Tag Archives: Daytona Beach

New Volusia County Marijuana Law

According to local news Volusia County recently decriminalized marijuana. The only problem is it appears that possession of marijuana is still a crime based on the new law. The only difference is that you can admit guilt and pay a fine instead of going to court and challenging the evidence against you. The ordinance is not even in effect yet but it appears that under section 1-7 marijuana possession would remain a misdemeanor. It would be a second degree misdemeanor instead of a first degree misdemeanor but some of the collateral consequences of a marijuana possession could still apply.

For some people with extensive criminal history this is probably a better option but for many people with limited criminal history it might not be better. They could likely get the charge dropped after completing a diversion or get the marijuana case amended to a charge with less collateral consequences like drug paraphernalia.

A paraphernalia case does not have the collateral consequences but would still create a public record of an admission to a crime. If you are on probation paying one of these “tickets” will definitely violate you. The county likes to call them tickets to make people feel like they forgot to buckle their seatbelt and can just pay a fine and forget about it. Many of these beach tickets are actually misdemeanor criminal charges disguised as a ticket.

The government doesn’t have the resources to prosecute all the crimes they are creating so they have now resorted to trying to trick people to admitting to a crime. It’s perfect for them because they get the money without the work. It’s only bad for you because you get the criminal record. These payable misdemeanors are usually resolved with a withhold of adjudication by paying the fine but that requires a lengthy (record sealing) process to get off your record. Many people will say that a withhold doesn’t give you a record but the benefit of a withhold of adjudication has eroded over time. It is still far better than a conviction but if you are in a competitive field you might not want an admission to a misdemeanor on your record.

The Problem

The Federal government does not always recognize a state’s withhold of adjudication. This can become a problem with financial aid. If adjudication is withheld the accused can seal their record but this can take up to 12 months. An individual can only seal 1 record in Florida and other states might not recognize Florida’s withhold. If this happens with a misdemeanor marijuana case than the accused could have problems with federal financial aid. Paying a marijuana ticket is an admission of guilt with adjudication being withheld. That admission is a public record and could cause problems for the accused.

It appears that based on the new ordinance marijuana around Daytona Beach “The Atlantic Ocean Beach” and in unincorporated Volusia County would be a second degree misdemeanor. I get this out of section 1-7 of the Volusia County ordinances. This has less serious maximum penalties than Florida’s typical 1st degree misdemeanor charge. The problem is it is still a crime and it appears the county is trying to trick people into admitting to a crime that could have serious collateral consequences. For someone with an extensive criminal record paying the fine might be a good deal if they are not on probation but it is unlikely that police would give them that option. First or second time offenders that would be eligible for diversion or could have the charge amended to something with less collateral consequences might actually come out worse by paying the fine. Here’s the cases with the federal government or other states not recognizing a withhold. These are felonies but the same logic could be applied to misdemeanors.

We affirm the district court’s ruling that one who pleads guilty in a Florida state court and has imposition of sentence withheld, may nevertheless be held to have been “convicted” for purposes of applying federal criminal statutes which punish certain conduct following conviction of a felony. United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987). State v. Heath, 279 P.3d 458 (Wash. Ct. App. 2012) (treating withholding of adjudication as a conviction for purposes of Washington law); Kasckarow v. Board of Examiners of Sex Offenders of State, 936 N.Y.S.2d 498 (N.Y. Sup. Ct. 2011) (withhold a conviction for purposes of New York sex offender registration law).

The New Law

AN ORDINANCE OF THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE COUNTY OF VOLUSIA BY AMENDING CHAPTER 78 OFFENSES AND MISCELLANEOUS PROVISIONS BY CREATING SECTION 78-3 TO PROHIBIT POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA IN UNINCORPORATED COUNTY; BY AMENDING CHAPTER 20 BEACH CODE, ARTICLE IV CONDUCT, TO CREATE SECTION 20-128 PROHIBITING POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA ON THE ATLANTIC OCEAN BEACH; PROVIDING FOR SEVERABILITY; BY PROVIDING FOR CONFLICTING ORDINANCES; AUTHORIZING INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE
SECTION I: Chapter 78 of the Code of Ordinances, County of Volusia is amended to read as follows: Section 78-3. Possession of Cannabis and Drug Paraphernalia.

