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#FocusOnDrivingFL – What you need to know about the texting while driving in Florida

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Texting and driving can be a dangerous combination. In a 2014 report, the US Department of Transportation National Highway Traffic Safety Administration studied data from 2012. The data revealed that distracted driving was associated with 3300 deaths and 421,000 injuries in collisions in the US; much of the evidence in these cases suggests that smartphone use continues to be a substantial contributor to these incidences.

Further, AAA recently conducted a study that revealed 78% of Americans suggest that texting while driving is a “significant danger.” The study also cited that 35% of the respondents admitted to texting while driving.

Starting July 1, 2019, texting while driving has been defined as a primary offense in the state of Florida. Many people don’t realize that texting and driving was illegal before the July change. The difference is that previously, a law enforcement officer had to witness you violating another law to be able to pull you over for texting while driving.

In early 2019, the Florida government voted to change that.

With the July 1 change and texting while driving becoming a primary offense, authorities can pull you over if they see you typing on your phone or other hand-held devices.

Here are some of the top questions we have been asked about the new law.

Someone told me that if I am stopped for texting while driving, a police officer can ask to see my phone to verify that I was texting. Is this true?

This is actually true; officers are allowed to ask to see the phone of the driver who was pulled over for texting while driving, with one caveat. While the responding officer can ask to see your phone, they must tell you that you have the right to decline the request.

The original law making texting and driving a secondary offense started in 2013. Since then, officers have received training to be able to identify drivers who are texting. If you are stopped, it is because an officer believes you were texting while driving based on your behaviors.

How do things change after July 1?

Florida statute 316.305 — which is known as the Florida Ban on Texting While Driving Law, officially changes the law against using a mobile phone or hand-held device from a secondary offense to a primary offense. Beginning on July 1, law enforcement officers can pull over drivers for using a wireless device while operating a vehicle.

And there’s more. There’s also a part of the law about school zones and construction sites with active workers. This part of the law states that starting October 1, 2019, phones or hand-held devices can only be used in a “hands-free” manner while in use in a school zone, school crossing area, or construction area with active workers.

What happens if I get pulled over for texting while driving after July 1, 2019?

The answer to this question is “it depends.” Depending on the law enforcement agency that has stopped you, the outcome might vary.

The Florida Highway Patrol has released a statement suggesting that they will be issuing warnings until January 1, 2020. They are considering the time between now and then to be an “educational period.” Meanwhile, in Volusia and Orange Counties, the Sheriff’s Offices have stated that will begin ticketing offenders immediately.

Our suggestion is to simply obey the law, regardless of where you happen to be driving.

Can I still text while stopped at a red light?

The law does not specifically state that you cannot check your phone while parked on the side of the road or at a red light; it is not advised. Ultimately, when you are behind the wheel of a motor vehicle, your attention should be on your surroundings and making sure you and those around you are safe.

Can I be exempt from the texting while driving law?

There are a few instances where you might be exempt from this law. These include if you are reporting an emergency or criminal activity to law enforcement, if you are operating an autonomous vehicle in autonomous mode, or if you are receiving messages that are related to the operation or navigation of the vehicle. You could also be exempt if you are using the device for system or navigation purposes.

These are certainly not “get out of jail free” cards, so be smart with how you use technology and put safety first always.

Under the new law, can I legally press a button on my phone to answer a call?

Outside of a school or work zone, according to the law, you are allowed to activate, deactivate, or initiate a feature or function on your phone, as long as it doesn’t require multiple key presses.

In a school or work zone, the law suggests that you can use only hands-free features to activate, deactivate, or initiate a feature or function on the phone. So, using Siri on an iPhone or “Ok Google” on an Andriod phone is permitted.

Focus on Driving Campaign

While there are groups who worked to prevent this law, it’s essential to consider that the spirit of the law is to keep people safe. These include the driver, the car’s occupants, other drivers, and pedestrians.

The State has created a “Put It Down” campaign to bring awareness to the new law. You can follow hashtags #PutItDown and #FocusOnDrivingFL for more information.

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concealed handgun permit application

What factors can disqualify me from obtaining a concealed carry license in Florida?

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The qualifications necessary for an individual to be able to obtain a concealed carry license in the state of Florida are found in Fla. Stat. 790.06. For purposes of obtaining a concealed carry license, Fla. Stat. 790.06 defines concealed firearms and/or weapons as handguns, electronic weapon or devise, tear gas gun, knife or billie club but, does not include machine guns. If you are successful, your concealed carry license will be valid throughout the state of Florida for a period of seven (7) years.

