Canan Law

Proving Liability in a Slip-and-Fall Personal Injury Case

July 25, 2016

Indoor and outdoor slips-and-falls are all too common and can result in serious injuries.  While your injuries may be evident and obvious , proving liability (fault) in these cases can be tricky. Your chances of prevailing will be greatly enhanced if you have an experienced St. Johns County slip and fall lawyer on your side who can determine whether you have a viable claim and, if so, help you present persuasive evidence of liability.

Elements of a Slip and Fall Claim

In order to prevail in a slip-and-fall case, you must demonstrate that the owner or manager of the premises had a legal obligation (called a “duty”) to maintain the property in a reasonably safe condition; that this duty was breached; and the breach of duty caused your injuries.

To prove that the owner/occupier of the property breached (or failed to uphold) his duty of care, you must show that:

  • A hazard existed on the property (e.g., lettuce or a grape or water on the grocery store floor; a broken handrail; an unmarked step; an unmarked area under construction or renovation, etc.); and
  • The property owner/occupier knew about the hazard or should have known about it.

If you are unsure of what caused you to slip and fall in the first place, then proving the existence of a hazard will be more difficult. In this scenario, eyewitness testimony can be critical to your case. For example, if you aren’t sure what caused you to slip and fall in the grocery store, but an eyewitness at the scene observed water on the back of your coat when you stood up, we could infer that you slipped and fell on water (or some other liquid) that was present on the floor. In addition to eyewitness testimony, other helpful evidence might include photographs, store incident reports, testimony from store employees, statements from emergency room workers or other healthcare providers, and statements included in your medical records.  All of these pieces of evidence will help to prove that a hazard existed, which caused you to slip and fall.

Caution: As a practical matter, you should be extremely careful about what you say to medical providers or EMTs who arrive on scene.  Any statements that you make to these individuals can be used against you by the insurance company if you pursue a personal injury claim and seek compensation.  For example, if you tell the EMTs, “I’m not sure what I fell on; it’s possible I just tripped over my own two feet!” you can bet that the insurance company will take those statements into consideration, and it is likely that your claim will be denied.

You can establish that the owner/occupier knew or should have known about the hazard with evidence that the owner caused the hazardous condition to exist (e.g., ordered the construction on the staircase or spilled the liquid on the floor) or that the hazard had been present for some time. In that instance, there may be a paper trail (e.g., emails, complaint forms, work orders, maintenance logs, etc.) leading from the owner to the hazard.

Contact Us

Establishing fault in a slip-and-fall case can be a complicated and challenging endeavor.  Our experienced St. Johns County slip and fall lawyers know how to gather and present persuasive evidence of liability, and can help you obtain fair compensation for your injuries. To contact us, please call 904-824-9402 or use the email form on this page to tell us about your situation.

 

What to Expect at an Independent Medical Examination

July 11, 2016

An independent medical exam (“IME”) is a necessary step for most personal injury plaintiffs. Unfortunately, it also is a major source of anxiety for most personal injury plaintiffs, often because they just don’t know what to expect. In this post, our St. Johns County personal injury attorneys hope to ease your anxiety by answering common questions about the IME and providing an overview of the examination process.

What is an IME?
An IME is part of “discovery,” which is the fact-finding process the attorneys go through after a lawsuit is filed. Once you file a lawsuit seeking compensation for personal injuries, the defendant (the person you have sued) can ask you to submit to an independent medical exam.  However, as explained below, the term “independent” is a misnomer, as the doctor is anything but independent.

Who Performs the Exam?

An IME is more accurately described as a “defense medical exam” or an “insurance company medical exam” because the defense attorney and/or the insurance adjuster get to choose the doctor who will perform the exam, and they will always choose a physician who will skew the results in the defendant’s favor.  In most cases, insurance companies have ongoing professional relationships with these so-called independent doctors and refer them considerable business in any given year.  (It is not unheard of for some of these doctors to make hundreds of thousands of dollars each year, simply by evaluating personal injury plaintiffs and providing expert testimony for insurance companies at personal injury trials.)  As you can imagine, these doctors – some of whom are retired or semi-retired and have not performed an actual surgery or other medical procedure in twenty years or more – are careful not to “bite the hand that feeds them.”

