Author: Igor Hernandez

About Igor Hernandez

I am one of the partners here at Cornish Hernandez Gonzalez. I specialize in criminal defense and personal injury. I am an avid student of the art of trial advocacy and look to master that art every day.

    You fell victim to predatory towing tactics. You call the police, but they say it is a civil matter, and won’t help you. They tell you that your only choice is to take them to civil court. Sounds simple enough, right? Well, if the predatory towing companies have their way in Florida, after July 2019 you will no longer be able to take them to court.

    HOW PREDATORY TOWING COMPANIES ARE TRYING TO CHANGE THE LAW

    Florida Statute 715.07 allows for people to fight back against predatory towing companies by suing them in civil court. This is possible by a provision in the statute that makes the companies liable for your towing costs, court costs, damages, etc. This law has been on the books since 1976.

    Instead of abiding by the law, predatory towing operators have come up with a different idea: they are going to change the law in Tallahassee. As we speak, the Florida legislature is considering a towing lobby sponsored bill to remove all the protections that the law has afforded to the people. And the bill appears to be clearing every committee without opposition.

    WHO WOULD WANT TO TAKE AWAY PEOPLE’S ABILITY TO FIGHT BACK WHEN THEY ARE VICTIMIZED BY PREDATORY TOWING PRACTICES?

    The answer to this can be found in the public records. Senate bill 1792 (which is the bill that intends to make it easier for towing companies to prey on people) was introduced by Senator Joe Gruters from District 23 in Sarasota. Its house counterpart was introduced by Representatives Stan Mcclain, from Ocala, and Mel Ponder, from Okaloosa.

    Proponents of the Predatory Towing Bill

    WHY WOULD A POLITICIAN WANT TO MAKE ITS CONSTITUENTS AN EASIER TARGET OF PREDATORY TOWING PRACTICES?

    The answer to this question is not as clear. Politicians are supposed to represent the interests of the people. It is hard to fathom why anyone who represents the people would back a bill that would make it so that people are easier to victimize by towing companies. After all, people are already getting crushed by these predatory companies with the current law in place.

    Why would anyone want to legitimize predatory practices against the very people that he or she is supposed to represent? The answer to that is lobbyists. Tracking the progress of these bills gives you a direct look into how special interest groups have taken control of our democracy.

    WHO IS BEHIND THESE PREDATORY CHANGES?

    The following is a list of the players who are in the open about pushing this bill. There are probably many more players who are in the shadows:

    1. David Custin (Lobbyist) – Beach Towing Services (Miami Beach towing company)
    2. Sam Brewer – Professional Wrecker Operators of Florida.
    3. Jase Diaz (Lobbyist) – Professional Wrecker Operators of Florida.
    4. Mike Seamon (Lobbyist) – Professional Wrecker Operators of Florida.

    Unsurprisingly, the only people in favor of this change in the law is the towing lobby. What is surprising is that with only the towing lobby in support, these bills are swiftly making their way through each committee. The very committees that are supposed to be in place to protect the will of the people.

    What’s even more outrageous is that the change in the law is literally to make it so that towing companies who tow illegally cannot be sued. When was the last time that we as a people wanted to change the law to protect bad actors? And why is the towing lobby behind this change, if it proclaims to be a good citizen of our communities?

    The answer is simple, towing companies want to continue to victimize you, and they want to be able to do it with impunity. The sad part about it is that they may be able to do it, with the help of your Florida legislator.

    WHAT YOU CAN DO ABOUT IT

    Let the representatives and senators know that you do not like the idea of being preyed upon by predatory towing companies, and that you don’t support these bills.

