Regular Size         Larger Size         Largest Size


85. THE JUDGE RULES: Car Accidents and Legal Responsibility

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).

You are involved in a car accident. Must you call the police??? Let’s look at Florida Statutes 316.027-316.070.

If you are involved in a crash in which a person is injured or killed, you must remain at the scene and give information to a law enforcement officer. Failure to do so is a felony.

The driver of a vehicle which is in a crash with attended property or an attended vehicle must stop and give the appropriate information to the other party. If there are no injuries and the damage is less than $500, the parties can work it out without police involvement, if they wish. This can be done only if the vehicles can be driven and the crash did not involve an intoxicated driver. If they wish to get a report for insurance purposes, the necessary form can be downloaded from http://www.fhp.state.fl.us/html/crashrep.html. If the damage appears to be more than $500, or one of the cars cannot be driven, law enforcement must be called immediately by the quickest means of communication available. (FS 316.065) Failure to report is a crime.

The driver of a vehicle which is in a crash with unattended property or an unattended vehicle must stop and attempt to locate the owner. If the owner cannot be located, the driver’s information must be left in a conspicuous place and law enforcement must be notified without unnecessary delay. (FS 316.063) Failure to report and/or leaving the scene of an accident is a crime.

The information the driver must give includes name, address and the registration number of the vehicle being driven. Giving information which the driver knows or should have known is false is a crime.

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

Dennis Mancuso was charged with leaving the scene of an accident involving death or personal injury. Although he said he did not realize it, he struck two women walking on a dark stretch of Interstate 95 at 4:30 a.m. One woman was killed and one was seriously injured. Since he knew something happened, he pulled over on the side of the road and checked out his car. He saw no debris in the area. He left his disabled car and walked home. The next day he went to the Police Department to report that his car had been involved in an accident. He told the police that he heard a loud noise, everything went black, and his windshield cracked.

The jury was told that it should decide if Mr. Mancuso was involved in an accident which resulted in death or injury, that he knew or should have known he was involved in an accident and that he willfully failed to stop at the scene of the accident. He was found guilty and appealed.

The Justice writing for the Supreme Court of Florida ruled: The jury should have been instructed that the charge requires proof that the driver knew of the resulting injury or death or reasonably should have known, not that he knew there was an accident. Mr. Mancuso is entitled to a new trial. (652 So2d 370)



86. THE JUDGE RULES: Strategic Lawsuits Against Public Participation - SLAPP

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).

What in the world is a “SLAPP” lawsuit and why should you care? “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” This subject is all about citizens’ First Amendment rights.

A SLAPP suit is a civil action for damages. It is brought against citizens or a group of citizens for contacting a public official or informing people about an issue. It is designed to silence the vocal party or parties.

For instance, you and several neighbors write a letter to the editor complaining about Company X allowing its trucks to speed through your residential neighborhood. Instead of a letter your group could have circulated a petition, or made phone calls or made speeches at public meetings. Company X sues you all for defamation, conspiracy, nuisance, and interference with their economic advantage. You have been “SLAPPed.”

SLAPP suits are rarely successful on their merits. Their purpose is to discourage people from speaking out. Even if your group wins the lawsuit, you will have spent time, money and energy defending yourselves. This has a “chilling” effect on free speech.

One Florida Statute, 720.304, on homeowners’ associations, states that associations are not to attempt to quiet complainers by filing a SLAPP suit against them. The court should expeditiously dispose of any SLAPP suit in a homeowners’ association case. Homeowner’s associations may not use association funds in prosecuting a SLAPP suit against a parcel owner.

I found several helpful websites on SLAPP lawsuits. One of the best is located here: http://www.thefirstamendment.org/antislappresourcecenter.html. Be prepared. Your free speech could get you SLAPPed.

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

The Concerned Citizens of Putnam County filed several petitions with the St. Johns River Water Management District against the Florida Fern Growers Association, Inc. The Concerned Citizens had environmental concerns. The Fern Growers sued the Concerned Citizens for interfering with their business. The lower court dismissed the Fern Growers’ lawsuit. The Growers appealed.

