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from Florida's Circuit and County Courts

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Criminal law -- Driving under influence -- Evidence -- Breath test results -- Confrontation Clause -- Introduction into evidence of maintenance inspection affidavit prepared by inspector who performed inspection of breath testing instrument through testimony of substitute inspector who did not perform actual inspection would violate defendant's right to confrontation -- Because maintenance inspection affidavit is inadmissible, breath test results are inadmissible
VIEW OPINION

Criminal law -- Municipal corporations -- Noise ordinance -- Noise ordinance which fails to provide minimal guideline with which to allow law enforcement to determine whether ordinance has been violated is unconstitutionally vague -- Defendant's motion to dismiss and to declare ordinance unconstitutional granted
VIEW OPINION

Insurance -- Personal injury protection -- Affirmative defenses that have no basis in law or fact are stricken, and attorney's fees are awarded as sanction for failure to withdraw defenses -- Motions for partial summary judgment are denied where no record evidence was attached to motions, and adjuster's deposition transcript was filed less than 20 days before hearing
VIEW OPINION

Landlord-tenant -- Eviction -- Lease purchase agreement -- Where defendants occupying premises under lease purchase agreement have only paid 10 months' rent and have not paid any deposit toward purchase price, defendants do not meet statutory threshold to be excluded from coverage of Florida Residential Landlord and Tenant Act and are required to deposit past due rent into court registry
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by plaintiff provider within that classification to deductible -- Exhaustion of benefits is not defense to claim for portion of emergency medical service provider's bill applied to deductible
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy which states that insurer will pay 80% of reasonable expenses and provides that amounts payable shall be subject to any and all limitations authorized by PIP statute including all fee schedules does not clearly and unambiguously elect to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by plaintiff provider within that classification to deductible -- No merit to claim that provider has not met burden to prove that charge is reasonable where insurer's motion for summary judgment was based solely on application of deductible, insurer did not challenge reasonableness of charge in explanation of benefits, and insurer's utilization of permissive statutory fee schedule to pay charge establishes reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charge -- Permissive fee schedules -- Policy language stating that amounts payable shall be subject to any and all limitations authorized by section 627.736 or any other provision of No-Fault Law, including, but not limited to, all fee schedules, did not constitute a clear and unambiguous election to limit reimbursement to 200% of Medicare Fee Schedule -- Insurer required to reimburse provider at contracted rate of 80% of reasonable charges for medical services provided
VIEW OPINION

Consumer law -- Venue -- Forum non conveniens -- Motion for change of venue from Polk County to Broward County is granted where all witnesses and parties except plaintiff and records custodian reside in Broward County, and plaintiff has presented no evidence that Polk County is more convenient forum
VIEW OPINION

Insurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- Cashing of checks containing language stating that checks were for full and final PIP benefits for bills constituted accord and satisfaction -- Affidavit filed by medical provider stating that checks were not cashed with intent of accepting them as full and final payment is not sufficient to create issue of fact
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Documents -- HMO and PPO contracts between medical provider and other insurers are confidential, trade secret, proprietary documents that are not discoverable and cannot reasonably lead to discoverable evidence -- Medicare fee schedule rates are not relevant to determine whether provider's charges are reasonable
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness, relatedness and necessity of treatment -- Summary judgment -- Affidavit of doctor licensed under separate chapter of statutes from treating physician is not competent evidence of reasonableness, relatedness and necessity of treatment -- Summary judgment is precluded where there are genuine issues of material fact concerning credibility of insured and wife, who staged another automobile accident during course of treatment, and affirmative defense based on failure to comply with chiropractic record keeping requirements
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- In absence of any evidence of bad faith, where benefits were exhausted in payment of other medical providers before plaintiff medical provider filed suit, insurer is entitled to summary judgment -- Insurer was not required to reserve funds for claim reduced through erroneous application of statutory fee schedule and is not liable for balance of reduced claim after exhaustion of benefits
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Where it is undisputed that medical provider's medical records failed to substantially comply with Florida Minimal Recordkeeping Standards established by administrative rule, treatment was not lawful, and PIP insurer is not obligated to pay for treatment
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Motion for reconsideration of order requiring medical provider to disclose reimbursement amounts it received from other insurance carriers and uninsured patients for CPT codes at issue is denied where provider has not demonstrated that reimbursement amounts constitute trade secrets, insurer has demonstrated that reimbursement amounts are reasonably necessary to defend against provider's claim that its bills are reasonable, and order requiring disclosure contained sufficient safeguards to protect against disclosure of confidential information or trade secrets
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- At deposition of insurer's corporate representative, medical provider may inquire as to reimbursement levels in community as reflected by amounts insurer has paid other similarly placed providers in community -- Insurer is required to bring to deposition complete PIP file and any documents that identify person who decided allowable amount for claim
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare and workers' compensation allow less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affidavits are conclusory and lack foundation, and affiants are not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare and workers' compensation allow less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Depositions -- Documents -- Scope of inquiry and documents and data to be produced by insurer are established -- Insurer is not required to create data, but must compile summary of existing data
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary judgment -- Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issues of reasonableness, relatedness and medical necessity of charges where affidavits are conclusory, and insurer failed to demonstrate that opinions are based upon sufficient facts or data or are product of reliable principles and methods and that affiants applied principles and methods reliably to facts of case -- Use of 2008 Medicare fee schedule to reduce charges was improper where policy was issued in 2007 -- Insufficient record keeping by provider is not lawful basis for nonpayment of PIP benefits
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare and workers' compensation allow less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Examination under oath -- Failure to attend -- Partial summary judgment is entered in favor of medical provider as to EUO no-show defense for all dates of service -- Reasonableness, relatedness and necessity of treatment -- Summary judgment -- Opposing affidavit does not preclude entry of summary judgment in favor of provider on issue of reasonableness, relatedness and necessity of treatment where affidavit is conclusory and speculative, affiant relies on undisclosed underlying data, and affiant bases opinion as to some dates of service on insufficient record keeping, which is not lawful basis for nonpayment of PIP benefits
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy provision that makes vague references to amounts payable being “subject to any and all limitations authorized by [PIP statute]...including, but not limited to, all fee schedules” does not unambiguously elect to limit reimbursement to permissive statutory fee schedule -- Florida Supreme Court's opinion in Virtual Imaging does not compel finding that policy provision at issue unambiguously elects use of statutory fee schedule where sufficiency of policy language was never considered in Virtual Imaging opinion -- Divergent judicial opinions from county and circuit courts as to whether policy provision at issue clearly elects to limit reimbursement to permissive statutory fee schedule demonstrates that policy provision is far from clear and unambiguous
VIEW OPINION

Insurance -- Summary disposition -- Where evidence clearly establishes that insurer paid full amount in issue subject to IRS withholding, and medical provider accepted payment without objection, summary disposition is entered in favor of insurer
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitation” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitation” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Summary judgment -- Reasonableness of charges -- Medical provider met burden of proving its charge for MRI is reasonable -- Opposing affidavit of non-expert PIP adjuster which was based on hearsay and was conclusory and self-serving was insufficient to create genuine issue of material fact -- Summary judgment is granted in favor of provider
VIEW OPINION

Insurance -- Personal injury protection -- Summary disposition -- Reasonableness of charges -- Medical provider met burden of proving its charge for MRI was reasonable -- Opposing affidavit of non-expert which was self-serving, conclusory and lacked foundation for affiant's opinion is insufficient to create genuine issue of material fact -- Summary judgment is granted in favor of provider
VIEW OPINION

Insurance -- Homeowners -- Attorney's fees -- Amount
VIEW OPINION

Insurance -- Personal injury protection -- Fraud -- False or misleading statement relating to claim or charge -- Statute which relieves insurer or insured from paying claims to any person who knowingly submits false or misleading statement relating to claim or charges does not relieve insurer from paying claims that contained name of physician who no longer worked for provider when services were rendered where provider had no actual knowledge that billing software continued to insert name of physician in Box 31 of claim forms after physician's departure -- No merit to argument that provider acted with reckless disregard or deliberate ignorance where billing clerk took affirmative steps to change information in software and had good faith belief that she had properly done so
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by plaintiff provider within that classification to deductible -- Exhaustion of benefits is not defense to claim for emergency medical service provider's bill applied to deductible
VIEW OPINION

