Monday, January 13, 2014

Better Lock Down Your Honda Motorcycle In Fort Lauderdale - Miami, too!

Attorney Eric A. Kay

Broward and Miami Dade Continue to Rank High on Motorcycle Thefts

The most extensive recent study on motorcycle thefts and accidents was done in 2006 by Progressive insurance.  They determined that Fort Lauderdale was about statistically average compared to the rest of the US when it came to motorcycle accidents.  Good news!  However, both Fort Lauderdale and Miami made the top 10 list when it came to stolen bikes.

Now a more recent study by All State says that Florida is number 3 in the nation for thefts.  They chalk some of this up to better riding conditions year round.  They also found the five favorite brands of the thieves were (in order):
  1. Honda
  2. Yamaha
  3. Suzuki
  4. Kawasaki
  5. Harley-Davidson
Not surprisingly, the strongest bait for bike theft are powerful models with street-racing capabilities and profitable parts. Be particularly cautious if you ride a Honda — nearly 1 out of every 4 motorcycles stolen is a Honda.

No matter what the stats say, however, if you want to reduce your chances of adding your bike to the numbers, here are some suggestions from All State's esurance division:
  • Lock your ignition (the majority of thefts happen when the ignition is turned off but not locked)
  • Lock your motorcycle to a stationary, immovable object
  • Lock the forks and disc brakes
  • Install a motorcycle alarm
  • If group riding, park bikes together
  • If garage parking, hide your bike behind a car or large object
  • Check on your motorcycle periodically
  • Make sure locks are wrapped as tight as possible; slack provides room for thieves to gain access with sophisticated tools.
  • Install a hidden "kill" switch
  • If selling your motorcycle, don't let unknown buyers go for solo test rides (they may not come back)
And as with all issues of security, lock or protect your bike better than the one next to you.

If you have been injured in a Motorcycle Accident, or apprehended for theft, we can help.  In either case, do not talk to authorities.  Insurance claims adjusters and criminal justice types have a job to do, and in both cases, if they do their job well, it will not be good for you.  As you undoubtedly know, the insurance companies and the legal system aren't always "fair" when it comes to issues around motorcycles.

Call Eric A. Kay for a no cost, no obligation analysis of your case.  Our office has many years of experience dealing with criminal defense and with personal injury law.  Eric Kay is a serious motorcycle enthusiast and will handle your case from your point of view. 

Call now

Friday, December 27, 2013

Can I Make the Daddy Pay Child Support If We Were Never Married?

Watch this Movie to Learn About Paternity Actions.

My name is attorney Eric Kay. Some clients have asked me "If I have a child with someone, but we have never been married, am I entitled to anything." The answer to that question is yes, and the legal means to obtain relief is called a paternity action.

A paternity action in Florida is somewhat similar to a divorce, but with some crucial differences. In a divorce, a couple's financial assets and liabilities are analyzed. This is for the purpose of equitable distribution, in other words, dividing the property and debts of the parties to the marriage in a fair but not necessarily equal way. The relative income of the parties is ascertained for the purpose of determining child support amounts, and alimony, or spousal support amounts. If there are children born of the marriage, a parenting plan is also at issue, which specifies the timesharing of the minor children with each parent.

As compared to a divorce, a paternity action is more limited in scope. The primary focus of a paternity action is to establish for legal purposes who the parents of a minor child are, and to set forth legal obligations to make sure that the child at issue is taken care of. Since the parties to a paternity action were not married, alimony or spousal support is not at issue. Equitable distribution is also typically not involved since the two parents involved never became one under the law by getting married.

Thus, a paternity action primarily involves rights of child support and child visitation (or custody as it was previously referred to). The first issue in a paternity case is whether the parties in the action are the actual parents of the minor child or children involved. Typically, one party will allege that he or she is a parent, and that the party who is served with the action is the other natural parent. The party served will either admit or deny that he or she is the natural parent of the child. If the party denies parental status, typically the Court will order that a DNA test is conducted, as this is conclusive evidence to determine the issue.

The next factor that is usually sorted out is child support. In Florida, child support is based upon guidelines, which in turn are based on the relative income of the parties, and who is the primary residential parent. In most cases, child support is a straightforward equation that takes into account the total monthly income of the parties, and what percentage of the total income is attributable to each person. The Florida Child Support Guidelines set forth a monthly child support amount based on the total income and the number of children, and divide this amount by the pro rata share, or percentage share that each parent makes. Only in limited cases and for exceptional circumstances will the Court order different amounts than are calculated by this formula.

