<![CDATA[Hobson Law Firm - Blog]]>Thu, 15 Aug 2024 01:30:58 -0400EditMySite<![CDATA[Probation]]>Fri, 10 Mar 2017 15:52:07 GMThttps://www.hobsonlawfirm.com/blog/probationWhat is probation?  Well, here is what it is NOT.  It is NOT jail, it is NOT pre-trial diversion and it is NOT a “slap on the wrists”, i.e. it is more than a fine.  Probation is the court saying, “Well, we are going to keep an eye on you.”  You will report once a month, you will keep a probation officer posted as to your residence and your employment, you will get treatment, you will pay back restitution and so forth depending upon what you have pleaded to and what has been pronounced as the terms and condition of your particular probation.  In other words, the court is supervising you through the Pinellas County Sheriff’s Office in the case of a misdemeanor and the Department of Corrections in the case of a felony.  (Formerly misdemeanor probation used to be supervised by the Salvation Army but that changed recently.)
​
There are the types of probation where you do not have do much other than stay out of trouble; there are other sorts of probation, like drug and sex offender probation, where you fulfill and observe many obligations and restrictions.  The biggest “no-no” on probation is to be arrested or even suspected of wrongdoing.  And, do not anger or provoke your probation officer; keep them apprised of your living situation and working status.  Money is part of probation, (perhaps the biggest) you have to pay many costs and fines.  You see, the criminal justice system in addition to punishing crime also happens to be in the business of collecting money; it routinely bleeds the wallets and bank accounts of the criminally accused and convicted.  Crime does not pay and it certainly does cost.  Also –technically- you are not supposed to consume “inebriants”.  i.e. marijuana, alcohol or pills.  While it is not necessarily assured that a probation officer is going to subject you to a drug test, it is usually grounds for violation if you happened to be found to have used.
If you run afoul of this, you have to return to court on what is called a Violation of Probation.  The judge can re-instate you, revoke you, terminate you unsuccessfully and sentence to you jail.  You are entitled to an “Evidentiary Hearing” before a Judge where the State must show by a preponderance of evidence or enough to satisfy the “conscience of the court” that the alleged violation of probation is “willful and substantial”.
 
Probation VS. PTI
PTI stands for Pre-Trial Intervention.  It is also known by the following terms: diversion (generically and synonymously); deferred prosecution (in California); plea in escrow or accelerated rehabilitative disposition (ARD-Pennsylvania).  If the criminal justice process is thought of as an assembly line, think of these programs as ones that remove your case from the conveyor belt.  You comply with what is required, you no longer go to Court, and eventually the charge is dropped.  PTI is like probation and is often referred to as probation but it is fundamentally different in that probation follows a plea and PTI precedes it.  Violate probation and you usually go to jail on a VOP, violate PTI and you get back on the assembly line and you go back to court.  Probation is between you and the Court; PTI is between you and the State Attorney.  PTI can be subject to the approval of the victim, especially in a theft case involving the need to pay back money (restitution).  PTI is this do probation–type “stuff” up front and the case gets dropped, dismissed.  You do not plead to a charge.  For a cleaner disposition of your case, PTI is inarguably better than probation.

]]><![CDATA[DUI - 5 Things You Need to Know]]>Mon, 09 Jun 2014 20:42:18 GMThttps://www.hobsonlawfirm.com/blog/dui-5-things-you-need-to-knowWhen you get arrested for DUI, usually, you have two matters, the crime charged ( DUI) and the administrative suspension of your license by the Florida Department of Highway Safety and Motor Vehicles.

Here are Five Things you need to know.

1.) You have ten days from your stop to request a Formal Review to contest the administrative action, the latter of the above two consequences mentioned above.

2.) You can prevail at this Formal review, and although it is a good indicator for future success at the DUI trial, it is not binding on it.

3.) Your license is immediately suspended at the time of your stop by DMV if you blow over a .08 (for six months), or if you refuse to blow(for one year).

4.) If you plead guilty to or are found guilty of DUI, the Judge has NO DISCRETION (or very little) as to the sentence, most of which is mandated by the Florida Legislature.

5.) The Formal review is an opportunity, perhaps the only one, for your lawyer to question the arresting officers under oath as to why they pulled you over and why they arrested you.

If you don't act in a timely manner you may not be able to bring the best case to the table. Follow these tips if you have been pulled over for DUI in Florida. They may just help you avoid a drunk driving charge.]]><![CDATA[Repeat Violence vs. Sexual Violence vs. Dating Violence in Florida]]>Mon, 29 Jul 2013 15:58:39 GMThttps://www.hobsonlawfirm.com/blog/repeat-violence-vs-sexual-violence-vs-dating-violence-in-floridaIn the Florida legislature there is a legal difference between repeat violence, sexual violence, and dating violence. These terms are defined in statute 784.046.

