall act

with dispatch and due diligence in achieving a proper

disposition thereof.

(g) An adjuster shall promptly report to the Department any conduct by

any licensed insurance representative of this state,

which conduct violates any insurance law or Department rule or order.

(h) An adjuster shall exercise extraordinary care when dealing with

elderly clients, to assure that they are not disadvantaged in

their claims transactions by failing memory or impaired cognitive

processes.

(i) An adjuster shall not negotiate or effect settlement directly or

indirectly with any third-party claimant represented by an

attorney, if said adjuster has knowledge of such representation, except

with the consent of the attorney. For purposes of this

subsection, the term "third-party claimant" does not include the insured

or the insured’s resident relatives.

(j) An adjuster is permitted to interview any witness, or prospective

witness, without the consent of opposing counsel or party.

In doing so, however, the adjuster shall scrupulously avoid any

suggestion calculated to induce a witness to suppress or deviate

from the truth, or in any degree affect their appearance or testimony at

the trial or on the witness stand. If any witness making or

giving a signed or recorded statement so requests, the witness shall be

given a copy thereof.

(k) An adjuster shall not advise a claimant to refrain from seeking

legal advice, nor advise against the retention of counsel to

protect the claimant’s interest.

(l) An adjuster shall not attempt to negotiate with or obtain any

statement from a claimant or witness at a time that the claimant

or witness is, or would reasonably be expected to be, in shock or

serious mental or emotional distress as a result of physical, mental,

or emotional trauma associated with a loss. Further, the adjuster shall

not conclude a settlement when such settlement would be

disadvantageous or to the detriment of a claimant who is in the

traumatic or distressed state described above.

(m) An adjuster shall not knowingly fail to advise a claimant of their

claim rights in accordance with the terms and conditions

of the contract and of the applicable laws of this state. An adjuster

shall exercise care not to engage in the unlicensed practice of law

as prescribed by the Florida Bar.

(n) A company or independent adjuster shall not draft, unless approved

in writing in advance by the insurer and such written

communication can be demonstrated to the Department, special releases

called for by the unusual circumstances of any settlement

or otherwise draft any form of release. Except as provided above, a

company or independent adjuster is only permitted to fill in the

blanks in a release form approved by the insurer they represent.

(5) Public Adjusters, Other Ethical Constraints. In addition to

considerations set out above for adjusters, the following ethical

considerations are specific to public adjusters.

(a) A public adjuster shall advise the insured and claimant in advance

of their right to choice of counsel to represent the insured

or claimant, and that such choice is to be made solely by the insured or

claimant.

(b) The public adjuster shall notify the insured or claimant in advance

of the name and location of any proposed contractor,

architect, engineer, or similar professional, before any bid or proposal

by any of these persons may be used by the public adjuster in

estimating the loss or negotiating settlement, and the insured or

claimant may exercise veto power of any of these persons in which

case that person shall not be used in estimating costs.

(c) The public adjuster shall ensure that if a contractor, architect,

engineer, or other licensed professional is used in formulating

estimates or otherwise participates in the adjustment of the claim, the

professional must be licensed by the Florida Department of

Business and Professional Regulation.

(d) A public adjuster shall not prevent, or attempt to dissuade or

prevent, a claimant from speaking privately with the insurer,

company or independent adjuster, attorney, or any other person,

regarding the settlement of the claim.

(e) A public adjuster shall not acquire any interest in salvaged

property, except with the written consent and permission of the

insured.

(f) A public adjuster shall not accept referrals of business from any

person with whom the public adjuster may conduct

business where there is any form or manner of agreement to compensate

the person, whether directly or indirectly, for referring

business to the public adjuster. Except as between licensed public

adjusters, or licensed public adjusters and members of the Florida

Bar, no public adjuster may compensate any person, whether directly or

indirectly, for the principal purpose of referring business to

the public adjuster.

Governor Rick Scott Vetos Florida Alimony Bill

On May 1, 2013 Governor Rick Scott vetoed the proposed alimony bill known as SB718. The governor said in a letter to Florida Senate President Don Gaetz that "alimony has long been a key component of our domestic relations law and represents a remedy for our judiciary to use in providing support to families as they adjust to changes in life circumstances".  Governor Scott further stated that he could not support the bill because it retroactively applies and thus tampers with the settled economic expectations of many Floridians who have experienced divorce and could result in an unfair and unanticipated result to many families. The governor pointed out that existing Florida law provides for the adjustment of alimony under proper circumstances. The bill also contained a provision that would have made 50/50 shared custody the standard in Florida, however the Governor did not comment on that part of the legislaton.

For a look at the written letter by Governor Scott, click this link:  http://miamiherald.typepad.com/files/alimony-veto.pdf 

Alimony and Custody Changes in Store For Florida Law

The new Alimony Reform Bill passed in the Florida House by the vote of 85 to 31. The Bill will now go to the Governor for his signature in order for it to become law.

