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Holiday Season and DUI Patrols – Know Your Rights and Be Safe into the New Year!

 

By Michael Boyle, Esq.  

DUI Checkpoints and Wolfpacks

As this Holiday Season is upon us, so is the season for increased DUI checkpoints and patrols.  In the Tampa Bay area, we will see several, strategically-placed DUI checkpoints around Christmas and New Year’s targeting those of us who have had a little too much eggnog and have gotten behind the wheel.

DUI “Wolfpacks” and Patrols

An ever-increasingly popular method of identifying and arresting impaired drivers in Pinellas County, Florida, is the use of DUI Wolfpacks.  These “Wolfpacks” are cooperative efforts by many of the law enforcement agencies in the County to work together to put high concentrations of officers in all types of vehicles patrolling a selected area.  For instance, Fourth Street North in St. Petersburg is a busy thoroughfare, as there are many restaurants and bars.  When a Wolfpack sets up on 4th street, there will be a large concentration of officers from the Pinellas County Sheriff’s office and the St. Petersburg Police Department driving north and south in a loop observing the driving behavior of drivers during peak DUI hours of the night and early morning.  If the officers working this patrol see suspicious behavior, they will pull the driver over and likely a mobile breath testing facility will be strategically set up to administer a breath test timely to process an arrest if needed.  This allows large numbers of arrests to take place without taking the patrol officers off the streets for large periods of time to process the accused drivers.  Another popular location for Wolfpacks to set up is on Gulf Boulevard up and down the beach communities of Pinellas County (St. Pete Beach, Treasure Island, Madeira Beach, Indian Rocks Beach, Clearwater, etc.).  The holiday season is the time where you will see increased use of these Wolfpacks all over Pinellas County.  

What to do if you see a DUI Checkpoint up ahead

The first thing you need to know about DUI checkpoints is that they do NOT stop every car.  They would not be able to do so logistically or legally.  They have a predetermined “plan” where they randomly stop every 5th or 6th car that comes into one of the lanes of travel.  So, your odds of being the car that gets stopped and detained is small.  Additionally, if you are in line waiting to find out if you are going to be stopped and detained, you should be getting your license, registration and proof of insurance out ahead of time.  One of the “clues of impairment” that officers use to build probable cause for a DUI arrest is how fast your reaction time is when asked to produce those documents.  If you are the lucky car, be polite and keep your answers short and sweet.  Don’t engage in long discussions about where you were coming from or how much you have been drinking.  The odds are good that your conversation is being recorded or videotaped, so do not say things like “hey bro, do you think you could just let me have my friend come pick me up?”  That is the functional equivalent of saying “excuse me sir, I would like to confess to the crime of DUI.” 

What not to do if you see a DUI Checkpoint up ahead

DUI checkpoints have “chase cars” patrolling around the area of the stop zone for the sole purpose of stopping cars that attempt to evade the checkpoint.  So, if you would like to increase your odds of being a chosen car, pull a u-turn or hang a left into a side street.  That will almost certainly guarantee your car will be chased down and pulled over.  At that point, you have created a presumption in the mind of the officer that you have something to hide.  Additionally, do not start chewing gum.  If you are already chewing gum, spit it out before you get to the checkpoint.  Officers will assume you are attempting to mask the odor of alcohol on your breath if you are chewing gum.  

Should I blow into the “machine” if asked?

If you are all the way through the process to the point where you are being asked to “submit to a lawful test of your breath to determine the alcohol content,” you are already going to jail.  The question that remains is what evidence will you now arm the prosecutor with at your trial versus how will this decision affect your license with the DMV.  If you blow into the machine and your reading is above a .08, then you will receive a six-month administrative suspension from the DMV (separate from the DUI suspension).  If you refuse to blow into the machine, you will get a one-year suspension (for the first time in your life that you refuse) or an eighteen-month suspension if you have refused before.  If you blow, however, and your reading is above a .15, you will receive additional penalties versus a refusal to blow.  So…the answer is: If you are going to blow below a .15, then blow.  If you are going to blow above a .15, then refuse.  This answer begs the question; “how do I know if I am going to blow over a .15?”  The answer to that question is that you will not know till it is too late.  

Drive or Be Driven?

Most importantly, by far the best advice that this former state prosecutor and current DUI defense attorney can give you is:  TAKE A CAB or HIRE AN UBER this holiday season if you have been drinking. If you are reading this message after having been arrested for DUI, call me, Michael Boyle, Esq.  I can help.  1-855-532-8365 or visit www.leavenlaw.com/criminal-defense for more information. 

LeavenLaw Associate Addresses St. Petersburg Mayor’s Committee to Advocate for Persons with Impairments

LeavenLaw's Jordan Isringhaus Speaking to St Pete ADA Committee

by, Jordan T. Isringhaus, Esq. 

The City of St. Petersburg’s Committee to Advocate for Persons with Impairments (CAPI) guides St. Petersburg’s city leaders about the municipal needs, rights, and concerns of citizens with disabilities. The mayor appoints the members of CAPI with the advice and consent of the City Counsel. Since 1972, CAPI has evaluated city-wide policy and made recommendations with the goal of ensuring “full participation [of persons with disabilities] in the City’s facilities, programs, and services.” CAPI’s role mainly focuses on providing equal access to publicly-funded offerings, as required under the Americans with Disabilities Act (ADA) Title II. In the community, LeavenLaw’s ADA practice supplements CAPI’s mission by advocating for the removal of barriers to access in places of public accommodation under Title III.  