To qualify for a concealed weapons license in Florida the applicant must:

  1. Be a resident and citizen of the United States or a permanent resident alien of the United States;
  2. Be at least 21 years old or older;
  3. Not suffer from a physical infirmity which prevents the safe handling of a weapon or firearm;
  4. Not be a convicted felon; (unless your right to own and possess a firearm was restored by executive clemency);
  5. Have not been “committed” for drug abuse, found guilty of any drug crime or had an adjudication withheld for any drug crime, all within the last three (3) years from the date of your application;
  6. Not chronically and habitually use alcoholic beverages or other substances to the extent that his or her normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired if the applicant has been convicted under s. 790.151 or has been deemed a habitual offender under s. 856.011(3), or has had two or more convictions under s. 316.193 or similar laws of any other state, within the 3-year period immediately preceding the date on which the application is submitted;
  7. Not been adjudicated an incapacitated person under Fla. Stat. 744.331 or, must have waited five (5) years after such determination of incapacity was removed by court order;
  8. Has not been committed to a mental institution under chapter 394, or similar laws of any other state. An applicant who has been granted relief from firearms disabilities pursuant to s. 790.065(2)(a)4.d. or pursuant to the law of the state in which the commitment occurred is deemed not to have been committed in a mental institution under this paragraph;
  9. Not had adjudication of guilt withheld or imposition of sentence suspended on any felony unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or expunction has occurred;
  10. Not had adjudication of guilt withheld or imposition of sentence suspended on any misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been expunged;
  11. Not been issued an injunction that is currently in force and effect and that restrains the applicant from committing acts of domestic violence or acts of repeat violence; and
  12. Not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.

Even if you are not prohibited from the purchase and possession of a firearm under Florida or federal law, the following circumstances could still prevent you from qualifying for a concealed carry license in Florida: 

  1. If you have a “withheld adjudication” or “imposition of sentence suspended” on any felony or misdemeanor crime of domestic violence you must wait until three (3) years after all conditions set by the court have been completed. F. S. 790.06(k)
  2. Under Federal law, if you have an indictment or information pending against you, you cannot qualify for a concealed carry license until that case has been disposed of.
  3. The Department of Agriculture and Consumer Services shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department of Agriculture and Consumer Services shall revoke a license if the licensee has been found guilty of, had an adjudication of guilt withheld for, or had the imposition of sentence suspended for one or more crimes of violence within the preceding 3 years. The department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license under this section, until final disposition of the case. The department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence. F. S. 790.06(3)

Author: Jeffrey W. Smith, The Orlando Law Group

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey lives in Oviedo with his family.

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irma

Concealed Carry and Florida Hurricane Evacuations

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Recently, as Hurricane Irma was closing in on Florida, Governor Scott issued a proclamation (not to be confused with “states of emergency” that are declared by local authorities under F. S. 870.044) and ordered the evacuation of certain areas of the state. As we are all now accustomed to scenes of rioting and looting during these types of emergencies; what can you do to protect yourself and your family if you do not have a concealed carry license during such an event and you are ordered to evacuate from one of the designated evacuation areas?
F. S. 790.01(3)(a) states that F. S. 790.01(1) (that makes it a first-degree misdemeanor for a person to carry a concealed weapon without a concealed carry license) does not apply to a person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a proclamation declared by the Governor (unless the proclamation specifically provides otherwise) pursuant to chapter 252 or a state of emergency declared by a local authority pursuant to chapter 870. As used in this subsection, the term “in the act of evacuating” means the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered.

The 48 hours may be extended by an order issued by the Governor. Note the distinction between a “proclamation” and a “state of emergency” in that if the evacuation order is by proclamation of the governor, the lawful individual may be in possession of a firearm in a public place (unless provided otherwise specifically in the proclamation) as contrasted to a “state of emergency” under F. S. 870 that only permits the possession of a firearm by a lawful individual in a public place during the “first 48 hours” of the evacuation period whether you have a concealed carry permit or not.

Author: Jeffrey W. Smith, The Orlando Law Group

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey lives in Oviedo with his family.

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Fighting a Traffic Violation in Florida

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If you feel that you have been given an unjust violation, you can do more than just stew in anger over it. By pleading not guilty in traffic court, you can fight the violation and move to have the charges dropped. Once you receive a traffic violation, Florida courts give you 30 days to inform your county clerk of your intention to dispute the citation. Instructions regarding how you can fight the violation differ based on the county it was issued in. Normally, the ticket itself will have useful information printed on it, such as a phone number, address, and instructions as to how you can contact the court.