Remember that the insurance company is in the business of making money.  Accordingly, its goal is to pay out as little as possible in satisfaction of a personal injury claim.  The insurance company knows that if your case proceeds to trial, the IME doctor can testify as an expert witness (or, at the very least, the doctor’s report can be introduced into evidence), and that this evidence could potentially result in a decreased damages verdict at trial.

What Will Happen at the Exam?

While the procedure may vary somewhat from doctor to doctor, most independent medical examinations will proceed something like this:

At the beginning of the IME, the doctor will inform you that the examination is not for purposes of establishing a doctor-patient relationship.  In other words, the doctor is not trying to help you. Rather, the purpose of the examination is to evaluate you for litigation purposes and to prepare a report for the insurance adjuster and/or the defense attorney. (Your attorney also will receive a copy of this report.) The doctor will then conduct his examination which, depending on the nature of your injuries, might include manipulating injured body parts, measuring your range of motion, and taking a medical history.

Tips for Handling the IME

Even though this is not a traditional doctor-patient appointment, you still should treat the doctor politely and with respect.

Try to be specific and detailed in describing the problems, injuries, and symptoms you are experiencing.  Again, the purpose of the examination is for the IME doctor to prepare a report for the insurance company, which will likely be used against you at trial or during settlement negotiations.  If you leave out certain injuries or symptoms that you claim are directly related to the accident and caused by the defendant’s negligence, those injuries and symptoms will be omitted from the IME report, which could potentially have a negative impact on the value of your case.

This is not the time to put on a brave face and minimize your pain or other symptoms. Likewise, do not exaggerate the impact of your condition. If you do, it surely will come back to damage your credibility. In short, be honest.

Finally, do not make small talk or discuss the specifics of your case or your conversations with your lawyer. Remember the purpose of the exam.

Contact Us

If you have questions about an upcoming IME, or about the IME process generally, please contact our experienced St. Johns County personal injury attorneys. You can reach us by phone or email. We will respond promptly.

 

Title: What to Expect at an Independent Medical Examination

Meta description: St. Johns County personal injury attorneys take the mystery out of the “independent” medical examination and offer tips for handling the exam.

Important Information About Personal Injury Claims and TBI

June 27, 2016

Broken bones and soft tissue injuries are the common results of auto accidents, slip and fall accidents, and other acts of negligence. Traumatic brain injuries also occur, but this type of injury can be difficult to diagnose or missed altogether. Our St. Augustine TBI lawyers want you to know the following important information about these sometimes “invisible” injuries:

What is traumatic brain injury?

“Traumatic brain injury” or TBI is a term used to describe a brain injury that results from a physical trauma.  TBI can range from mild to severe, in terms of symptoms and prognosis. Mild TBI is characterized by temporary confusion and disorientation and, perhaps, loss of consciousness, lasting less than 30 minutes.  An MRI or CAT scan may appear normal. Mild TBI may be overlooked by the injured person and his or her family members, as well as by doctors, as the symptoms may not be present at the time of injury and may not appear for days or weeks after the accident that caused the injury.  At the other end of the spectrum, severe TBI is characterized by a loss of consciousness lasting longer than 30 minutes and memory loss lasting longer than 24 hours.  Severe TBI often results in permanent neurological damage.

What are some common causes of TBI?

TBI may result from a blow to the head occurring in any number of situations, including, for example:

  • An auto accident in which you strike your head on the steering wheel or dashboard;
  • A slip and fall accident in which your head strikes the ground and/or hits an object (e.g., a stair railing or a countertop) as you fall;
  • A sports-related injury, in which your collide with another athlete.

TBI also may occur in the absence of any blow to the head (think of shaken-baby syndrome). For example, TBI is commonly associated with rear-end collisions and whiplash injuries. The quick and severe whipping motion of the head, forward and then back, causes the brain to hit the inside of the skull, resulting in injury.

What are the symptoms of TBI?

Because the brain performs such a wide range of functions within our bodies, a wide range of symptoms can result from TBI. The list of symptoms varies for each person and, depending on the severity of the trauma, the symptoms may take several days or weeks after the injury occurs to develop.  Some symptoms of mild TBI include:

  • Fatigue
  • Headaches
  • Memory problems
  • Difficulty concentrating
  • Loss of balance
  • Mood swings
  • Visual disturbances
  • Dizziness

More severe cases of TBI may result in more permanent symptoms, including cognitive impairment, sleep disorders, and chronic pain.