After nine pages of complicated discussion, citing other cases and opinions, the Judge writing for the 5th District Court of Appeal ruled: The right to petition the government guaranteed to citizens by the United States Constitution and the Constitution of the state of Florida does not provide absolute immunity from lawsuits. The Fern Growers allege intentional and malicious interference with their business. Factual questions must be addressed as to the mode, manner or purpose of the Citizens’ actions to determine if they abused the privilege of petitioning government. The case should not have been dismissed. It should be heard on its merits. (616 So2d 562)



87. THE JUDGE RULES: “Experiencing” a Witch Trial

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).

Recently I attended a witch trial in Colonial Williamsburg. The facts of the case were based on documentation from a real trial. It was a powerful experience for me. The performers were excellent. It was the 1700’s and we were there.

The prosecutor presented his case. A witness testified that the Defendant had caused his crops to fail and his pigs to die. He admitted that the Defendant had won a court case against him in the past. His wife testified that the Defendant caused her to lose a child. She testified that she had birthed several other children with no problems. She lost this child because the Defendant was a witch and cursed her.

Since the Defendant had been charged as a witch she was examined by a group of women. A witch would have the “Devil’s mark” somewhere on her body. A member of the examining group said she saw the “Devil’s mark” on the Defendant’s body. She said she stuck a pin in the mark and it did not bleed and the Defendant did not even feel the pin. The Defendant said she had the marks since birth. The Defendant could provide no witnesses to attest to this fact.

The local officials who charged the Defendant put her to the standard test. If she floated on water, she was a witch. If she sank, she was not a witch. The affidavit from the officials swore that she floated above the water and did not even break the surface.

The judge, over the prosecutor’s objection, put the Defendant to another test in front of us. The judge said that authorities assert that a witch could not recite the “Lord’s Prayer.” If the Defendant could recite the prayer, she would provide evidence that she was not a witch.

The Defendant put her hands together and began the prayer. Before she could finish, she gave a violent shutter and passed out. You could have heard a pin drop in the courtroom. The judge appeared stunned. He told the Bailiff to remove the Defendant.

The audience was instructed as to how we were to determine our verdict. It was not a matter of our opinion on the subject of witchcraft, but had the case been proven in accordance with the law.

The Bailiff said for all those who voted “not guilty” to raise their hand. He counted hands.

He said for all those who voted “guilty” to raise their hand. He counted those hands.

The vote was overwhelmingly for guilty and the judge ruled that she was found guilty.

Every day judges and juries are asked to separate their personal feelings from their obligation to the law. Witches in America were burned at the stake in accordance with the law.

We have checks and balances in our judicial system. The legislature makes the laws. The officer has charging discretion. The Office of the State Attorney has charging discretion. The judge reviews legal issues concerning charges and interprets the law. The judge has some discretion as to sentencing. Juries review facts. Our system is not perfect but with a vigilant citizenry, we can hope to burn no more witches at the stake.



88. THE JUDGE RULES: The Bill Of Rights

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).

At Colonial Williamsburg I heard “Patrick Henry” speak and I was mesmerized. You can hear one of his speeches by clicking on http://www.history.org/Almanack/people/bios/biohen.cfm. I was reminded once again that we cannot take our rights for granted.

Our Constitution was signed by our founding fathers before “The Bill Of Rights” was added. There was an urgency to have a document which would bind the colonies into a united country. Patrick Henry complained that the document should not be signed until all rights were guaranteed to colonists. He analogized that a person would not sign a contract and then negotiate the terms.

Fortunately, the Constitution was amended to add “The Bill Of Rights.” Those rights were similar to the rights that the Colony of Virginia had already adopted. Those rights are part of the magic that is America.

The 1st Amendment: free speech, right to assemble, no religion established by Congress.

The 2nd Amendment: the right to bear arms so we would have a well-regulated militia.

The 3rd Amendment: no soldiers quartered in private home uninvited.

The 4th Amendment: no unreasonable searches and seizures.

The 5th Amendment: grand juries in capital cases, no double jeopardy, no compelled self-incrimination, due process and eminent domain.

The 6th Amendment: a speedy and public trial, an impartial jury, ability to confront witnesses and call witnesses, and the assistance of counsel.

The 7th Amendment: the right to a jury trial in civil cases above a certain value, a jury’s determination of facts shall not be re-examined in any court.

The 8th Amendment: no excessive bail, no excessive fines, and no cruel and unusual punishment.