Finally the parties or the Court must determine a Parenting Plan to ensure that the parties have certain minimum rights as to visitation and time sharing with the child or children involved. The Parenting Plan can often become a point of argument because it is a very detailed document that specifies how the child or children will split and share time with the parents. Every weekday, every weekend, every holiday, every spring break, and every summer vacation is accounted for. If the parties cannot agree on their own or at mediation, the Court will determine a Parenting Plan I the best interests of the minor child or children involved.

While there are other issues that arise in the course of a Paternity case in Florida, these are the primary ones of concern that typically take the most time. Since equitable distribution and spousal support or alimony are not at issue however, the absence of these key issues make paternity cases easier to resolve in many circumstance than a divorce involving the very same people and issues.

12 SE 7th Street
Suite 707
Fort Lauderdale, FL 33301
(954) 330-8994

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Wednesday, December 18, 2013

Entertainers - Protect Your Rights. Entertainment Laywer in Fort Lauderdale Can Help

If you have entertainment law issues such as agency agreements or performance agreements, watch this video

Over our many years of providing legal service to clients in the entertainment industry, we see production companies, record labels or performers who find themselves in trouble due to poorly drafted agreements. Worse, we often see situations where the agreements are strictly verbal and not even written down.

Whether you are involved in film, music, theater, television, radio, or other entertainment industries, it is critical that you protect your work, and that you are properly paid. We will help you draft contracts including:

•performance agreements
•technical and hospitality riders
•confidentiality agreements
•non-circumvention contracts
•intellectual property agreements
•agency contracts

At the Law Offices of Eric A. Kay, P.A. located in South Florida, we provide legal counsel and services for entertainment matters. Our experienced team of associates represent creative talent and entertainment industry related companies in various fields. Our intent is to help you protect your rights, provide direction on business issues, and proactively address potential pitfalls before they happen.

Our firm has built a strong reputation among our clients. We have represented clients that have performed in Miami, Los Angeles, Las Vegas, and elsewhere in America as well as around the world including China, Singapore, Taiwan, and Malaysia, to name a few. We have a low volume practice and provide you with personal attention. We understand that you are unique, and that your legal issues require individual analysis. We listen carefully, and then we suggest the best options for resolving your issues. We take a personal interest in your success.

You may already have an issue with someone in the industry. Whether you are a performing artist, providing entertainment, or contracting for talent, if someone has failed to execute on their part of any deal, we can help.

Call us at 954-330-8994 to set up an initial meeting where we can assess your current needs and long term plans, and determine how we may help you. When we are working on your behalf, you have the peace of mind that allows for your time and creative talents to be spent on your craft, instead of wasting your time worrying about business issues, agreements and lawsuits.

Saturday, December 14, 2013

Eric A. Kay Accepts Membership into Elite Trial Lawyers Group


The National Trial Lawyers Top 100 Trial Lawyers Extends Membership to Eric A. Kay

Eric A. Kay continues to receive the accolades of his peers.  Kay has accepted the nomination of The National Trial Lawyers into their Top 100 Trial Lawyers Group.  As noted below, this is no small accomplishment.

According to the National Trial Lawyers Top 100 Group, invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research.
Prospective members of The NTL are carefully screened prior to receiving an invitation for membership. The criteria used in the evaluation process include, but are not limited to, the following:
  • Reputation among peers, the judiciary, and the public
  • The previous year’s achievements, settlements and verdicts as a trial lawyer
  • Board Certification as a trial lawyer or trial attorney
  • Nominations received from leading trial lawyers, current members and/or our executive committee members
  • Leadership and membership within other national and state trial lawyer organizations
  • Rankings and ratings of the attorney by established organizations.
Membership is not automatically renewed; attorneys are reevaluated annually to determine whether their activities and accomplishments qualify them for continued membership.

If you are in need of the services of an experienced and aggressive Criminal Defense Attorney, you may want to consider Eric A. Kay.  Contact:

The Law Offices of
Eric A. Kay, PA

12 SE 7th Street Suite 707
Fort Lauderdale, FL 33301

The Law Offices of
Eric A. Kay, PA

123 SE 3rd Avenue #252
Miami, FL 33131

Phone:   954-330-8994
Fax:   954-764-8220

Friday, November 22, 2013

You've Been Arrested in Fort Lauderdale, Now What Do You Do?