A traffic attorney can attend your court date with you, and aid in your position, seeking to prove that you did not violate a traffic law. Your attorney will work with you beforehand to gather evidence, witnesses, and explain all options to you as it pertains to the case. Florida courts will not appoint you an attorney in a traffic case. Those who do not hire an attorney will be representing themselves.

The day that you enter your plea is not necessarily the day that your trial will be held. You should always plan ahead for the potential of many trips to court before this matter is resolved. Once at trial, your attorney will be able to argue the law, call your witnesses, present evidence, and even question representatives from the police department. After both sides have presented their case, the judge will render judgment.

If you are found not guilty the issue is resolved. The ticket is dismissed, and you will not have to pay the fine. The violation will also vanish from your driving record. If you are found guilty, you will pay the fine and possibly any court fees associated with the case as well. A lawyer can usually negotiate penalties, and help to minimize your cost and repercussions.

Fighting a traffic violation can be a daunting process. If you walk in unprepared you might be setting yourself up for a costly failure which, in some cases, can lead to jail time. The Orlando Law Group will fight for your rights and your freedom. If you have a traffic violation you intend to fight, call us at 407.512.4394.

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So you’ve been arrested for DUI, what happens next?

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DUI Blog OLGThe officer will likely walk up to your window, ask you for your license, insurance card, and vehicle registration. He or she may ask other questions to get you talking. The officer is looking for the “distinct odor of the impurities of alcohol.” When the officer asks you out of the vehicle, they will ask you to perform a sequence of Field Sobriety Exercises. These exercises include following a flashlight with your eyes, standing on one leg, and performing the “walk and turn” which is basically just walking heel toe down a straight line.

Once you have completed these exercises, the officer will make a determination as to whether or not to arrest you on suspicion of DUI. It is at this point, once you are under arrest, that you will be asked to submit to a breath, blood, and/or urine test. This test is what the officer’s use for confirmation of DUI in their minds. Understand, even if you blow UNDER .08, you can STILL be arrested for DUI. Even if you blow a 0.00, you can STILL be arrested for DUI.

So, should you submit to alcohol testing?
Florida Statute 316.1932 governs refusal to submit to alcohol testing. A refusal in Florida results in the automatic suspension of your driver’s license for a year. If you refuse a second time, it becomes an additional criminal offense along with the mandatory suspension of your driver’s license. Consenting to a breath test provides the officer further evidence to make the arrest for DUI and the State Attorney with additional evidence to use against you of impairment should you choose to take your case to trial. It is up to you to determine whether or not submitting to alcohol testing is in your best interest.

What happens if you weren’t driving?
What if instead of saying “I’m perfectly safe to drive” and driving home, you say “no way can I drive, I’m going to sleep it off in my car.” You may think by sleeping it off in your car, you are doing the responsible adult thing. However, you can still be arrested for DUI even if you are not physically driving your vehicle. Florida law provides that if you are in actual and physical control of your vehicle, you can be arrested. In layman’s terms, if you are in your car, with the keys, and have the ability to make it move, you can be arrested for DUI.

So you’ve been arrested for DUI, what happens next?
If you have been arrested for DUI, you will need to contact an attorney immediately to represent you. Following your arrest, an attorney can

  1. Guide you on how you can get a hardship license
  2. Advise you about penalties following a first and subsequent DUI
  3. Determine if any motions can be filed to help win your case

Please, contact us today for advise on how to best resolve your DUI or other criminal matters.

 

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Samantha Gordon, The Orlando Law Group, PL

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You’ve Been Served! What is the first thing you should do if served with a summons and complaint in Florida?

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summons or complaintFollowing the initial emotions, undoubtedly there will be a number of questions. What is the best approach? What are the first steps? What do the various legal terms even mean?

Let’s start by defining the terms. What is a summons? A summons is an official written order to appear before a court, judge or magistrate because you have been named as a party in a lawsuit. What is a complaint? A complaint is a pleading filed by a Plaintiff stating the claims they have against the Defendant as well as the action they would like the court to take. The plaintiff is the person who has filed a complaint/charges against the defendant for prosecution by the courts, while the defendant is the person who is refuting the charges and is seeking to prove his or her innocence.

As a defendant, it is important that you do not ignore the summons. The popular adage that “if you ignore it, it will go away,” does not apply in the legal system! Once you receive a summons and complaint, an action has already been filed in the court system. Pursuant to Florida law, you have 20 days to file a written response with the court. The court clock starts running the moment you receive the summons and complaint. If you do not file a response, the plaintiff will be able to file a motion and obtain a default judgment against you. A default means that you have no defenses to present in the case. Once a default is in place against you, you will be prevented from defending yourself at any later date, even if you have excellent defenses.