Violence Defined

According to the statute, the term violence in Florida is defined as any of the following:


Repeat Violence means 2 incidents of violence committed by a single person within 6 months of each other.

Sexual Violence

Simply put, sexual violence is any act defined as “violence” committed in a sexual context. Specifically, sexual Violence includes any of the following:

  • Sexual battery
  • A lewd act committed upon or in the presence of someone under the age of 16
  • Sexual performance by a child
  • Any felony in which a sexual act is committed

Dating Violence

Dating violence includes any violent act between 2 people who are in a romantic relationship. In order to be charged with dating violence, there are several qualifying characteristics:

  • The relationship between the 2 parties in question must have existed within the past 6 months.
  • There must have been an expectation of affection amongst the parties in the relationship.

Basically dating violence has to involve 2 parties who are or have recently been in a significant romantic relationship. This type of violence does not apply to people in casual social relationships.

]]><![CDATA[What to do if pulled over for DUI in Florida]]>Mon, 22 Jul 2013 16:16:37 GMThttps://www.hobsonlawfirm.com/blog/what-to-do-if-pulled-over-for-dui-in-floridaPicture
Being pulled over by a police officer is a terrifying experience. Even if you’ve done nothing wrong, it is still nerve wrecking. 

Here are a few quick pieces of advice to follow if you are ever pulled over for drunk driving in Florida:
  • Keep quiet. Remember – you have the right to remain silent! You’ve no doubt heard it before in TV shows and movies, but it’s absolutely true. All citizens have the right to remain silent so they do not accidentally incriminate themselves. Do not answer any questions about how much you’ve had to drink or where you’ve been. These questions are used to find probable cause that you’ve been drinking and driving.
  • Cooperate. Even though you have the right to keep your mouth shut, you shouldn’t go completely mute. You are compelled to give the officer the necessary means to identify you. Give them your driver’s license and vehicle insurance. Politely respond to the officer’s questions. If he asks you how much you’ve had to drink, politely respond with: “I’m sorry officer, but I’m not going to answer that.”
  • Call a Florida DUI Lawyer. Your greatest chance of beating a DUI charge in Florida is hiring a criminal defense attorney who specializes in driving while intoxicated cases. If an officer places you under arrest for DUI, tell them you demand to speak to your defense attorney.

Follow these tips if you have been pulled over for DUI in Florida. They may just help you avoid a drunk driving charge. 

]]><![CDATA[ Zimmerman Verdict is no Travesty of Justice ]]>Wed, 17 Jul 2013 19:18:26 GMThttps://www.hobsonlawfirm.com/blog/-zimmerman-verdict-is-no-travesty-of-justiceOn Saturday the George Zimmerman trial officially ended with a verdict of “not guilty.” Since then, there has been a lot of noise from every corner or the media regarding the verdict.

The verdict in the George Zimmerman trial signifies neither a travesty of justice nor a waste of taxpayer money. It was simply, as occurs across this nation every day in various courtrooms, the jury finding reasonable doubt in the state’s case.   Period.

As a citizen and a Floridian, I was admittedly disheartened that an all white jury acquitted a white man in the killing of an unarmed black youth. I am bothered by the fact that the jury was selected from a very conservative rural white slice of Florida. However, as an attorney, officer of the court, and a lawyer educated and experienced in American jurisprudence, I certainly accept the jury's finding. Sometimes there is simply more to the evidence than its aroma and that would appear to be what happened in the rendition of this particular verdict.

Both Al Sharpton and Sean Hannity need to pipe down and as President Obama decreed, all Americans white and black, liberal and conservative, rich and poor, old and young need to continually observe the racial divide in our society as evidenced

by the many emotions elicited by this trial. We must resolve to do better, march forward and reach out. For Pete's sake we need to replace hating and baiting with teaching and reaching.

My mother Helen Hobson, now 92 who was widowed in 1971 and subsequently raised nine children by herself, used to tell me that a smile is the same in any language.

Now let’s get back to the important stuff like Pakistan.

]]><![CDATA[Field Sobriety Tests – Do You Have to Take Them?]]>Mon, 08 Jul 2013 15:14:22 GMThttps://www.hobsonlawfirm.com/blog/field-sobriety-tests-do-you-have-to-take-themfield sobriety tests
In Florida, if you a police officer pulls you over and suspects you of drinking and driving, they will likely ask you to perform one or more field sobriety tests. These are physical and mental tasks that the officer uses to determine whether or not you are intoxicated. 

