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Malloy v. DHSMV, 19 Fla. L. Weekly Supp. 9a (18th Jud. Cir., Jul 1, 2011): Writ of Certiorari Denied – Here we have the case of the Department of Highway Safety and Motor Vehicles [Department] waiting six-years after the predicate third driving while license suspended [DWLS] conviction before they designate the driver as a habitual traffic offender [HTO] and suspend his driving privileges for the required 5-year  suspension starting in 2010.  The driver moved to quash the suspension or make it retroactive to the 2004 conviction date.  His argument was that he did not know the ramifications of his plea upon his driving privileges* and because of the delay it was too late to contest the underlying charge.  The court, in denying the petition, points out that the “long delay in the suspension process, by itself, does not create a basis for relief.” Citing DHSMV v. Hagar, 581 So.2d 214, 217 (Fla. 5th DCA 1991).

*See Bolware v. State, 995 So.2d 268, 276 (Fla. 2008)[33 Fla. L. Weekly S645a] for reasons why this argument no longer works.

Hmm, – a long delay by the Department in implementing a suspension affords the driver no relief.  This glossing over of what is, in essence, the ability of the Department to be  negligent in their duties to the detriment of the people just seems wrong.  We can banter back and forth about it being a collateral consequence, C.J. Quince’s dissent adequately points out the obvious fact that a suspension is punishment. Bolware, at 284-285.   If a person should receive a 5-year suspension when age 55 and needing to drive to work but does not have the suspension implemented until age 65 when retired, that may be a godsend.  If a person should receive a 5-year suspension when age 20 and living at a dorm in college but does not have the suspension implemented until age 30 when just hired to his or her dream job, well that’s just badluck.  I guess you could say it may work both ways under Malloy.  What the Malloy court fails to appreciate is the complete arbitrariness of their ruling and that allowing such lack of efficiency by a governmental agency can have only one possible result – detriment to the people.

Let’s take a look at a similar case that has the opposite result.  In Kuzmicz v. DHSMV, 13 Fla. L. Weekly Supp. 523a (6th Jud. Cir., Jan 27, 2006), the driver petitioned for a Writ of Certiorari when his license was suspended on August 29, 2005 for accumulation of points.  The statutory requirements for the point suspension were met on January 3, 2001.  The driver had elected to take a driving school and was required to submit proof with the clerk by January 2, 2001, but never complied.  The clerk adjudicated the driver guilty and accessed a processing fee.  The driver satisfied the processing fee on August 11, 2005.  The Kuzmicz court looked at the plain language of the law.  When a driver elects driving school but fails to comply the driver shall be deemed to have admitted the infraction and shall be adjudicated guilty.  The clerk is to notify the Department of such failure and assess a processing fee up to $18.  Section 318.15(b), Fla. Stat.  The problem, that the Kuzmicz court pointed out, was the Department waited for the payment of the processing fee before computing the points when it should have computed the points (according to the law) upon the date of the conviction ( four years earlier). See 322.27(4).

In Malloy, the court completely overlooks the plain meaning of the statute.  A habitual traffic offender is any person whose record shows that such person has accumulated the specified number of convictions for offenses within a 5-year period. Section 322.264.  The Department is authorized to suspend the license of any person without preliminary hearing upon a showing of its records that the licensee has committed an offense for which mandatory revocation of license is required upon conviction. See section 322.27(1)-(1)(a).  The Department’s ability to automatically suspend driving privileges is premised that by quickly doing so it will be protecting the public from the immediate harm posed by the driver that is guilty of such recent poor behavior.  See Kuzmicz (stating that the Department failed to adhere to the plain language of the statute by arbitrarily picking a date of conviction thus failing to promote public safety by an immediate suspension).  By allowing the Department to impose a delinquent suspension, neither public safety nor intent of the law are addressed.  The only thing promoted by the Malloy decision is the continuing inefficiency of the Florida Department of Highway Safety and Motor Vehicles.

The December Updates will be out soon.

Eric J Dirga, PA

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