The Sidebar Blog

Hazing in Florida

Hazing in Florida can be a very serious matter, especially when it results in death.  Much attention has been brought to hazing since the death of Robert Champion, a FAMU drum major, in late 2011.  Just recently, the Orange County State Attorney’s Office announced they are charging 13 individuals in connection with his death.  With the spotlight now being turned upon their criminal prosecution, many people are unfamiliar with the criminal elements of hazing.

Most simply put, there are several different versions of the hazing law, depending upon the grade of the student(s).  Here is a list detailing the different versions of hazing:

Since the FAMU case deals with the collegiate level, this post will focus on postsecondary hazing, (Fla. Stat. 1006.63):

The postsecondary hazing statutes reads:

1006.63 Hazing prohibited.—

(1) As used in this section, “hazing” means any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution. “Hazing” includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating, branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student. Hazing does not include customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective.

(2) A person commits hazing, a third degree felony, punishable as provided in s. 775.082 or s.775.083, when he or she intentionally or recklessly commits any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person.

(3) A person commits hazing, a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083, when he or she intentionally or recklessly commits any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing creates a substantial risk of physical injury or death to such other person.

(4) As a condition of any sentence imposed pursuant to subsection (2) or subsection (3), the court shall order the defendant to attend and complete a 4-hour hazing education course and may also impose a condition of drug or alcohol probation.

(5) It is not a defense to a charge of hazing that:

(a) The consent of the victim had been obtained;

(b) The conduct or activity that resulted in the death or injury of a person was not part of an official organizational event or was not otherwise sanctioned or approved by the organization; or

(c) The conduct or activity that resulted in death or injury of the person was not done as a condition of membership to an organization.

(6) This section shall not be construed to preclude prosecution for a more general offense resulting from the same criminal transaction or episode.

(7) Public and nonpublic postsecondary educational institutions whose students receive state student financial assistance must adopt a written antihazing policy and under such policy must adopt rules prohibiting students or other persons associated with any student organization from engaging in hazing.

(8) Public and nonpublic postsecondary educational institutions must provide a program for the enforcement of such rules and must adopt appropriate penalties for violations of such rules, to be administered by the person at the institution responsible for the sanctioning of such organizations.

(a) Such penalties at Florida College System institutions and state universities may include the imposition of fines; the withholding of diplomas or transcripts pending compliance with the rules or pending payment of fines; and the imposition of probation, suspension, or dismissal.

(b) In the case of an organization at a Florida College System institution or state university that authorizes hazing in blatant disregard of such rules, penalties may also include rescission of permission for that organization to operate on campus property or to otherwise operate under the sanction of the institution.

(c) All penalties imposed under the authority of this subsection shall be in addition to any penalty imposed for violation of any of the criminal laws of this state or for violation of any other rule of the institution to which the violator may be subject.

(9) Rules adopted pursuant hereto shall apply to acts conducted on or off campus whenever such acts are deemed to constitute hazing.

(10) Upon approval of the antihazing policy of a Florida College System institution or state university and of the rules and penalties adopted pursuant thereto, the institution shall provide a copy of such policy, rules, and penalties to each student enrolled in that institution and shall require the inclusion of such policy, rules, and penalties in the bylaws of every organization operating under the sanction of the institution.

To read the history of Florida’s hazing law, click here.

(This post is not intended as legal advice nor does it create an attorney-client relationship.)

~At Matthews Law Firm, P.A., we represent criminal defendants in central Florida, including Lakeland, Bartow, Winter Haven, Orlando, Tampa and Sarasota.~

No Valid Driver’s License

In Florida, the crime of No Valid Driver’s License is a 2nd degree misdemeanor, meaning it is punishable by up to 60 days in jail and/or $500 fine.  Unlike other more serious driving charges like DUI or Driving on a Suspended License, the charge of No Valid DL cannot be used to make the driver an habitual traffic offender (HTO).

The statute for No Valid Driver’s License is found at 322.03 and reads:

322.03 Drivers must be licensed; penalties.—

(1) Except as otherwise authorized in this chapter, a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license issued under this chapter.

