Come Back With a Warrant
Episode 14: Florida's Fall 2025 Crime Law Overhaul: DUIs, Open Carry & AI Porn
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Brandon: Call us.
Episode
Brandon: Welcome back. We are back today to talk about all of the new laws that came out this fall in the State of Florida. And when I say this fall, I don't know if you're listening to this in 2025, but we are in 2025, so I felt like I needed to clarify that, in case someone's listening to this in 2026 or later. There have been new laws that have been passed— things that were not previously crimes are now crimes, so we wanna educate people on what that is.
Monica: Yeah. Exactly right.
Brandon: Some big changes in the law in Florida, and obviously we know we have listeners that are not in this State, but some of these law changes, whether they apply here or also apply by you, that may be something that, you know, you would know, but for us at least, we practice in this state and we focus on the law, and when the law changes, it's important for us to get out there and make sure that we let people know. So, we'll get into it. There are a few different areas of the law that have changed, and we're talking about criminal law specifically. The first one that we're gonna talk about is a big change in Florida DUI law. It is now a crime in Florida if you refuse to give a breath sample the first time that you are asked. So if law enforcement ask you to give a breath sample during the course of a DUI investigation, it is a crime if you refuse to do so. That's a big deal and we'll talk about why that's a big deal, but forever, the advice of attorneys is usually to refuse to give a breath sample. That's generally something that we have told people because we want less evidence given to the police and given ultimately to the State to prosecute you. So, now, it changes the question and it changes how we answer what somebody needs to do in their situation because do we still advise people not to give a breath sample? I think, yes, that still is probably going to be the advice if you are in a position where you're about to get a DUI and you giving over that breath sample is going to give over worse evidence than just—
Monica: Yeah.
Brandon: This new charge.
Monica: I know this is something— specifically as to this charge— is being enforced, at least in Palm Beach County, because I was in court yesterday, or the day before, and I ran into a colleague who was like, "Guess what case I just got." And I was like, "What?" And they were like, "I got a great DUI," like the DUI facts are amazing, but first time refusal charge is attached to it, and those are often kind of, like, easy for the State to prove, because it's on video and it's like, "Hey, will you refuse, or will you give a breath sample? And if you refuse, you will be charged with a misdemeanor and your license will be suspended." And people are apparently saying yes, you know, that's fine, and then they get charged with it. So, I'm assuming that's how it goes down, that they let them know that it will be a crime.
Brandon: There's a wrinkle there because ultimately, the State is now gonna need to prove that there was probable cause to ask for that breath sample. So as part of their bringing that charge, as part of their prosecution on the new charge, one of the elements that they're gonna have to face, at least the one that they had to face in a second refusal, is proving that there is probable cause for the police to ask for that sample. So what that does is it complicates things when you get to a jury—
Monica: Yeah.
Brandon: Because now you have to prove something beyond a reasonable doubt, but prove probable cause. So you have to prove that there was probable cause beyond a reasonable doubt to complete one of the elements in that new charge, so it does make it a little bit challenging for the State, but, generally, once it's all on video, and somebody has been exhibiting some of those signs of impairment anyways, it makes it a lot easier to prove. But something can reach the level of probable cause, obviously you know this, and not be beyond a reasonable doubt. And so if they prove that there was probable cause beyond a reasonable doubt to ask for a breath sample, meaning that there were signs of impairment, such as, you know, slurred speech, the officer saying it smells like alcohol, but maybe they're like, "You know what? It's not to the extent that their normal faculties are impaired," which is what the elements are for the State to prove. If they don't have a breath sample, then at that point, it's like you're proving probable cause beyond a reasonable doubt— all you really do have to do is show probable cause, which is a very low standard.
Monica: True.
Brandon: You know what I mean?
Monica: True. But explaining to a jury—
Brandon: Regular people who deal with this.
Monica: That you have to now prove a lower standard to a higher degree—
Brandon: To a higher degree.
Monica: A lower standard to a higher degree—
Brandon: Yes.
Monica: That can be confusing.
Brandon: Yeah. And I think if a skilled defense attorney can find a way to use that to try to confuse the issue when you're actually handling one of those cases in front of a jury, if the evidence is already completely against you, may be something that you can use as a way to try to, I don't know, swing the jury in your favor.
Monica: And that could also be during nullification, like let's say you're charging, like, a DUI and a first time refusal, and that person is like, "NG, not guilty all the way on the DUI," and what's left is really the issue of the refusal. Is the jury really going to convict based off of that? Like I feel like I would be pissed as a juror, and obviously I'm biased, so, as just a defense attorney, but I feel like I'd be like, "I'm not gonna convict somebody when they're not even guilty of the DUI." Like, to me— but if they were guilty of the DUI, and it's a first time refusal, that's different, you know, maybe I'd be like, "Okay," but I could definitely see jury nullification being a thing on that.
Brandon: Yeah. And the second refusal has always been its own standalone crime. So if you have refused a second time, it is its own standalone crime and it's gonna remain that way. Now, this new charge is a second-degree misdemeanor, so we're talking about maximum punishment of 60 days in jail and a maximum fine of $500. Not that somebody, a first-timer is likely going to have to face either of those, but that's the maximum that somebody could face in, you know, their sentence.
Monica: But it's also leverage now for the government—
Brandon: Right.