    The Towing bill (Senate Bill 1792) is coming before the Infrastructure and Security Committee on 04/02/19. The people who can vote on that committee are:

    1. Senator Tom Lee – (850) – 487 – 5020
    2. Senator Keith Perry – (850) – 487 – 5008
    3. Senator Aaron Bean – (850) – 487 – 5004
    4. Senator Janet Cruz – (850) – 487 – 5018
    5. Senator Ed Hooper – (850) – 487 – 5016
    6. Senator Travis Hutson – (850) – 487 – 5007
    7. Senator Linda Stewart – (850) – 487 – 5013
    8. Senator Annette Taddeo – (850) – 487 – 5040

    Give them a call, let them know that predatory towing companies don’t need a change in the law, they need to start following the rules.

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    If you’ve lived in Miami for any period of time you’ve undoubtedly experienced being towed from private property. Maybe you parked your car and went to Publix and then walked to the restaurant across the street for a couple of minutes to pick up the take-out you ordered, only to find your car on the back of a pickup truck upon your return. Or maybe you’re an Uber Eats driver, making a 3 minutes delivery, only to see your car disappear before you make it back. Whatever the case may be, know that you’re not alone. These predatory towing practices happen every day in Miami, and they are often illegal.

    These companies want you to believe that if you accidentally overstayed your parking, or did not see the hidden “Tow Away” signs you’re SOL. But did you know that despite what the tow truck companies tell you, you have rights?

    Most States and municipalities have laws in place to regulate the illegal and predatory towing practices that towing companies are well known for. Because of this, even if you accidentally overstayed your parking, or did not see the Tow-Away signs, you may be able to get your money back.

    Miami Dade county is no different.

    Illegal Towing In Miami: Your Rights

    A Florida Statute, as well as Miami Dade county ordinances regulate towing in Miami Dade County. The Florida Statute sets a minimum threshold of rights, while the Miami Dade County and City ordinances add an extra layer of protection to the consumer.

    If you’re towed in Miami you should know the following:

    • If the tow truck driver is in the process of towing your car when you return to your car, the driver has to release your car for 50% of the maximum towing rate. In Miami Dade County the maximum towing rate for a Class “A” (most regular cars) tow is $101.00. This means that in these cases you’re entitled to get your car back for $50.50.
    • If you’re towed in Miami you have the right to have access to your car to retrieve your paperwork, even if you have not paid to have the car released.
    • Before you can be towed from a private lot in the Miami, the tow truck operator is required to have a written directive from the owner or authorized representative of the property owner to tow your particular car. This means that the act of patrolling a lot looking for violations is illegal. Note that this only applies during the hours of operation for the business that owns the lot.
    • Also, in order for a tow company to be able to tow your car the company needs to have a written agreement with the owner of that lot.
    • A tow company is required to get you an itemized receipt once you pay to get your car back.

    Things To Keep In Mind

    No Help From City or County Officials

    If you’re a victim of illegal towing in Miami you should know that the county and the city are not going to be of much help. For decades these towing companies have been carrying out illegal tows in Miami. The behavior is so common and widespread that city and county officials that we’ve dealt at times don’t even seem to know that it is illegal.

    But, but, the Police will certainly help me, right?!?

    illegal towing in Miami

    Unfortunately, the police will not help you. If you are towed in Miami, the police will say that whether you were properly towed or not is a civil dispute. They will say this even though a lot of towing violations that happen in Miami are actually criminal offenses in nature. Simply put, the police believes it has better things to do than keeping the towing companies from stealing your hard-earned money and holding your car hostage.

    Towing Charges Will Accrue

    If you are towed in Miami, you should pay to have your car returned to you as soon as possible. This is because the longer the car stays at the lot, the more money you’ll need to pay them to get it out. If the tow was an illegal tow, you’ll be able to fight it later on. There’s no reason to leave the car in the tow lot.

    Tow Companies Will Charge For Services Not Rendered

    Tow truck companies will try to charge you for things that they are not allowed to. They do this because they know that most people feel that they are in a hopeless situation and have no real remedy. They also do this because they know that some of these charges are hard to disprove.

