Despite RXs, Tiger Woods May be Convicted of DUI

One of the things I often hear from clients charged with a DUI is that “I had a prescription for that medication.” In the State of Florida, that is not a legal defense for a DUI as we will likely see from the recent arrest of Tiger Woods in Palm Beach County, Florida.

Tiger Woods was arrested this weekend on suspicion of DUI. He took a breathalyzer test and blew a .000, meaning there was zero alcohol in his blood. This does not mean that he will be able to walk away without a conviction though. He stated to police that he takes several medications, and this morning he gave a statement that this was caused by an “unexpected reaction to prescription medications.” Although the fact that it was a prescription medication can be used as mitigation in order to possibly negotiate with the State Attorney to knock the case down to a lower charge, the law does not make an exception for whether the medication is prescribed or not.

To be convicted of a DUI in Florida one must:

  1. Be driving or in actual physical control of a vehicle;
  2. Be under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893; AND
  3. That person must be affected to the extent that the person’s normal faculties are impaired

There is one final caveat. As you can see above in 2, the substance must either be alcohol or a substance set forth in those above two statutes. While medicines like Ambien and Promethazine can certainty impair ones normal faculties, they are not listed in the above statutes, and one cannot be convicted of a DUI based upon taking medicines like these. Obviously one should not drive under any substance that can cause impairment.

Last month, Tiger had his fourth back surgery, a spinal fusion. I am speculating that at least one of the medicines he was prescribed was a controlled substance under chapter 893. Also, according to the probable cause affidavit, Tiger agreed to a urine sample. Soon we will see exactly what type of medication he was on. Ultimately, whether he has a prescription to these medications will not be a legal defense.

States Cannot Keep Fines from Exonerated

The Supreme Court recently held that those who have had a criminal conviction overturned, but had paid restitution while awaiting the outcome of their appeal, must be refunded that money. Some may be left scratching their head that this made it all the way to the supreme court, but it was not a unanimous decision. Despite the fact that their convictions were overturned, the state of Colorado insisted on keeping the restitution. This case, titled Nelson v. Colorado, was a 7-1 decision, with newly appointed Justice Gorsuch sitting this one out.

Colorado had adopted an exoneration act that allows “an innocent person who was wrongly convicted” to file a civil suit to seek refunds but only if they could prove their innocence. This would flip the presumption of innocence on its head, according to the majority opinion written by Justice Ginsburg. She eloquently wrote “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary extractions.”

Justice Thomas was not convinced that those who had their cases overturned had “any substantive entitlement, under either state law or the constitution” to the previously paid money. He reasoned that since the defendants were not wrongly deprived of the money, the state did not have to provide a process for its return. UCLA law professor Stuart Banner and the UCLA Supreme Court Clinic appealed the case for Mr. Nelson and noted that Colorado was the only state that regularly refused to refund money from those whose convictions were overturned.

“Stand Your Ground” Set To Expand

The State of Florida has one of the strongest protections for those claiming self-defense in the entire country. Now, that protection is almost certainly going to get even stronger. A technical change to how these cases play out in the courtroom will make it easier than ever for someone to prevail on a self-defense claim.

If one is charged with using or threatening to use violence, they can raise self-defense in all 50 states. However, in Florida, one gets the ability to raise this defense before having to go to trial. In this sense, a defendant can get two bites at the apple. First a defendant can raise self defense in a pre-trial evidentiary hearing asking the Judge for immunity from prosecution. Then even if the defendant loses this hearing the case continues. They have not been convicted of any crime and they can still proceed with a self-defense claim at trial.

Previously at these pre-trial hearings, the defendant had the burden of proof, to prove that their actions constituted self defense. Now, once the defendant provides some competent evidence that his or her actions constituted self defense, the government must prove by clear and convincing evidence that the defendant’s actions were not self defense. This change is assuming, as widely expected, Governor Scott signs SB 128.

I have had many of these hearings, and they are usually very much toss-up, “he said-she said” situations. Now these “toss-ups” should be ruled in favor of the defendant much more frequently because the burden of proof will be on the Government. Thus Florida’s broad “Stand Your Ground” law is set to expand even more.

Most Estate Plans Ignore Digital Property

Many Estate Planning attorneys are not prepared for the modern era. At this point, very few attorneys are creating a plan for disposition of digital property. Digital property is not cell phones and tablets, but the information stored on them. This can include information stored on Facebook, Twitter, blogs, websites, and more.

Some may think they do not need to worry about these accounts because they have no value. This line of thinking is categorically incorrect. Much of this information holds immense sentimental value, including communications, pictures and videos. Other assets may have more economic value including business websites, frequent flier miles or even bitcoins. Still others have a large digital library of books, movies or songs. Even online accounts with stored credit card information should be properly disposed of, as identity theft, even for those who have passed, is becoming more and more rampant.

In 2016, Florida became the first state in the nation to pass legislation adopting the Uniform Fiduciary Access to Digital Assets Act (UFADAA). These rules require specific triggering language in a trust, power of attorney or will, otherwise this digital property will be inaccessible. Using generic catch all phrases or including digital assets in one’s “entire estate” will not be enough. A family member or loved one could even potentially be criminally prosecuted if they try to access digital property without the correct triggering language under the UFADAA. Please hire an estate planning attorney who is familiar with these recent legal changes. Call us today if you have any further questions.

Florida Legislature Cracks Down on “Totalitarian” Condo Boards

I represent a condo homeowners association and also many people who are unhappy with the way their condo is run, so I always stay up to date on the latest in Condo/HOA law. Previously, you either had to attempt a hostile takeover by getting the votes or suing civilly with an administrative state board. If Governor Scott signs the bill passed by the Florida Legislature, condo boards will have more regulations to follow and those unhappy with the way their condo is run can call the police if their board is violating the law.

If the law is changed, condo associations with 150 or more units will be required to publish password-protected financial reports, bylaws, and the articles of incorporation online. Directors will no longer be able to receive money from their associations for services like property management. Directors would also no longer be able to hire their relatives. There would also be term limits for board directors of 8 years unless the director receives a super-majority or there is a lack of candidates to fill the position, which in my experience is actually an incredibly common experience. A renter of a unit also would have the right to copy and inspect the association’s bylaws and rules.

Previously even if there was wrongdoing, police were very hesitant to arrest someone for a violation of condo association law because the statute made no explicit mention of criminal penalties. If the Governor signs this bill, that will change dramatically. Forgery of a ballot envelope or voting certificate used in an election is now a third degree felony, which is punishable by up to 5 years in prison. Refusing to allow inspection or copying of an official record of a condominium association within the time periods required by law in furtherance of a crime is now a felony, punishable by up to 5 years in prison. These are just two examples of a long list of illegal activity that will now be met with felony charges to combat what the author of this bill calls “totalitarian” condo boards.