Monica: To be like, "Well, you know, we can easily—" Or they can make it seem like they can easily prove this refusal and the DUI could be on the fence and then the person will be like, "I don't know if I wanna go to trial now because I know that there is a higher chance of me being convicted of something, so maybe I won't." And oftentimes, as a part of negotiations, they're willing to drop one of the charges that are attached to the main charge. So maybe that could be the scenario that they're facing in negotiations prior to trial and they're like, "Okay, we'll drop the first-time refusal if you take the mins on the DUI," then that's a big incentive for the state to resolve the case in advance of trial to their benefit.
Brandon: Yeah. And I think it also raises another big issue now when you talk about diversionary programs—
Monica: Mm-hmm.
Brandon: Which Palm Beach County has and certain other counties have also. Diversionary programs are where a person with a first-time DUI gets the opportunity to resolve their case to a reduced charge, usually a reckless driving, and face certain consequences similar to a DUI, but not face the ultimate DUI, not face a conviction. And a lot of the other ramifications that come with an actual DUI conviction, you don't get by getting a diversionary program.
Monica: Yeah.
Brandon: So for example, in Palm Beach County, if you're charged with a DUI your first time, you could potentially resolve the case through a reckless driving and go on probation for 12 months and have to complete conditions similar to DUI probation, but set up in the form of a program that allows you to avoid the DUI conviction ultimately.
Monica: Yeah.
Brandon: So the reason that I bring that up is because generally speaking, for somebody to qualify for a diversionary program, the only criminal charge can be the DUI.
Monica: Yeah.
Brandon: So if you were to be charged with DUI and possession of marijuana, that would have been something that would disqualify you from the diversionary program. So the question now becomes, does this new law of refusing for the first time disqualify you from the diversionary program? And that's a big question that a lot of defense attorneys have and have been asking, and I don't really know what is gonna happen with that.
Monica: Well, from just my experience practicing here over the years, the state's office here has been stricter on who they're allowing to take DUI diversions. Like, I remember when I first started, it was like, we would talk about, like, reckless offers and things, just without even having to enter a formal diversion. And now it's like, no, you have to enter a formal diversion in order to get this dropped to a reckless, with or without probation. And I have not gotten a dry reckless, which is a DUI dropped to a reckless charge, no probation, none of the DUI requirements, and I haven't gotten an offer like that in a minute. I've been trying to get them on some of my cases and they're like, "That's not—" Like, unless you have a reason, they're not willing to do it. And before, it was definitely easier in my experience. So I feel like now—
Brandon: Brandon.
Monica: Yeah, yeah, yeah. Brandon is the person that I'm talking about. But, like, now I think it will disqualify people. I don't think they're going to incentivize people for extra crimes that they have.
Brandon: No, I think it's gonna be problematic, but it may present itself in the way that in order to get a diversionary program, you will have to also have given a breath sample. And that breath sample will have to be— which, in general, to get the diversion program, if you gave a breath sample, the breath sample would have to be below a .200—
Monica: Which is high.
Brandon: Which is very high.
Monica: So high.
Brandon: But in order to get— if you gave a breath sample or if you refused, the breath sample would have to be below that .200.
Monica: Yeah, and there's no way to know in advance of taking it. You couldn't know that you had a drink, you know that it's gonna come back something, but you have no idea what it's gonna be. You know? So, all that stuff, it's like it comes down to the person, if they drink regularly, like, how much they weigh— I have a current DUI, my client's like 100 pounds and she had 2 drinks at brunch and got into an accident on the way home, it was like a fender bender, and now it's considered a DUI crash, and so she's ineligible for—
Brandon: A diversion.
Monica: A diversion. Unfortunately.
Brandon: Because diversion is certainly a gift and there are a lot of disqualifying factors that can knock you out, and if you had a crash involved with the DUI, yeah, it knocks you out. The problem is, crash can be anything from backing up in a parking lot and tapping another car—
Monica: Yes.
Brandon: To a serious head-on collision.
Monica: Yeah.
Brandon: Which happens all the time.
Monica: Yeah. DUI crashes are really awful.
Brandon: They're awful for everybody involved. The most serious misdemeanor is a DUI crash.
Monica: I agree with you. I agree with you.
Brandon: It really is, and they are treated as such.
Monica: Yeah. Especially by the judges and by the prosecutors that handle them, they are definitely treated as the most serious cases in county court at the misdemeanor level. Yeah, so we are gonna be seeing a lot of these different combinations, I'm sure, in the next few months. That's already happening, you know. People are already getting— our colleagues are already getting cases with this, so they are definitely enforcing these new law changes that literally just took effect in the beginning of the month, October 1st, at least for this one. So that's pretty wild.
Brandon: So this is a big one that's changed and now something that we're gonna be looking at from a bunch of different aspects.
Monica: Yeah. There's also— this is a huge one— open carry. Florida is now an open carry state, okay, meaning people can carry their firearms really, I wanna say anywhere, but it's really not anywhere, but that's what it means— you can just have it. It actually used to be a criminal charge where if you had an open carry— I had a couple cases in county court when I was a public defender where my client had a firearm on them and they didn't have it secured the way they were supposed to and it was out in the open and they were charged with open carry. But now, it's legal.
Brandon: Yeah, this is completely crazy to me. I grew up— seriously, I grew up up north in New York and in New Jersey. I didn't know people that had guns growing up.
Monica: No. Yeah.
Brandon: And then I came down here and I know few people that don't have guns at this point.
Monica: Yeah. It's unusual now if you don't have one.
Brandon: Right. Yeah. Pretty wild. I went to a diner with my wife and my son the other day and there was a bunch of law enforcement that walked in and walked out and they were all obviously carrying, and then there were a bunch of people that were not law enforcement that walked in and they—
Monica: Same thing.