(a) A person who drives a commercial motor vehicle may not receive a driver’s license unless and until he or she surrenders to the department all driver’s licenses in his or her possession issued to him or her by any other jurisdiction or makes an affidavit that he or she does not possess a driver’s license. Any such person who fails to surrender such licenses commits a noncriminal infraction, punishable as a moving violation as set forth in chapter 318. Any such person who makes a false affidavit concerning such licenses commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) All surrendered licenses may be returned by the department to the issuing jurisdiction together with information that the licensee is now licensed in a new jurisdiction or may be destroyed by the department, which shall notify the issuing jurisdiction of such destruction. A person may not have more than one valid driver’s license at any time.

(c) Part-time residents of this state issued a license that is valid within this state only under paragraph (b) as that paragraph existed before November 1, 2009, may continue to hold such license until the next issuance of a Florida driver’s license or identification card. Licenses that are identified as “Valid in Florida Only” may not be issued or renewed effective November 1, 2009. This paragraph expires June 30, 2017.

(2) Prior to issuing a driver’s license, the department shall require any person who has been convicted two or more times of a violation of s. 316.193 or of a substantially similar alcohol-related or drug-related offense outside this state within the preceding 5 years, or who has been convicted of three or more such offenses within the preceding 10 years, to present proof of successful completion of or enrollment in a department-approved substance abuse education course. If the person fails to complete such education course within 90 days after issuance, the department shall cancel the license. Further, prior to issuing the driver’s license the department shall require such person to present proof of financial responsibility as provided in s. 324.031. For the purposes of this paragraph, a previous conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 shall be considered a previous conviction for violation of s. 316.193.

(3)(a) The department may not issue a commercial driver’s license to any person who is not a resident of this state.

(b) A resident of this state who is required by the laws of this state to possess a commercial driver’s license may not operate a commercial motor vehicle in this state unless he or she possesses a valid commercial driver’s license issued by this state. Except as provided in paragraph (c), any person who violates this paragraph is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) Any person whose commercial driver’s license has been expired for a period of 30 days or less and who drives a commercial motor vehicle within this state is guilty of a nonmoving violation, punishable as provided in s. 318.18.

(4) A person may not operate a motorcycle unless he or she holds a driver’s license that authorizes such operation, subject to the appropriate restrictions and endorsements.

(5) It is a violation of this section for any person whose driver’s license has been expired for more than 6 months to operate a motor vehicle on the highways of this state.

(6) A person who is charged with a violation of this section, other than a violation of paragraph (a) of subsection (1), may not be convicted if, prior to or at the time of his or her court or hearing appearance, the person produces in court or to the clerk of the court in which the charge is pending a driver’s license issued to him or her and valid at the time of his or her arrest. The clerk of the court is authorized to dismiss such case at any time prior to the defendant’s appearance in court. The clerk of the court may assess a fee of $5 for dismissing the case under this subsection.

 

(*This post is not intended as legal advice and does not establish an attorney-client relationship.)

~At Matthews Law Firm, P.A., we represent criminal defense clients in the central Florida region, including Lakeland, Bartow, Winter Haven, Orlando, Tampa and Sarasota.~

U.S. Supreme Court hears Health Reform case

This week is a landmark week for the U.S. Supreme Court.  The Court will be hearing 6 hours of argument (spread over 3 days) relating to the Affordable Care Act (aka Health Reform Law, Obamacare).

Here’s the schedule for the arguments: (links will be added as they become available)

Monday, March 26 10:00am-11:30am–Anti-Injunction Act  (link to audio or transcript of hearing)

Tuesday, March 27 10:00am-12:00pm–Individual Mandate  (link to audio or transcript of hearing)

Wednesday, March 28 10:00am-11:30am–Severability (link to audio or transcript of hearing)

Wednesday, March 28 1:00pm-2:00pm–Medicaid Expansion (link to audio or transcript of hearing)

Florida’s “Stand Your Ground” Self-Defense Law

The recent killing of a Florida teenager has brought an already divisive law into the national spotlight.  The teenager was Trayvon Martin and the law is Florida’s “Stand Your Ground” self-defense law. (To learn more about the Trayvon Martin case, read here.)

