Under Florida Statute §316.1932 (implied consent law), you are required to submit to a breath or blood test if police have reasonable cause to believe that you have been driving while under the influence of drugs or alcohol. Any person operating a motor vehicle in Florida is essentially giving implied consent to take a chemical or physical test for intoxication or drug use. Refusing to participate in a blood test may result in a driver’s license automatically being suspended for 1 year. If the driver previously refused a lawful blood alcohol test the license can be suspended for 18 months. However, there may be legal grounds that will prevent the imposition of a penalty for refusal or if you submitted to the exam, grounds to throw the results of the test out of court. Therefore, if you have been arrested for DUI or refused to take a blood alcohol test you should contact a DUI attorney right away.

Under the U.S. and Florida Constitution, drivers are protected from an unreasonable search or seizure by law enforcement, and blood tests are treated as a search and seizure. Therefore, any chemical test for determining a driver’s blood alcohol will need to comply with search and seizure laws. For instance, if the police did not have a reasonable suspicion of DUI, the investigation and any evidence obtained from the investigation may be invalid and inadmissible in a court of law. However, in order for the protection against illegal stops and seizures to apply there must have been a nonconsensual detention of the defendant. To read more about nonconsensual detention click here.

Additionally, defendants are entitled to be represented by a dui defense attorney. However, there is no constitutional right to counsel prior to the imposition of a blood alcohol test. The right to counsel does not kick in until the defendant is actually charged with a crime. Further, the police do not have a duty to advise defendants that there is no right to counsel prior to charging a defendant with a crime. Moreover, police do not need to even read you your rights before requesting the blood alcohol test. Miranda rights only apply to testimony and chemical or physical blood alcohol tests are not considered testimony. Therefore, the Fifth Amendment against self-incrimination will not apply.

Errors in the administration or analysis of blood alcohol test may also render the results of the test inadmissible in court. Blood alcohol tests can provide false results if the testing was administered without proper sterilization, coagulation, fermentation, refrigeration, or markings. Any inconsistencies or errors such as these could result in the blood test being inadmissible as evidence in court. Also, if the results of the blood tests administered by the crime lab and independent lab differ in their results, both tests may be thrown out of court.

Our Tampa DUI attorneys have years of experience in helping clients beat their DUI charges. We carefully scrutinize every detail of a case to identify any potential errors by police, violations of constitutional rights, mishandling of evidence, or sloppy police work that we can use to help our clients. Every DUI case is unique, so we carefully develop a comprehensive legal strategy that is individualized for each client. To find out if we can help you beat the DUI charges or for answers to your legal questions, contact us today by phone, email, or website form to schedule a free consultation with a Tampa DUI lawyer at our firm.

Florida prenuptial agreement law

A prenuptial agreement can allow you to modify certain provisions of Florida divorce law to better fit your specific circumstances. A well-executed agreement in compliance with Florida prenuptial agreement law will allow you to set forth the terms of the divorce, rather than a judge dictating the distribution of your assets and the amount of spousal support awarded. To find out more about Florid prenuptial agreement law contact a divorce law firm in Tampa to schedule a consultation.

Florida Prenuptial Agreement Law: Adoption of Uniform Premarital Agreement Act

Florida has adopted the Uniform Premarital Agreement Act, which expressly provides that parties may reach a binding contract on the following issues:  (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds.

Enforcement of Florida Prenuptial Agreement Law

Under Florida prenuptial agreement law, prenuptial agreements may be enforceable even if, in hindsight, they represent a bad deal for one of the spouses. For instance, in Ferguson v. Ferguson the court upheld a pre-martial agreement concerning the transfer of a home prior to the recent real estate downturn. Per the prenuptial agreement, the husband was to retain sole ownership of the home in exchange for paying the wife $185,000 and indemnifying her from any property taxes, assessments, or other property related expenses. The prenuptial agreement was drafted prior to the real estate market downturn and did not provide for, nor anticipate the drastic drop in the home’s value. The husband attempted to void this provision in the contract because the change in the home’s value made the deal significantly worse for him. However, the court upheld the prenuptial agreement and ordered both parties to fulfill its performance.

The prenuptial agreement can be a legally enforceable contract; however, a Florida family law court does have the authority to overturn the agreement if it was not properly executed in compliance with Florida prenuptial agreement law. Further, a court can disregard certain provisions of the contract while still enforcing the remainder of the prenuptial agreement. Therefore, it is very important that you receive competent legal advice from a Tampa divorce attorney experienced in Florida prenuptial agreement law.