Step-by-step Guide to the Criminal Law Process in Florida

A person is arrested in Florida based on an officer witnessing a criminal act, or as a result of a criminal act being reported to law enforcement.  The officer generates a report known as a probable cause affidavit setting forth the charges upon which the arrest is based, and also includes a short statement of facts which form the probable cause for each offense.

After being arrested defendants must be taken to a first appearance before a judge where a bond amount is determined, based on the seriousness of the charges, the defendant's past history, the defendant's ties to the community, and the relative danger to the community that the defendant poses.
A defendant may post the bond and be released, or do nothing and remain in custody pending other action in the case.

Next the officer forwards the report to the local prosecutor's office. The reports are reviewed by attorneys in the local prosecutor's office.  The charges listed by law enforcement are merely charging suggestions.  Case filing prosecutors read the reports and determine what the appropriate charges, if any, should be.  If an officer arrest someone for A and B as an example, a prosecutor is free to file the charges as presented, or only charge A, or only charge B, or charges C and D that the officer never considered, or no charges at all.  The officer's suggestions have no legal effect except to be a basis for what bond a person has to post to get out of jail.

After the local prosecutor's office determines what charges, if any, to file against a defendant, which typically takes 30 to 40 days, an arraignment is set.  An arraignment is a defendant's first formal appearance in a criminal matter and the purpose of an arraignment is to formally advise a defendant of the charges.

In certain cases, the State will present an offer to resolve the case.  This could typically involve anything from fines to probation, to time in the county jail, to time in state prison for more serious offenses.  The offer is generally based on the nature of the charges, the prior record of the defendant, and the victim's wishes if there is a victim in the case.

The Defendant is free to accept this "negotiated resolution" or "plea."  While the judge must approve of the terms suggested by the State, with a negotiated resolution the defendant knows what he or she is getting to be done with the case.

Most Defendants that are charged with more serious offenses simply enter a plea of "Not Guilty."  This does not mean the defendant must go to trial, but means that at this time, that defendant wants to see the State's evidence, fight the case, or explore other options.  The defendant's attorney and the prosecutor will engage in a process called discovery where the State must provide the accused with any and all evidence that they seek to use against the defendant at trial.  This includes any reports, notices of any physical evidence, and a list of any witnesses who may be called to testify.

The Defendant may elect to take sworn statements of the witnesses, examine the physical evidence, hire experts, and file motions challenging the evidence to be presented.  Evidence may be excluded as a result of these efforts, and the case could potentially even be dismissed if crucial evidence is excluded.

If the Defendant elects to go to trial, the not guilty plea will be maintained throughout the pendency of the case and a judge or jury, depending on the type of case and desire of the defendant, will decide whether the State has proved their case.

If the Defendant decides that a trial is not in his best interests, a change of plea to "Guilty" or "No Contest" may be entered.  A plea of "No Contest" is often referred to as a plea in that person's best interests, without an admission and basically means, I didn't do it, I didn't not do it, but I find it in my best interests to resolve this matter without a trial.

Another option is an open plea which says: "I don't want a trial, but I don't believe I should get what the State is asking for either. So I would like the Court to determine my sentence."  An open plea is used as a last resort when a trial is not wise and the State refuses to make any reasonable offers.  In most cases, when a Defendant enters an open plea, the Court will advise the Defendant that the Judge may sentence them to the maximum amount allowed by law on the offense, and he or she is agreeing to that.  The Defendant takes the risk of getting something worse than the State is offering in order to hopefully receive something more reasonable from the judge.  In many cases, this works to the Defendant's advantage, but in some cases the sentence becomes worse than what the prosecution was looking for.  Only an experienced attorney can effectively help a defendant determine if he or she should take their chances, based on what judge is presiding over the matter, and the unique facts of the case pending.