The Florida “Stand Your Ground” statute can be found at section 776.012 (Fla. Stat.) and reads:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.  However, a person is justified in the use of deadly force and does not have a duty to retreat if:

1.  He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

2.  Under those circumstances permitted pursuant to s.776.013.

Why is this law so controversial?

This law is controversial because it allows ordinary citizens to kill someone if they “reasonably believe” such force is necessary without imposing a duty to retreat.  “Reasonable belief” may not mean the same thing for all people.   Some fear that the law allows for a “wild west” environment by allowing citizens to take the law into their own hands. Let’s look at some hypotheticals:

1.  A drunken man stumbles into your yard in the middle of the night and is beating loudly on the doors.  Are you justified in killing him?

2.  Someone is following behind you on a public sidewalk and you are afraid they are about to do you harm, though they have said nothing to you.  Are you justified in killing them?

3.  Your vehicle broke down while traveling, and you are pulled off to the side of the interstate awaiting a tow truck.  Meanwhile, a car pulls off the road and parks in front of you, and the driver starts walking towards your car.  You do not recognize the individual and are afraid for your safety.  Are you justified in killing them?

Obviously, in all these examples, more information is needed in order to determine if your actions would be legal.  However, you can easily see where reasonable minds may differ as to how “reasonable” your fear may have been.

The immunity provision

Self-defense is nothing new.  The affirmative defense has been around in Florida for many years and juries have rendered many verdicts deciding whether a defendant was entitled to self-defense.  What makes the “Stand Your Ground” law even more controversial is the immunity provision in s.776.032, which can prevent a jury from ever hearing the case.  That section reads, in part:

(1) A person who uses force as permitted (in other statutes) is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer…who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.  As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

The immunity statute goes on to explain that police “may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.”

The fallout

Since Trayvon Martin’s killing, “Stand Your Ground” has been in the national spotlight, causing Florida legislator’s to take another look at the law.  Many legal minds predicted that the “Stand Your Ground” law was too broad when it was enacted, and would come under attack when an innocent person was killed.  Although it is too early to tell, that person may have been Trayvon Martin.

(Disclaimer: This post does not constitute legal advice nor does it create an attorney-client relationship.)

~At Matthews Law Firm, P.A., we practice criminal defense & health law.  Offices located in Bartow, Florida~

Pill Mills in Florida & Unintended Consequences

Florida pill mills have come under close scrutiny from investigators since new laws went into effect last year.  In fact, it has been reported that over 400 Florida pain clinics have been shut down or closed in the last year.

But are the new regulations too broad?  Do these regulations make it difficult for patients with legitimate pain issues to get treatment? Also, how do these regulations interfere with a physician’s legitimate practice?

While looking into some of these issues, I came across a video of a medical director being interviewed about the unintended consequences of the pill mill laws.  Toward the end of the interview, he discusses what changes he had to make to his website/advertising and how this change may make it harder for patients dealing with chronic pain to seek treatment.

 

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

New Case on Fellow Officer Rule in Motions to Suppress

The Florida Supreme Court issued an opinion yesterday that criminal defense attorneys will enjoy.  The case is State v. Bowers (SC09-1971) and involves the use of the fellow officer rule in motions to suppress.

Before yesterday’s decision, Florida courts were split on the issue, with the Second and Fourth DCA’s being in conflict.

The conflict issue involves the application of the fellow officer rule to testimony in a motion to suppress hearing where the defendant is challenging the validity of a traffic stop. The Court held that the fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop and was not involved in the investigation at that time to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop.

Hypothetical Example

Primarily, this issue is going to pop up in a motion to suppress where the initial officer (for whatever reason) is not present and the second officer was not involved in the initial stop.  Here’s a hypothetical:

A car is stopped for speeding by Ofc. #1.  Ofc. #2 shows up to assist and sees drugs in the car.  Ofc. #1 tells Ofc. #2 that the car was stopped for speeding.  Ofc. #2 was not a witness to the speeding violation.  Defendant (driver) is subsequently arrested for possessing marijuana in the vehicle.  Defendant files a motion to suppress.  Ofc. #1 doesn’t show up for the hearing.  Ofc.#2 shows up and testifies that the reason for the initial stop was for speeding.