Brandon: Were all open carrying. And it's a little bit strange at first to see, but I think this state was on that path for a while, and there were a lot of cases that I saw as a prosecutor that were certain failure to have concealed carry permit—
Monica: Yeah.
Brandon: Or people having their gun in their car and it not being secure.
Monica: Not a thing, yeah.
Brandon: I saw a bunch of those— none of that even— now it's not a thing.
Monica: No, there's dudes in Miami that are riding around on Vespa scooters that have, like, miniature AK-47s—
Brandon: That's what I'm saying.
Monica: On their back. There was a video of a guy walking into Publix with a rifle on his back, literally just on his back, like wrapped, strapped on him. Like, not this man just— You know. And everybody was like, imagine just shopping in the grocery with Jackson and seeing a man with a rifle next to you. Like, I think that's crazy.
Brandon: Well, let me just say, private businesses can prohibit open carry but Publix did not.
Monica: Yeah. It's not one of them apparently as of now, but— It's gonna be a change, but I also don't think it's gonna be to the extreme where it's gonna be, like, "Excuse me ma'am, your rifle tip is, like, hitting me while I'm getting my keys." Like, I don't think it's gonna be that bad.
Brandon: Yeah, yeah.
Monica: Like, it's, I, but—
Brandon: No, I think it's just, like, kind of a culture shock of, like, seeing it.
Monica: At first it's a little— you know what I mean? Yeah, and eventually it's like, "All right, I don't care."
Brandon: The first time I went to Texas and I saw the signs on some restaurants and stuff that said, "No open carry," like, "You're not allowed to have guns in here," I was like, "They have to do that here," and now I'm starting to see in Florida and I'm like, "Oh my God, because we're an open carry state now."
Monica: It's just crazy.
Brandon: Yeah, and it's gonna be interesting to see how different places have it because generally you're not supposed to have firearms in bars, and I imagine places like bars and casinos and certain clubs and things are still gonna— not gonna want that happening. If you're gonna have people drinking, you don't want that.
Monica: Well, I had a murder trial I tried a couple years ago and it was literally at a strip club and a part of the case, a part of the legal issues in the case was, like, having our client having the gun on him, and it was in the car at 1 point, he went out, he came back in, and it was like when did you get it? And then it was like with the bouncer, so then— I don't know, it was a whole thing. But anyways, he ended up taking it out of the bouncer's back pocket and shooting his shot.
Brandon: And?
Monica: It's actually being retried now.
Brandon: Oh.
Monica: So we were successful in a sense because it was 2 counts. One was a first-degree murder with a firearm, second count was an attempted murder with a firearm. First-degree murder was a hung jury, and then the attempted was a lesser, which was aggravated battery with a firearm. Unfortunately, that carries a 20-year minimum mandatory sentence—
Brandon: Mm-hmm.
Monica: And he's serving that day for day. But at this point, the appeal is done and the state should just make a 20-year offer, but I don't know. Obviously there's Marsy's Law and there's— I'm not the attorney on that case anymore, but I wish him the best of luck. I don't know. I really don't know what's going on with that case.
Brandon: That's wild.
Monica: It's still active.
Brandon: That's wild.
Monica: Yeah, it was on the news. It was a media case.
Brandon: That's wild.
Monica: Yeah. So, a cool story. Interesting take. Tell us.
Brandon: All right. The federal government has spoken to the City of West Palm, and they have asked the local government to interfere— Okay, fuck, I don't know why I'm having like word salad right now on this whole thing. Let me— I think this is coming down to The President living in Palm Beach County part time, I guess, right? I don't know if he lives here, but—
Monica: Yeah. Yeah.
Brandon: He comes to West Palm a lot, or Palm Beach, not West Palm, but he has to cross through West Palm to get to Palm Beach Island, and because of that— So, there is an issue that has arisen because the federal government is asking the city to prevent people from having firearms along the route between the airport and Mar-a-Lago, which is Southern Boulevard—
Monica: Boulevard.
Brandon: And it's one strip of road that The President travels when he's in town, and he is in town frequently when the weather gets colder because it's nice—
Monica: Nice.
Brandon: To play golf here—
Monica: Yeah.
Brandon: And it's nice to have a house—
Monica: Paradise.
Brandon: In Florida, right.
Monica: Why— Paradise. Why wouldn't you?
Brandon: Right. So, he uses his house, and why this has become an interesting issue is you will now have the federal government asking the State of Florida to patrol and uphold something that is not Florida law anymore.
Monica: No.
Brandon: Because people are allowed to open carry.
Monica: Yeah.
Brandon: There is an issue because this becomes federal law versus state law and who controls, and from the sources that I've spoken to, they have said to the federal government that if you wanna prosecute these cases because you wanna protect a specific area that is an especially designated corridor, and you wanna protect that, then you make the arrests—
Monica: Yeah.
Brandon: And you prosecute the people. But the City of West Palm does not want to get involved and does not want to start arresting people that are lining the streets on the way to Mar-a-Lago if they are open carrying in a state that just—
Monica: Allowed it.
Brandon: Allowed open carrying.
Monica: Yeah. Well, I think it's because there's federal laws that have like protections against firearms around The President or former presidents or whatever, and that's the federal government's problem.
Brandon: Right. Of course there are.
Monica: Like, they're the ones that need to prosecute when technically when federal and state conflict, federal should preempt and win and they— But that's not the Florida or the state's problem to then engage and use their resources to enforce a law that is not their law.
Brandon: Yeah.
Monica: So— True. It makes no sense to do that. And also, like they have less resources than the federal government.