    Although every now and then this happens on video: https://www.miaminewtimes.com/news/miami-beach-cracks-down-on-bogus-towing-fees-after-complaint-10649222

    Tow Truck Companies Will Try To Bully You

    The tow truck companies will try to bully you by telling you anything that they can to discourage you from fighting the tow. Many of our clients have been told by tow truck operators that they have lawyers on retainer, that they will win in court regardless, that you won’t hire a lawyer because it is too expensive, and many other things.

    Do not fall for those claims.

    The reality is that very often these companies are operating illegally. Because of that, you are very likely to win in court if you have a good lawyer.

    Hiring a lawyer will also not cost you any money. This is because we handle these cases on a contingency fee basis. Meaning, you do not pay us anything out of pocket for us to handle your case.

    Signs Of Illegal Towing In Miami

    While these signs do not always indicate illegal towing in Miami, in our experience they are a good indicator that something is wrong. If you experience any of these, keep your eyes open and document as much as you can.

    • The tow truck company tells you that they only accept cash.
    • The lot where you were towed from had no signage warning you that you could be towed.
    • The tow truck company refused to give you a receipt.
    • The tow truck company damaged your car, but claims it didn’t cause the damage.
    • Your car is towed within minutes of you parking.
    • The tow truck tows your car, even though you’re inside of it.
    • The tow truck operator wants to charge you over $100 for a drop fee (i.e. releasing your car on scene)

    What Should I Do If Towed In Miami?

    If you are towed in Miami you should do the following:

    • Take photos of all the entrances of the lot from which you were towed. This evidence will be very important later.
    • Take photos of the payment machine in the lot, if there is one.
    • Pay to have your car back as soon as possible.
    • Make sure that you get, and keep, the tow receipt.

    After you’ve done the above, give us a call at 305-501-8021. We are on a mission to eliminate these illegal towing practices one case at a time.

    If you’re interested to know more about our crusade to crush illegal towing and booting practices in South Florida check out our article.

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    If you’re a tourist visiting Miami Beach, Florida for the first time, or a Miamian who doesn’t spend much time there, you may never have experienced what it is like to be towed in Miami Beach. For everyone else, getting towed in Miami Beach is an all too familiar experience.

    These companies want you to believe that if you accidentally overstayed your parking, or did not see the hidden “Tow Away” signs you’re SOL. But did you know that despite what the tow truck companies tell you, you have rights?

    Most States and municipalities have laws in place to regulate the illegal and predatory towing practices that towing companies are well known for. Because of this, even if you accidentally overstayed your parking, or did not see the Tow-Away signs, you may be able to get your money back.

    The City of Miami Beach is no different.

    Towed in Miami Beach: Your Rights

    A Florida Statute, as well as City of Miami Beach ordinances regulate towing in Miami Beach. The Florida Statute sets a minimum threshold of rights, while the City of Miami Beach ordinances add an extra layer of protection to the consumer.

    If you’re towed in Miami Beach you should know the following:

    • If the tow truck driver is in the process of towing your car when you return to your car, the driver has to release your car for 50% of the maximum towing rate. In the City of Miami Beach the maximum towing rate for a Class “A” (most regular cars) tow is $140.00. This means that in these cases you’re entitled to get your car back for $70.00.
    • Unattended private lots in the City of Miami Beach are required to have a multitude of different signs alerting you that your car will be towed. If the lot that you were towed from lacks these signs, the tow is illegal and you’re entitled to have your money back.
    • If you’re towed in Miami Beach you have the right to have access to your car to retrieve your paperwork, even if you have not paid to have the car released.
    • Before you can be towed from a private lot in the City of Miami Beach, the tow truck operator is required to have a written directive from the owner or authorized representative of the property owner to tow your particular car. This means that the act of patrolling a lot looking for violations is illegal. Note that this only applies during the hours of operation for the business that owns the lot.

    Things to Keep in Mind

    No Help From City Officials

    If you’re towed in Miami Beach you should know that the city is not going to be of much help. There’s two companies in the City of Miami Beach that have a duopoly over non-consensual towing in the city. Because of this, the City parking officials are pretty much at their mercy and do not really enforce the rules against them.