How will TBI affect my personal injury case?

A brain injury will impact the settlement value of your case and, potentially, the value a jury will put on your case. The extent of this impact will depend on the severity of your TBI, and how your injury affects your daily life and your ability to function.  Another consideration is whether your injuries are expected to be permanent or to heal over time. All of this will be moot, however, if you cannot prove that you sustained a TBI.  Because TBI is difficult to diagnose and is often overlooked, it is important to make sure you document your injury. There are several ways you can do this:

  • Knowing the signs/symptoms of TBI and reporting them to your treating doctors.
  • Undergoing a neurological examination, with scans.
  • Undergoing neuropsychological testing.
  • Maintaining a daily journal that documents the effects the injury has had on your life. If you are not able to do this, a close family member can step in and take on this responsibility.
  • Being evaluated by a medical expert, who can prepare a report and work with your St. Augustine TBI lawyers in anticipation of settlement negotiations and/or trial.

Contact Us

If you have questions or concerns about a possible traumatic brain injury, contact our experienced St. Augustine TBI lawyers. We can discuss the medical issues with you, answer your questions and review your legal options. You can reach us by phone or email. We will respond promptly.

Elements of Damages in a Jacksonville Personal Injury Case

June 13, 2016

If you were harmed due to another’s negligence (unreasonable carelessness) or misconduct, you may be entitled to compensation for the losses or injuries that you have suffered.  In legal terms, that compensation is known as “compensatory damages.”

“Compensatory damages” is a catch-all term for the economic and non-economic losses that an individual may have suffered due to another person’s actions or failure to act.  The goal of compensatory damages is to replace what the individual has lost and make him or her “whole” again.

Understand the elements of damages in a Jacksonville Personal Injury Case. Let’s review the components of compensatory damages that may be available to you in a Jacksonville personal injury case:

Economic Losses/Monetary Expenses

Economic losses are those losses that are quantifiable and verifiable.  Medical expenses, for example, can be proven through the documentation and presentation of medical bills. As part of compensatory damages, you are entitled to reimbursement for reasonable and necessary medical expenses, including past and future expenses.  Your Jacksonville personal injury lawyer may hire medical experts to testify regarding the nature and extent of your injuries, as well as the reasonableness of the medical expenses you have incurred and are likely incur in the future as a result of the accident.

You also are entitled to receive compensation for lost wages. If your injury affects your ability to earn income, you may be entitled to receive damages for the amount of wages you would have earned had the accident never occurred. As with medical expenses, lost wages and income are often proved through expert testimony.

Property damage is another example of a monetary expense or economic loss that can easily be quantified.

Non-economic Losses/General Damages

Non-economic losses (also called “general damages”) are those that are not easily quantifiable by supporting evidence or documentation. These types of damages include emotional distress, pain and suffering, permanent injuries and disfigurement, and loss of consortium. “Pain and suffering” includes physical pain, as well as mental anguish you may have suffered due to an accident or injury resulting from another’s misconduct. It also includes the emotional pain that stems from your inability to continue to participate in and enjoy activities you did previously, and the change in the quality of your life.

Because non-economic losses tend to be quite subjective, determining the amount of compensation you may be entitled to receive is tricky, and no exact formula exists for the calculation. Therefore, claims for non-economic damages are often supported by the expert opinions and testimony of medical and mental health professionals, who can explain the nature and severity of your loss. Your family members, friends and other non-experts also can provide helpful evidence regarding the impact of your injuries on your daily life.

Contact a Jacksonville Personal Injury Lawyer for your Jacksonville Personal Injury case

Many factors will impact the type and amount of compensatory damages to which you may be entitled. To talk with an experienced Jacksonville personal injury lawyer about your particular situation, call us, at 904-824-9402, or email us using the form on this page.

Know Your Constitutional Rights

May 30, 2016

book gavel and scaleThe first ten Amendments to the U.S. Constitution are called the Bill of Rights. The Bill of Rights, along with the Fourteenth Amendment, protects your basic liberties and rights in the criminal justice system.  In this post, our Jacksonville criminal defense lawyers will review your fundamental constitutional rights, so that you can better protect yourself in your encounters with law enforcement.