Law Offices of Eric A. Kay

123 S.E. 3rd Ave #252 Miami, FL 33131
Phone: (954) 330-8994

Ft. Lauderdale:
12 SE 7th St
Suite 707
Fort Lauderdale, FL 33301
Phone: (954) 764-7373

Monday, November 11, 2013

The Abnormal Brain Defense Being Studied by Supreme Court

The More We Know About the Brain, the More the Impact on Criminal Law

The insantity defense bothers many when applied to mass murderers and other miscreants.  Now it would appear that more and more defendants are convincing judges and juries that brain malfunctions may have caused them to rob the local 7/11.  Ian Sample of the Guardian reports:

US courts see rise in defendants blaming their brains for criminal acts

Legal expert to Obama tells Society for Neuroscience meeting those on trial mounting ever more sophisticated defences

Nita Farahany, a professor of law who sits on Barack Obama's bioethics advisory panel, told a Society for Neuroscience meeting in San Diego that those on trial were mounting ever more sophisticated defences that drew on neurological evidence in an effort to show they were not fully responsible for murderous or other criminal actions.

Lawyers typically drew on brain scans and neuropsychological tests to reduce defendants' sentences, but in a substantial number of cases the evidence was used to try to clear defendants of all culpability. "What is novel is the use by criminal defendants to say, essentially, that my brain made me do it," Farahany said following an analysis of more than 1,500 judicial opinions from 2005 to 2012.

The rise of so-called neurolaw cases has caused serious concerns in the country where brain science first appeared in murder cases. The supreme court has begun a review of how such evidence can be used in criminal cases...

The survey even found cases where defendants had used neuroscience to argue that their confessions should be struck out because they were not competent to provide them. "When people introduce this evidence for competency, it has actually been relatively successful," Farahany said...

Despite the fact that the science is often poorly understood, and that some experts say it is too flimsy to use in court, such evidence has succeeded in reducing defendants' sentences and in some cases clearing them of guilt altogether.

The number of neurolaw cases rose from 100 to 250 a year over the eight-year survey. In 2005, neuroscience appeared in 30 felony cases that did not involve homicide. That number rose to more than 100 in 2012.

Evidence submitted to the US courts ranged from accounts of head injuries to apparent structural or functional abnormalities picked up by brain scans. Lawyers argued that these affected defendants' behaviour by making them more violent, more impulsive, or incapable of planning a crime.Some defendants escaped death sentences on the basis of neurological evidence. Others complained of poor legal assistance when their lawyers failed to have them tested for brain impairments.

Farahany said judges and lawyers urgently needed educating in neuroscience to understand its uses and limitations: lie tests based on brain scans are not infallible, and many brain studies on "criminal minds" draw statistical conclusions from populations and cannot reliably be applied to individuals.
"Law asks questions that science can't answer, and science answers questions that law doesn't ask. You can't leap from a dynamic brain scan to notions of responsibility," said Nigel Eastman, professor of law and ethics in psychiatry at St George's, University of London.

"If you look at functional brain imaging of psychopaths, there's emerging evidence that as a population, people measured as psychopaths psychologically show some slightly abnormal brain scans, but that doesn't mean you can take an individual and do a brain scan and say, 'He's got an abnormal brain.'"

But there are cases where abnormalities in the brain cause criminal behaviour. In 2002, Russell Swerdlow and Jeffrey Burns, neurologists at the University of Virginia medical centre, reported the case of a 40-year-old schoolteacher from Virginia who developed sudden, impulsive paedophilia and was convicted of child molestation. He was signed up for rehabilitation, but was kicked off for propositioning staff.

The evening before the man was sentenced, he complained of a headache and being unsteady on his feet. He was taken to hospital, where doctors found an egg-size tumour in his right orbitofrontal cortex. Once surgeons had removed the tumour, the man's urges disappeared and he was allowed home.

When the man later started collecting child pornography, an MRI scan found that his tumour had grown back. His behaviour returned to normal when the tumour was removed for the second time.
One problem facing the legal system centres on the definition of responsibility. In a rising number of cases, defendants have argued that even though they committed a crime, they cannot be held responsible because their brains made them impulsive, or violent, or incapable of premeditating a crime.

"The question is, how do we best use this evidence in ways that are appropriate, while recognising there are areas where we do things wrong in criminal law and need to improve upon them?" said Farahany.

"A lot of early failures of this evidence in criminal cases could lead to a bias against its validity and its use for a long time to come, so using it for inappropriate claims and stretching the science beyond what it actually says can be devastating," she added.