Brandon: Correct, correct.
Monica: And it's also, like we're not talking about a very long— It's like 4 or 5 miles, maybe, from like the airport. What is it? 4 or— no way. All the way to the island. You would know 'cause you're a runner, so you would probably know. Okay. Or maybe not. I don't know.
Brandon: I mean, I don't run from the airport to Mar-a-Lago.
Monica: Shit, I don't know, but however long that space is, which doesn't seem like that long, that is the federal government's job to patrol. So, I don't know. It's also, I was thinking about it, like how would they enforce that? Like if somebody's just going for a walk down the street and they have a gun in their holster in their pants. What, are you gonna stop them and arrest them under federal law? Like that's ridiculous.
Brandon: The issue becomes—
Monica: He's not an active threat.
Brandon: Well, the issue becomes you have the most probably most targeted individual in the world driving in that strip of roadway at that time, and there are enough people out there that don't need to be in an open carry state to try to do something. So the fact of the matter is— What's that? The person, whether you like him or not, the person is completely entitled to the same protections as everybody that's ever held that office, whether you like the person or not. So what that means is the federal government is responsible for that protection.
Monica: Agreed.
Brandon: And what the state does in effort to help that is one thing, but to ask the state to enforce a law that is not what the current state law is, that is where at least the issue, the conflict arose.
Monica: Yeah. Yeah. I'm gonna keep my comments to myself. But anyways, the next law, this is a big one.
Brandon: Yeah.
Monica: The next one, the super speeder law, which I'm not mad that this is a law, to be honest, because Florida has crazy drivers. Like honestly, sometimes I get anxiety driving and I never have had anxiety driving. Because people literally just do whatever they want, and I feel like they just give out driver's licenses like, "You get one, you get one, you get one." Like they don't care. And this new law is criminalizing— which that's the part that I'm like, "Ugh." I don't know. But whatever— criminalizing 100 plus, like driving 100 miles per hour or more, and or having a— I think it's 50 miles— 50 miles over the speed limit.
Brandon: Yeah, which is high 'cause usually, I feel like our speed limits are much higher than other states. Like whenever I drive in other states, it's always like 50 or 60 miles per hour. I think we have 65 and 70—
Monica: Yeah.
Brandon: On the highways here. And that's pretty speedy.
Monica: Yeah.
Brandon: I think these are completely normal— I don't think this is a problem.
Monica: Yeah.
Brandon: I think this should be the law.
Monica: Yeah. Maybe it's because I have a kid now that I feel that.
Brandon: Yeah, you're like, "Put your seatbelt on." But somebody driving 100 miles per hour—
Monica: And drive the speed limit— is wild. It's scary.
Brandon: And somebody driving 50 miles over the speed limit is completely unnecessary. There's no reason to be driving that fast. There just isn't. I think, you know, an issue does arise that a lot of the cars right now can reach these speeds with no problem. And especially the electric cars can get up to 100 miles per hour with no issue very quickly. And these people that are driving 80 miles per hour in a 70 mile per hour zone, to push it to 100, a lot of them— some people will do that and it's no big deal— absolutely should be a crime because when you see what the result of—
Monica: Oh. Yeah.
Brandon: A car going that fast hitting something is, or someone, or another vehicle, it absolutely should be criminal. And look, for us as defense attorneys, yeah, it's a new source that could potentially be business for us. Okay, great. That's not really where I'm coming from—
Monica: That's not, yeah.
Brandon: But I think there is definitely an interest in protecting people from other people driving that fast. Like we live in Palm Beach County, every type of car you can imagine is here. And especially on Palm Beach Island, anything you can imagine is there. So the fastest cars in the world will be regularly on the strips of I-95 and the Florida Turnpike that we travel. It's awesome that you can have a car like that, and— I would love to have a whole fleet of sweet cars. You have to be able to drive it responsibly and find a place that you can take it to that level. Find race clubs or tracks or whatever to do that. You can do that without doing it on the roads.
Monica: Yeah. Yeah. And I feel like I feel old and like, "Get a dad." You're like, "Get those speeders." I don't know. I just think that's so fast.
Brandon: Yeah, it is. It definitely is. And also, when I was a kid, at least growing up in New York, I thought that if you doubled the speed limit you could get arrested.
Monica: Yeah, I thought that was already like a thing. I thought that was the law, but—
Brandon: Yeah. To be fair— I knew it wasn't the law here. Well, yeah. But I thought that was the law when I was a kid, so I was always being—
Monica: Yeah, you were like, "Let me be safe." But— I definitely have driven too fast before, but—
Brandon: Yeah, I— I don't want you to think I'm fast. I definitely speed, but going 100 plus is crazy. I don't go that fast.
Monica: But the law previously, they did try to get people on going 100 but under reckless, and it's hard because the law under reckless is like not just— it's speeding plus.
Brandon: It can't be speeding.
Monica: It's speeding plus. It has to be speeding plus affecting—
Brandon: Yeah.
Monica: The flow of traffic. So you have to be like driving through, like cutting people off, like driving crazy, plus speeding. So it's like— now it's like just speeding to a certain level, you gotta go.
Brandon: I just think about somebody driving like 80 miles per hour in a residential neighborhood. Like that should be a crime.
Monica: I had a case like that— It makes sense. I had a case like that, ended up, a 17-year-old girl hitting a retired PBSO deputy and killed him.
Brandon: Oh.