(a) Prohibitions. It shall be unlawful for any person to possess 20 grams or less of cannabis as defined in F.S §893.02(3). or its successor. or drug paraphernalia as defined_.in.F.S .. §893.145, or its successor.

(b) Jurisdiction. This section shall be applicable only within the unincorporated areas of the county and_ as provided in Chapter 20 of this code.

( c) Penalty. Violations of this section are punishable as provided in section 1-7.

SECTION II: Chapter 20, article IV, section 20-128, of the Code of Ordinances, County of Volusia is amended to read as follows: Ordinance 2016-06 Page 1 of 2 Section 20-128. Possession of Cannabis and Cannabis Paraphernalia. It shall be unlawful for any_ person_ to _possess 20 grams or less of cannabis as_ defined_ in F .S §893.02(3), or its successor, or drug paraphernalia as defined in F.S. §893.145, or its successor. SECTION III: AUTHORIZING INCLUSION IN CODE – The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of the County of Volusia, a.S additions or amendments thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the code. SECTION IV: SEVERABILITY – Should any word, phrase, sentence, subsection or section be held by a court of competent jurisdiction to be illegal, void, unenforceable, or unconstitutional, then that word, phrase, sentence, subsection or section so held shall be severed from this ordinance and all other words, phrases, sentences, subsections, or sections shall remain in full force and effect. SECTION V: CONFLICTING ORDINANCES – All ordinances, or part thereof, in conflict herewith are, to the extent of such conflict, repealed.
SECTION VI: EFFECTIVE DATE-This Ordinance shall take effect April 1, 2016. ADOPTED BY THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, IN OPEN MEETING DULY ASSEMBLED IN THE COUNTY COUNCIL CHAMBERS AT THE THOMAS C. KELLY ADMINISTRATION CENTER, 123 WEST INDIANA AVENUE, DELAND, FLORIDA, THIS 3RD DAY OF MARCH A.D., 2016.

Sec. 1-7. – General penalty; continuing violations.

In this section, the phrase “violation of this Code” means any of the following:

(1) Doing an act that is prohibited or made or declared unlawful, an offense or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.

(2) Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.

(3) Failure to perform an act if the failure is declared a misdemeanor or an offense or unlawful by ordinance or by rule or regulation authorized by ordinance.

(b) In this section, the phrase “violation of this Code” does not include the failure of a county officer or county employee to perform an official duty unless the context requires otherwise.

(c) Except as otherwise provided, a person convicted of a violation of this Code shall be punished by a fine not exceeding $500.00, by imprisonment in the county jail for a term not exceeding 60 days, or by both such fine and imprisonment. For violations of this Code that are continuous with respect to time, each day the violation continues is a separate offense in the absence of provisions to the contrary.

(d) The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise, the imposition of civil penalties or other administrative actions.

(e) Violations of this Code may be abated by injunctive or other equitable or civil relief, and no bond shall be required, nor proof of intent or scienter. The imposition of a penalty does not prevent equitable relief. Violations of this Code are also subject to remedies prescribed in article VII of chapter 2.

(f) In any litigation commenced by the county to enforce the provisions or to enjoin a violation of this Code, the county shall be entitled to reasonable attorney’s fees incurred in such litigation. For the purpose of this Code, a reasonable attorney’s fee shall not be limited to the actual salary paid to an attorney employed by the county, but shall be computed in the manner otherwise applicable under law.

(Ord. No. 99-28, § XIII, 11-4-99; Ord. No. 2009-20, § I, 8-20-09)

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Daytona Beach Marijuana Attorney Kevin J. Pitts


Daytona Beach DUI Under .08%

We occasionally see DUI cases in Daytona Beach and the surrounding area with a breath test results under .08%. What is a greater surprise to the individual is that they are not released from jail and are charged with DUI. It is one thing when drugs are suspected and the individual tests positive for drugs or refuses the urine test. This does not mean that the individual is impaired but it does give the State something additional to pile on in an attempt to obtain a conviction. What I am focusing on in this article is the Daytona Beach DUI case under .08% with negative urine results or no urine requested. It is important that you do not underestimate the situation if you have a breath test under .08%. You still need to talk to an experienced Daytona Beach DUI attorney. The state might still try to get a DUI conviction or at least a wet reckless. Call attorney Kevin J. Pitts at 386-451-5112 to set up a free consultation.

