ERIC J DIRGA, PA

Level 1 and 2 Background Check

level 1 and level 2 background screenings

The Level 1 and Level 2 background screenings (or background check) done in Florida are very confusing when it comes to having a record sealed or expunged. Is there a benefit?

The answer is yes. Expunging or sealing a record seems to benefit a potential employee when a level 1 or 2 background check is required. Below I explain this situation.

Florida Employment Background Screenings

Relating to Expungements and Sealings of Records

Many people are confused about the interactions between Chapter 435, dealing with background screenings (background check) for employment, and sections 943.0584 (restrictions on sealing records), 943.0585 (expungements) and 943.059 (sealings). The main question is what effect does an expunged or sealed record have on Level 1 or Level 2 state law required background screenings?  And do you have to disclose an expunged or sealed record when you have a level 1 or 2 background screening?

In order to find the answers to these questions we will need to first understand the laws that comprise these issues regarding the background check and Florida record expungements and sealings.

Chapter 435 – Employment Background Screenings

We need to understand how chapter 435 works. Section 435.01 points out that Chapter 435 is applicable for screening potential employees who are required to pass background screenings (background check) by law. The definitions (found under section 435.02) define “employer” as any person or entity “required by law to conduct screening of employees pursuant to this chapter.”

See also, An Arrest, A Background Check, and Your Job

See also, A Criminal Record and Your Job

Listed Agencies for the Background Check

The employers required to conduct employee background screenings pursuant to Chapter 435 are not specifically identified. However, section 435.02 does give us an idea on what type of employers would be required to do these background screenings. “Agency” is defined as any state, county, or municipal agency “that grants licenses . . . permitting the operation of an employer[.]” It further defines “specified agency” as the following:

  • Department of Health
  • Department of Children and Families
  • Division of Vocational Rehabilitation
  • Department of Education
  • Agency for Health Care Administration
  • Department of Elderly Affairs
  • Department of Juvenile Justice
  • Agency for Persons with Disabilities
  • Local Licensing Agencies approved pursuant to section 402.307
  • See, Chapter 402 – Health and Human Services; Miscellaneous Provisions

From this list we can get an idea of the types of employers that are required by law to perform the type of background screenings on potential employees required by Chapter 435. Businesses in the service field that deal directly with children, the elderly, the mentally or physically disabled, and health care services in general seemed to be the types of businesses (employers) required to perform these background screenings on potential employees.

The Two Types of Background Screenings; Level 1 Screening and Level 2 Screening

There are two types of employment background check; Level 1 and Level 2. I will start out by breaking down each of the background screenings into understandable language, then I will point out their differences.

Level 1 background screening is found under section 435.03, Florida Statutes. It as three subsections:

(1) All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

(2) Any person required by law to be screened pursuant to this section must not have an arrest awaiting final disposition, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

(3) The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.

Breakdown of Level 1 Background Check

When breaking down this statutory language note the words “by law.” This signifies that these background screenings are only appropriate for people seeking employment with entities that are required to perform these screenings. As is usual of legislative language, basic grammatical rules don’t see to apply. Therefore, I like to deconstruct the language for better understanding.
Subsection (1):

All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and through the Department of Law Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

Subsection (1) let’s us know what a Level 1 screening consists of, however – the words “not limited to” suggests that further background screenings that are more in depth is a possibility. With that in mind, this should be considered a list of the minimal amount of screening required for employment which requires a Level 1 screening.
Subsection 2:

Any person required by law to be screened pursuant to this section must not have:

  • an arrest awaiting final disposition,
  • must not have been found guilty of, . . . and
  • must not have been adjudicated delinquent, and
  • the record has not been sealed or expunged for,

any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

I have removed some of the language because “being found guilty of” encompasses all types of adult adjudications and types of pleas. An interesting point occurs with the next line “must not have been adjudicated delinquent.” This refers to Juvenile cases and the absence of language discriminating between types of adjudications seems to suggest that a juvenile offense in which the adjudication of delinquency is “withheld” is not a bar to employment.

The statute states what a potential employee cannot have on his or her record. The following line, with the conjunction “and,” states “the record has not been sealed or expunged for” any offense prohibited by section 435.04(2). This is confusing because it is hard to discern the point being made (is a sealed or expunged record a bar to employment or not?) without a full understanding of the sealing and expungement statutes.

