How Florida Drivers License Suspensions are Determined
CAVEAT: The Department of Highway Safety and Motor Vehicles [DHSMV] and most prosecutors, judges, and defense attorneys (including public defenders) have not looked at the law in this way and in this depth. So what "should" happen and what "does" happen may be different.
This information will directly relate to the Habitual Traffic Offender [HTO] suspension. However, the basic concept applies to all driver's license suspensions including point suspensions. For drug possession suspensions and other charges that require suspensions please go to the possession suspensions. Call (407) 841-5555.
Why a 5-Year Habitual Traffic Offender suspension occurs
To have the HTO designation your driving record as maintained by [DHSMV] must show that you have accumulated the specific number of convictions (for specified offenses) within a five-year period (see the statute). The specified offenses are any of the following:
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Voluntary or involuntary manslaughter arising out of the use of a motor vehicle.
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DUI or drunk driving.
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Any felony in the commission of which a motor vehicle was used.
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Driving a motor vehicle while the driver's license has been suspended or revoked [DWLSR]. (If you ever get a DWLSR citation, either "with knowledge" or "without knowledge" call us immediately.)
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Failure to stop and render aid as required under the laws of (Florida) in the event of a motor vehicle crash resulting in the death or personal injury of another. (Personal observation: hard to render aid to the dead.)
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Driving a commercial motor vehicle while the driver's (commercial driving) privilege is disqualified.
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(The ticket method) Fifteen convictions for moving violations for which points may be assessed. See s. 322.27, FS.
This definition, found in s. 322.264, FS., leads most everyone to believe that three "conviction dates" within a five-year period will trigger the HTO designation and the suspension period. This is incorrect. The final paragraph of the statute continues this misnomer by ambiguously stating:
In computing the number of convictions, all convictions during the five years previous to July 1, 1972, will be used, provided at least one conviction occurs after that date.
This has led to readers of the law, i.e., lawyers, to lazily interpret "conviction date" as the calculation date for the five-year time period. However, this sentence actually does not address the computation method for the "period of time" - the five-years - only the "number" of convictions.
The Department's Authority to Suspend or Revoke Your License
The DHSMV does have the authority to suspend your license under certain conditions. These conditions must be known by the public - this is called presumptive knowledge of the law - before it can be enforced. Presumptive knowledge of the law is a lynch-pin for enforcing the law, otherwise "I didn't know" would be a valid defense for 90% of the crimes committed.
Presumptive knowledge is established by having all laws written for the public to read. This can be done in Florida by visiting any public library or getting online and going to www.myflorida.com and clicking on the government tab and finding the statutes.
Under s. 322.27, FS., subsection (5), the law specifically authorizes the DHSMV to revoke a license of any person designated a habitual traffic offender under s. 322.264, see above.
Okay, so under s. 322.27, FS, the DHSMV has authority to suspend - so what does this mean?
Looking at subsection (4) we find the "calculation method" for suspensions "under this section." This is the main issue with HTO suspensions. It states in unambiguous language, the following:
The department, in computing the points and period of time for suspensions under this section, shall use the offense date of all convictions.
This is the only language in any of the statutes, thus far mentioned, that addresses the computation of the "period of time" for suspensions and the term "offense date." The term used is "offense date" not "conviction date."
Another way of reading this is "only offense dates of infractions that resulted in convictions shall be used to calculate the period of time for suspensions." Regarding an HTO suspension, period of time would have to include the specified five-year period within the HTO statute, s. 322.264, FS. This in turn would mean that "offense dates" are used to calculate the number of convictions within a five-year period.
This is the only computation method that makes sense. Otherwise, if we used the conviction date method a driver could avoid an HTO designation simply by waiting to pay a ticket past a specified date. There is no way the legislature would allow these statutes to be manipulated by the public in that way.
How the Department of Motor Vehicles and the Courts can get Your Suspension Wrong
When you receive notice from the DHSMV that your license is about to be suspended because you are now designated a Habitual Traffic Offender the notice will list out the three infractions it is using and the Offense Date and the Conviction Date for these infractions. This portion of the letter will typically look something like this:
| offense date | conv. date | court | entry | description | case no. |
| 06-12-06 | 06-26-06 | orange | 3.0 pts | driv while lic canc/rev/susp | 8enu |
| 03-01-08 | 05-16-08 | orange | 0.0 pts | driv while lic canc/rev/susp | 8fch |
| 05-08-08 | 05-16-08 | osceola | 3.0 pts | driv while lic canc/rev/susp | 7fue |
It is important to calculate the five-year period with the dates under "offense date" rather than "conviction date." These must all have occurred within a five-year period of time. If the offense dates are not within five-years of each other then look at the conviction dates - these will most assuredly all be within a five-year time frame. If that is the case, the DHSMV is not following the law and they are basing your suspension on conviction dates rather than offense dates.
Do not be surprised. I have had several perspective clients come in and show me their letters with the DHSMV using conviction dates to compute the period of time. If you do not fix this problem your license remains suspended and you are liable for all penalties if you get caught driving before you fix this - even though the entire suspension may be in error due to the DHSMV!
The Department of Highway Safety and Motor Vehicles Notice Letter
Do Not Throw the Notice Away and Call Us Immediately. When the DHSMV decides that a driver's license will be suspended they will send a notice to the driver in advance of the suspension (except for lack of insurance suspensions which are immediate). Actually, what they send is not a notice - it is an Order. At the top of the page just below the DHSMV address it will state "order of license revocation, suspension, or cancellation" and below that a date. The date is important because at the very bottom of the page it states:
This order has been filed in the official records of the Division of Driver Licenses on the day and year written above. Appeals of this order may be initiated within 30 days of the date of this order by following the procedure specified in S. 322.31 F.S. HSMV F72100 PRSC MULTI REV 10/2007.
Here is the next bit of DHSMV/Legislative obfuscation. The word "initiated" in the sentence above is misleading as is the term "appeals." If you follow the reference given and read s. 322.31, FS., you will see that the actual review is by Writ of Certiorari which is different than an appeal. This writ is never "initiated." When you decide to challenge a ruling by Writ of Certiorari you must have your writ finished and filed within 30 days of the order. The date of the order, in these type of DHSMV cases, is the date on the letter which is the date mailed. When you receive the letter you already have less that 30 days to challenge it.
Most people procrastinate. By waiting you are giving yourself less and less of a chance to correct the situation. The worst part is that if you do nothing and the suspension is made in error - that erroneous suspension will prevent you from driving (or cause criminal charges against you if you are caught driving). It will not be a future defense that the suspension was due to an error by the DHSMV.
Our Office...
We represent people accused of driving with and currently have a drivers license suspension. Our goal is to get your license back and get the charge dismissed. For a consultation please contact us. Our consultations are always free.