    But, but, the Police will certainly help me, right?!?

    Unfortunately, the police will not help you. If you are towed in Miami Beach, the police will say that whether you were properly towed or not is a civil dispute. They will say this even though a lot of towing violations that happen in the City of Miami Beach are actually criminal offenses in nature. Simply put, the police believes it has better things to do than keeping the towing companies from stealing your hard-earned money and holding your car hostage.

    Towing Charges Will Accrue

    If you are towed in Miami Beach, you should pay to have your car returned to you as soon as possible. This is because the longer the car stays at the lot, the more money you’ll need to pay them to get it out. If the tow was an illegal tow, you’ll be able to fight it later on. There’s no reason to leave the car in the tow lot.

    Tow Companies Will Charge for Services Not Rendered

    Tow truck companies will try to charge you for things that they are not allowed to. They do this because they know that most people feel that they are in a hopeless situation and have no real remedy. They also do this because they know that some of these charges are hard to disprove.

    Although every now and then this happens on video: https://www.miaminewtimes.com/news/miami-beach-cracks-down-on-bogus-towing-fees-after-complaint-10649222

    Tow Truck Companies Will Try To Bully You

    The tow truck companies will try to bully you by telling you anything that they can to discourage you from fighting the tow. Many of our clients have been told by tow truck operators that they have lawyers on retainer, that they will win in court regardless, that you won’t hire a lawyer because it is too expensive, and many other things.

    Do not fall for those claims.

    The reality is that very often these companies are operating illegally. Because of that, you are very likely to win in court if you have a good lawyer.

    Hiring a lawyer will also not cost you any money. This is because we handle these cases on a contingency fee basis. Meaning, you do not pay us anything out of pocket for us to handle your case.

    What Should I Do If Towed In Miami Beach?

    If you are towed in Miami Beach you should do the following:

    • Take photos of all the entrances of the lot from which you were towed. This evidence will be very important later.
    • Take photos of the payment machine in the lot, if there is one.
    • Pay to have your car back as soon as possible.
    • Make sure that you get, and keep, the tow receipt.

    After you’ve done the above, give us a call at 305-501-8021. We are on a mission to eliminate these illegal towing practices one case at a time.

    If you’re interested to know more about our crusade to crush illegal towing and booting practices in South Florida check out our article.





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    The towing and booting industries arose out of the idea that private lots should not be occupied by the cars of people who are not clients of the businesses for which the lot is in place. The advent of “pay to park” lots caused these industries to expand into “enforcing” the payments at these lots. The idea was still the same–to make sure that cars that are not supposed to be parked there are removed or penalized in some way so as to incentivize people to use the lots correctly. It was a good idea at the time, little did anyone know that it would lead to predatory towing and booting tactics.

    The Rise of Predatory Towing and Booting Behavior

    After a while, the industry realized that there was a lot of money to be made by towing and booting people, even if space in the lots was not scarce. And so, these companies decided that they would tow and boot for the sake of towing and booting, even if the cars that they were towing or booting were in no way interfering with the orderly flow of business in that lot. After this realization a feeding frenzy began, one that would affect almost every family in South Florida.

    You don’t have to go far to get a feel for the extent of the abuse. A simple internet search reveals plenty:

    -Local 10 Reports Sunny Isles Towing Abuse
    -Miami New Times Reports On Companies Charging Bogus Fees
    -Sun Sentinel: Towing Abuses Still Rampant In Broward
    -King Wrecker Uses Falsified Documents To Justify Tows
    -Tow Trucks Overcharging While Law Enforcement Looks Away

    Our Government’s Flawed Response

    In response to this industry feeding frenzy, and with the goal of protecting the people, counties began implementing regulations to try to prevent predatory towing practices. Regulations to address predatory booting practices followed shortly thereafter. While the goal of these regulations was to curb predatory towing practices, the regulations’ implementation left much to be desired. The cities and counties never really had the funding to enforce them, and predatory towing behavior continued to be rampant. Predatory booting behavior also continued to rise.