The 9th Amendment: the rights of the people are not limited to those specifically listed.

The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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

The Defendant objected to allowing a certain witness to testify against him. The trial court agreed and did not allow the witness. The Office of the State Attorney appealed.

The judge writing for the 5th District Court of Appeal ruled: The right to call witnesses is one of the most important due process rights. A witness should only be excluded under limited circumstances. In this case, the State was deprived of its right to a fair trial. (855 So2 157)



89. THE JUDGE RULES: The Right to Privacy and Florida’s Constitution

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).

A reader asked me about the “right to privacy.” He said the word “privacy” is never used in the United States Constitution. What makes it a “right?”

The United States Constitution addresses searches and the rules which must be followed for a legal search. The Constitution addresses other areas which could fall under the privacy label. In addition, the 10th Amendment to the United States Constitution gives powers to the states [see column No. 88 on this website for more on The Bill Of Rights]. The states could add other rights. With its power, Florida adopted its own Constitution.

The Preamble states: “We, the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order to secure its benefits, perfect our government, insure domestic tranquility, maintain public order, and guarantee equal civil and political rights to all, do ordain and establish this constitution.”

As published in Florida Statutes 2004, Article 1 of the Florida Constitution has 25 listed rights. Number 23 is the right to privacy. “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

It is left to judges and juries to interpret the intent of the legislators in the wording of the privacy law.

It is interesting to note that the Florida Constitution has been amended at least 103 times in the last 34 years while the United States Constitution has only been amended 27 times in 215 years!

The Florida Constitution is supposedly, the easiest constitution in America to amend.

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

Guadalupe Reyes was charged with attempted sexual battery on a person less than 12 years old. He pled guilty to the charge. The judge declared him to be a sexual predator. The judge ordered him to register pursuant to the Sexual Predator Act. Defendant Reyes objected claiming that the requirement violated his constitutional right to privacy.

The judge writing for the 4th District Court of Appeal ruled: The purpose of the Sexual Predator Act and its registration requirement are of sufficiently compelling state interest to justify such an intrusion on a sexual predator’s privacy. This includes the right of the state to notify the public as to the location of sexual predators in their community. The order of the lower court is affirmed. (854 So2 816)



90. THE JUDGE RULES: Self-Defense and Defending Others (Updated)

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).

Last year, I wrote a column on self-defense [column No. 52]. Much of the information in that column will be obsolete as of October 1, 2005. Here is my new and revised column.

The new law states that the Legislature finds that law-abiding citizens should be allowed to protect themselves, their families and others from intruders and attackers. The Constitution guarantees the right of the people to bear arms in their defense. People should have a right to remain unmolested in their homes and vehicles. No person should have to surrender his or her safety to a criminal. No person should be required to retreat in the face of an attack.

After October, 2005, a person in Florida has no duty to retreat if he or she is the victim of imminent force. If he or she is in a place lawfully, he or she may meet force with force except against a law enforcement officer. Under the old law, if a person punched you, you were to leave, if you could, and call law enforcement to handle it. The new law seems to state that now you can punch back without being charged with a crime. Before, if you punched back, you could have been charged with an affray. The affray charge meant that you were participating in a fight when you could have retreated.

A new statute, Section 776.013, was created to spell out the new home protection laws. A person can use defensive force likely to cause death or great bodily harm to another if he or she has a reasonable fear of imminent peril of death or great bodily harm. The fear is presumed to be reasonable if the person against whom the defensive force was used was unlawfully in or attempting to get in the victim’s dwelling or occupied vehicle. A person who unlawfully and by force enters or attempts to enter a person’s dwelling or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Does this mean that you can shoot an unarmed burglar in your own home in the middle of the night? Does this mean you can shoot someone trying to get in your window? Courts will begin to interpret the intent of the law as cases go to trial.

A person is justified in the use of deadly force AND DOES NOT HAVE A DUTY TO RETREAT if he or she 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.

A person who uses justified force in self-defense is immune from criminal prosecution. A law enforcement agency may investigate the use of force but may not arrest the person who used the force unless they determine it was unlawful.

Since the changes to the self-defense law do not go into effect until October 1, 2005, there are no rulings at this time.


Home  |  Email Your Comments Here  |  © 2004-2018 JudgeDonnaMiller.com