In the past, some Florida courts have allowed Ofc. #2 to testify to such events pursuant to the fellow officer rule and allow such testimony to establish probable cause for the traffic stop.  In fact, the law of the land depended on what county the arrest occurred.  Those days are gone and now defense attorneys across Florida can rejoice in knowing the Florida Supreme Court has spoken.

Again, to reiterate the holding:  The fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop and was not involved in the investigation at that time to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop.

To read the full opinion, go here.

~At Matthews Law Firm, P.A., we practice criminal defense & health law.~

(Disclaimer: This post does not constitute legal advice nor does it create an attorney-client relationship.)

ICD-10 Deadline Postponed

The implementation of ICD-10, a medical coding system which was supposed to go into effect in October 2013, has been indefinitely postponed.

HHS has indicated it will announce a new compliance date moving forward.  This is the second delay of ICD-10.  HHS has explained that the reason for the delay is related to concerns from the medical community about administrative burdens associated with making the switch from ICD-9.

ICD-10 represents a fundamental change over the ICD-9 coding system.  For example, under ICD-9, the code sets can only be from 3-5 characters in length.  ICD-10 allows code sets to be between 3-7 characters in length.  Also, ICD-10 contains approximately 68,000 codes, where ICD-9 contained approximately 13,000.

To read the HHS news release announcing the delay in implementation, go here.

~At Matthews Law Firm, we practice criminal defense & healthcare compliance~

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

U.S. Supreme Court Rules GPS Monitoring of Vehicle Constitutes a Search

In a win for criminal defendants, the U.S. Supreme Court has ruled today that the government’s installation of a GPS device on someone’s vehicle, and the use of that device to monitor the vehicle’s movements, constitutes a search.  This case outlines the extent the courts will allow law enforcement to go in order to make arrests.

In this case, U.S. v. Jones, the police tracked the suspect by placing a GPS device underneath his vehicle (without his consent and without a valid search warrant) while it was parked in a public parking lot.  The police then tracked the suspect’s movements for the next 28 days. Using information conveyed from the GPS device, the suspect was arrested on drug charges.

In ruling, the Court explained:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

The opinion was written by J. Scalia.  For the full opinion, go here.

~At Matthews Law Firm, P.A., we practice criminal defense & health law. Offices in Bartow, Florida~

New Year’s DUI Arrests Up 18% from Last Year

According to public records research, there were 13 people arrested for DUI in Polk County, Florida over this New Year’s holiday.  This includes those arrested on December 31 (4 people) as well as January 1 (9 people).

This year’s arrests are up 18% from last New Year’s holiday where there were 11 DUI arrests in Polk County.

 

~At Matthews Law Firm, P.A., we handle DUI cases.~

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

Treason in Florida

Many of us are familiar with the word “treason”, but are we familiar with the elements of the crime in Florida?

It is a crime that is rarely prosecuted, in fact, a Westlaw annotated statute search revealed no Florida state court appellate decisions on the crime.  The treason statute can be found at Fla. Stat. 876.32.  In full, the statute reads:

Treason against the state shall consist only in levying war against the same, or in adhering to the enemies thereof, or giving them aid and comfort.  Whoever commits treason against this state shall be guilty of a felony of the first degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

The treason law was enacted in 1868, interestingly, the same year Florida adopted its first Constitution.

There is a separate statute explaining what type of proof is needed in order to obtain a treason conviction, that statute is found at Fla. Stat. 932.50 and reads in full:

No person shall be convicted of treason except by the testimony of two lawful witnesses to the same overt act of treason for which the person is prosecuted, unless he or she confess the same in open court.

According to Wikipedia, there have only been two documented prosecutions for treason at the state level:  Thomas Dorr for treason against the state of Rhode Island for his part in the Dorr Rebellion, and that of John Brown for treason against the state of Virginia for his part in the raid on Harpers Ferry.

 

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

~At Matthews Law Firm, P.A., we practice criminal defense and health law.~