    Because of the lack of enforcement, a lot of these companies saw these regulations as a joke, and decided to not even pretend to follow them. When people who were towed or booted in a predatory fashion would call the police, the police would say they could not do anything about it. That it was a “civil matter.” They would say this, even though most of the regulations make it a criminal act to tow or boot illegally. The reality was that the police departments think that they have better things to do than enforcing towing regulations.

    The End Result

    Because of the government’s lack of enforcement, towing and booting companies realized that they were free to hold people’s cars hostage even though these companies themselves were operating illegally. People were stuck paying these companies exorbitant fees to get their cars back because they felt that they had nowhere to turn. In their minds, going to court by themselves was too complicated, and paying a lawyer would cost significantly more than the fee charged by the towing or booting company. And even if someone wanted to hire a lawyer to fight these predatory towing and booting companies, no law firms in town were doing this kind of work.

    The situation seemed hopeless.

    Our Response

    We at Cornish Hernandez Gonzalez realized that there is a large portion of our community that is being victimized by these predatory towing and booting companies. Hard working people who park somewhere for a few minutes, only to be illegally towed or booted and have their cars held for ransom. Single mothers who are trying to run a five minute errand and park their car in an empty lot, not knowing that there are predators hiding in the shadows, hoping they can make hundreds of dollars over her five minute mistake.

    We decided that someone had to take a stand against these predatory practices. And while we are primarily known for working to correct injustice in the personal injury and criminal defense arenas, we feel strongly that injustice in any form should not be allowed to exist in our community.

    How We Are Correcting It

    We have made it our purpose in 2019 to correct these predatory towing and booting practices in our community by filing cases in court on behalf of people who have been abused by these companies. We handle these cases on a contingency fee basis. That means that we do not actually charge you anything, and we only get paid if we recover for you.

    We hope that by doing this we can give these companies something to think about before deciding to take advantage of another person in our community.

    To learn more about how we handle these cases, go here.

    If you have been towed or booted in South Florida, give us a call at 305-501-8021, or fill out the form in this page. We would love to have you join our battle against these predatory towing and booting companies.

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    There are several ways that a person can be held without a bond in Florida state courts. In this article I will walk you through them.

    Re-Arrested While On Pre-trial Release

    The first and most common way that people end up in custody without a bond is because they are re-arrested on a new criminal offense while on pre-trial release for a criminal offense.  When this happens the person will be held at the bond hearing on the new charge for them to go in front of the original judge who will then revoke their bond on the original case.  A judge always has discretion to reconsider setting a bond after revoking a person’s bond and a lawyer can file a motion to have the judge re-evaluate all the circumstances and issue a new bond.

    Non-Bondable Offense

    A person can also be held without a bond if they are arrested for what we call “non-bondable offenses.”  These are offenses that carry a maximum penalty of life in prison or death.  If a person is arrested on a non-bondable offense he or she will be held without a bond until a hearing is held.  This hearing is called an Arthur hearing.  At the Arthur hearing the prosecutor will need to prove that the person is guilty of the charged offense by a standard called “proof evident, presumption great.”  It is a standard that is higher than proof beyond a reasonable doubt.  If the prosecutor cannot meet that burden at the hearing the judge has to set a reasonable bond.  Even if the prosecutor can meet that standard, however, the judge still has the discretion to set a bond.  This is why it is important that your lawyer request an Arthur hearing on your behalf.

    Probation Violation

    A person can also be held without a bond while pending a probation violation hearing.  A probationer who is accused of violating his or her probation is not entitled to a bond pending the violation hearing.  A lawyer, however, can still file a motion with the court asking the court to consider some form of release pending the violation.  Although these motions are rarely granted, it might trigger the court to become involved towards facilitating a resolution to the violation with the prosecution and may result in the probationer being reinstated sooner than the hearing date.

    If you or a loved one are facing the possibility of being held without a bond for a criminal offense give us a call or enter your information on the form in this page for a free consultation.  We would love to help.