What should you do to respond to the summons? In short, contact your attorney immediately. BEFORE you file any kind of response.

Your written response will become a permanent record in the case. So, do not take it lightly! It should be crafted carefully so that you say exactly what you need to say – no more, no less. Some defenses that may be available to you are waived if you do not raise them in your initial response. Therefore, it is imperative that you and your attorney thoroughly examine the court documents for any defenses, defects or standing issues.

It is important that you are open and honest with your attorney concerning the case at hand. With her help, you can begin to piece together the facts of the case. Your attorney can help you collect any necessary paperwork and think through any witnesses to the incident that might be helpful and could testify.

In the meantime, do not contact the attorney for the plaintiff or the plaintiff or any member of his or her family. Do not contact the court, a judge or any other official of the court. It might also be wise to severely limit the circle of people you speak to about the case.

The truth is, the legal process is nuanced and complex. A good attorney can help you navigate these steps and the options at hand. Having a little help makes “being served” much less scary.

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Do I Have to Go to trial

Do I Have to Go to Trial?

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Most cases are settled before they even reach the courtroom, through negotiations between the parties involved. This usually works out well for everybody. The courts like this, because it frees them up to handle other, presumably more difficult to settle, cases. Who would want to go through a drawn-out court battle, when an acceptable resolution can be reached directly? A case settlement is an acceptable solution to your legal case, as long as you get what you want out of it. You need to make sure that your best interests are being looked out for.

When lawyers and defendants can’t agree about an issue as fundamental as whether to go to trial, normally the defendant’s wishes prevail. Assuming that a defendant’s decision is neither unethical nor illegal, the lawyer is the defendant’s agent and must either carry out the defendant’s decision or convince the judge to let him withdraw from the case. Defendants should at least consider their attorneys’ advice, they are there to help them. Defendants should ask questions to make sure that they understand the advice and why the lawyers think it’s in their best interests before making a decision.

There are times when it may be advantageous to take your case to trial instead of accepting an offer to resolve a case. The prosecutor in criminal cases will often times makes a plea offer to resolve the case without a trial. In accident cases, malpractice cases, and other civil lawsuits, a party often makes a settlement offer to avoid the uncertainty of a jury verdict. Many people think that they know when they should go to trial, but consulting with an attorney who can advise you when going to trial is in your best interest, is always a good idea.

There are generally two occasions when defendants must take a case to trial. The first occasion is when they are innocent and the prosecutor is refusing to dismiss the charges against them and the Judge denied their motion for dismissal. The second occasion is when the prosecutor is not offering a plea deal at all. Statistically, government prosecution wins an overwhelming majority of their cases at trial so it is not in a defendant’s best interest to go to trial on a criminal charge. On the other hand, the prosecution is also aware that if every case before them has to go to trial then the whole system will collapse, because there is simply not enough time and resources available to have a trial on every case. Also, the plea bargaining process assures the State a conviction without the necessity of a time consuming and expensive trial.

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What is Insurance Subrogation?

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Subrogation is the substitution of one’s rights to another. The concept of subrogation has existed since the 1700s, when it was created in English law by Lord Mansfield. It has been recognized by common law and equity, and exists specifically in most insurance contracts in the United States. Subrogation exists in many lines of insurance, including auto, health, property and workers’ compensation.

Subrogation enables the insurance company to make a claim against the manufacturer of faulty equipment or a person who caused an accident. Subrogation issues surface when a person has been injured and someone other than the person or party at fault pays for all or some of the damages resulting from the injury. When you go to the hospital for treatment, your health insurer will usually pay for the costs of treating your injuries. Your insurer may contact you to discuss how the injuries occurred, because they are trying to determine if someone else is fully or partially to blame for the injuries. The insurer may even try to determine if you are planning on suing another party for the injuries you have received. Ultimately, the reason the insurer is asking these questions is to determine whether some third party may be responsible for paying for your injuries, thereby relieving some of the insurer’s financial responsibility.

At the heart of this issue is the concept that an injured party should not be allowed a “double recovery.” It is believed that injured parties should recover for the actual damages they have incurred, but should not be allowed to profit from their loss. Subrogation is supposed to help lower insurance rates. Because many subrogation claims require involvement and cooperation of the insureds, it is imperative that they understand how the right is derived. To the insured, it is easiest to refer to the language of the insurance policy and the clause that requires the insured to cooperate with the carrier in its subrogation efforts.