The Florida Legislature has passed a bill that will drastically change if not eliminate permanent alimony payments and even allow the courts to modify existing alimony orders between ex-spouses. The bill would also affect child custody arrangements and require judges to award divorced parents equal custody of their children, unless there were extraordinary circumstances.

Florida Governor Rick Scott has not said if he will sign the bill, which would not eliminate alimony but would severely limit it. The bill passed the Senate by a 29-11 vote.

Many Florida family law lawyers are opposed to the bill, as are current alimony recipients.

The bill would limit alimony payments from lasting more than half the length of the marriage. The amount of alimony would be capped based on the paying spouses income, and could terminate upon retirement.

The custody provision for shared custody may be equally troubling. Judges have traditionally avoided a split custody arrangement because it can be hard on the children as well as the spouses. Children end up going from house to house every other week or twice a week, which becomes disruptive to school and after school activities and lacks continuity.

Stay tuned to see if the Governor signs the bill into law and then look for the legal challenges to be filed by divorce lawyers. Click the link below to see the full text of the bill;

http://www.flsenate.gov/Session/Bill/2013/0718/BillText/e2/PDF

FLORIDA SENATE CONSIDERS MANDATORY BODILY INJURY LIABILITY

The Florida senate is considering a bill to replace the states antiquated PIP no fault insurance law and instead implement mandatory bodily injury liability insurance. At the present time Florida residents are not required to carry mandatory bodily injury insurance coverage which would cover liability for injury to another driver or pedestrian as a result of negligent operation of a vehicle. The only coverages required at this time in Florida are PIP and property damage (damage to the other persons vehicle).  

The Senate Banking and Insurance Committee voted to support the measure (SB 7152), and would abolish the current PIP law and require bodily injury coverage instead.

In the past Insurance companies opposed mandatory BI but may be having a change of heart after the mess that the new PIP law has created. Insurance companies were supposed to lower insurance rates however rates haven't gone down and fraud is still prevalent.

Most of the states do not have no-fault laws, and only 12 states do have PIP or no fault laws. At this moment, the District of Columbia and the following 12 states have adopted some form of "no fault" automobile insurance laws: Florida, Kentucky, Kansas, Hawaii, Michigan, Massachusetts, New Jersey, Minnesota, New York, Pennsylvania, Utah and North Dakota

Below is a summary of what coverages are required on a state by state basis. As you can see, Florida is one of the only states that does not require mandatory bodily injury liability coverage besides New Hampshire. In the list below BI means bodily injury liability coverage, PD means property damage, UM means uninsured motorist coverage, and PIP means personal injury protection coverage. It seems timely that Florida join the rest of the states and do away with "no fault" and implement mandatory bodily injury coverage.

Alabama BI & PD Liab

Alaska BI & PD Liab

Arizona BI & PD Liab

Arkansas BI & PD Liab, PIP

California BI & PD Liab

Colorado BI & PD Liab

Connecticut BI & PD Liab, UM, UIM

Delaware BI & PD Liab, PIP

District of Columbia BI & PD Liab, UM

Florida PD Liab, PIP

Georgia BI & PD Liab

Hawaii BI & PD Liab, PIPIdaho BI & PD Liab

Illinois BI & PD Liab, UM

Indiana BI & PD Liab

Iowa BI & PD Liab

Kansas BI & PD Liab, PIP, UM

Kentucky BI & PD Liab, PIP

Louisiana BI & PD Liab

Maine BI & PD Liab, UM, UIM

Maryland BI & PD Liab, PIP, UM, UIM

Massachusetts BI & PD Liab, PIP, UM

Michigan BI & PD Liab, PIP

Minnesota BI & PD Liab, PIP, UM,UIM

Mississippi BI & PD Liab

Missouri BI & PD Liab, UM

Montana BI & PD Liab

Nebraska BI & PD Liab

Nevada BI & PD Liab

New Hampshire FR only, UM

New Jersey BI & PD Liab, PIP, UM, UIM

New Mexico BI & PD Liab

New York BI & PD Liab, PIP, UM

North Carolina BI & PD Liab, UM, UIM

North Dakota BI & PD Liab, PIP, UM, UIM

Ohio BI & PD Liab

Oklahoma BI & PD Liab

Oregon BI & PD Liab, PIP, UM

Pennsylvania BI & PD Liab, PIP

Rhode Island BI & PD Liab, UM8

South Carolina BI & PD Liab, UM

South Dakota BI & PD Liab, UM

Tennessee BI & PD Liab

Texas BI & PD Liab

Utah BI & PD Liab, PIP

Vermont BI & PD Liab

Virginia BI & PD Liab, UM, UIM

Washington BI & PD Liab

West Virginia BI & PD Liab, UM

Wisconsin BI & PD Liab, UM, UIM

Wyoming BI & PD Liab 25/50/20