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61. THE JUDGE RULES: Motor Vehicles, Motorcycles, Mopeds, and Scooters

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Dear Santa Claus,

Can I please, please, please get an electric scooter for Christmas?  Love, Virginia

Dear Virginia,

Santa Claus looked at the laws in Florida about scooters.  Santa Claus had many helpers look at the scooter laws in Florida.  Santa is still confused about some kinds of scooters and where they can be ridden and who can ride them.  Santa could be wrong but Santa thinks that in Florida a child can ride on the road with an electric scooter which does not have a seat.  I will be delivering one to you for the holidays.  Be sure to wear your helmet and to follow the rules of the road as if you were on a bicycle.

In case Mom and Dad want more information they can check out the relevant statutes.

Love, Santa

316.003(2) BICYCLE: Most vehicles propelled solely by human power, and most motorized bicycles propelled by a combination of human power and an electric helper motor.  No person under 16 may operate or ride upon a motorized bicycle.

316.003(21) MOTOR VEHICLE: Any self-propelled vehicle not including any bicycle, motorized scooter, or moped.

316.003(22) MOTORCYCLE: A motor vehicle having a seat for the rider, having not more than 3 wheels, excluding a moped.

316.003(77) MOPED: A vehicle with pedals and a motor, a seat for the rider, no more than 2 brake horsepower, travels under 30 mph, no more than 30 cc’s.

316.003(82) MOTORIZED SCOOTERS: Any vehicle not having a seat for the rider, no more than 3 wheels, travels less than 30mph.

316.605 Every “vehicle” on the road shall be licensed unless excluded by law.  (While it appears to Santa that bicycles and electric scooters with no seats are excluded from the license requirement, Florida’s Attorney General in opinion 2003-44 states that he believes the law requires a driver’s license for the operation of a motorized scooter and that motorized scooters cannot be ridden on a sidewalk.)

*****(This example is based on an actual closed case.)*****

Corine Riley’s driver’s license was suspended.  She was driving a “Go-Ped” and received a criminal charge of Driving While License Suspended.  She filed a Motion To Dismiss because she says a “Go-Ped” is not a motor vehicle and one does not need a driver’s license to drive it on the road.

The Judge writing for the 2nd District Court of Appeal ruled: While it may defy common sense, the law is clear that a “Go-Ped” is a motor vehicle and requires a valid driver’s license for its operation.  Judges cannot rewrite laws.  The Motion To Dismiss is denied.  (698 So2 374)  

[Column No. 105 has more information regarding Motorized Vehicles.]
[Column No. 106 has information regarding Electric Personal Assistive Mobility Devices.]
[Column No. 107 has more information regarding Motorized "Scooters" and More.]

62. THE JUDGE RULES: Forfeiture of Property

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

There have been many catchy anti-DUI and anti-drug campaigns.  There have been special enforcement programs, roadblocks and stings.  Penalties have been enhanced.  Still, people continue to drive under the influence and continue to have drug involvement.  Maybe taking their cars will get their attention.

Florida Statute 932.701-932.707 is known as the “Florida Contraband Forfeiture Act.”  Almost anything which was used or was attempted to be used as an instrumentality in the commission of a felony, such as a cocaine charge, can be seized for forfeiture, including a motor vehicle.

A motor vehicle that is driven by a driver who is under the influence of drugs or alcohol when that driver is already suspended for DUI, is subject to forfeiture.  (FS 322.34(9)(a))

Once the property is seized the owner must be notified within 5 days by certified mail.

The owner has 15 days to ask for an adversarial preliminary hearing to determine if there is probable cause for the forfeiture.  Once the hearing is requested, the State has 10 days to hold the hearing.  If there is probable cause the case is set for trial. 

Forfeiture cases shall be heard by a circuit judge in civil court.  Unless the claimant waives his right to a jury trial, a jury would decide if the vehicle or other property should be forfeited.

Only an owner of the property or a person with a proprietary interest in the property has standing to contest the forfeiture.  The claimant has the burden of proving standing.  Possession at the time of seizure is not enough in forfeiture cases.

If the seizing agency wins, the agency owns the property and can keep it or sell it, as they choose.

*****(This example is based on an actual closed case.)*****

Polanco signed the title from the 2002 Cadillac Escalade as the seller.  He accepted $32,000 from Hoffman.  Hoffman took possession of the title and the car.  The title was apparently not filled out properly but Hoffman never even tried to register the vehicle in his name.

Hoffman was arrested for drug trafficking.  He had driven to the scene in the Cadillac.  The officers seized the car when Hoffman was arrested.  He never objected to the forfeiture after the seizing agency said that he had no standing to object since the car was not in his name.