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    For most people, being arrested and being forced to navigate the criminal justice system is a scary proposition.  Knowing what to expect can ease this anxiety.  Every criminal case develops in the same way after the prosecution has decided to prosecute the case.  Once the prosecution has levied charges against a person that person has two options: option 1) take the case to trial before a jury of his or her peers, option 2) reach a deal with the prosecution.

    I. Trial

    If a person chooses trial, the prosecution has to prove the accusations beyond every reasonable doubt to a jury before the person can be convicted.  A good defense attorney can make sure that the jury sees all the evidence in the case that can help the defendant, and in that way increase the chances of an acquittal.

    II. Plea

    If a person chooses to not take the case to trial, then the person has to make a deal with the prosecution.  In Miami Dade County there are three typical resolutions to a case.  If a person has no previous contacts with the criminal justice system the person will usually qualify for the Pre-trial Intervention program (PTI).  To go into the PTI program in Miami Dade the person is not required to plea guilty to the charges.  Once the person completes the program the prosecution will dismiss the charges against the person.  PTI is the best resolution to a criminal case because it does not carry a risk of conviction or jail time.

    The next potential resolution to a criminal case is a probationary sentence.  A probationary sentence can come with a conviction or with a withhold of adjudication, which does not result in a conviction.  While there are many different conditions of probation that a person may be require to abide by, the typical conditions of probation are random drug tests, submission to warrantless searches by a probation officer, reporting requirements, community service hours, and not leaving the county without permission.

    The third potential resolution to a criminal case is a straight time sentence.  In this scenario the person pleads guilty to the charge and proceeds to serve a jail or prison sentence.  Upon completion of the jail or prison sentence the person is done with the case and has no additional requirements.

    The fourth potential resolution to a criminal case is what is called a split sentence.  In this scenario the person pleads guilty and is sentenced to jail or prison time, to be followed by a probationary sentence.  In this scenario once the person finishes his or her jail sentence the person is under the supervision of a probation officer and has probationary conditions to abide by.

    In any event, a person who violates probation is subject to the maximum penalty he or she would have been subjected to if he or she was convicted at trial.  This means that a person who violates probation can be sentenced up to the maximum sentence allowed by law for the charge regardless of how long or how short the original probationary period was.

    If you or a loved one is navigating the criminal justice system give us a call.  We would love to help.

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    In a Florida personal injury case a person may be entitled to receive money meant to compensate many of the negative impacts that the injury caused the person in his or her every day life.  The money is meant to be a way for the wrongdoer to put the injured person back in the position that he or she was in at the time of the injury, also known as making the injured person whole. But sometimes, when the wrongdoers’ act is specially outrageous, the injured person is entitled to damages meant to punish the wrongdoer.

    Here is a brief explanation of the many possible things you may be entitled to recover money for in Florida if you have been injured.

    Economic Damages

    Economic damages are those that can be quantified in a dollar value and are easily measured.  These are things like past and future medical expenses, loss of wages, loss of earning capacity, etc. This category of damages is meant to pay you for money that you spent (or are going to spend) as a result of the injury, and also money that you would have earned had you not been injured.

    Non-Economic Damages

    Non-economic damages are damages that cannot be measured in dollar amounts at the outset.  They are the kind of thing about which reasonable minds may differ and for which there is no readily available market for in everyday life.  These include pain and suffering, mental anguish, loss of enjoyment of life. In Florida the jury is free to award as much or as little as it deems appropriate for non-economic damages.

    Punitive Damages

    The purpose of personal injury law is not to punish the wrongdoer, but rather to make the injured person whole.  Under the law, however, there are times when the wrongdoer’s conduct is so outrageous that the law allows for money awards that are meant not to make the injured party whole, but rather to punish the wrongdoer and also send a message to those who are in the same position as the wrongdoer that this kind of conduct will not be tolerated.

    There are limited ways to recover punitive damages in Florida and a specific set of rules that must be followed in order to be able to recover these damages.  If you’d like to know more about punitive damages see our punitive damages article.