The first thing to understand regarding expungements is that charges stemming from an arrest has to be dropped (dismissed, abandoned, etc.) or has had to been sealed for at least 10-years in order to qualify to be expunged. Arrests where the charges are dropped are not a concern according to the language of the statute.

In order to have an arrest sealed the defendant would have been found guilty of the offense and the adjudication must be withheld. The Level 1 screening statute contemplates this when it states that the potential employee must not have been found guilty of offenses prohibited under 435.04(2) “regardless of adjudication.” Since a dropped case is of no consequence to the statute, the reference to expunged record must be concerning a record originally sealed for 10-years and then expunged.

Therefore, a record of an offense listed under 435.04(2) that has been sealed would not be a bar to employment when the language “the record has not been sealed or expunged for” is interpreted correctly. The conclusion must be that the conjunction “and” and the language “the record has not been sealed or expunged for” would be clearer if it read “unless the record has been sealed or expunged for.”

Requirements For Sealing May Provide a Bar to Employment

The requirements to have a record sealed are different from having a record expunged. In particular, a record sought to be sealed must have the adjudication withheld and, the charges of which the defendant is found guilty, cannot be prohibited by section 943. 0584 or 943.059, Florida Statutes. The list of prohibited offenses is long. This brings up section 435.04(2), which is the list of offenses that a potential employee cannot have been found guilty of in the Level 1 (or Level 2) screening. By comparing the two lists we have a better understanding of which offenses in section 435.04(2) could be sealed and not a bar to employment.

Comparison of s. 435.04(2) and s. 943.0584, F.S.
Placing overlapping statutory references in section 435.04(2) with prohibited offenses in section 943.0584, side-by-side. If statute is not prohibited by s. 943.0584 or 943.059, then sealing the record may allow potential employee to qualify for employment.

Section 435.04(2)Section 943.0584
s. 393.135, F.S.s. 393.135, F.S.
s. 394.4593, F.S.s. 394.4593, F.S.
s. 415.111, F.S.Not prohibited from sealing
s. 782.04, F.S.Homicide
s. 782.07, F.S.s. 782.07, F.S.
s. 782.071, F.S.Homicide
s. 782.09, F.S.Homicide
All Chapter 784 Felony Offensess. 784.021 and 784.045, F.S.
s. 784.011, F.S. if minor victimNot prohibited from sealing
s. 784.03, F.S. if minor victimNot prohibited from sealing
s. 787.01, F.S.Kidnapping
s. 787.02, F.S.Not prohibited from sealing
s. 787.025, F.S.s. 787.025, F.S.
s. 787.04(2), F.S.Not prohibited from sealing
s. 787.04(3), F.S.Not prohibited from sealing
s. 790.115(1), F.S.Not prohibited from sealing
s. 790.115(2)(b), F.S.Not prohibited from sealing
s. 794.011, F.S.Sexual Battery
(former)s. 794.041, F.S.Sexual Battery
s. 794.05, F.S.Sexual Battery
Chapter 796Not prohibited from sealing
s. 798.02, F.S.Not prohibited from sealing
Chapter 800s. 800.04, F.S.
s. 806.01, F.S.Arson
s. 810.02, F.S.Burglary of Dwelling
s. 810.14, F.S. (if felony)s. 810.14, F.S.
s. 810.145, F.S. (if felony)Not prohibited from sealing
Chapter 812 (if felony)Robbery
s. 817.563, F.S. (if felony)Not prohibited from sealing
s. 825.102, F.S.Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
s. 825.1025, F.S.s. 825.1025, F.S.
s. 825.103, F.S.Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
s. 826.04, F.S.Not prohibited from sealing
s. 827.03, F.S.Child Abuse
s. 827.04, F.S.Not prohibited from sealing
(former)s. 827.05, F.S.Not prohibited from sealing
s. 827.071, F.S.s. 827.071, F.S.
s. 843.01, F.S.Not prohibited from sealing
s. 843.025, F.S.Not prohibited from sealing
s. 843.12, F.S.Not prohibited from sealing
s. 843.13, F.S.Not prohibited from sealing
Chapter 847s. 847.0133, s. 847.0135, s. 847.0145, F.S.
s. 874.05, F.S.Not prohibited from sealing
Chapter 893 (if felony or if any other person involved was minor)s. 893.135, F.S. and Manufacturing any substances in violation of chapter 893
s. 916.1075, F.S.s. 916.1075, F.S.
s. 944.35(3), F.S.Not prohibited from sealing
s. 944.40, F.S.Not prohibited from sealing
s. 944.46, F.S.Not prohibited from sealing
s. 944.47, F.S.Not prohibited from sealing
s. 985.701, F.S.Not prohibited from sealing
s. 985.711, F.S.Not prohibited from sealing