The most common field sobriety tests are:

  • One Legged Stand. Pretty self-explanatory. The officer will ask you to stand in one place, then left a leg off the ground and balance yourself. If you cannot balance yourself on one leg properly, the officer may interpret this as a sign of intoxication.
  • Horizontal Gaze Nystagmus. This one has a fancy name, but it’s relatively simple. The officer will take a handheld object such as a pen and have you follow its movements with your eyes without moving your head. They are looking for any “jerky” motions in your eyes. This is often an involuntary effect of alcohol intoxication.
  • Walk a straight line and turn. You’ve seen this one in countless TV shows and movies. The officer will make you walk heel-to-toe in a straight line, then turn around at a specified point. Any fumbling, or stepping off of the line can be seen as a sign that you are drunk.
  • Touch your Finger to your Nose. Again, this one speaks for itself. The officer will ask you to extend your arms out to your sides, and tough one of your fingers to your nose with your eyes closed. 
  • Alphabet recital. This test can be administered in several ways. The officer may ask you to say the alphabet backwards from z to a, or they may have you recite a portion of the alphabet (from D to T for example). This is to test your cognitive abilities, which may be slowed under the influence of too much alcohol.

The problem with field sobriety tests is that they are incredibly subjective. A person’s performance on these tests can be impacted by environmental conditions (if it’s really windy, it will be more difficult to balance on one leg), or a person may simply have poor balance.

One has the power but not the right to refuse to take these tests in Florida. While some think that the less evidence against you, the stronger the evidence for probable cause, the prosecution will always argue consciousness of guilt in all refusals.

]]><![CDATA[Judge’s Ruling a Blow to the Prosecution in Zimmerman Trial]]>Mon, 01 Jul 2013 16:29:25 GMThttps://www.hobsonlawfirm.com/blog/judges-ruling-a-blow-to-the-prosecution-in-zimmerman-trialPicture
The trial of George Zimmerman moved into week two of testimony this week.

Last week, Judge Nelson granted a defense motion, which sought to exclude the testimony of two witnesses who were prepared to testify that screams heard in a 911 call belonged to Trayvon Martin. This was a huge blow to the prosecution. The screams allegedly were screams for help.  The testimony would have helped the prosecution because if Trayvon Martin were screaming for help, Mr. Zimmerman could not have believed that he himself was in danger, thus negating his self-defense argument.  

The two witnesses the State sought to examine at trial are experts in the field of voice recognition.  They would have testified that they performed scientific tests on the 911 recording and were able to determine as a result of those tests that the screams were those of Trayvon Martin.  The defense objected that the tests used to analyze the recordings are not techniques which are generally accepted within the scientific community.  The Judge agreed.

The Frye Rule

Known as the Frye Rule, the rules of evidence provide that expert witnesses may testify about tests performed only if the tests are those which the scientific community accepts and uses.  The Judge noted in her decision that there are currently three employed methods of voice identification: 
  1. Auditory phonetic analysis
  2. Acoustic-phonetic analysis
  3. Gaussain Mixture Model analysis 
After hearing from various experts about these three techniques, she decided that the techniques used by the two witnesses in this case did not fit within any of these three generally accepted methods.  

The Judge ruled that the tests had not been “sufficiently tested and accepted by the relevant scientific community” and that testimony about these tests would therefore confuse issues and mislead the jury.

This week Zimmerman is supposed to recount his description of the events to the jury. We will be tracking this case as it progresses.
]]><![CDATA[To Ascertain from a DUI Case Victory]]>Mon, 03 Jun 2013 01:18:37 GMThttps://www.hobsonlawfirm.com/blog/to-ascertain-from-victoryIn February of 2010, I tried the most exciting case of my 20 year career as a criminal defense attorney. Who ever said you don't learn anything in victory? Of course you do and it is distinctly sweeter-tasting than defeat.

The Case

The trial, a DUI with a breath test result of .084, (.004 over the legal limit of .08), lasted for two days, scaling the depths of tortuous tedium along the jagged pangs of constant worry to the surreal plateau of triumph, a destiny which was never assured and always in doubt.

My client had a prior DUI, which precluded the state from offering us a reckless driving plea, which often happens in a case with such low blows.

The Arguments

I was able to get the state's breath test machine expert to concede a 2 point margin of error in the machine and the state never really sought to rebut it.

I also argued to the jury that it was their job, not the role of the arresting officer, to grade my client's performance on the roadside sobriety tests such as the heel to toe and the one legged stand. It is always important to remind the jury that you do not necessarily need to be able to walk heel to toe in order to drive a car and there is usually plenty of evidence of non-impairment during these tests.