Fourth Amendment –Search and Seizure

The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures, and requires that no search may be conducted without a warrant. The warrant must describe the place to be searched and the items to be seized with particularity. For example, if the police have a warrant to search a person’s shed, they cannot enter the house.   Also, the warrant, in most instances, will not give the police authority to search the entire house. For example, if the police are looking for a desktop computer, they cannot open the mail sitting on the kitchen counter since the computer could not possibly be in an envelope. Over the years, however, the Supreme Court has allowed numerous exceptions to the warrant requirement. Thus, police officers have broad powers to search motor vehicles. Also, homes can be searched and entered in emergency situations or when evidence of a crime is in plain sight.

Fifth Amendment– Self-Incrimination; Due Process; Double Jeopardy

The Fifth Amendment requires a grand jury to return a bill of indictment in all federal felony cases before a person can be tried for a crime. The grand jury’s job is to determine if the prosecution’s case is reasonable and there is enough evidence (probable cause) to turn the matter over for trial.

The Fifth Amendment also prohibits self-incrimination.  In other words, it protects your right to remain silent, such that the government cannot force you to offer evidence against yourself.

The right to due process is also in the Fifth Amendment.  Due process is a complicated legal term, but it may be your most important right. At a minimum, it means the state must follow the rules.  Regardless of an individual’s personal circumstances, the Fifth Amendment requires the law enforcement and the prosecution to follow all the rules and the law before a person can be arrested, prosecuted, or jailed.

The ban on double jeopardy is also contained in the Fifth Amendment. This provision protects you from being tried for the same crime twice.

Sixth Amendment – Fair Trial; Right to Confront Witnesses; Right to an Attorney

The Sixth Amendment protects your rights at trial. Among other rights, the Sixth Amendment sets forth your right to an attorney, and it protects your right to a trial by an impartial jury.

The Sixth Amendment also protects your rights to challenge the state’s evidence (essentially, the right to cross-examination) and to present evidence in your defense.

Eighth Amendment –Bail; Cruel or Unusual Punishment

The Eighth Amendment prohibits excessive bail, as well as cruel and unusual punishment. Determining what constitutes excessive bail can be difficult. Bail has two primary purposes – to ensure that the defendant will appear for his trial date and to protect the community from dangerous individuals. A high bail is unconstitutional when it is used to keep a defendant in jail as a means of punishment, rather than as a means of serving these two legitimate purposes. What constitutes cruel and unusual punishment is equally vague and court rulings on this issue span a broad spectrum, from prison conditions to the death penalty.

Fourteenth Amendment – Equal Protection of the Law; Due Process

Prior to the Fourteenth Amendment, the Bill of Rights only applied to the federal government.  The Fourteenth Amendment prohibits the states from making arbitrary distinctions between citizens of the state. All people are entitled to the equal protection and due process of the law. The Fourteenth Amendment also incorporates the rights contained in the Bill of Rights and makes them binding on the states.  Consequently, no state can deprive a person of a fair trial, subject people to unreasonable searches, set unreasonable bail, or deprive a person of the right to an attorney.

Contact a Jacksonville Criminal Defense Lawyer

If you believe your constitutional rights have been violated, call us today, at 904-824-9402, or send us an email using the contact form on this page.  Schedule a confidential consultation with our experienced Jacksonville criminal defense lawyers, so that we can assess your situation and advise you of your legal rights and options.

 

Should You Accept a Plea Bargain?

May 23, 2016

man under arrest Jacksonville Criminal Defense AttorneyThe decision to accept a plea bargain belongs to the defendant.  Your St. Augustine criminal defense lawyer brings objectivity and experience to the decision-making process; however, it is you, the defendant, who has to live with the decision. What factors should you consider in deciding whether to accept the prosecutor’s plea offer or take your chances at trial?

The stress and uncertainty of a trial

Consider whether you can live with the stress and uncertainty that comes with waiting for a trial date and, later, waiting for the jury’s verdict. If so, then you may want to reject the plea. If, on the other hand, the stress and uncertainty of a trial is negatively affecting your physical, mental and/or emotional health, a plea bargain may be a better option.