LeavenLaw Associate Jordan Isringhaus champions Title III ADA litigation at LeavenLaw along with Managing Partner, Ian Leavengood. As a result of LeavenLaw’s accessibility victories in the community, CAPI invited Attorney Isringhaus to speak at its regular meeting on November 9, 2016 on the topic of Title III of the ADA. Title III applies to nearly all businesses including restaurants, hotels, grocery stores, and retail stores. As a federal law for over 25 years, Title III of the ADA protects individuals with physical and mental disabilities by requiring that places of public accommodation remove barriers to access. Oftentimes barriers to access are physical, although non-physical barriers to access also must likewise be removed or modified under Title III of the ADA.

Leavenlaw's Jordan Isringhaus with Kim RankineMr. Isringhaus’ presentation to CAPI, titled “Understanding and Enforcing Disabled Accessibility in St. Petersburg’s Places of Public Accommodation,” explained the structure and application of Title III protections, common Title III violations and attempted excuses, and recent LeavenLaw local achievements. Attorney Isringhaus highlighted LeavenLaw’s achievements with descriptions of local barriers removed via litigation. Additionally, although a Department of Justice ADA investigation can span over two years, LeavenLaw noted that its litigation has resulted in an average of only approximately 4 months between the initiation of suit and the obtaining of an agreement for ADA compliance from the alleged violator. Finally, by encouraging disabled individuals to “take notice, take pictures, and take action,” the presentation culminated in a call for disabled citizens to serve as their own best advocates, as envisioned by the ADA. 

If you or someone you know has been the victim of a barrier to access at a public place in St. Petersburg or throughout Florida, LeavenLaw can assist you in evaluating the circumstances and determining whether an Americans with Disabilities Act (ADA) lawsuit is appropriate. All ADA consultations are offered at no-charge, and if taken, most cases are handled with no fees or costs from the disabled consumer.  Call LeavenLaw today to schedule your complimentary consultation at 1-855-532-8365. 

 

Retail Store Credit Cards = Four-Year Statute of Limitations

Retail Store Credit Cards Statute of Limitations

By, Sara J. Weiss, Esq. 

The Superior Court of New Jersey, Appellate Division, in a noteworthy case entitled Midland Funding LLC v. Thiel, et al., recently held that in the context of retail store credit cards—whose use is limited to a specific store—the applicable statute of limitations is four years rather than five or six years.  The statute of limitations limits how long a consumer can be successfully sued to collect a debt, so the shorter statute of limitations period benefits consumers and provides clarity in the confusing realm of junk and zombie-debt collection. 

The Court disagreed with Midland’s arguments that the six-year statute of limitations that governed most contractual claims under New Jersey law applied, finding instead that the four-year statute of limitations that governs contracts relating to the sale of goods controlled.  In Thiel, Midland filed collection lawsuits which were beyond the four-year statute of limitations, but within a six-year statute of limitations.  Ultimately, the Court agreed with the lower court’s analysis that an “agreement between a buyer and a third-party financer who is neither the seller nor an assignee of the seller to provide credit for the purchase of goods [is equivalent to] a contract for the sale of goods [that is] subject to the four-year limitations period of the [UCC].”  Examining the transaction as a whole, the Court found that the “essence or main objective of the parties’ agreement” was still a transaction for the sale of goods. 

Importantly, the Court also found that partial payments, which were less than the required minimal payment, did not toll the running of the statute of limitations.  Typically, the right to institute a junk or zombie-debt collection lawsuit arises on the date of a consumer’s default, i.e. the first date the consumer fails to make at least a minimum payment.  The Court determined that Thiel’s partial payments, which were less than the required minimum payment, did not change the date of the original default, and therefore did not change the date on which the cause of action accrued.  As a result, the statute of limitations for Midland to sue began on the date of Thiel’s first default, and ran out four years from that date.  

Even more important for consumers, the Court found that Midland violated the Fair Debt Collection Practices Act (“FDCPA”) by initiating the lawsuit on a time-barred debt, noting that filing the lawsuit is “automatically a violation.”  Midland incorrectly operated under the belief that the six-year statute of limitations applied, and as ignorance or mistake of the law itself does not excuse liability under the FDCPA, by filing a collection action on a debt that was time-barred, Midland violated the FDCPA and was liable to Thiel for damages, attorneys’ fees, and costs.  The FDCPA, and its Florida counterpart, the FCCPA, protect consumers from unscrupulous conduct by creditors and debt collectors. 

This Thiel ruling is a win for consumers, and is another tool for consumers and consumer lawyers to fight against the unlawful collection practices of large junk debt buyers and debt collectors.  The attorneys at LeavenLaw are committed to fighting for the rights of consumers, and we will continue to fight junk debt buyers such as Midland who harass our clients or violate the law when attempting to collect a debt.  If a debt collector is trying to collect a debt from you or someone you know that originates from retail store credit card (for example, department store cards, Best Buy, The Home Depot)  older than four years, please contact me, Sara J. Weiss, Esq. at (727) 327-3328 or visit www.floridacollectiondefense.com.  Our initial consultation is always free, you may be entitled to damages, and the debt collector may have to pay our attorneys’ fees and costs.