Understanding subrogation interests can be difficult. Failing to obtain such an understanding, however, may prove to be costly for an injured party. Hiring an attorney who knows the subrogation laws in your state will help protect you from the unintended outcomes that can otherwise happen when a subrogation claim exists. If you are receiving benefits from a collateral source, subrogation issues can affect any settlement or lawsuit you may have against a third party. For this reason, it is important to work with an attorney who has experience dealing with the complications that subrogation issues can present.

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Construction Litigation in Florida

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Construction litigation is an area of law concerning legal disputes that arise out of building projects. Disputes can be about construction agreements, claims of injury or wrongful death caused by negligent behavior. Construction litigation refers to civil lawsuits involving private parties and is governed by rules and burdens of proof that are distinct from those applicable to criminal prosecution.

Construction contract disputes that can lead to litigation sometimes involve simple matters, such as non-payment for work completed, unsafe work conditions or not meeting project deadlines. Often the disputes only involve two parties, the general contractor and a subcontractor. Other times, the contract disputes are complex and involve claims regarding the quality and scope of work performed or matters pertaining to clauses in loan agreements. These are likely to include additional parties, such as material suppliers and money lenders. Construction litigation involving negligence often centers on defects discovered by homeowners or commercial property owners, either during or after the construction process. The discovery of these defects will sometimes lead to lawsuits against the builders and the construction companies, based on claims of defective materials, improper soil analysis or negligent structural engineering.

Injury and wrongful death claims or other claims of negligence usually involve construction workers and arise from accidents that involve unsafe working conditions, burns, falls, electrocution, or loss of a limb. These accidents will result in a worker’s compensation claim as well as civil litigation. Construction accidents sometimes involve other people, not affiliated with the construction site at all, who may have become injured or killed by such things as dangerous equipment negligently left out in the open, falling debris or fires.

Some common reasons for construction litigation initiated by homeowners in Florida against builders, architects, engineers, and subcontractors are:

  • Design defects in building components
  • Water intrusion
  • Mold and mildew
  • Cracks in the foundation
  • Faulty electrical wiring and plumbing systems
  • Defective, improperly designed, or miscalculated heating and air conditioning systems
  • Improper, damaged or defective building materials

Construction litigation can be a long and expensive process for everyone involved. Many disputes involving construction contracts are subject to clauses that enable the conflicting parties to seek arbitration as an alternative means to dispute resolution. Construction arbitration typically involves an informal process where the parties make their arguments to an arbitrator, who, as an independent third party, makes a ruling on the dispute that is binding in most cases.

In some cases litigation is the only or best option for achieving appropriate redress or to defend against allegations of wrongdoing. Hiring an attorney that is experienced in construction litigation that can present your case is very important.

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What is the Difference between Expungement and Sealing of a Criminal Record?

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A criminal record expungement, also known as an expunction, is when a court orders the criminal records related to your case to be physically destroyed. As a result of this order, the courts, the State Attorney’s Office, and law enforcement agencies must physically destroy or obliterate any physical or electronic records related to your case. However, pursuant to Florida law, one copy of your criminal record is retained by the Florida Department of Law Enforcement and can be disclosed on a limited basis to law enforcement. Additionally, as part of the application process, you must complete the portion of the application which requires the State Attorney’s Office determine your eligibility for expungement.

A criminal record sealing allows you to have the court order that your criminal record related to an arrest or conviction be sealed and therefore hidden from public viewing.

It must be noted, private companies that perform background checks and obtained your criminal record prior to it being sealed or expunged may not be aware the order sealing or expunging your record and may provide your criminal history to whomever pays for their services.

After having your record expunged or sealed, you are allowed to lawfully deny or fail to acknowledge the arrests or conviction covered by the expungement. However, there are some exceptions. You must acknowledge your arrest or conviction if you are:

  •  Seeking employment with a criminal justice agency;
  •  A defendant in a criminal prosecution;
  •  Apply for employment at or access to Florida seaports;
  •  Concurrently or subsequently petitioning for to have another unrelated criminal incident sealed or expunged;
  •  A candidate for admission to The Florida Bar;
  •  Seeking to be employed, licensed by, or contracted with:
  •  The Department of Children and Family Services
  •  The Department of Juvenile Justice
  •  The Department of Education
  •  A sensitive position having direct contact with children, the elderly, or developmentally disabled.
  •  Any public or private school
  •  A local government agency that licenses child care facilities
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