Monica: And she was charged for it, but— that's the thing, it's like you had no criminal intent to hurt or kill anybody but because you were reckless and caused injury or death, now you're facing— now you're going to prison. Like now it's another conversation we're having. So it's like that would be the next step. It's like, "Yeah, you're going 100 plus now but you don't know what could've happened. You don't know."
Brandon: Yeah. Stressful. Those are stressful.
Monica: And those are tragic cases because it really is, from all ends, it was a tragedy for her as a young girl that was just driving in a residential neighborhood like trying to get to her destination.
Brandon: Yeah.
Monica: That's— Like she's not a criminal, you know. But then an accident happened as a result of her reckless actions and unfortunately that is considered criminal.
Brandon: Well, yeah, I mean, the consequences on the other side, the other person that was— the deceased individual—
Monica: Yeah, passed away. Yeah, yeah.
Brandon: They didn't do anything wrong either.
Monica: They were just going outside. Exactly. Yeah. Yeah, that's rough.
Brandon: But the bottom line is, you know, if you're hitting 100 on I-95, get ready to spend more money than just a ticket.
Monica: This isn't a— Yeah. Yep. That's gonna be expensive.
Brandon: You're looking on a first offense, you're looking at up to 30 days in jail?
Monica: Yeah, 30 days. And up to a $500 fine.
Brandon: Yeah.
Monica: And the second time it's 90 days, so. But the next one I'm not really mad about. Like the one we're gonna talk about, I am not mad about this law at all. This one is about AI generated porn, deep fake porn, and that is now a felony. So like any sort of generation by AI of somebody's, like basically fake porn photos of somebody. That's what it is.
Brandon: That should absolutely be a crime.
Monica: Yeah. For a split second thought about me being on the other end of that and I was like, "I feel so violated."
Brandon: I don't have that worry.
Monica: Yeah. You're like, "I'm not worried about that." I don't think anybody's gonna— Nobody's gonna do that. Nobody's gonna be like, "Oh, you know what I wanna see." Nobody gives a shit. Yeah. Which is good for me.
Brandon: Listen. Not good for you. You never know. Somebody could violate me.
Monica: You might have some crazy fans out there.
Brandon: Not yet.
Monica: Come back with a warrant, baby. We got our come back with a warrant crazy fans. I love it. With your lion paws from episode one.
Brandon: Yeah, right, from my— With your hands. Whatever. Whatever it is. But in any event—
Monica: Oh. Oh, God.
Brandon: That is horrifying.
Monica: That would be so funny.
Brandon: Yeah.
Monica: Not really. Not really, but— but kind of. I don't wanna— I just— Now I'm glad. Now I'm really thankful this is a new felony.
Brandon: Right. Episode.
Monica: Yeah, yeah, yeah. So stay tuned.
Brandon: That's a good teaser.
Monica: Yes. But yeah, no, hopefully nobody is making AI deep fake porn of me with lion hands. Anyways, we're talking about AI deep fake porn.
Brandon: I think this was a big thing with celebrities forever and I think now that AI technology is so accessible, it has become too easy to put any person in any situation and that's bad. And also, the more depraved the individual, the more depraved way they're going to use AI and show, you know, images of all different kinds, all different people, all different ages, and that's going to be a problem. So for it to be a law makes total sense.
Monica: Yeah, makes sense. The law needs to adapt with technology and AI and the things that are happening, so that's definitely valid. And there's also other new laws related to sex crimes, which is luring and enticing children online, which was already a crime but they made it a higher degree of felony in Florida, so now it's carrying a longer minimum sentence and repeat offenders face enhanced minimums. So which technically still could've been a thing before under the law in Florida because of like sentencing enhancements, but now it's like, "Okay, if this is your second time, you're now in a higher degree."
Brandon: Yeah. I feel like I need a bell for this episode to hit every time I agree with one of these new laws.
Monica: You're like— And like there's a ding, like yeah, obviously. Except the first time DUI one. Honestly, that one pisses me off.
Brandon: Well the first time refusal one—
Monica: Which is also, yeah— that is— That's messed up. That's problematic because there are a lot of situations where somebody may want to say no to giving a breath sample, and they may not be at that, you know, .08 level or they may just be saying no because they always believed— they've always believed that saying no to give a breath sample is the way that you're supposed to do it, which—
Brandon: They have a right to remain silent, wow, look at that.
Monica: You know. That's why I feel like they passed it 'cause they're trying to get us and our clients.
Brandon: Well, they're definitely trying to get our clients. They feel like, "Not us." I don't think the Florida Department of Law Enforcement's listening to come back with a warrant and thinking to themselves, "You know what—"
Monica: Good. "You know what we need?"
Brandon: Not good.
Monica: The more the merrier.
Brandon: Listen, if they're getting ideas to pass laws against our clients—
Monica: Never mind. Then don't listen. The next one we have, which is, this is the one I wanna talk about, is criminal use of tracking devices, like putting— This one's crazy 'cause this is, again, not mad about this. This one I'm not mad about it, but I think this actually comes up a lot more often than people think.
Brandon: Yeah. I haven't had a case like this, though.
Monica: Yeah. So, it is now a felony in Florida if you put a tracking device on somebody without their consent. I.e. like, your tag.
Brandon: An AirTag.
Monica: Like, just dropping it in someone's bag.
Brandon: Right.
Monica: And it's wild, but I have gotten a lot of phone calls on domestic cases where there are— usually it is somebody asking me to help write a petition for an injunction—
Brandon: Because it's like— Injunction.
Monica: And it is a victim in a case that is the one that's being tracked. I've never gotten the call of someone that's like, "Hey, I'm tracking this person."
Brandon: Well that makes sense.