Friday, November 8, 2013

What to Do When You Are Arrested For A Crime Involving Drugs

 How To Avoid Prison Penalties For Drug Related Crimes

Florida recognizes that there are complex issues other than criminal behavior that contribute to the taking of illegal substances. Some people have not had a brush with the legal system at all until drugs lead them to be convicted felons, earning stays in jail and prison along the way. With this in mind, Florida has carved out an exception in the law of felony sentencing where a person whose life has been ruined by drugs may be better served by a long term of treatment and rehabilitation rather than a term of incarceration.

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Florida felony sentencing is largely based on the Criminal Punishment Scoresheet. For each offense that you currently have pending, and each offense that is on your prior criminal record, you will be assigned a number of points by the prosecutor. If the total number of points is greater than or equal to 44, then a mandatory stay in prison in indicated. The only ways around mandatory prison in a felony case in Florida where you score prison is: a) beating the case at trial; b) convincing the prosecutor that they should ignore the law and agree to a lesser sentence; or c) plead open to the Court while filing a Motion for Alternative Sentence or Motion for Downward Departure from the Sentencing Guidelines.

If you are not likely to prevail at trial, and the state is unwilling to disregard the law to give you a break, then your last chance to avoid prison is to plead open to the Court and either file a Motion for Alternative Sentence or a Motion for Downward Departure from Sentencing Guidelines. To prevail on a Motion for Alternative Sentence, a person must convince the Court to exercise leniency. Eligibility for receiving the sentence, which would typically involve a long term of probation and drug treatment, rather than incarceration, requires that a person a) is charged with an eligible drug-related offense; b) has had a history of incarceration or other problems due to drug abuse; and c) desires treatment for their addiction. The Court must find, in order to grant a Motion for Alternative Sentence, that a person not only has a drug problem, but is amenable to supervision and treatment. The goal, of course, is recovery and rehabilitation from the problems that caused by addiction to illegal substances. A willingness to engage in long term treatment is crucial.

Your ability to avoid prison penalties in these circumstances is dependent on the following:

  • The nature of the charge(s) against you
  • The availability of treatment programs
  • Your prior criminal history
  • Your attorney's ability to successfully negotiate or advocate an alternative course of action

The followign article from the Sun Sentinel is a great example other behavior that often goes hand in hand with sunstance abuse.

Detective hurt as cops subdue drug suspect

4:18 p.m. EDT, October 31, 2013
A Fort Lauderdale detective suffered a broken hand and other injuries when police fought with an accused drug dealer who wanted to sell $700 worth of heroin in a supermarket, authorities said.
He never made it to aisle six as planned and was instead confronted by police on his way to the store.
When the dust settled after a violent struggle, drug suspect Ricco Cintron, 21, also bruised from the altercation, was taken to Broward's Main Jail where he was being held without bond.
Cintron was charged with trafficking heroin, distributing/delivering ecstasy and other drug offenses, two counts of battery on an officer and obstructing or depriving that officer with means of protection or communication.

Along with the broken hand, the detective was taken to Holy Cross Hospital with a bruised leg and neck that was hurt when Cintron slammed it with his elbow so hard that it made the detective vomit, according to the arrest report filed in the case.

During the struggle, Cintron yelled "I ain't going to jail," the report said.
According to the report, Cintron sold undercover detectives cannabis on Oct. 16 and Oct. 17. About a week later, Cintron agreed to sell the undercover detective marijuana again.
Later that day, Cintron sold the detective $100 worth of heroin at the intersection of State Road A1A and Oakland Park Boulevard.

On Wednesday, Cintron agreed to sell the detective $700 worth of heroin—about 7 grams of the drug—and six ecstasy pills worth $100, police said.
According to the report, Cintron told the undercover detective he would sell him the heroin and ecstasy in aisle six of the Winn-Dixie supermarket along the 3800 block of North Ocean Boulevard.
But while en route to conduct the transaction, detectives in a marked police cruiser stopped Cintron, who was riding a bicycle.

While holding his hands on top of his head, he tried to sneak a hand into his pants pocket to pull a video game disc box that was later found to contain drugs, the report said.
That's when detectives moved in for the arrest and the struggle began.
Cintron swung his arms and struck one detective, while elbowing the other in the throat.
During the altercation, Cintron managed to remove a radio from the police belt of one of the detectives, police said. The other detective's radio was damaged during the incident.

They finally got handcuffs on Cintron and found heroin and ecstasy pills hidden in the game box, the report said.

The injured detective was treated for his injuries at Holy Cross Hospital, police said. or 954-356-4543 or Twitter @epesantes