Future employment opportunities

All convictions are harmful when you are seeking employment, but a felony conviction can be an absolute no-go for many employers. If the plea agreement allows you to plead to a misdemeanor instead of a felony, or offers deferred prosecution, then you may want to accept in order to preserve future employment opportunities.

Reduced jail time

Through a plea agreement, your active prison time can be reduced or eliminated in three ways;

  1. Stipulate to probation instead of prison or jail time;
  2. Plead to a lesser charge that has lesser penalties;
  3. Plead to the original charge, but stipulate to a limited penalty.

A word of warning about probation: Be sure you understand the conditions of probation.  For example, does it include community service, fines, classes, or drug testing? Will your home be subject to inspection and visitation from a probation officer?

Unfortunately, people with substance abuse issues often have trouble with probation. District Attorneys know this. The District Attorney’s calculation might be, “I just have to wait a little longer, and I will have another charge to hang on the defendant.” Often district attorneys are happy to agree to probation because they know it has a back end; probation violations are easier to prove than the original charge. Accordingly, be honest with yourself and your St. Augustine criminal defense lawyer about substance abuse issues and any other issues that might impact your ability to comply with the terms of probation.

The strength of the evidence against you

Perhaps most importantly, before a decision is made on accepting or rejecting a plea offer, weigh the evidence against you. Weighing the evidence is not an exact science, but an objective and experienced St. Augustine criminal defense lawyer is indispensable in this process.  You and your attorney must assess the evidence for its truthfulness and probative value – that is, how much bearing a particular piece of evidence has on the charges against you.  Likewise, how reliable are the witnesses who might testify against you? Can a witness be discredited because he was intoxicated at the time of the alleged crime? Does another witness have an axe to grind against you that makes him biased and untrustworthy? Your attorney also will examine the record to determine if the police obtained the evidence in a legal manner. Evidence gathered improperly can often be suppressed and will not come in at trial.

Contact Us

If you or a loved one is facing criminal charges, or if you are being investigated and suspect that criminal charges may be imminent, you need a St. Augustine criminal defense lawyer you can trust. Call us today, at 904-824-9402, to arrange a confidential case evaluation.

Your Home is Your Castle

May 3, 2016

St. Augustine criminal defense attorneys explain the exceptions to the warrant requirement for police search and seizure.

Everyone knows that the police cannot force their way into your home, or search your body, or take your property without a search warrant. Right? In most cases, that is right. There are, however, a number of exceptions to the warrant requirement.  In this post, our St. Augustine criminal defense attorneys will explain the scope of those exceptions to help you better understand and assert your rights.

The General Rule

When the government searches or seizes a place or item in which a person has a reasonable expectation of privacy – such as your home, or your car, or your body – the Fourth Amendment to the United States Constitution requires that the search and/or seizure be “reasonable.” This usually means that a warrant must be obtained by the police in advance. The warrant must be specific, and must be based on probable cause that evidence of a crime or contraband will be found. Over time, however, numerous exceptions have been carved out of the Fourth Amendment, allowing the police to act without a warrant.

The Exceptions

Consent
The police may search a person, place or item without a warrant when a person with authority to consent voluntarily consents to the search. To be valid, consent must be truly voluntary and not the result of pressure or scare tactics by the police.

Exigent Circumstances
A warrantless search may be justified by “exigent circumstances” or an emergency situation. If the circumstances are such that a getting a warrant beforehand would be impractical (because, for example, evidence would be destroyed), a warrantless search may be considered reasonable.  There is no clear-cut rule to determine if a warrantless search will be justified under the exigent circumstances exception. The courts consider factors such as evidence of probable cause, the seriousness of the offense, the likelihood of immediate harm to persons or property, the immediate destruction of evidence, or the potential escape of a criminal suspect.

Plain View

The plain view exception allows the police to seize evidence of a crime and/or contraband that is discovered in plain view while the police are lawfully present in a particular place. This could be, for example, drug paraphernalia observed in plain view on the floor of the passenger seat during a lawful traffic stop.

Search Incident to Lawful Arrest

Police may perform a warrantless search of an arrested person and the area within the arrested person’s immediate control to ensure the officers’ safety and to guard against the potential destruction of evidence.  Furthermore, a valid arrest warrant carries with it the limited authority to enter a house if there is a reasonable suspicion that the suspect is within. If the suspect is found inside and arrested, the police may then perform a ‘protective sweep” to ensure the officers’ safety.  While doing the “protective sweep” any evidence of a crime found may be seized without a search warrant. (The plain view exception also might come into play in this situation.)