Debt collection -- Summary judgment -- Affidavit in opposit to defendant's motion for summary judgment is stricken, as affidavit directly contradicts deposition testimony of plaintiff's corporate representative -- Evidence -- Hearsay -- Exceptions -- Business records -- Plaintiff has failed to demonstrate strict compliance with requirements of business records exception to hearsay rule, and its proffered records are stricken -- Where defendant submitted significant admissible evidence that plaintiff cannot meet its burden of proof on any of its claims, and plaintiff has not submitted any admissible evidence to contradict defendant's evidence or demonstrate existence of genuine issue of material fact, summary judgment is entered for defendant
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle -- Tip -- Officer who was acting on reckless driving tip from citizen informant when he staked out parking lot of apartment complex that was residence of registered owner of reported vehicle had reasonable suspicion that defendant had driven dangerously and erratically, justifying detention, where officer observed defendant emerge from parked vehicle described in tip -- Search of vehicle that was properly parked with ignition off was not justified by any probable cause to believe that there was evidence of DUI in vehicle or by community caretaker function -- Incident to arrest -- Search was not incident to lawful arrest of defendant where defendant was not driving or in actual physical control of vehicle in presence of officer -- Citizen informant's observation of defendant driving cannot be imputed to officer under fellow officer rule -- Vehicle keys found in ignition after arrest cannot be considered in determining whether defendant was in actual physical control of vehicle in presence of officer -- Motion to suppress is granted in part
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- State legislator who holds seat as member of political party but holds no office in party or within legislature is not required to resign his current position before commencing judicial campaign but is required to refrain from endorsing other candidates, speaking before or serving in political organizations, attending party functions and participating directly in fundraising
VIEW OPINION

Judges -- Code of Judicial Conduct -- Judge may not appear in video to discuss benefits of new technology pioneered by judge's circuit in collaboration with private company where video will be shown at technology conference and posted on company's website -- Judge's appearance on video would be at least indirect endorsement of product and would lend prestige of judicial office to advance private commercial interest
VIEW OPINION

Judges -- Code of Judicial Conduct -- Fundraising -- Judge who is member of Association for Women Lawyers may participate as model in Association “cocktail party and fashion show” where event's proceeds will benefit facility in courthouse providing free childcare for children of court attendees and Association's financial support to law students
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judicial candidate may attend event sponsored by a political party at which all candidates in the candidate's race have been invited to speak if the event is not a fund raiser -- The candidate may only attend for the purpose of speaking -- A judicial candidate may not pay for table or advertisement in the organization's bulletin, the cost of which is being used to pay for the event
VIEW OPINION

Dependent children -- Termination of parental rights -- Discovery -- Criminal investigation -- Mother who is preparing for termination proceeding based on incident in which she allegedly injured her child is entitled to discover criminal investigative report and witness statements regarding incident and to depose detective -- If state believed disclosure of information would compromise ongoing investigation or otherwise be harmful to public interest, its remedy was to seek protective order, not to instruct detective not to answer deposition questions or produce subpoenaed documents -- Fact that information may be exempt from disclosure to public does not affect mother's entitlement to information as party to termination proceeding
VIEW OPINION

Criminal law -- Counsel -- Waiver -- Trial court is prohibited by rule 3.111(d)(3) from accepting Faretta waiver where nature of child sexual assault crimes with which defendant is charged, if committed, are symptomatic of severe mental illness, pleadings filed by defendant raise questions about his mental state, and forensic psychologist who examined defendant concluded that he is not competent to represent himself -- Defendant's request to discharge public defender is denied
VIEW OPINION

Dependent children -- Child abuse -- Corporal punishment -- Where corporal punishment inflicted on child by father with mother's acquiescence resulted in significant and perhaps permanent bruising over multiple parts of child's body, child was abused within meaning of chapter 39 -- State failed to prove that siblings of abused child who were not found to have been abused are nonetheless at substantial risk of imminent harm -- Petition for dependency is granted only as to abused child
VIEW OPINION

