Habitual Traffic Offender Challenges

The laws in Florida concerning the Habitual Traffic Offender statute cause many unjust situations. Sometimes, a person receives a five (5) year revocation of their driver’s license merely because they paid the fine for three civil infractions for unknowingly driving on a suspended driver’s license or entered a plea to a charge of knowingly driving while license suspended or revoked.

Getting the revocation or suspension lifted requires understanding the intersection between:

• post-conviction motions for relief;
• the Florida habitual traffic offender statute; and
• charges for driving while a license is suspended or revoked.

Below are several recent decisions that are important to any strategy to help an individual facing a Florida habitual traffic offender revocation.

At Sammis Law Firm, we are dedicated to helping individuals who have been declared a habitual traffic offender. We can help a person petition the court for relief to reinstate their full driving privileges. In some cases, we filed a post-conviction motion to attack one of the underlying offenses that caused the HTO revocation.

Conta us to speak directly with an attorney. This article explains what we can do to help you get your driver’s license back. Read about recent cases in which we helped our clients lift the HTO revocation.

The Five Year HTO Revocation

Florida Section 322.27 – Authority of the Florida Department of Highway Safety and Motor Vehicles to suspend or revoke a Florida Driver’s License

(5) The Florida DHSMV shall revoke a driver’s license of any person designated a habitual traffic offender, as set forth in section 322.264, and such driver shall not be eligible to be relicensed for a minimum of five (5) years from the date or revocation, except as provided for in Section 322.271. Any person whose Florida driver’s license is revoked may, by petition to the Florida DHSMV, show cause why the driver’s license should not be revoked.

Section 322.24 – Using Out-of-State Offenses to Suspend Florida Driver’s License

The Florida DHSMV is authorized to suspend or revoke the driver’s license of any Florida residence, upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in Florida, would be grounds for the suspension or revocation of the driver’s license.

Florida Habitual Traffic Offender Law – Section 322.264

The felony offense of driving after being designated a Habitual Traffic Offender, Section 322.34(5), Florida Statutes (2003), provides that “[a]ny person whose driver’s license has been revoked pursuant to s. 322.264 (habitual traffic offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree . . . .”; A “habitual traffic offender” is defined in section 322.264, Florida Statutes, as “any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period.”

(1) Three or more convictions of any one or more of the following offenses arising out of separate acts:

(a) Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle;

(b) Any violation of s. 316.193, former s. 316.1931, or former s. 860.01;

(c) Any felony in the commission of which a motor vehicle is used;

(d) Driving a motor vehicle while his or her license is suspended or revoked;

(e) Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another; or

(f) Driving a commercial motor vehicle while his or her privilege is disqualified.

(2) Fifteen convictions for moving traffic offenses for which points may be assigned as outlined in section 322.27, including those offenses in subsection (1).

The “Gotcha Holding” for Habitual Traffic Offenders

Otherwise known as the “Gotcha Holding” – Bolware v. State, 995 So.2d 268 (Florida Supreme Court, Decided September 18, 2008)

In Bolware v. State, 995 So.2d 268 (Fla. 2008), the Florida Supreme Court considered a case in which the driver filed a motion to vacate a conviction for driving while license suspended or revoked with knowledge.

That DWLSR conviction caused the man to become a Habitual Traffic Offender under Florida Statutes Section 322.27(5) with a five year revocation of his Florida driver’s license.

The man alleged that his no contest plea to one of the underlying offenses was involuntary because his attorney never told him that the plea would cause the Florida DMV to label him a habitual traffic offender and revoke his driver’s license for five years.

The trial court held an evidentiary hearing in which the man testified that neither his trial counsel nor the trial court told him his license would be revoked for five years as a result of the plea, and but for that fact he would not have plead “no contest.”

The trial court denied the motion. The Circuit Court reversed the trial court.

The District Court of Appeals sided with the trial court ruling that the man was not entitled to set aside his conviction. The case then when up to the Florida Supreme Court which also sided with the trial court refusing to grant the man any relief.

The Bolware Court found:

“[g]iven our conclusion that the revocation of a driver’s license is a collateral consequence to a plea of no contest to the charge of DWLSR… [we] hold that neither defense counsel nor the trial court was required to advise Bolware that his license could be revoked.” In a dissenting opinion Justice Anstead writes that “[u]nder the majority’s ‘gotcha’ holding, we can only imagine a defendant’s startled reaction when, upon deciding to plea to the charges, she is told about all of the possible consequences of her plea except for the permanent revocation of driving privileges that the trial court then ‘surprises’ the defendant with after accepting the plea.”

Although the Bolware court did not grant the man any relief, this decision dealt only with a claim that the plea was involuntary because neither the trial attorney nor the court advised the man that his license would be revoked. In many of these cases other grounds exist for post conviction relief, including not being advised of some direct consequence of the plea, possible defenses that could be used to fight the charges (such as a motion to suppress his identity after an illegal stop), or some misadvice given by counsel or the court concerning the consequences of the plea as it relates to a revocation of the driver license. Additionally, Bolware did not address a case in which the defendant allegedly waived his right to counsel before entering a plea to a criminal case. In many of those cases, the waiver of counsel was not valid because important procedural protections were not followed.

