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A victim of driver license or identification card fraud will often report the incident using the using the "fraud investigation requests" form 72068 (Rev 7/11). The submission of the form will trigger a fraud investigation with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). If probable cause exists to believe the fraud occurred, the DHSMV will take action to suspend the driver's license of anyone involved in the fraud.
The DHSMV is also using facial recognition software to find fraud that occurred long before the four-year statute of limitations for such actions has expired. Innocent people who did not commit fraud are often mistakenly targeted by facial recognition software that isn't always accurate.
The DHSMV takes the position that it may suspend a person's driving privilege pursuant to §322.27(1)(d), Fla. Stat. (2017), without a preliminary hearing. The notation on the driving record says: SANCTION - OBTAINING A LICENSE BY FRAUD [PENDING SUSPENSION] DHSMV ACTION effective through _____. Section 322.27(1) (d), Fla. Stat. (2017) reads:
(1) Notwithstanding any provisions to the contrary in chapter 120, the department is hereby authorized to suspend the license of any person without preliminary hearing upon a showing of its records or other sufficient evident that the licensee:
(d) Has permitted an unlawful or fraudulent use of such license or has knowingly been a party to the obtaining of a license by fraud or misrepresentation or to display, or represent as one’s own, any driver’s license not issued him or her....
Id. (emphasis supplied).
These administrative actions are time-barred by the statute of limitations that would apply to criminal or civil actions. In Fury v. Dep’t of Highway Safety and Motor Vehicles, (Fla. 13th Cir. Ct. 2016), a Circuit Court Judge in Hillsborough County granted a writ of certiorari and required the DHSMV to remove any notation of the suspension from the driving record. The department did not take the case up on appeal.
In addition to the statute of limitations, other defense might apply such as the theory of laches or estoppel. Additionally, the types of due process violations that occur during these hearings might result in a reversal of the DHSMV action because of the writ of certiorari.
Act quickly. After receiving notice of the suspension you should immediately demand a show cause hearing at your local Bureau of Administrative Reviews Office. Before the hearing, file a written demand for a copy of any documents that will be used at the hearing and obtain a copy. Bring a court reporter to the hearing.
If you have a defense on the merits, have the driver testify about the reasons no fraud was committed. If the statute of limitations applies, the theory of laches, or estoppel applies, then asset those defenses and move to invalidate the suspension on that basis.
You have the right to hire an attorney to request and attend the administrative "show cause" hearing which is the best and fastest way to fight to get the fraud notation removed. We can also help you obtain all of the records that triggered the suspension.
If the hearing offer denies your request, you only have 30 days to file a writ of cert (appeal) with the Circuit Court to get the suspension removed from your driver's record.
If you are suspected of fraud, hire an attorney to attend your "hardship" hearing because you will be put under oath and questioned about whether you committed this criminal conduct. That information can be used against you in a criminal fraud investigation by a law enforcement officer.
In many of these cases, the DHMSV does not have enough evidence to uphold the suspension if you contest it. Call an attorney in Tampa, FL, at the Sammis Law Firm if your driver's license was suspended for fraud.
Let our attorneys for driver's license fraud allegations put our experience to work for you. Call (813) 250-0500.
Different types of driver' license or identification fraud include:
The fraud allegation can also be triggered by a Facial Recognition Scrub Case from FHP / BCII advising that a Probe Image picture for one person's driver license also matches the picture for another person's driver license (indicating that one person is using two different names).
The form requires the victim to disclose whether they know the imposter or are related to the imposter. The form also requires the victim to disclose whether any formal complaint has been made to Law Enforcement or other government entity in connection with this complaint. The victim can also request to have the record flagged.
The forms should be sent to the Fraud Section Room A327 of the FDHSMV at the Neil Kirkman Building in Tallahassee, FL.
In response to the form, the DHSMV will issue a DL / ID ADMINISTRATIVE INVESTIGATION REPORT that assigns a fraud case number. The report will summarize the complaint and the facts found during the investigation. The report will often conclude that based on information received pertaining to the case, the investigation concluded that a person obtained a fraudulent driver's license in the name of another person.