Polanco objected to the forfeiture.  He claimed that since the title was not filled out correctly and ownership never passed to Hoffman, then he still owned the vehicle.

The judge writing for the 2nd District Court of Appeal ruled: Only persons who have standing can participate in a forfeiture proceeding.  A claimant’s standing is predicated on his ownership interest.  While Hoffman’s ownership interest was affected by the flawed title, those defects did not prevent the title from passing from Polanco.  Polanco had no ownership interest in the car and therefore had no standing to participate in the forfeiture proceeding.  (29 FLW D1291)

63. THE JUDGE RULES: Search Warrants and Unlawful/Lawful Searches

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

In several neighborhoods last month, residents were startled by a booming voice over a loudspeaker repeating again and again “police, search warrant, police, search warrant.”

Sometimes the police are required to get a search warrant and sometimes they are not.

If you are arrested in your home, the police can generally search the immediate area for weapons without a search warrant.  If the police are in your home for other legitimate reasons, and see an unlawful item, they could seize it without a search warrant.  If an owner invites the police in to search his minor child’s room, the police can usually seize unlawful items without a search warrant.

The Constitution gives us a right to be free of unlawful searches and seizures.  An unlawful search and seizure might result in the suppression of the seized item or items.  Many searches require a search warrant.

To get a search warrant, an officer brings the judge an affidavit.  The affidavit must provide a substantial basis for the officer’s belief that certain items are in the Defendant’s house, car or business.  The affidavit must specifically identify the item or type of items.  If the officers are looking for stolen elephants, they cannot justify looking in drawers unless they put in the affidavit that they are looking for paperwork concerning the elephants.

Not only must the items be specifically identified, the location of the search must be specific in the Search Warrant.  The home, business or car must be well described.  The house number, the color of the car, or the business name must be included.

If the officer provided the affidavit in good faith and the judge signed the warrant in good faith, the search would probably survive a Motion To Suppress even if the alleged substantial basis was wrong.  Officers act reasonably when they rely in good faith on a search warrant. 

*****(This example is based on an actual closed case.)*****

The Defendant had been sitting in his car which was backed into a parking space on the far side of a store.  The officer became suspicious and approached the vehicle.  He called for a canine unit.  The dog alerted to the presence of drugs.  The police searched the vehicle and found crack cocaine.  The Defendant wants the evidence suppressed.  He claims that the police had no right to search his car.

The Judge writing for the 5th District Court of Appeal ruled: The police had the right to walk up to the Defendant’s car.  The police had the right to bring a drug dog with them.  Once the canine unit alerted on the car, the officers had probable cause to search.

The use of a sniff dog is not unconstitutional.  Just as an officer does not need to ignore contraband in plain sight, an officer does not need to ignore something in “plain smell” to the officer’s dog.  The evidence will not be suppressed.  (877 So2d 800)

64. THE JUDGE RULES: Objection! (Trial Objections)

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Your Honor, I object to the admission of that letter as evidence.  It is privileged communication.  I ask that you sustain my objection and not let the letter be used as evidence.

Or the objection might be that it is hearsay, immaterial or speculation.

Almost every trial is peppered with objections from attorneys.  Each objection is made to keep something out of the trial or to keep someone from testifying about something.

While it can get frustrating when an objection breaks everyone’s train of thought, the attorney usually must make the objection contemporaneously or lose the right to object at all.

The attorneys are trained in the rules of evidence and trial procedure.  It is their duty to make all objections that they feel are proper.  Juries are instructed that when an objection is made, they are not to speculate on what might have occurred if the objection had not been sustained or what a witness might have said had the witness been permitted to continue.

A timely objection to stop an action or a motion to strike after the act is already done must state the specific grounds for the objection.  If the arguments over the objection are long, a judge will often hear them at the bench.  If the arguments are very long, the judge will usually excuse the jurors so that the discussion can proceed without whispering.  Obviously, the jury should not hear the discussions.

If there is no timely objection about spoken or physical evidence, the parties usually cannot object later.  One exception would be if the objectionable words or items cause a fundamental error.  If the error went to the very foundation of the case.

*****(This example is based on an actual closed case.)*****

The Defendant was found guilty of first-degree murder.  He appeals his conviction on several grounds.  He argues that the court should not have allowed certain identification testimony.  He also argues that the court ruled incorrectly as to the objection over the admission of a certain letter.

The Judge writing for the 3rd District Court of Appeal ruled: The Defendant did not make a timely objection to the identification testimony and therefore cannot raise the issue on appeal.