Automobile Exception

Because of a car’s mobility and the lower expectation of privacy you have in your vehicle, search warrants are not required to search automobiles if police have probable cause to believe an automobile contains evidence of a crime or contraband.  Although this is known as the “automobile exception,” it is not limited to automobiles. It also applies to boats and motor homes which are actually mobile. This is a broad exception, but the scope of the search must be limited to areas of the automobile, boat or motor home which might actually contain evidence of the crime suspected. For example, if the police have probable cause to believe that a boat is being used for human trafficking, they may search places in the boat that a human being might be found but not, for instance, inside a tackle box.

Stop and Frisk

If police have a reasonable suspicion that an individual has committed or is about to commit a crime, the police may perform a brief, non-intrusive stop of that individual.  If the police reasonably suspect that the individual is armed and dangerous, they may conduct a frisk and pat-down of the suspect’s outer clothing.

Other Exceptions

Other exceptions also exist. Depending on the circumstances, a search without a warrant may be reasonable in the context of:

  • Public school searches
  • Searches of public employees
  • Searches of a probationer’s home
  • Drug tests
  • Administrative searches (TSA, border searches)
  • Electronic searches and seizures (laptops, cell phones, email, social media accounts)

Contact Us

If you think your rights may have been violated in connection with a police search and seizure, call or email us today. Depending on the facts of your case, our experienced St. Augustine criminal defense attorneys may be able to have the evidence derived from that police action tossed out.

 

 

 

 

 

Assert Your Miranda Rights

April 15, 2016

man under arrest Jacksonville Criminal Defense AttorneyThe Supreme Court decision in Miranda v Arizona stands for the proposition that police must inform a suspect who is in custody of his constitutional rights to remain silent and consult with a St. Augustine defense lawyer. If you ever have seen a television crime drama, you can probably recite your Miranda rights:

 

  1. You have the right to remain silent;
  2. Your statements can and will be used against you;
  3. You have the right to consult with an attorney and to have an attorney present during interrogation; and
  4. If you cannot afford to hire an attorney, one will be appointed for you.

 

While most people know these rights, it can be difficult to assert them when confronted by law enforcement. Our St. Augustine defense lawyers explain when and how to assert your constitutional rights.

 

When You Are In Custody Or Under Arrest

You have to be in custody or under arrest for Miranda warnings to be given. If the police encounter occurs when you are in your home, at your job, at a party or a bar, or just walking down the street, police officers are not required to advise you of your rights. Even if the police consider you to be the primary suspect, only when the circumstances are such that a reasonable person would feel he is not free to leave are you considered to be in custody in the eyes of the law. Only then must Miranda warnings be given to you. In addition to being in custody, the police must be actively engaged in behavior that is calculated to produce incriminating statements. Spontaneous statements made by a suspect are not considered the result of an interrogation.

 

Assert Your Rights, then Stop Talking

Almost anything you say or ask will be used as evidence against you, if possible.  On the other hand, if you say nothing, your silence cannot be used as evidence against you. Police know this and use it to their advantage. They know that most people will say something when confronted with serious allegations. They are counting on this to convince or coerce a person to confess to the offense even though the case may be very weak or there may be no evidence against an individual, only suspicions. Unlike most civilians, law enforcement officers are trained in interrogation techniques. Your best defense is your silence and your demand to see a St. Augustine criminal defense lawyer.

 

Tell the interrogating officer:

“I do not want to talk. I wish to remain silent. I want to see a lawyer.”

 

Once you have asserted your rights, stop talking. Do not ask questions or have any further discussion with the police about the immediate matter or anything else. Further communication with the police could be interpreted as relinquishing your rights, and the interrogation process may start anew.  Spontaneously starting a new conversation with the police, even after you have retained a lawyer, also could be interpreted as relinquishing your right to remain silent.