The report will document that administrative actions were taken by the motorist services which supported the fraud.
The fraud allegation can also be triggered by a Facial Recognition Scrub Case from FHP / BCII advising that a Probe Image picture for one person's driver license also matches the picture for another person's driver license (indicating that one person fraudulently obtained a driver's license in another person's name).
Help with the facial recognition technology is provided by the American Association of Motor Vehicle Administrators (AAMVA). Founded in 1933, AAMVA is a community of motor vehicle and law enforcement agencies in North America which represents member interests in a variety of forums including driver and vehicle licensing, and administration and related enforcement. AAMVA engages motor vehicle and law enforcement agencies and the private sector to advance driver license, vehicle title, motor carrier, highway safety, security, identification and enforcement practice.
The data is put into various databases including the Problem Driver Pointer System (PDPS)). Those databases allow law enforcement agencies and other organizations to search the National Driver Register (NDR) data.
Read more about how Florida is using facial recognition to find driver's license fraud.
When fraud is suspected, the DHSMV will add fraud correspondence and “Verify-Identification” flags to both records. This notation will be listed on the driving record as “correspondence” which will note an action date, citation number, and description that reads “BOLO - CONTRACT.” The DHSMV will then add a suspension or cancellation to both driving records involved in the case.
The suspension notation will be added to the sanctions section of the driving record that will show the following: Code: 45, Obtaining a License by Fraud, Pending Suspension, DHSMV Action, effective through ___.
The suspension notation will then trigger a letter to the subject’s last known address telling them about their fraud case number. The form letter provides the following information:
You may petition the Department for a show cause hearing to challenge this decision. If you do not wish to challenge this decision, you may petition the Department for a hardship hearing to apply for a restricted driver license. If approved for a hardship license, or you choose to wait until the suspension is expired, you will be required to be retested and pay all associated fees for the suspension and driver license.
The DHSMV will also issue an “order of license revocation, suspension, or cancellation” signed by the Chief of the Bureau of Records (BOR) and the Director of the Division of Motorist Services that informs the subject that their driving privilege is suspended by the State of Florida, effective on the effective date for a period of one year. The reason for this action will then be listed as “Obtaining a Driver License by Fraud.”
The notice also explains the process to apply for an administrative hearing to review your record:
If you believe that you have any legal basis to show cause why this action is unjustified, you may request a RECORD REVIEW at which time any argument, other than the validity of a conviction, may be presented to a hearing officer for review. A request for a record review shall not toll the time in which to file a writ of certiorari in accordance with section 322.31 F.S.
In our experience, you are able to do both - request a show cause hearing and also request a hardship hearing. And you should do both quickly with the assistance of an attorney. In other words, if you need to drive in Florida while the case is pending, then you need to request a hardship hearing to get the BPO.
Keep in mind that requesting the show cause hearing should NOT interfere with your right to have a hardship license. By doing both, your attorney can fight to get the notation removed from your driving record while you drive to and from work with the hardship license.
For fraud suspensions under Section 322.27(1)(d) and 322.32, the "show cause" administrative hearings are by appointment only. You are entitled to hire an attorney to represent you at this hearing. Getting any relief at the hearing without the help of an attorney is difficult.
Make the request for the administrative "show cause" hearing in writing with a request for a copy of the fraud packet and all documents that will be considered by the hearing officer at the hearing. You should serve the request on the hearing officer and email the request to: firstname.lastname@example.org.
The hearing officers are trained to schedule the hearing 30 days from the day the application request is made. The hearing officer will email a request for the "fraud packet" from Fraud Section prior to hearing: email@example.com. The request must include office # and supervisor’s name.
The fraud section will send a link to the file on SharePoint to the supervisor or designee in the office. Before the hearing, the driver should request a copy of the packet and if you are not given a copy of the packet, then when you attend the hearing make that request again and ask for a continuance so that you have time to review the packet before the hearing. The refusal to give the driver a copy of the fraud packet can result in a due process violation that can be raised in a writ of cert.