Criminal law -- Murder -- Evidence -- Expert opinion -- Scientific evidence -- Daubert hearings on motions to exclude handwriting experts and expert on likelihood ratio calculations for DNA mixture profile generated by forensic unit are not necessary where handwriting analysis and DNA profiling are familiar, defendant failed to raise substantial scientific question as to reliability of handwriting comparison technique or DNA likelihood ratio calculations methodology, and court has been provided with adequate record from which to rule on motions -- Alleged deficiencies in analysis of abbreviated handprinted sample and factors contributing to analysis error rates are issues that go to credibility of evidence, rather than its admissibility, and may be addressed on cross-examination -- No merit to defendant's objection that DNA expert's testimony is premised on impermissible stacking of inferences -- Motions to exclude testimony are denied
VIEW OPINION

Insurance -- Homeowners -- Standing -- Assignment -- Company that provided water extraction service on homeowner's property has standing to bring action against insurer for unpaid balance of claim for company's services -- Anti-assignment provision in homeowner's policy does not apply to assignment after loss -- No merit to claim that all obligations owed by insurer to company have been satisfied by binding appraisal award -- Award resulting from appraisal demand made by homeowner after effective date of assignment is not binding on company -- Insurer's motion for summary judgment is denied
VIEW OPINION

Insurance -- Complaint -- Amendment -- Motion to amend complaint to add claims for first party bad faith and declaratory judgment is granted
VIEW OPINION

Consumer law -- Florida Deceptive and Unfair Trade Practices Act -- Attorneys -- Fourth amended complaint asserting cause of action under FDUTPA for damages based on defendants' alleged improper solicitation of legal clients is dismissed with prejudice where none of plaintiffs' alleged losses are actual damages recoverable under FDUTPA -- Injunctions -- Where plaintiffs have alleged that defendants' actions damage plaintiffs' goodwill, plaintiffs have pled sufficient facts to state cause of action for injunctive relief under FDUTPA irrespective of failure to plead actual damages -- Declaratory judgments -- Plaintiffs have not stated cause of action for declaratory relief where they failed to plead that they are in doubt as to existence or nonexistence of some right or status, and there is no practical need for requested declaration that defendants are violating FDUTPA by engaging in unfair competition that is prohibited by law and Rules Regulating the Florida Bar
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Breath test -- Substantial compliance with administrative rules -- Where Department of Highway Safety and Motor Vehicles complied with administrative rules for breath test, and licensee did not submit any evidence in support of his theory that machine used to test his breath provided inaccurate results, breath test results were admissible -- Hearing -- Subpoenas -- Refusal to issue -- Error to deny licensee's request for subpoena duces tecum mandating breath test operator to provide copy of his initial breath test operator permit -- Remand for new hearing
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful blood alcohol level -- Finding that licensee was issued notice of suspension is supported by competent substantial evidence where officer testified that he issued notice to licensee -- Lawfulness of stop -- Finding that officer had probable cause for stop was supported by competent substantial evidence where officer testified that he saw licensee run red light -- Officer had reasonable suspicion to detain licensee for DUI investigation, and licensee was not detained too long after issuing traffic citation where officer detected slight odor of alcohol emanating from vehicle when he initially stopped licensee and, later when he was issuing a citation, a stronger odor of alcohol coming from licensee, noticed that licensee's eyes were bloodshot and watery, and asked questions that led to licensee admitting to drinking alcohol -- Officer had reasonable suspicion to request performance of field sobriety exercises based on observation that licensee ran red light, odor of alcohol, and licensee's admission to drinking -- No error in refusing to issue subpoena duces tecum for breath test affidavit, certification and Intoxilyzer certification where officer testified that machine was inspected and calibrated on timely basis, and breath test technician testified that he was certified at time of test -- Introduction into evidence of documents that had no bearing on case was harmless error -- Lawfulness of arrest -- Finding of probable cause for arrest was wsupported by competent substantial evidence
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Licensee under age 21 -- Hearing officer conducting informal review to determine whether license suspension for driving with unlawful breath alcohol level by licensee under age 21 was appropriate is not required to find that stop was lawful
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Actual physical control of vehicle -- Although one tire of vehicle was missing and another tire was flat, where record does not suggest that vehicle was incapable of movement except by outside agency, vehicle was not inoperable, and licensee's presence in driver's seat was sufficient to support conclusion that licensee was in actual physical control of vehicle -- Presence of passenger in vehicle does not preclude finding that licensee who was seated in driver's seat with keys in ignition was in actual physical control of vehicle -- Even if vehicle were inoperable at time officers arrived at scene, gouge in road created by vehicle's exposed wheel rim was circumstantial evidence that licensee drove vehicle prior to it becoming inoperable -- Assuming that hearing officer's use of unpromulgated forms requiring licensee to state disputed issues of fact and law and summarize anticipated testimony of witnesses was improper, error does not entitle licensee to certiorari relief where licensee has not established that use of forms resulted in material injury
VIEW OPINION