    If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

    Give us a call or fill out the contact form for a free consultation.

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    Punitive damages are damages awarded in a civil case.  These are damages that go above and beyond simply compensating the wronged party, they are intended to punish the wrongdoer.  In Florida tort law punitive damages are only available to a claimant if the claimant can show:

    1. Intentional Misconduct, or
    2. Gross Negligence

    Intentional Misconduct

    Intentional misconduct comes about when the defendant knew that his or her actions were wrong and that his or her actions had a high probability to cause injury to others and while armed with that knowledge the defendant intentionally continued with his or her actions.  This is meant to punish those who intentionally act knowing that others will be hurt by their acts.

    An example of this would be when a company that makes medical devices learns that the devices have a defect which injure people but they decided that the cost of fighting the lawsuits will be lower than the cost of recalling the devices so they decide that they will continue selling the devices regardless of who gets hurt.  One of the points of punitive damages is to deter that kind of behavior by affecting that calculation.

    Gross Negligence

    Gross negligence means conduct that is so reckless or wanting in care that it constitutes a conscious disregard or indifference to life, safety, or rights of persons exposed to such conduct.  This is a standard that is substantially higher than mere negligence.  This comes about when a person or entity knows that something has a high risk of causing injury and disregards that risk.  Gross negligence, unlike intentional misconduct, gross negligence does not require that the act or omission be done with the intent to injure.  Instead, it is sufficient that the act or omission take place with the knowledge that the act or omission poses a grave risk to others.  It is an act or set of acts or omissions that while not necessarily intended to cause injury they would have lead any reasonable person to conclude that injury was almost imminent.

    If you have been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.  Give us a call or fill out the contact form for a free consultation.

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    It is unfortunately very easy to be arrested in Miami Dade County based on misdemeanor allegations of domestic violence.  All it takes for the police to take you away is for your significant other (or even ex-significant other) to say that you have hit them, pushed them, or threatened to do harm to them.

    What is different about DV?

    Unlike typical charges where a person who is arrested can simply bond out to a standard bond without having to wait in jail to see the judge, Florida law (Florida Statute 741.2901(3)) requires that a person arrested for a domestic violence charge be held in custody until brought before the court for a bail determination.  This means that you will spend up to two days in jail waiting to be brought before the judge to get a bond.  For misdemeanor domestic violence charges, the bond hearings take place at the Lawson E. Thomas Courthouse Center located at 175 NW 1st Ave, Miami Florida 33128.

    You get before a Judge, then what?

    Once you appear before the judge for bail determination the prosecutor will routinely argue that you should be held on a monetary bond and will object to any other form of pre-trial release.  Your lawyer can ask the judge to release you on a kind of release called “pre-trial services.”  If you’ve previously been accused of domestic violence, the judge will likely require you to post a money bond.  Money bonds can range from $1,500, which is the standard for a misdemeanor domestic violence battery, to anything in the $50,000+ range with house arrest.  The amount will depend on who the judge is, whether you’ve been previously accused of domestic violence, and what the allegations for which you were arrested are.

    The Stay Away Order

    During this hearing the judge will also issue a domestic violence stay away order. The stay away order prohibits the person arrested from having any kind of contact with the alleged victim in the case.  The order also prohibits the person arrested from coming within 500 feet of the alleged victim’s home, workplace, and car. A violation of this “stay away order” is a misdemeanor of the first degree in Florida and can get you up to 364 days in the county jail per charge. (Regardless of whether the underlying allegations are true).  The stay away order can also be used by the prosecution to make a misdemeanor stalking case into a felony case.

    If the person who is accusing you of domestic violence is in court and wants to have contact with you he or she can ask the judge to have that order lifted.  These orders are usually never lifted during this hearing but most judges will reconsider lifting them a couple of weeks after the incident once the incident is not so recent.