Monica: Yeah. "Let me, you know, help me finish tracking them."
Brandon: Like, "Can you help me continue tracking them?" You don't get that phone call, no.
Monica: And an injunction is a restraining order, by the way. But yeah, that's definitely scary. I would definitely feel like— 'cause you can track from your phone. Like it's so easy to track now. Like technology is just, ugh.
Brandon: Right? I do have a friend that is a family attorney that reached out to me and asked me if it is illegal if their client is doing this, and their client was doing this and I said, "Yes, it is illegal." And they said, "Okay. Thought so," and that was the end of that conversation. I don't really know what happened after that.
Monica: But it's crazy that it wasn't a crime before. That is, yeah, that's crazy. Like, just— And how easy it is to get a device that you can—
Brandon: An AirTag? How much are they? 30 bucks.
Monica: And AirTag, right, and then how easy it is to actually track somebody. It's like— anybody can do it.
Brandon: Right.
Monica: Anybody that's a manipulative, controlling, whatever, and that makes sense that it would be in domestic 'cause that's oftentimes the dynamic between—
Brandon: That's usually when that happens, yeah.
Monica: Yeah, people. Oh, my. That's so crazy.
Brandon: Kind of wanna get a case like that.
Monica: I would like to put some AirTags on my kids' shoes for when we go to Disney. Like that's not, that should be fine.
Brandon: But that's your kid.
Monica: Yeah.
Brandon: Well, obviously.
Monica: You're like in ownership.
Brandon: Yeah. I have a few AirTags but I think all the batteries have died and they were all in, like, bags.
Monica: Yeah. They're very easy to slip in anywhere you need to.
Brandon: Yeah.
Monica: Don't take this as advice to—
Brandon: No, this is not advice. That was not advice to slip in an AirTag.
Monica: But don't most couples— Track each other already? Have the thing on their phone?
Brandon: Yeah, where it's like you can see— I guess.
Monica: I guess it depends on— Or is that maybe not a thing? I don't know.
Brandon: I guess it depends on your relationship.
Monica: No.
Brandon: When Jen got pregnant, I—
Monica: You're like, "Share your location."
Brandon: Got the— at some point she turned on the tracking. And it's never been off.
Monica: Yeah, I feel like it makes sense. But it's like what if— For efficiency purposes? What am I doing?
Brandon: Yeah. You know what? I've actually been caught doing something on the tracker. It's true.
Monica: What, a surprise for her?
Brandon: No. I did something one time and thought to myself, "I'm never gonna get caught. This is it. I'm never gonna get caught doing this."
Monica: Are you gonna tell me?
Brandon: I'm gonna tell you. And I got caught.
Monica: I was like, "What did you do?"
Brandon: She caught me in the act and was like, "You're getting ice cream right now." And I was like—
Monica: No, you went to get ice cream without her? That's fucked up. That's fucked up.
Brandon: I was downtown already at an event— I'm sorry, babe. I was downtown at an event and I was leaving the event to go home and I was like, "Oh, really would like some ice cream," and I stopped and I got ice cream. I did, and she caught me. There's never been a time where I have been, yeah, that my wife is tracking my location. Like I've never been concerned and she—
Monica: Oh, my God. It's the one time. That's so funny.
Brandon: So, yeah.
Monica: I don't blame her.
Brandon: No. I would've been mad. I would've been like, "Get me cookies and cream, please." Never did it again.
Monica: Never did it again. I have gotten caught. Oh my God, that's so funny but it was with your consent, so it was not a felony, and it also wasn't a crime before.
Brandon: Yeah, it was, it was definitely my consent.
Monica: Yeah. There's also a new law that has been passed for cyber harassment for profit, meaning if you take somebody's content off OnlyFans and websites like that and then you try to distribute for profit. Also another one I'm not mad about because you're taking out of, honestly, the way people make their money. It's the way they make their money, like whatever. People should not be profiting or capitalizing off somebody else's images, work, content, like— no.
Brandon: Now, does this include— I know it's anti-doxxing. Does that also include people getting in trouble if you threaten to give out somebody's name and address and phone number and things like that?
Monica: I don't know. I don't know if that's covered under this law. I don't think so 'cause this one seems to be more— Well, maybe if it's for-profit.
Brandon: That's what I was gonna say.
Monica: So, actually maybe, but I don't—
Brandon: So if somebody was selling to somebody else, somebody's address and phone number, I guess?
Monica: I think so, yeah. I think so if it's for-profit. Again, that's something that makes sense because doxxing has become a huge thing also, but that's for high-profile people—
Brandon: Yeah.
Monica: And celebrities, and— It's so easy to get people's like— ultra rich.
Brandon: Yeah. Yeah. Just putting people's addresses and phone numbers and things like that. If you're— The more high-profile you are, I mean, if you're doxxed, that's a pain in the ass.
Monica: Mm-hmm. You have to change your phone number, you have to change your email. Whatever, I don't know.
Brandon: No. We don't— Not yet. Don't dox us.
Monica: No. We'll find you.
Brandon: There you go. The next one is— This one's also a big one because there have been so many instances this year, and actually in the last few years, against prosecutors and judges, and specifically in Palm Beach County.
Monica: I'm like— Oh, man. He's like been dying— I know. I wanna talk about that.
Brandon: To talk about a specific case.
Monica: Yeah, that's— But— That could be a whole episode.
Brandon: Yeah. So, there were instances, many instances, in Palm Beach County recently where there were some harassing comments and posts made against judges and prosecutors. And so now, they've made it an enhanced felony to make threats to them. It's basically, like, making threats to law enforcement. Like, that's basically the type of law that they've made, but it's against judges— to protect judges and prosecutors.