It is equally important to remind a jury that things such as fatigue (especially in an arrest done at three in the morning) may account for factors that the arresting officer just robotically checks off as a sure-fire sign of impairment.

My client testified and performed the tests flawlessly despite admitting that he actually had three beers, not the one he had insisted upon to the arresting officer.

The Result

It took the jury four hours, an unusually long period of time for deliberations in a misdemeanor case, to arrive at a verdict. They had a question at hour 2, were deadlocked at hour 3, and finally rendered a verdict of Not Guilty by the end of hour number 4.

Florida DUIs are difficult cases to win. The public seems inclined to believe in breath test results as well as the problem of drunk driving and their role as jurors to do something about it. In this case, a confluence of favorable factors, some planned, some variable, stuck and justice prevailed.

 

]]><![CDATA[How to Obtain Asylum in the United States]]>Sun, 24 Mar 2013 16:13:34 GMThttps://www.hobsonlawfirm.com/blog/obtaining-asylum-in-the-united-statesThere are two ways of obtaining asylum in the United States – either through the affirmative process, or the defensive process.

Affirmative Asylum Processing With USCIS

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

You must apply for asylum within one year of the date of your last arrival in the United States, unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
  • You filed within a reasonable amount of time given those circumstances.

You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.

If your case is not approved and you do not have a legal immigration status, we will issue a Form I-862, Notice to Appear, and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. If we do not have jurisdiction over your case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. See ‘Defensive Asylum Processing With EOIR’ below if this situation applies to you.

Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS.  If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge.  Most asylum applicants are not authorized to work.

Defensive Asylum Processing with EOIR

A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:· 

  1. They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or 
  2. They are placed in removal proceedings because they:
    1. Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,
      OR
    2. Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer. 
Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties: 

  • The individual (and his or her attorney, if represented)· 
  • The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)



The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

Key Differences Between “Affirmative” and “Defensive” Asylum Process

Affirmative

  • Individual has not been placed in removal proceedings before an Immigration Judge
  • Individual affirmatively submits Form I-589 to USCIS
  • Individual appears before a USCIS Asylum Officer for a non-adversarial interview
  • Individual must provide a qualified interpreter for the asylum interview



Defensive

  • Individual has been placed in removal proceedings before an Immigration Judge
  • Individual:
    • Is placed in removal proceedings by an Asylum Officer;
    • Is placed in removal proceedings for immigration violations; or
    • Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture
  • If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge.  If the individual did not yet submit an asylum application he or she will submit it to the Immigration Judge.
  • Individual appears before an Immigration Judge with the Executive Office for Immigration Review for an adversarial, court-like hearing
  • The Immigration Court provides a qualified interpreter for the asylum hearing and all other court proceedings.
]]><![CDATA[List of Disqualifying Offenses for Sealing a Criminal Arrest Record]]>Sun, 24 Mar 2013 16:09:18 GMThttps://www.hobsonlawfirm.com/blog/list-of-ineligible-or-disqualifying-offenses-for-sealing-or-expunction-of-a-criminal-arrest-recordIf you entered a plea and were sentenced to any of the following offenses, even if the court withheld adjudication, you are not eligible to have your Florida record sealed:

  • Sexual misconduct with a developmentally disabled or mentally ill person
  • Luring or enticing a child
  • Sexual Battery
  • Procuring s person under age 18 for prostitution
  • Lewd or lascivious act committed on or in the presence of child under 16
  • Voyeurism
  • Scheme to Defraud
  • Lewd or Lascivious act committed on or in presence of elderly or disabled person
  • Sexual performance by a child
  • Offenses by public employees or officials
  • Delivery of obscene material to a minor
  • Computer pornography
  • Selling or buying of minors for purposes of pornography
  • Trafficking in a controlled substance; including trafficking in cannabis
  • Sexual misconduct with mentally deficient of mentally ill


Additionally, the following enumerated offenses are not eligible to be sealed after a plea is entered:
    • Any act of domestic violence
    • Aggravated assault or battery
    • Stalking or aggravated stalking
    • Illegal use of explosives
    • Child abuse or aggravated child abuse
    • Abuse of an elderly or disabled adult (aggravated)
    • Aircraft piracy
    • Kidnapping
    • Homicide
    • Manslaughter
    • Robbery
    • Carjacking
    • Lewd, lascivious assault in the presence of a child under 16 years
    • Sexual activity with a minor over 12 or older but less than 18 by person in familial or custodial authority
    • Burglary of a dwelling
    • Home invasion robbery
    • Act of terrorism
    • Manufacturing any substance in violation of Chapter 893
    • Attempting or conspiring to commit any above crimes


However, if your case was dismissed prior to trial, you may still be eligible to have your record expunged even if the offense is on this list.]]>