    Note: This is a very easy way for someone who lives in your house to evict you. It doesn’t matter if the person is paying rent, owns the house, etc, if the person goes to the cops and says you committed domestic violence against them they will get to stay in your home while you have to stay 500 feet or more away. No questions asked.  You can start eviction proceedings of your own once you get out of jail but that process, unlike falsely accusing somebody of committing DV, takes time.

    Once this first appearance hearing is done you will get a new court date for arraignment.  At this hearing the prosecutor will announce whether the State is bringing formal charges against you.  If the prosecution files charges against you, your lawyer will receive discovery, and ask for a trial date.  Trial dates are usually set thirty to forty five days from arraignment.  Between arraignment and trial your lawyer should conduct discovery, investigate the case, and prepare the case for trial.

    If you are currently facing a troubling domestic violence charge and would like some guidance navigating the system feel free to contact us.  We are available to assist you with getting through this unfortunate situation.

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    In every criminal case sooner or later the topic of a motion to dismiss will come up.  There is a misconception that there is a motion that the defense lawyer can file to make a weak case go away.  If the witnesses are clearly lying why can’t we just file a motion to dismiss and have the Judge throw out the case? This is a question that comes up often enough to warrant a full explanation.

    The Law In Florida

    In Florida state criminal cases there are four substantive avenues for dismissal by motion set out in the rules of criminal procedure.  These are set out in Florida rule of criminal procedure 3.190 subsection (c):

    (c) Time for Moving to Dismiss.  Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

    (1) The defendant is charged with an offense for which the defendant has been pardoned.

    (2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.

    (3) The defendant is charged with an offense for which the defendant previously has been granted immunity.

    (4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

    What Does It Mean?

    Subsection one is an avenue for dismissal when a person is being prosecuted for something that they have received a Governor’s pardon for.  This situation rarely arises in day to day practice.

    Subsection two is an avenue for dismissal when a person is being prosecuted for an offense, or a lesser included offense, for which the person has already been acquitted or has previously been punished.  This usually arises when a person is being prosecuted for an offense in circuit court that is a greater offense of one for which the person has been charged and acquitted of, or punished for in county court.  It could also arise when the State seeks to prosecute a person twice for the exact same thing, but this is very rare.

    Subsection three applies when a person is being prosecuted for something that the State has already given him or her immunity for.  This also rarely happens.

    Subsection four is the only avenue for a defense attorney to obtain a dismissal on the facts pursuant to Florida rule of criminal procedure 3.190.  However, this section does not allow the Judge to weigh the credibility of witnesses, or weigh the evidence.  This is because a 3.190(c)(4) motion is only proper where both parties agree as to what happened during the incident in question and the only determination for the Judge to make is whether that which both parties agree to is a criminal offense.  If the State and the Defense do not agree as to what actually happened, as it is often the case, a motion to dismiss pursuant to 3,190(C)(4) should be denied because the Judge cannot decide which side is most likely to be correct.

    While 3.190(c)(4) does not give a defense attorney an avenue to put the case before the Judge so that the Judge can weigh the evidence and decide whether a case should be dismissed, there are certain circumstances when this is possible.  In Florida state criminal self-defense cases the defense can file a motion pursuant to Florida statute 776.012 and 776.013 (Stand Your Ground law).  Under these statutes the Defense can request a hearing where the defense has the burden of convincing the Judge by preponderance of the evidence that the defendant was acting in self-defense. During the hearing the Judge can listen to the evidence, decide what evidence to believe and what evidence to disbelief.  If at the end of the hearing the Judge determines that the defense has met its burden the Judge can dismiss the case.

    Note: The law in Florida is currently not clear as to whether the defense or the State will ultimately end up having the burden of proof in a stand your ground hearing. The statute was amended this year to make it so that now the State has the burden of proof. That statute has since been found unconstitutional by at least two judges in Miami Dade County.

    What ultimately ends up being the burden of proof will depend on how the appellate courts settle the issue.

    Being accused of a crime in Florida can be challenging.  If you or a family member needs help during this difficult time give us a call.  We would love to help.

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