Before the hearing, the driver should request a copy of the packet and if you are not given a copy of the packet, then when you attend the hearing make that request again and ask for a continuance so that you have time to review the packet before the hearing. The refusal to give the driver a copy of the fraud packet can result in a due process violation that can be raised in a writ of cert.
If you receive a copy of the packet, your copy will likely be heavily redacted. You should make an objection at the hearing if the hearing officer has an unredacted copy of the packet because this is a violation of due process. The argument is that at a minimum, being able to see the documents being used against you is required by due process and without them you are prejudiced in presenting your defense for specific reasons that you should list outloud during the hearing.
You should also ask for a copy of the unredacted copy of the packet, although the hearing officer will likely deny this request. Then renew your objection on due process grounds and move to invalidate on that basis.
Read more about the formal review hearings for DUI cases at the DHSMV in Florida.
The attorneys at the Sammis Law Firm recently attended a hardship hearings after our client's license was suspended for fraud. We were provided with a copy of the "Fraud Hardship Hearing Report / Script" used by the hearing officer. According to the form, the DHSMV created this form on 5/2017. It provides:
Fraud Hardship Hearing Report / Script
Proof of identity / Real ID documents provided:
Great the customer and inform him/ her that the hearing will be recorded.
"Good Morning / Afternoon. I am _______, HSMV Field Hearing Office. This hearing is for __________, whose driver's license number is ________________________. This hearing is taking place in the Tampa Office of the Bureau of Administrative Review. Today's date is ___________ and time is ___________. This hearing is regarding the suspension for fraud, with the effective date of ________________, expiring on _____________.
"Your hearing today is an informal proceeding of an administrative nature, therefore, judicial procedures do not apply. Florida Statute Section 322.271 gives the Florida Department of Highway Safety and Motor Vehicles (DHSMV) the authority to conduct your hardship hearing. The purpose of this hearing is to allow you and the department an opportunity to evaluate your driving record and to determine whether a hardship license should be granted.
Applying for and/or acceptance of a hardship license, if approved, does not require nor constitute an admission of guilty to any charges or allegations of fraud.
Before we begin this hearing, I must place you under oath; please raise your right hand.
"Do you swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth? For the record, please state your full name, date of birth, and current address."
Review driving record with customer, including current and past sanctions, convictions and crashes.
Do you currently have a driver license in your possession?
Have you ever been licensed in any other state or country?
Has your driver license ever been suspended / revoked in any other state or country?
If yes, for what reason?
Have you had any other violations / convictions / revocations / suspensions that have not been mentioned?
If so, what are they?
What are your driving needs?
How many licensed drivers are in your household?
How have your driving needs been met during this suspension?
What other means of transportation are available to you?
Database / FDLIS updated:
C- Business Purpose Only
D - Employment Purposes Only
Reinstatement / License Fee: $____
Advise customer of required documents and tests or reason for denial.
Obtaining a driver license by fraud in violation of Section 322.212(5)(a) is considered a felony of the third degree pursuant to Section 322.212(6). Any criminal action brought by the state may be time-barred under the Statute of Limitations.
Likewise, the suspension of a driver license based on fraud is a sanction provided by Section 322.27, Fla. Stat. Courts consider such a sanction to be related to an ancillary criminal action regarding the same conduct.
The show cause hearing regarding the license suspension was to determine whether a sanction on a driver license was warranted based on the subject's fraud in obtaining a driver license. Although it is an administrative proceeding, it is still governed by time limitations applicable to civil actions and proceedings.
In many of these cases, the subject is not afforded due process or given adequate notice of the allegation of fraud in allegedly obtaining two driver licenses in different names.
The Department takes the position that the subject's attorney is only permitted an in camera inspection of the unredacted privileged records prior to and during the show cause hearing. Under those circumstances, the due process rights of the Petitioner are violated.
First, the Department often fails to comply with its obligations to provide the unredacted records sought through a public records request. Any failure to comply with a public records request could also result in a separate suit under Chapter 119 and an accelerated hearing pursuant to Section 119.11, Fla. Stat. If the court ordered an inspection of the unredacted records, then the subject would be entitled to inspect such records within 48 hours of the date of the order.