 

When You Know You Are A Suspect In A Crime 

Just because the police are required to advise you of your Miranda rights only when you are in custody does not mean that you cannot take steps to protect yourself and assert those rights when you are not in custody.  If you are approached by a law enforcement officer or if a police officer should leave a card for you to call because you are a suspect in a crime, you should always tell the officer, respectfully and specifically:

  1. “I do not want to talk to you or anyone else at this time”;
  2. “I wish to speak to an attorney”;
  3. “I wish to have an attorney present during any questioning.”

 

Do not get into the officer’s police car if you are not under arrest; do not go to the police station if you are not under arrest.  Write down the date, time and the circumstances under which the officer tried to talk to you, and call your St. Augustine criminal defense lawyer immediately.

 

Contact Us

The Miranda warnings are interpreted to protect all persons against the naturally coercive and intimidating effects of interrogation by law enforcement officers. To learn more about your rights in the criminal justice system or to talk about your particular situation, contact our St. Augustine criminal defense lawyers today.

Our Jacksonville Criminal Defense Attorney Discusses Double Jeopardy

March 17, 2016

One of the key points that our Jacksonville criminal defense attorney emphasizes to clients is their constitutional rights, including the Fifth Amendment, which states that a person cannot be placed in double jeopardy or tried more than once for the same offense. However, the logistics of what double jeopardy looks like can be confusing.

A Definition of Double Jeopardy

Double jeopardy means that a person is put at risk again from prosecution. The writers of the Constitution determined that a person cannot be punished again for the same crime. Technically, prohibitions against double jeopardy include:

  • Re-prosecuting a person for the same crime after he or she was acquitted
  • Re-prosecuting a person for the same crime after he or she was convicted and
  • Punishing a person for the same crime more than once.

Even when the prosecution finds additional evidence of a defendant’s guilt after a trial, the state or district attorney cannot prosecute the defendant again. In addition, a judge cannot sentence a person again when he or she already completed a sentence for the offense in question. However, the courts have implemented specific guidelines about when double jeopardy applies.

Criminal Cases

Administrative and civil proceedings are exempt from double jeopardy as it only applies to criminal law. For example, if someone is convicted of a crime, he or she might still be exposed to a civil case from the crime victims. A classic example of this was when O.J. Simpson was acquitted of criminal charges but was found liable in a civil case. In addition, the Department of Motor Vehicles has the right to take action, such as suspend or revoke a driver’s license in a criminal case. For this reason, in a drunk driving case, the courts and the DMV will impose separate sanctions.

Attachment of Jeopardy

The case must progress beyond a certain point in order for double jeopardy to apply. Just because the prosecution re-files criminal charges does not mean that the person is in jeopardy. In cases before a judge, attachment happens when the first witness takes the stand. In jury trials, attachment happens when the jury is sworn in.

Double Jeopardy for the Same Crime

While you can only be prosecuted once for the same offense, you can be prosecuted separately for other related offenses. For example, if a defendant wins an acquittal for murder, he or she might still be prosecuted for assault with a deadly weapon, a separate charge.

Different Jurisdictions

In addition, the double jeopardy guarantee only applies in cases in the same jurisdiction. The state and federal government can both prosecute a person for the same offense, such as transportation of marijuana over a certain amount. Another example is the state prosecution of the police officers in the Rodney King beating in California. While the state lost its case, the federal government picked up the case when they claimed that King’s civil rights were violated. Double jeopardy did not apply because two different jurisdictions, also labeled sovereigns, acted. In the 2013 case when George Zimmerman was acquitted of the death of Trayvon Martin, the public wanted the federal government to pursue the case. However, the feds declined, likely because the question of Zimmerman’s racial animosity was in question.

Separate Punishments Stemming from the Same Crime

Prosecutors sometimes file numerous charges against a person for the same offenses. For example, the defendant might face charges for assault and assault with a deadly weapon for using a knife in the attack. However, if the defendant is convicted of both offenses, he or she can only be sentenced for the more serious offense or assault with a knife in this case.

The Question of Fairness

If double jeopardy is a question in a case during an appeal, the appellate court will consider how it applies on a case-by-case basis. They look at the bottom line regarding fairness, depending on the situation.

Call Our Jacksonville Criminal Defense Attorney at (904) 824-9402

Our Jacksonville criminal attorney at Canan Law can clarify if double jeopardy is a factor in your case.