Municipal corporations -- Code enforcement -- Appeals -- Legality of search of property below not preserved for review where issue was not raised below -- Due process -- Notice -- Where Local Government Code Enforcement Act did not require that second hearing be conducted to impose fine after first hearing resulted in finding of violation of city code, notice of second hearing was not required to comply with Act's notice requirements -- Property owner was afforded due process where notice of second hearing was sent by certified mail and first class mail and was posted on property and in city's offices
VIEW OPINION

Municipal corporations -- Code enforcement -- No merit to argument that alleged violator could not be found in violation of city code where violation was remedied prior to code enforcement hearing where city code provides that if alleged violator is found to have been in violation and to have failed to bring property into compliance within time specified in notice of violation, he may be found in violation of code even if property has since been brought into compliance
VIEW OPINION

Licensing -- Driver's license -- Early reinstatement -- Denial -- Consumption of alcohol within 12 months -- Statutory requirement that licensee be “drug-free” for 12 months prior to reinstatement of driver's license also requires that licensee be alcohol-free for that period -- Hearing officer did not err in denying reinstatement to licensee who admitted to consuming alcohol on day of hearing -- DUI probation form stating “No Alcohol, No Bars, ET [early termination] after 6 months” refers to licensee's probation, not requirements for license reinstatement
VIEW OPINION

Torts -- Negligence -- Municipal corporations -- Sovereign immunity -- City is not insulated by sovereign immunity from liability for damage caused to plaintiff's vehicle by golf balls from city-operated golf driving range -- Design, operation and maintenance of range was operational level decision
VIEW OPINION

Insurance -- Garage policy -- Illusory policy -- Exclusion of coverage for theft of vehicles from unprotected lot did not render illusory a garage policy for used auto sales lot that insurer knew was an unprotected lot where the policy provided coverage for risks other than theft -- No merit to argument that insurer engaged in inequitable conduct by adding exclusion to policy just one day before issuance of policy where the same exclusion appeared in initial quote from insurer
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful blood alcohol level -- Hearing -- Failure of subpoenaed witness to appear -- No merit to argument that hearing officer erred in failing to continue hearing to allow arresting officer to provide just cause for his failure to appear at hearing where subpoena was never served on officer, who died one week prior to issuance of subpoena, and licensee never requested continuance to attempt service because it would have been futile -- No merit to argument that licensee was denied due process because she was not afforded opportunity to confront arresting officer -- Right to confrontation does not apply to administrative license suspension proceedings
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of request to submit to breath test -- Where affidavit and reports prepared by arresting officer document clear indications that licensee was under influence of alcohol or chemical or controlled substance, fact that officer indicated on DUI supplement report that he did not detect odor of alcohol and marked “Indication of Drug Influence” and “Indication of Alcohol Influence” as unknown on arrest affidavit does not negate possibility that licensee was under influence of alcohol -- Finding that officer had probable cause to believe licensee was under influence of alcohol when officer requested that he submit to breath test was supported by competent substantial evidence
VIEW OPINION