Monica: But I mentioned this to you off the record, but, like, I don't know. I feel like public defenders, or maybe public servants or something like that—
Brandon: You think public defenders should be included in this law?
Monica: Yes, because, well, I know that would create a lot of conflicts because the PDs get appointed on cases—
Brandon: Right.
Monica: And then it would have to go to the conflict counsel office. But, I think that PDs get threatened a lot. There have been so many instances where they're getting punched at the podium and like— I mean, that's, which is still a crime. But it's just not an enhanced crime. So it's like they're the subject of so much shit.
Brandon: I think— Directly. I could see public defenders having something applicable similar to this in situations that were after the case was over. So, if you had a client, the case went a certain way, the client went to jail, the client gets outta jail, and now they start threatening you, a law there that would protect you.
Monica: I need that. Not gonna say anything else.
Brandon: Well.
Monica: I need to be protected under that law. Oh, my. Say less.
Brandon: Yeah.
Monica: Oh, no.
Brandon: There are some people out there that just, you know, can't stop, won't stop.
Monica: Those are your fans.
Brandon: And haters.
Monica: And haters.
Brandon: Well, haters are fans, actually.
Monica: Okay. You don't think so? Sometimes. I feel like haters, like, can attribute a lot to the haters and I'm like, "You know what? Thank you."
Brandon: Well, I don't hate the haters.
Monica: The haters hate you.
Brandon: Well, yeah. That's their job, but I don't— I don't know.
Monica: Yeah, you're like, "Whatever." You know.
Brandon: I think Alex Rodriguez once made a comment about how it doesn't matter if people are all booing your name or all cheering your name.
Monica: Exactly.
Brandon: It doesn't make a difference. Like—
Monica: They're still promoting you. That's my point.
Brandon: Yeah.
Monica: So whatever.
Brandon: The more the merrier.
Monica: The more comments on TikTok and everything else.
Brandon: Yeah.
Monica: Yeah, whatever. Isn't there a quote that's like, "Bad press is good press," or something?
Brandon: Yeah. There are a lot of quotes, so I can't—
Monica: Okay. But yes.
Brandon: All right.
Monica: Yeah. Okay, great. I'll take it. Yeah. You're like, "Yeah, there's many." Now, in leaving the scene of an accident case, which has already been kind of a thing, I don't know what offices were not enforcing this, but restitution is now required as a part of leaving the scene of an accident case. But that has literally always been— Like, I've never— Not that there is always restitution in every single one of these cases. But if there is, they're being enforced and they're asking our clients to pay it.
Brandon: I remember when I was working at the state that that was an argument defense attorneys used to make, was that restitution was not part of the statute for leaving the scene of an accident, and therefore, wasn't required. And it would only be required by agreement if we resolved the case and—
Monica: Oh, yeah.
Brandon: Agreed that restitution would be a part of it. Otherwise, it wouldn't. I always really believed that this really always should have been the way that this was written, and I actually, I went to law school with one of the co-sponsors of that bill, and I think that this is smart to put this in there and have this actually be the official language of the statute that requires restitution to be a part of these cases because the original charge was not for anything having to do with the accident itself, or causing the accident or anything else like that. Now, the restitution is only gonna be applicable where there is gonna be that causation, where there should be, as far as I'm concerned, you're gonna now have to prove causation at least. So in the past there were situations where somebody would be charged with leaving the scene of an accident and they'd be responsible to pay damages by some agreement and they weren't even the one that caused the accident. This at least puts the person that leaves the scene of the accident and the person that caused the accident— I think it changes the situation a little bit. I hope I didn't make that more confusing.
Monica: No, but I wanna kind of break down some things you said just in case some people don't know what it is that we're talking about. So leaving the scene of an accident, obviously it's when you get into an accident and you leave the scene, you don't stay to exchange information, call the police, whatever. That is a criminal charge. Usually, in the past, restitution would be a part of the agreement and actually a negotiating tool by defense counsel, i.e. me. I would do that—
Brandon: Mm-hmm.
Monica: It's like, my client will pay restitution if you're willing to drop, blah, blah, blah. Now, we lose that negotiating power in a sense, or, if it's not a part of the agreement, you agree to resolve the case and then you will do restitution hearings separately or after the fact, and then usually they have to prove causation that there was, you know, the defendant caused the crash and then left the scene and that they are the result of whatever restitution is required. So it's like medical bills, if somebody's injured in a crash, or if their car insurance is not covering the damages—
Brandon: The out-of-pocket expense is not covered by insurance.
Monica: Yes. Exactly. Out-of-pocket expenses not covered by insurance. That's the definition of restitution. I think that's—
Brandon: Good.
Monica: Generally how I— Yeah— define it, yeah.
Brandon: That's real good. That's how I explain it.
Monica: That's how I explain it to my clients.
Brandon: Yeah, I'm like over-explaining.
Monica: You're like, just straight to the point. No, but that's, yeah, that's the deal. But, interested to see how this works exactly because requiring the restitution now does bring up that issue about who caused the accident when initially the cause of the accident didn't matter. It was just a matter of who left got the criminal charge.
Brandon: Yeah.
Monica: That still should be the case but now with restitution being a part of it, does that mean that— It's like an extra element now.
Brandon: Correct, and it also may benefit the driver, or it may benefit the defendant or it may hurt the defendant because they may be on the hook for money that they shouldn't be paying or they may not be on the hook for money they're paying if it goes to a hearing and causation's required to be proven.