St Augustine Divorce Attorney Helps Spouses Who Are Not Receiving Spousal Support

March 6, 2016

A St Augustine divorce attorney can likely recount many stories about why spouses fall behind on alimony. Sometimes it is due to an unexpected job loss and difficulty finding a new job. In other cases, the paying spouse may suffer from medical conditions that affect his or her ability to work. However, sometimes a paying spouse simply resents having to pay support, is bitter or wants to get back at an ex by stopping expected support. Fortunately, the recipient spouse has a number of remedies to help ensure that he or she receives court-ordered spousal support.

Investigation

The first thing that a St Augustine divorce attorney will want to do in a case of this nature is to determine why the spouse has stopped paying support. He or she will want to uncover whether the spouse involuntarily lost a job or experienced a reduction in income due to illness or injury. If the paying spouse is unable to make support payments, the spouses may be able to work out an agreement that reduces the amount of payments or suspends them for a certain period of time. A St Augustine divorce attorney can help draft an agreement to this effect and ensure that the recipient spouse’s legal interests are fully protected. However, if it is determined that the paying spouse simply wants to avoid his or her obligation to pay spousal support, the recipient spouse will likely need to pursue a remedy provided by the court.

Available Remedies

If there is a court-ordered spousal support order, the recipient spouse can file a petition with the court asking it to force the paying spouse to pay off the amount that he or she is behind on support. Courts do not like it when parties deliberately disobey their orders. Courts have much discretion when it comes to punishing individuals for not obeying their orders.

Some court remedies include:

Contempt

The recipient spouse may file a motion for contempt against the paying spouse. The court may hear testimony and analyze evidence to determine if the paying spouse has intentionally disobeyed the court order. If the court finds that he or she did, the spouse may be ordered to pay off the back-due support within a specific period of time. The court may impose an additional fine. If the spouse still refuses to honor his or her obligation, the court may have the paying spouse jailed.

Confiscation of Funds

Another remedy that the court has is to confiscate funds from the spouse’s financial estate such as rents and profits derived from real estate that he or she owns. The court can have these amounts taken and applied toward the spousal support obligation if it determines such action is reasonable and just.

Income Withholding

An income withholding order is often sent to a paying spouse’s employer. This order requires the employer to withhold the amount of spousal support and forward it to the recipient spouse. Such an order is often effective because it removes the paying spouse’s ability to simply keep these funds for himself or herself rather than pay spousal support. However, the order is only effective while the spouse is employed. Likewise, a withholding order does not work in cases in which the paying spouse is self-employed.

If the original spousal support order did not include an income withholding order, the recipient spouse can request that such an order be imposed. While this will not help regain the payments that were not received, it can help ensure that future payments are received. If the paying spouse is self-employed, the recipient spouse can ask the court to order the paying spouse to establish a trust that will provide access to funds to the recipient spouse if payments are not made in a timely manner.

Order to Find Work

If the paying spouse is unemployed, the recipient spouse can ask the court to order the spouse to find work. Additionally, the recipient spouse can ask the judge to impute income for the spouse if he or she is willfully unemployed. This requires the court to make an assessment of how much money the paying spouse would be earning if he or she had a job based on the individual’s earning capacity, including his or her education, work history and skills. The amount of spousal support is then based off of the imputed income.

Writ of Execution

Another potential remedy is for the court to issue a writ of execution against assets owned by the paying spouse, such as checking accounts, CDs and other financial assets.

Legal Assistance

If a recipient spouse is not receiving spousal support that was ordered by the court, he or she may need legal assistance. Contact a St Augustine divorce attorney from Canan Law by calling (904) 824-9402 to set up a confidential consultation.

The Law Offices of Patrick T. Canan in St. Augustine, Florida represents clients throughout St. Johns County, Duval County, Flagler County, Putman County, Clay County,
and the cities of St. Augustine, Ponte Vedra Beach, Palm Coast, Palatka, Green Cove Springs, Bunnell, Flagler Beach, Hastings, Crescent City, Interlachen, and Jacksonville.

The Offices of Patrick T. Canan | 1030 N. Ponce de Leon Blvd | St. Augustine, FL 32084 | Telephone 904.824.9402 | Fax 904.824.9269
Email generalinquiries@cananlaw.com | For emergencies, call 904.716.3450 | Office Hours: 8:30-5:00 Monday through Friday
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