The Department's response to the public record request is often to redact information. The DHSMV takes the position that driver license photographs are considered privileged and not properly subject to disclosure pursuant to a public records request. The Department’s records contain all the information that was obtained throughout the years every time a driver obtained, replaced, or renewed a driver license, including the digital images, signatures, social security number, and address.
During the Writ of Certorari, the DHSMV will often file a Notice of Confidential Records Pursuant to Florida Rule of Judicial Administration 2.420(d)(1)(B)(vi), and 11 (d)(2)(A), and Motion to Seal Confidential Information Contained in Respondent’s Response Pursuant to Florida Rule of Judicial Administration 2.420(g)(1).
In these motions, the Department will argue that these records are exempt from public disclosure unless one of the exceptions to such disclosure is present. Disclosure of personal information is prohibited unless for a purpose permitted by an exception listed in one of 14 statutory subsections. See 18 U.S.C.S. § 2721(b)(1)-(14).
Section 119.0712(2)(b), Fla. Stat., (2016), provides that:
Personal information, including highly restricted personal information as defined in 18 U.S.C. s. 2725, contained in a motor vehicle record is confidential pursuant to the federal Driver’s Privacy Protection Act of 1994 [(“DPPA”)], 18 U.S.C. ss. 2721 et seq. Such information may be released only as authorized by that act . . . .
Additionally, 18 U.S.C. §2725(3), defines personal information as: “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status."
“Highly restricted personal information” means an individual’s photograph or image, social security number, medical or disability information. See 18 U.S.C. §2725(4).
The DHSMV will also take the position that once the Court issued the Order to Show Cause, the Department could then rely on one of the exceptions to preemption of these records; i.e., a court order or proceeding to which Respondent could file the records under seal. See 18 U.S.C.S. § 2721(b)(1), and (4); see also §322.142(4)(a)1., Fla. Stat.
Driver License Fraud Suspension in Florida - These types of fraud suspensions are so common that the Driver License Office in Bradenton, FL, recently published a handout on fraud suspensions - Susp_Fraud – Last Update: 07/24/2017. The handout is for people who have been “convicted” of committing driver license fraud (identity theft) and received notice that their driving privilege has been suspended for one (1) year. For individuals convicted of ID card fraud, your ID card has been canceled. The publication explains only two options to clear this suspension and reinstate your driver license without any mention of requesting a show cause hearing or filing a writ of cert. The only two stated options are waiting out the suspension period and then scheduling an appointment to retake all *written exams for your particular license class, retake the Driving Skills Road Test at the discretion of the Division of Driver Licenses, and pay the $51.25 reinstatement fee. The other option is applying to the bar for early reinstatement of hardship privileges. The publication provides that if BAR approves your application for a hardship license you will be issued a driver license with a specific restriction and it will be mailed from Central Issuance in Tallahassee. If BAR approves the application, then you must set an appointment to process the transaction so the restricted license can be issued.
How to Reinstate the Driver License after the "Fraudulently Obtaining" Suspension - Visit the website of the FLHSMV website to find frequently asked questions about how to reinstate a driver's license after a one year suspension for "fraudulently obtaining" a driver's license. According to the website, the applicant may petition the department for a hearing to determine whether or not fraud has been committed. If not, then the suspension will be removed. If fraud is proven, then the subject may apply for a hardship license. If approved for hardship, or if the time is expired, a test must be taken, a suspension reinstatement fee, and any applicable license fees.
If you received an Order of License Revocation, Suspension, or Cancellation, the order places you on notice that the Department is suspending your driver license based upon an allegation of fraud, including an allegation that you previously obtaining a driver license by fraud.
When the Department tries to suspend your license based upon a summary review of its own records under § 322.271(1)(a), Fla. Stat. (2017), you need an attorney to help you fight to invalidate that action during a show cause hearing or a writ of cert. Our criminal defense attorney are experienced contesting such actions by the DHSMV. We can help you safeguard your procedural rights and make sure there is not a due process violation.
Call (813) 250-0500.
This article was last updated on Friday, December 22, 2017.
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Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
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