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Daytona Beach DUI Attorney Kevin J. Pitts

Florida has presumptions in place. When you read these presumptions it can actually be a little scary. If your breath or blood results are over .08% you are presumed impaired but result can be rebutted by other evidence. Most drivers are familiar with that rule. What most people do not know is that between .05% and .079% percent you are not presumed sober or impaired. It is good to be under .08% but under Florida law it really just means that the jury is supposed to look at the evidence and decide if you are guilty of DUI or not. What is even crazier is at .00% to .049% you are presumed to not be impaired. That is good but then comes the crazy part. The law in Florida actually says the presumption of sobriety can be rebutted. According to Florida statute if the prosecutor could convince a jury by other evidence that you are impaired by alcohol at .00% then you could theoretically be convicted of DUI. Now the reality is if you are under .08% without drugs in your system or urine refusal you have a strong case. If you have under a .05% without drugs in your system or urine refusal have an extremely strong case. If you read the statute it is theoretically possible for anybody to get a DUI but the reality is most of the state’s resources are focused on cases over .08%.

Unfortunately in Florida no breath test is low enough to force the state to automatically drop the charges. It is almost unheard of for cases under .05 to get very far. We do occasionally see overly ambitious prosecutors posturing for trial with breath tests under .08% but usually the case is resolved with a dramatic reduction or dropped before jury selection. This can be hard on clients that are visiting Daytona and get arrested on vacation. Pushing the case to trial usually requires an additional trip to Florida to get the best possible result.

316.1934(2)
(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.

Lake County Injunction Hearing Attorney

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If you have an injunction hearing in Lake County you need to have a Lake County injunction attorney. If you lose an injunction hearing the ramifications can be permanent. Many injunction petitions are actually a power play by a wife/girlfriend or husband/boyfriend to get an upper hand in a break up or divorce. If the wrong person hangs an injunction on you it will become a nightmare. Occasionally an ex will not be satisfied by getting and injunction on your record and revoking your right to have firearms including hunting rifles. Thats when the nightmare begins. A simple call to the police and a sworn affidavit can result in your arrest for violation an injunction. Do not try to handle an injunction hearing on your own. The initial consultation is always free. Call (352) 735-4342 to set up a free consultation. Offices in Mount Dora, Sanford and Daytona Beach.


Daytona Beach Cocaine Possession Attorney

In Florida Cocaine is considered a Schedule 2 controlled substance. Under Section 893.13(6)(a), Florida Statutes, a person found to be in “actual” or “constructive possession” of cocaine commits a third degree felony, punishable by up to five (5) years in prison or five years of probation, and up to a $5,000 fine. A conviction for cocaine possession will furthermore lead to a one-year Florida driver’s license suspension.

Daytona Beach Cocaine Trafficking Minimum Mandatory Penalties.

  • 28 grams to 200 grams = 3 year minimum mandatory sentence.
  • 200 grams to 400 grams = 7 year minimum mandatory sentence.
  • 400 grams to 150 kilograms = 15 year minimum mandatory sentence.
  • 150+ kilograms = life sentence.

If you are accused of Daytona Beach Cocaine possession or Daytona Beach Cocaine trafficking you have defenses. Common defenses include illegal stop, illegal search, knowledge, control and joint possession defenses. Call Daytona Beach Cocaine attorney Kevin J. Pitts at 386-451-5112 to set up a free consultation.


Daytona Beach Minor In Possession Of Alcohol

Florida has decided that it is necessary to protect minors by enacting laws against minors in possession of alcohol. This is a common charge during Spring Break in Daytona Beach. To reduce underage drinking Florida decided they would attempt to give anybody under the age of 21 that is caught by law enforcement with alcohol a criminal record. We do not make light of the fact that minors and alcohol can be dangerous but we do not understand how it helps a young adult to try to tag them with a criminal record. In some cases a MIP charge can also result in a driver’s license suspension.