Monica: Yeah, I didn't even think about that, it being an added element. So now it might become more— like LSAs usually are easy to resolve. They're usually kind of— they don't really go to trial unless it's attached to a DUI or something.
Brandon: Right.
Monica: And that, I think, will make it more litigious. Like, I think people will probably start, depending on the scenario of the accident, but if you believe you were not at fault and there is an argument to be made then maybe these will go to trial.
Brandon: Yeah, I think this could wind up creating certain issues about the restitution because I think prosecutors are going to say the other party, whether they're the alleged victim or not— and I call them the other party in a leaving the scene case because they may not have been the one that caused the accident or they may be the one that caused the accident— the other party is now entitled to the damages on their vehicle, but if that's the one that caused the accident, why should they be entitled to that restitution?
Monica: Yeah.
Brandon: So I think it could cause an issue, but ultimately I think a smart prosecutor that is handling one of these cases that is presented with a leaving the scene of an accident from a defendant that's got no criminal history and there is some low level of restitution, I think they absolutely should be looking to resolve it by getting that restitution paid up front and then resolve the leaving the scene with a dismissal—
Monica: In a more favorable way, yeah.
Brandon: Or something else. The other problem is the leaving the scene of an accident has license ramifications, so when you're talking about somebody having a suspended license, if they look to see how many times they've had a suspended license or how many other issues there have been with the license, that leaving the scene will pop up and that's bad.
Monica: Yeah. And it can also be described as a crime against moral turpitude.
Brandon: Yes. So that's another problem.
Monica: Well, that's oftentimes— Which is an immigration issue. Yeah, I was gonna talk about that 'cause oftentimes people do leave the scene of an accident because they're scared to even encounter law enforcement because they're afraid of their legal status in the States and so they leave. And there's a problem now because the federal government is incentivizing local government or state government to enforce immigration by— I don't know what they're doing, providing names or locations as whatever— and they'll give it to immigration and they'll be incentivized financially. So I think it's like a thousand dollars they get paid to basically turn people over when they find out that they don't have legal status. So I see the pickle people are in when they don't wanna stay or stick around.
Brandon: Yeah.
Monica: But it just is what it is. Like that's just always been the law and if you get into a car accident you should stop and exchange information. That doesn't necessarily mean the police will show up. Police only have to be called if it's damages over $500. I discovered that being in a car accident myself.
Brandon: Oh, didn't know that.
Monica: Yeah.
Brandon: Well, I think injury to another—
Monica: Well yeah, there was no real injury, yeah, exactly. But oftentimes these LSAs are not really—
Brandon: They're not crazy.
Monica: No, the misdemeanor LSAs do not have injury to—
Brandon: Yeah.
Monica: Another person.
Brandon: Exactly. Because once you have that injury now we're talking about a felony.
Monica: It's a felony, exactly. So the leaving the scene where the restitution element is going to apply—
Brandon: It's probably both, yeah.
Monica: But the scenarios we're talking about are misdemeanor crimes.
Brandon: Yeah.
Monica: Yeah. So that was a good distinction 'cause I forgot about that. But the next one is death penalty for trafficking vulnerable victims. So they've made it basically an aggravating factor for capital punishment if you're human trafficking minors, elderly or disabled people causing death, then that would be an aggravating factor to then add to— if you listen to the death penalty episode you'll hear us talk about aggravating factors. So they've made it now a new factor to have if this victim was human trafficked, was a minor, was an elderly person or a disabled person, and resulted in death i.e. murder, then now it's an aggravating factor— which, again, I mean, I'm not a fan of expanding the death penalty, I already expressed that before, but not mad about this one either.
Brandon: Yeah, I am not mad about this.
Monica: Well, that's kind of straight-forward.
Brandon: Yeah, I mean, that's, it is what it is. There's not much to say about that one. I mean if you're human trafficking and people are dying and you're being charged with those deaths, now this is an aggravating factor that can enhance the case to a death penalty.
Monica: Yeah, it's like human trafficking a protected person which is one of those 3 people, so it's like disabled, elderly or minors. So I think all that to say is that Florida's definitely putting more— I think becoming more tough on crime, having stricter— one, changing with the times, changing with technology because obviously there's a lot of new laws that are changing with AI— you know, the law we discussed regarding the porn and the tracking devices— and honestly the tracking devices, it should have been a thing.
Brandon: Yeah.
Monica: Okay, but I think overall legislation is being passed to be harsher on crimes and—
Brandon: Except gun crimes because that's the opposite— because now you're— we're—
Monica: Yeah. Open carry makes it a little bit different.
Brandon: Yeah, but still, because there's so many enhancements and stuff. So once you commit a crime and there's a gun on you, it's not like you're off the hook with a gun.
Monica: Right, that's true.
Brandon: So it's just like simply having a gun— the state has made, the state makes it easier to have it and just walk around with it and show it off, but the state is very tough once a gun is involved in a crime.
Monica: Yeah exactly. All that to say, make sure you stay vigilant, pay attention to your state's laws, and if you're in Florida make sure you listen to this episode.
Brandon: Yeah, absolutely. I don't think I have anything else. Should I wrap up?
Monica: No, I think that's it.
Wrap-Up
Brandon: Okay, well if you like listening to this episode, make sure you check the show notes and you subscribe to our newsletter and like, comment, and subscribe to all of our platforms at ComeBackWithaWarrant.pod. Leave us a five-star review.
Monica: And if you did not like listening to us—
Brandon: Come back with a warrant.