Criminal law -- Obstructing or resisting officer without violence -- Lawful execution of legal duty -- Evidence -- 911 call -- No error in denying motion to exclude notes typed by dispatcher during 911 call reporting domestic battery where evidence was not hearsay offered to prove facts asserted in notes, and the only way jury could decide whether officers responding to call were engaged in lawful execution of legal duty when they ordered fleeing defendant to stop was to hear information given to officers -- No abuse of discretion in allowing testimony about police dispatch information of reported domestic battery where probative value of evidence was not substantially outweighed by danger of unfair prejudice
VIEW OPINION

Municipal corporations -- Zoning -- Variance -- Where staff report addressing criteria for variance specified in city code was entered into evidence, staff member testified about report, and special magistrate's order granting variance addressed criteria applicable to property, special magistrate complied with essential requirements of law and competent, substantial evidence supported decision to grant the variance
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Officer had probable cause for DUI arrest where licensee, who was stopped for speeding, exhibited strong odor of alcohol, slurred speech, bloodshot eyes and red cheeks -- Where licensee understood purpose of field sobriety exercises and was informed that he was required by law to submit to exercises, refusal to submit to exercises is permissible factor to be considered in determining probable cause for arrest even though licensee was not specifically advised that refusal could be used against him -- Use of revised prehearing forms not yet incorporated by reference in administrative rules and admission of uncertified and unauthenticated transcript of licensee's driving record into evidence did not amount to departure from essential requirements of law or deny licensee due process
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Absence of licensee's driver's license from record is not basis for relief from suspension where licensee did not challenge correctness of his identification at hearing, and his physical driver's license was not necessary to determine issues before hearing officer -- Licensee is not entitled to relief on claim that he was not issued notice of suspension where licensee's pleadings contradict that claim -- Licensee has shown no prejudice or deprivation of due process as result of officer's having given notice to jail at which licensee was booked rather than directly to licensee -- Hearing officer's use of new prehearing forms not yet incorporated by reference in administrative rule was not denial of due process or departure from essential requirements of law
VIEW OPINION

Criminal law -- Battery -- Jurors -- Voir dire -- No abuse of discretion in restricting defense from questioning prospective jurors regarding permissible touching -- Sentencing -- Vindictiveness -- Unexplained disparity between sentence in plea offer and ultimate sentence imposed raised presumption of vindictiveness , which was unrebutted, where judge did not initiate plea discussions, but departed from role of neutral arbiter by stating that she hoped defendant would not insist upon going to trial
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Arrest affidavit -- Despite presence of text in arrest affidavit that was copied and pasted from another licensee's arrest affidavit, where other portions of affidavit accurately depict dates and times of licensee's arrest, observation period, and breath test, decision to upholdlicense suspension was supported by competent substantial evidence
VIEW OPINION

Criminal law -- Resisting officer without violence -- Sufficiency of evidence -- Direct/circumstantial evidence
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop and arrest -- Officer's observations of licensee speeding, drifting within his lane and failing to stop at red light before making right turn were sufficient to justify stop -- Officer had probable cause to believe licensee was driving under influence based on odor of alcohol, glassy bloodshot eyes, and poor performance on field sobriety exercises -- No merit to argument that hearing officer erred by refusing to strike evidence of licensee's refusal to continue field sobriety exercises -- Hearing officer was not required to explain or analyze his denial of licensee's motions
VIEW OPINION

Civil procedure -- Service of process -- Chief financial officer's service of process on motor vehicle service agreement company via email was sufficient -- Default -- Vacation -- Due diligence -- Abuse of discretion to deny motion to set aside default final judgment for lack of due diligence where motion was filed 14 days after defendant learned of default -- Tardy payment of reopen fee is not dispositive consideration regarding due diligence
VIEW OPINION

Criminal law -- Driving while license suspended -- No merit to claim that trial court erred in denying motion for judgment of acquittal in absence of evidence that defendant was driving or in actual physical control of vehicle where officer testified that she came into contact with defendant during traffic stop of vehicle he was operating -- Search and seizure -- Vehicle stop -- Court did not err in concluding that, despite not using tint meter to check defendant's windows prior to stop, officer had reasonable suspicion to stop defendant for window tint violation based on officer's knowledge and experience
VIEW OPINION

