Why The Courts Are Wrong About Calculating HTO Status

The Definition of Habitual Traffic Offender

Section 322.264, Florida Statutes, is not a penalizing statute but simply a defining statute. Once a person has been defined as a Habitual Traffic Offender [HTO] by the Florida Department of Highway Safety and Motor Vehicles [Department] their driving privilege is revoked pursuant to s. 322.27(5)(a), Fla. Stat. How a person is defined as being HTO is the focus of this article.
Let’s look at the verbatim definition found under s. 322.264, Fla. Statutes:

Habitual traffic offender defined.—A habitual traffic offender is 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:

If we review a driving record as maintained by the Department we can clearly see two dates for each infraction. One date indicates the day the citation was issued and the other date is the date the citation was resolved (by either paying the fine, entering a plea, or being found guilty by the court). For purposes of this article we will consider the date the citation was issued as the offense date and the date the citation was resolved as the conviction date.  The question posed is whether the Department must use the Offense Date or the Conviction Date when calculating the 5-year time frame.
The remainder of the statute explains what the offenses are that are counted in the definition.

How The Courts Have Interpreted The Definition For Habitual Traffic Offender

In State v. Phillips, 852 So.2d 922, 924 (Fla. 1st DCA 2003), the Court simple confirms that s. 322.264, Fla. Stat., is used to define (designate) a person as HTO for purposes of revoking that person’s privilege to drive under 322.27(5)(a). Further, the Courts rely on the definition in order to find a person guilty of violating s. 322.34(5), Fla. Stat. See, Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2001).
However, the question posed here is how the courts are interpreting the calculation methods the Department uses to define a person as HTO under s. 322.264, Fla. Stat. In Rodgers the Court seems to skim over this point relying only on whether the defendant had been so designated:

To sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5 year period, and that DMV gave the motorist the statutory notice.
Emphasis added.

In the Court’s defense, the issue was not about how the definition was interpreted but whether the defendant had been designated HTO by the Department. With that in mind the above-quoted text does reveal something about how the court views the definition. Note that it states that its record shows the requisite three separate DWLS convictions within a 5 year period.
In State v. James 928 So.2d 1269 (Fla. 2d DCA 2006), we again have a Court addressing an issue slightly askew of directly addressing how the Department designates a person as HTO but in the verbage of the opinion we again see the same references:

For a conviction, the statute requires the State to prove that (1) DMV maintains a record on the motorist, (2) DMV’s records show the requisite three separate convictions within a five-year period, and (3) DMV notified the motorist.
Emphasis added.

The James court adds:

Whether or not his challenge to the Hillsborough County conviction has merit, at the time of the Polk County charge, the DMV records accurately reflected the existence of three prior convictions.

The courts seem to suggest that the Department use the conviction dates rather than the offense dates when designating a person as a Habitual Traffic Offender. See, Rodgers footnote 4 (The DWLS conviction dates were March 10, 1992 in Duval County; May 2, 1992 in Indian River County; and January 14, 1997 in Indian River County.)(Emphasis added)

Logical Fallacies With The Courts’ Interpretation

If we take the Courts’ interpretation as correct (three conviction dates within a 5-year period) then we have to accept the logical inferences that it puts forth as being the legislative intent of the statute. Remember that the definition clearly requires something to occur within a 5-year period. The two possibilities are whether we use the offense date or the conviction date. Let’s look at the inferences of using the conviction date:

Conviction Date Inferences

  • A conviction date does necessarily coincide with the bad act.
  • A conviction date can be manipulated by a defendant.
  • A conviction date can be manipulated by the court.

If we accept the courts’ interpretation then we must conclude that the legislature intended that the definition of a person as a Habitual Traffic Offender will be determined not by the bad act itself but rather by the follow-on decisions of the defendant or the court. A defendant or his/her attorney along with the court decides the conviction date. This variable can allow a defendant charged with one of the specified offenses to try and put off the resolution of the case until after the 5-year period has run if the court agrees to the delay. Not only is this possible it occurs within the courts everyday. Defense attorneys will ask for delayed resolutions in order to specifically avoid their client being designated a Habitual Traffic Offender.
As a former prosecutor I find it hard to believe the legislative intent was allow defendants the ability to avoid the penalties of s. 322.27(5)(a), Fla Stat., simply by putting off the resolution of their case until after a specific date. The absurdity also stands out when the specified offenses are spread out over a 15 year period yet all are resolved within the 5-year period and the designation is ordered. Is the legislative intent of revoking a person’s driving privilege meant to punish the bad driving or to punish the timing of resolving such driving?

Offense Date Inferences

Conversely, the opposite inferences occur if the offense date is used:

  • Offense date coincides with the bad act.
  • Offense date cannot be manipulated by the Defendant.
  • Offense date cannot be manipulated by the court.

The Grammatical Approach To The Definition Of Habitual Traffic Offender

Let’s look again at the statutory definition. This time let’s remove some of the verbage that is not necessary starting first with the as maintained by the Department of Highway Safety and Motor Vehicles language. We can assume that record refers to the one maintained by the Department. Next let’s get rid of the reference to the description of the offenses, described in subsection (1) or subsection (2), since that simply defines the term offense as used in the statute.
What we have left is the following:

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

Now lets focus on the critical part – the specified number of convictions for offenses within a 5-year period. It seems as if the Department, along with the courts, have read this from the perspective that the term offenses modifies convictions despite the fact that the preposition for clearly refutes that possibility. Additionally, the preposition within follows offenses and is linked to the a 5-year period.

Let’s look at it this way:

such person has accumulated
the specified number of convictions
for offenses within a 5-year period

This is the best way to view the language. Here we can clearly see what is grammatically within the language of the statute.

Lets look at it from another perspective. What did the legislature have in mind when this was written and does the plain meaning of the statute clearly indicate this. As noted above, it seems hard to believe that the legislature would want to allow the defendant the ability to escape the penalty of a license revocation simply by manipulating the date of the resolution of the offense. If we assume they did not want that then we have to assume they wanted the offense date to be the dates found within the 5-year period.

The language clearly states for offenses within a 5-year period. We can therefore conclude that the modifying language for those offenses is that they must also be convictions. If this is indeed the correct interpretation of the statute it would prevent a defendant from avoiding the penalties imposed by s. 322.27(5)(a), Fla. Stat. and the courts would no longer have to entertain long drawn out pleas.

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