As to the ruling on the objection to the admission of the letter, the Defendant is right.  The trial judge ruled incorrectly on the objection.  “Accordingly, the defendant’s conviction is reversed and the case is remanded for a new trial.”  (575 So2d 704)

65. THE JUDGE RULES: Domestic Violence, Injunctions and No-Contact

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

While either a man or a woman can be a victim of domestic violence, the majority of reported victims of domestic violence are women.  A woman is more likely to be battered or killed by her husband or significant other than by a stranger.  Florida has made a determined effort to protect domestic violence victims.  Sometimes the victim hinders the State’s efforts by initiating contact.

An alleged victim requests an Injunction For Protection.  The Court grants it and orders the Respondent to have no contact with the victim.  The Respondent cannot call, write or live with the Petitioner.  The Respondent cannot go near the Petitioner’s home or car.  This is a civil case unless the Injunction is violated.  A violation of an Injunction is a criminal offense.

Domestic violence is a criminal offense.  An officer usually arrests a person suspected of committing domestic violence.  A Defendant is given a no-contact order at bond hearings.  On each domestic violence case the judge advises the Defendant to have no contact with the alleged victim.  That is a special condition of the Defendant’s pre-trial release regardless of the bond amount.

Too often the no-contact provision is violated at the invitation of the victim.  Although there is a no-contact provision, the victim will invite “Daddy” home to spend Christmas with the children because they miss him.  Or the victim can’t afford her rent payments and has the Respondent/Defendant move back in to help pay.

Sometimes there is an Injunction as the victim requested and a criminal charge of domestic violence.  Two judges in two courts have told the Defendant “no contact.”  Then the victim will get the Injunction dropped and let the Defendant move back in.  She mistakenly thinks that they can have contact now.  She is wrong.  As long as the criminal case is still pending, the no-contact order on the criminal case stands.

Sometimes the victim will write or call the Respondent/Defendant.  Sometimes the victim goes to the Respondent/Defendant’s location.  It can be difficult for law enforcement to assign blame under these circumstances.

*****(This example is based on an actual closed case.)*****

The Defendant was charged with Domestic Violence when his ex-wife made an unscheduled visit to his home to see the children.  He ordered her off his property.  She refused to go.  He pushed her with two open hands telling her again to get off his property.  She left and called the police who arrested the Defendant.  He appeals his conviction for Domestic Violence.

The Judge writing for the 9th Circuit Appellate Panel ruled: Because the ex-wife refused to leave the Defendant’s property after his repeated demands, she was a criminal trespasser.  The Defendant was allowed by law to use reasonable and appropriate force necessary to remove her from his property.  The Defendant’s conviction is reversed.  (11 Fla. L. Weekly Supp. 687)

66. THE JUDGE RULES: Burden of Proof and Judicial Notice

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

The Plaintiff has the burden of proving the case whether it is a civil action or a criminal trial.  But does the Plaintiff have to prove every detail?  Maybe not.

Some details are common knowledge and do not need further proof.  The Plaintiff may have to prove what time the sun came up on a particular day, but the Plaintiff would not have to prove that the sun rises in the East.

In addition, to save time and work, a party may ask that a judge take “judicial notice” of something the party wants to get into evidence without further proof.  Florida Statutes 90.201-207 address the issue.

A court SHALL take judicial notice of laws and rules.  A court MAY take judicial notice of certain legal documents and certain facts, which are not subject to dispute.

A court shall consider taking judicial notice if a party requests it and follows the proper procedure.  The requesting party must give the adverse party timely written notice of the request.  The requesting party must provide all the information the court would need to determine if judicial notice is proper.  Each side may present arguments on the matter.

A court may make its own motion to take judicial notice.  If a judge relies on a documentary source of information for its motion, that source must become a part of the record in the current action.  Each party should have an opportunity to challenge the information before the court would take judicial notice.

If a court denies judicial notice, it must do so on the record.  If the court grants judicial notice, the jury, if there is one, will be instructed to accept as fact any matter, which has been judicially noticed.

*****(This example is based on an actual closed case.)*****

The Defendant in this case, Deidre Hunt, was on trial for murder.  She wanted the jury for her trial to see the record in the Fotopoulos trial.  Hunt had testified in the Fotopoulos trial and that trial was over.  In the Fotopoulos trial the prosecutor argued that Fotopoulos dominated Hunt and influenced her decisions.  The prosecutor argued that Fotopoulos abused and terrorized Hunt.  In Hunt’s trial, the prosecutor argued that Hunt was not dominated or influenced by Fotopoulos.

The Justice writing for the Supreme Court of Florida ruled: Hunt’s Motion To Take Judicial Notice of the record in the Fotopoulos trial should be granted.  The Defendant may introduce the record from the Fotopoulos trial as evidence in her own trial.  The jury will be instructed that it is an official record.  (613 So2 893)

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