Florida Prenuptial Agreement Law on Child Support and Custody

Not all aspects of a divorce can be resolved with a prenuptial agreement. For instance, a court may void provisions of an agreement that attempts to alter the child support or child custody rights of a spouse. A court will only enforce these types of provisions if they are more beneficial to the child than Florida family law provides. See League v. Lassiter. Additionally, provisions of a prenuptial agreement that attempt to limit or prevent support during a pending divorce are generally not enforceable under Florida prenuptial agreement law.

Divorce Law Firm in Tampa

A skilled divorce lawyer can be very helpful not only with the negotiation process but also in drafting an agreement that will satisfy the rigorous standards of Florida prenuptial agreement law. The Tampa divorce lawyers at Florida Law Advisers, P.A. are experienced at negotiating prenuptial agreements that protect our client’s rights and satisfy rigorous judicial scrutiny. If you are considering drafting or challenging a prenuptial agreement and have questions call us today to speak with a divorce lawyer in Tampa.

In some cases a DUI defense attorney will have legal grounds to suppress evidence that may otherwise be used to incriminate a driver accused of DUI. If a motion to suppress is granted, the evidence against the defendant will be inadmissible in court. For instance, if there are grounds to support a motion to suppress the initial traffic stop, anything obtained by the officer after the car was stopped may be inadmissible at trial.

Under the U.S. and Florida Constitution, police must first have reasonable suspicion of drunk driving before they can investigate for DUI. If there was no reasonable suspicion, the investigation and any evidence obtained from the investigation would be invalid and inadmissible in a court of law. However, in order for the protection against illegal stops and seizures to apply there must have been a nonconsensual detention of the defendant. Whether or not there was a nonconsensual detention will depend on the specifics of each case. Generally, a detention will be deemed nonconsensual when, taking into account all of the circumstances surrounding the encounter, the officer, by means of physical force or show of authority, has in some way restrained the liberty of the defendant. See Houston v. State

The court will considers a multitude of factors whether determining if a detention was consensual. The court will review the factors based on the totality of the circumstances, no one factor is dispositive. These factors include, but are not limited to:

• The lack of or display of weapons by the officer
• The officer’s tone with the defendant
• The location of the stop
• Whether the defendant was notified he or she is free to leave
• The amount of officers on the scene and their position to the defendant
• Whether or not the police blocked the driver’s vehicle

The fact that a defendant feels intimidated will not by itself render the stop nonconsensual. The conduct of the officer must have been enough to leave a reasonable person with the impression that he was not free to leave. Further, if the officer detained the defendant by using a show of force, the defendant must have been aware of the force and succumbed due to said force.

If you feel the police violated your rights against illegal searches and seizures contact Florida Law Advisers, P.A for help. Our Tampa DUI attorneys have years of experience in helping clients beat their DUI charges. We carefully scrutinize every detail of each case to identify any potential errors by police, violations of constitutional rights, mishandling of evidence, or sloppy police work that we can use to help our clients. Every DUI case is unique, so we carefully develop a comprehensive legal strategy that is individualized for each client. To find out if we can help you beat the DUI charges or for answers to your legal questions, contact us today by phone, email, or website form to schedule a free consultation with a Tampa DUI lawyer at our firm.

Chapter 13 bankruptcy payment plan

If you are experiencing financial hardship because the income you receive is not enough to pay your monthly bills Chapter 13 bankruptcy may provide some much-needed relief. Chapter 13 is a form of bankruptcy in which a consumer consolidates their existing debts into one monthly bill that is paid to a bankruptcy trustee according to the terms of the Chapter 13 bankruptcy payment plan. Unlike Chapter 7, borrowers will not be required to sell their assets as a condition of the Chapter 13 bankruptcy payment plan. Rather, Chapter 13 is considered a restructuring bankruptcy because the debtor continues to make payments to their creditors according to a court approved payment plan.