If you are caught with alcohol in Daytona Beach and are under 21 we can help. Attorney Kevin J. Pitts is a former Daytona Beach prosecutor and defense attorney. Mr. Pitts has prosecuted and defended MIP cases in Daytona Beach and the surrounding areas. The State Attorney’s Office in Daytona generally does a good job of working with defense attorneys to avoid a criminal record for the kids and young adults who get caught with alcohol.

Many people are thrilled to find out they can just pay a fine or ticket in Daytona Beach but this is a common trick used by local law enforcement is to disguise the misdemeanor as a payable infraction. The problem is that when you pay that fine you have a criminal record. You are not adjudicated guilty but anybody can look you up on the Clerk’s website and see that you accepted responsibility for a misdemeanor alcohol offense. You can get your record sealed but it takes about 6-12 months and after 10 years you can get it expunged.

It will save you money and hassle in the long run if you hire a Daytona Beach MIP attorney to properly resolve your case. We will fight to keep you from having to plea to a misdemeanor. Many cases can be dismissed after completing some community service and paying the cost of prosecution and investigation. Sometimes a formal diversion is required but the charges can still be dropped. Not all cases will be dismissed but unless the accused already has a criminal record the State will almost always work out some type of agreement to avoid a criminal record. Do not pay a minor in possession of alcohol ticket in Daytona Beach without talking to Daytona Beach MIP Attorney Kevin J. Pitts.

The penalties for violating Florida’s MIP law are:

  • First MIP Offense—You will be charged with a second-degree misdemeanor and ordered to pay a fine of $500 and sentenced up to 60 days in jail.
  • Second MIP Offense—You will be charged with a first-degree misdemeanor and ordered to pay a fine of $1,000 and sentenced up to one year in jail.

In addition, the court shall direct the Department of Highway Safety & Motor Vehicles to withhold the issuance of, revoke or suspend your driver’s license or driving privileges as follows:

  • First MIP Conviction—Not less than six months and not more than one year.
  • Subsequent MIP Conviction—Up to a period of two years.

562.111 Possession of alcoholic beverages by persons under age 21 prohibited.

(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s.775.083.

 


New At The Law Offices of Kevin J. Pitts Sanford Office

2 Anatolian Shepherd puppies by the name of Turk and Ana have joined the family of Attorney Kevin J. Pitts. These pups will occasionally be at the Sanford-Lake Mary office. They come from just outside Kevin’s hometown in Missouri, and are from working dog families, but their ancestry hails back to the Country of Turkey.

Anatolian Shepherds are bred to be flock guardians known for their size, strength, speed and guarding ability. Only approximately 3000 Anatolian Shepherds are registered in the United States. Females weigh 90-120lbs and males weigh 110-150lbs. They defend sheep from wolves, jackals and bears in Turkey and are currently being used in South Africa to protect livestock from cheetahs.

Stop by DUI attorney Kevin’s office in Sanford-Lake Mary and come pet these pups before they get bigger than you! Bring your traffic ticket, criminal traffic or criminal defense case and we can help you out with that while you play with a puppy! Payment plans accepted and now enforced by puppies. 

Anatolian Shepherd


What Is A 30 Day Motion?

When someone is arrested, the State typically needs to decide what kind of crime to charge or if they want to file at all. Typically on arrest, the officer writes in a bond and the arrestee can bond out… But sometimes the financial circumstances don’t permit the person to bond out, or the charge is a ‘No Bond’ charge. In these cases, the State of Florida decided that the limit to sit in jail without being charged is 33 days. If the State doesn’t charge you, on the 30th day the Court will notice the State and Order you to be released on your own recognizance (ROR) on the 33rd day after arrest. The one exception is if the State can show good cause. Good cause is generally if the State is trying to obtain evidence and they have a valid excuse for not filing. This would be if something about the case was so complex that the State could not get it together in 30 days. That buys the State an additional 10 days. No matter what the State must file charges within 40 days or you must be released ROR even if you have a bond. If someone you know is in jail contact our Orlando violation of probation attorney’s today.