Criminal law -- Driving while license suspended -- Judgment of acquittal -- Denial -- Appeals -- Where defendant never obtained ruling from trial court on second motion for judgment of acquittal, issue was not preserved for appeal
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Trooper who observed defendant's vehicle weave in and out of lane while traveling at very low speed and make illegal and unsafe lane change had authority to stop vehicle and ask defendant to exit vehicle -- Where trooper observed that defendant was disoriented and had difficulty standing, and defendant admitted that she had ingested prescription pain medications, trooper had reasonable suspicion to conduct DUI investigation and probable cause for arrest -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Driving under influence with injury and property damage -- Evidence -- Loss or destruction -- Videotape -- Dismissal of charge was too harsh a sanction for deputy's failure to properly record defendant's performance of field sobriety exercises and to follow standard operating procedure which required him to review portion of recording immediately after completed to ensure that proper recording occurred where trial court concluded that defendant was prejudiced by loss of evidence but that deputy did not act in bad faith -- Remand with instructions to consider which sanction short of dismissal is appropriate
VIEW OPINION

Criminal law -- Loitering and prowling -- Search and seizure -- Trial court erred in suppressing truck and spool of fencing in truck bed found near defendant and two companions inside closed construction site at 3:00 a.m. where truck and spool were in plain view -- Suppression of statements made by defendant is moot issue where defendant did not give any statements other than providing his identity -- Officers' conduct in approaching defendant and asking for identification was consensual encounter -- Error to suppress identity
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Where defendant was unconscious behind wheel of running vehicle stopped at green light, possible medical emergency and need to protect other people in area justified officer putting vehicle into park, turning off ignition, and removing key -- Further, police action was justified as investigatory stop -- Removal of ignition key did not transform interaction into arrest requiring probable cause -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Battery -- Jury instructions -- Appeals -- Defendant who did not object to jury instruction after it was given and before jury retired to deliberate failed to preserve issue for appeal -- Any error in giving instruction regarding neighbor's justifiable use of non-deadly force to stop defendant's battery on his father is not fundamental where there is sufficient record evidence to sustain verdict -- Even if claimed error were preserved for appeal or deemed to be fundamental error permitting review, trial court did not abuse discretion in giving instruction where instruction related to issues concerning evidence received at trial, and there is nothing in record to suggest that jury was misled or confused by instruction or that instruction was reasonably calculated to confuse or mislead jury
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Probablye case -- Order granting motion to suppress is affirmed where officer stopped defendant after observing him speeding, tailgating and weaving through traffic and subsequently detected odor of alcohol and observed that defendant had red watery eyes, flushed face and lack of fluid dexterity in exiting vehicle, but there was no evidence that officer initiated or conducted field sobriety exercises prior to arrest
VIEW OPINION

Criminal law -- Driving under influence with property damage -- Evidence -- Hospital records -- No abuse of discretion in excluding records from defendant's hospitalization on night of accident, which were offered by defense in support of argument that defendant was not driving while impaired by alcohol but was suffering from hypoglycemia due to diabetes, where trial court found that, in absence of nurse or doctor to explain contents, records were more prejudicial than probative and would mislead jury
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Invalid breath samples -- No abuse of discretion in admitting testimony that defendant gave three “volume not met” breath samples after giving one valid breath sample -- Defendant's failure to follow breath test instructions was indication of impairment -- Defendant was not prejudiced by breath sample evidence where neither party argued that invalid samples indicated consciousness of guilt, and jury never learned results of test on valid breath sample -- Even if admission of breath sample evidence was error, defendant would not be entitled to relief where overwhelming evidence of guilt would have assured that result of trial would not have been different if evidence had been excluded
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Hearing -- Failure of subpoenaed witness to appear -- Licensee was not denied due process by hearing officer's failure to invalidate suspension when two subpoenaed officers failed to appear at hearing on two occasions where licensee failed to seek enforcement of subpoenas
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- No error in finding that stop for no tag light was lawful -- No merit to argument that demonstrating probable cause to stop vehicle for having no tag light requires evidence that tag is not visible from 50 feet away
VIEW OPINION

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