Additionally, the Bolware case is important because it recognizes the five year HTO revocation is a serious consequence of which the defendant “should” be told as part of the plea colloquy. In fact, in a footnote, the Florida Supreme Court directed the Criminal Procedure Rules Committee of The Florida Bar to draft language to add to the plea colloquy. “That colloquy should specify that if the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is one for which automatic, mandatory driver’s license suspension or revocation is required, regardless of whether the suspension or revocation is by the court or by a separate agency, the trial court should inform the defendant that the plea may result in automatic, mandatory suspension or revocation as part of its plea colloquy.”

The most problematic part of the Bolware case is that it does not address the problem when an individual receives a civil infraction for DWLS without knowledge and pays the ticket. In those cases, the individual never goes to court. If the could “should” advise the individual of the consequence of the plea causing a HTO revocation, then how is it possible that an individual can pay a ticket for unknowingly DWLS and get a conviction without ever entering a courtroom or seeing a judge?

Department of Highway Safety and Motor Vehicles v. Rosenthal, 908 So.2d 602 (Fla. 2d DCA 2005) –

The defendant entered a plea of “nolo contendere” to the criminal offense of driving while license suspended or revoked (DWLSR) and the trial court withheld adjudication. The appellate court held that this disposition constituted a “conviction” under the statute that defined “habitual traffic offender” because the focus of the term “conviction” was whether the offense was actually committed, rather than the judge’s decision to withhold or impose adjudication.

State of Florida v. James, 928 So.2d 1269 (Fla. 2d DCA 2006) –

Defendant was charged with felony driving on a revoked license as a habitual traffic offender in Polk County, Florida. The elements of that offense require the State of Florida to prove that (1) DMV maintains a record on the driver, (2) DMV’s records show the requisite three separate convictions within a five-year period, and (3) DMV notified the driver. The prosecutor for the State of Florida may admit a certified copy of DMV’s driving record at trial to establish proof of these elements to have a prima facie case.

The Defendant file a motion to dismiss the charge arguing that there was no factual basis for one of the underlying offenses, a conviction for driving while license suspended in Hillsborough County, Florida. The Defendant alleged in his motion to dismiss that his driver’s license should not have been suspended when law enforcement stopped him in Hillsborough County. In fact, his license was suspended only because the court clerk’s office in Sarasota County failed to submit a clearance to the DMV indicating that the defendant had paid a fine for an open container violation in Sarasota County. According to the Defendant, because he thought he had a valid license and should have had a valid license absent the clerical error, there was no basis for the Hillsborough County charge of driving on a suspended license. The Defendant has also filed a post-conviction motion in Hillsborough County to set aside that underlying conviction in Hillsborough County.

The appellate court ruled that the issue for the motion to dismiss was whether the DMV record as it existed at the time the offense was committed showed the underlying offenses. Any post-conviction motion to set aside one of those underlying convictions after the arrest would not impact the case on the day of the offense. At the time of the arrest in Polk County, FL, for the felony offense of driving while license suspended or revoked as a habitual traffic offender, the DMV records accurately reflected the habitual traffic offender designation. The allegations in the Motion to Dismiss did not defeat the prima facie case. Thus, the trial court erred in granted the motion to dismiss.

Perryman v. State of Florida, 744 So.2d 1031 (Fla. 4th DCA 1997) –

Defendant entered a plea of no contest to the charge of felony driving while license suspended or revoked after he reserved the right to appeal the denial of his motion to dismiss the charge. The District Court of Appeals held that because the defendant had been declared a Florida habitual traffic offender he could not be charged with a felony under Florida Statute Section 322.34(1) for his next offense. The appellate court ordered the trial court to grant set aside the conviction and grant the Defendant’s motion to dismiss the felony charge of driving while license suspended or revoked.

Department of Highway Safety and Motor Vehicles v. Hagar, 581 So.2d 214 (Fla. 5th DCA 1991) –

Defendant’s Florida driver’s license had been revoked based on having fifteen (15) moving violations for which points were accessed within five (5) year period petitioned for writ of certiorari challenging Florida’s revocation order in Citris County, Florida. The Citris County Circuit Court granted the petition and quashed the license revocation and directed the reinstatement of man’s privilege to drive. The State appealed to the Fifth District Court of Appeals that held that Florida was not estopped from revoking the man’s driver’s license under laches defense.

Zarsky v. State, 300 So.2d 261 (Fla. 1974) –

The Florida Supreme Court upheld the constitutionality of the habitual traffic offender statute. The court opined that it has long held the view that if the holder of a driver’s license “cannot demean himself as a careful user, considerate of the rights of others to do likewise, he becomes a public nuisance and should be excluded temporarily or permanently from their use.”

At the Sammis Law Firm, we see the consequences of these “gotcha” decisions. If you want to discuss your case with a criminal defense attorney experienced in driving while license suspended or revoked cases, or habitual traffic offender revocations, call us at (813) 250-0500.

This article was last updated on Friday, May 26, 2023.