When to File the Chapter 13 Bankruptcy Payment Plan

When filing for Chapter 13, the petitioner must submit the Chapter 13 bankruptcy payment plan within 14 days of filing the case, unless the court extends the time. A debtor should always seek the aid of a Tampa bankruptcy attorney when submitting the Chapter 13 bankruptcy payment plan. An unsatisfactory payment plan can cause delays and unnecessary hardship for a debtor. The debtor must classify all the debts included in the bankruptcy and provide for payment of the creditors in accordance with bankruptcy law. For assistance with the payment plan contact a bankruptcy law firm in Tampa to schedule a consultation. Once the payment plan is confirmed by the court it will bind the debtor and each creditor included in the bankruptcy.

What Should be Included in the Chapter 13 Bankruptcy Payment Plan

The Chapter 13 bankruptcy payment plan should outline how the income the borrower receives will be used to pay off the debts owed. The plan must provide for secured claims to be paid the present value of the property that it secures, unless the creditor agrees to accept a lower amount as full satisfaction of the debt or the debtor surrenders the property.  On the other hand, unsecured claims only have to be paid as much as they would have received if the debtor filed for Chapter 7, instead of Chapter 13. The amount the creditors would receive in a Chapter 7 depend on a multitude of factors, for more information on Chapter 7 click here.

Priority Claims in a Chapter 13 Bankruptcy Payment Plan

Under Chapter 13 bankruptcy law, not all unsecured claims are treated the same. For instance, the Chapter 13 bankruptcy payment plan must provide for full payment of all unsecured priority claims. Examples of priority unsecured claims include but are not limited to the following:

  • Domestic support obligations – ex. alimony, child support, etc.
  • Administrative expenses of the bankruptcy
  • Employee wages and benefits

Bankruptcy Law Firm in Tampa

Bankruptcy law can be very confusing and intimidating, especially when it involves a Chapter 13 bankruptcy payment plan. If you are considering seeking bankruptcy protection you should contact an experienced Tampa bankruptcy lawyer at Florida Law Advisers, P.A. for legal advice..  Florida Law Advisers, P.A. is a customer-service oriented firm with a strong reputation for providing personalized attention and dedicated legal counsel. For a free, confidential initial consultation contact us today at 800 990 7763 or complete the free case review inquiry on our website.

 

legal separation in Florida

No one enters into a marriage with the expectation that it will end. However, people and circumstances change over time and a once-thriving marriage may find itself in turmoil. When this occurs, often couples will decide to pursue legal separation in Florida before filing for divorce. Legal separation in Florida occurs when a married couple ends cohabitation and lives separately for a period of time. Under Florida divorce law, separation alone may not affect the marital status or property rights of either spouse unless there is a written separation agreement. See Hollister v. Hollister. For more information on the laws regarding legal separation in Florida you should contact a divorce law firm in Tampa to schedule a consultation.

Legal Separation in Florida and Division of Property

A couple’s assets acquired after legal separation in Florida can still be considered marital property and subject to an equitable distribution in a divorce proceeding, unless there is a written agreement to the contrary.  The written separation agreement can act as a cut-off date for determining whether assets and liabilities are marital or separate property. Without a written agreement for legal separation in Florida, assets and liabilities incurred after separation but prior to divorce will be presumed to be marital property. In a divorce proceeding, a Florida family law court will typically divide the marital property 50/50 between the couple unless there are factors that would make a 50/50 split inequitable. A divorce lawyer in Tampa can help to advise on all the factors the judge will consider in a divorce after legal separation in Florida.

Some of the factors the court will consider are:

  •  The length of the marriage
    •    The assets and debts each spouse contributed to the marriage
    •    Homemaking and child care contributions provided by each spouse during the marriage
    •    The financial condition of each spouse
    •    The negative effect on the career or education of either spouse as a result of the divorce
    •    A spouse’s desire or interest in a particular asset
    •    Waste or destruction of marital assets by a spouse

Agreement for Legal Separation in Florida

Once the written agreement for legal separation in Florida is executed by both parties any property acquired by either spouse may no longer be presumed marital property. Therefore, if a couple is separated they should consider entering into an agreement for legal separation in Florida. The agreement can help the parties move on with their lives and reduce the amount of issues that may arise in the divorce proceeding.

Divorce Law Firm in Tampa

If you are contemplating filing for divorce or just legal separation in Florida, you can contact Florida Law Advisers to schedule a free consultation with a divorce attorney in Tampa. Our divorce attorneys in Tampa have extensive experience in a wide range of divorce and separation matters. Every separation and divorce case is different, and our vast experience allows us to cater our services to a client’s individual needs. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help.