As can be discerned from the table above, many of the offenses that would prohibit a potential employee from employment are also prohibited from being sealed by section 943.059, Florida Statutes. However, some are not and this seems to confirm that subsection 2 (of section 435.03) allows for the employment of individuals that have had their record sealed even if it is a specified offense found in Chapter 435.

Subsection 3: (The Domestic Violence Bar to Employment)

Subsection 3 refers to a potential employee being found guilty of any act of domestic violence. Any act of domestic violence, where the defendant has been found guilty, cannot be sealed and, therefore, effectively bars employment.

Breakdown of Level 2 Background Check

Level 2 background check is very similar to Level 1 background check. It is more extensive.
435.04 Level 2 screening standards.—

(1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

. . .

(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction[.]

The level 2 background check differs only in the minimal screening standards. Unlike a Level 1 background check, a Level 2 screening requires the taking of fingerprints and a “national criminal history records checks through the Federal Bureau of Investigation.” The prohibited offenses are the same as those listed above.

What a Potential Employee Must Disclose

Potential employees are legally bound to be truthful on all applications for employment. A person who has had their arrest record sealed has an option. Once a person has their record sealed he/she may “lawfully deny or fail to acknowledge the arrests covered by the sealed record” for employment purposes, among other benefits. See. s. 943.059(4)(a), Fla. Stat. The exceptions to this ability to lawfully deny an arrest are broad when it comes to employment areas. Specifically, the statute states:

Section 943.059(4), Florida Statutes

[s. 943.059](4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal history record of a minor or an adult which is ordered sealed by a court pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject’s attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decisionmaking responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., 8., 9., and 10. for their respective licensing, access authorization, and employment purposes.

(a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:

1. Is a candidate for employment with a criminal justice agency;

2. Is a defendant in a criminal prosecution;

3. Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.0585;

4. Is a candidate for admission to The Florida Bar;

5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;

6. Is seeking to be employed or licensed by the Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses child care facilities;

7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;

8. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;

9. Is seeking to be appointed as a guardian pursuant to s. 744.3125; or

10. Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.

(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person’s failure to recite or acknowledge a sealed criminal history record.

If we review the “listed agencies” in s. 435, above, we will find some similarities with the agencies listed is s. 943.059. In the sealing statute, the listed agencies are as follows:

  • Criminal Justice Agency
  • The Florida Bar
  • Department of Children and Families
  • The Division of Vocational Rehabilitation within the Department of Education
  • The Agency for Health Care Administration
  • The Agency for Persons with Disabilities
  • The Department of Health
  • The Department of Elderly Affairs
  • The Department of Juvenile Justice
  • The Department of Education
  • The Division of Insurance Agent and Agency Services within the Department of Financial Services

The law states that when a person seeks direct employment, employment as a contractor, or licensing to work through these agencies he or she must disclose the record of arrest. This statute differs from 435 above, in that it is not a bar to employment. It only requires disclosure even if the record has been sealed.

Conclusions

The conclusions we seek are what effect would sealing an arrest record have on a person seeking employment with an entity that requires a Level 1 or Level 2 background check and would a sealed record have to be disclosed.

It seems the language of sections 435.03 and 435.04, Florida Statutes, would remove the bar to employment for those arrests that are “not prohibited from sealing” and the arrest has been sealed. We can conclude that sealing an arrest record may help in obtaining employment with such entity.

Section 943.059, Florida Statutes, that governs the sealing of records, will require the truthful disclosure of any sealed arrests to those agencies that require the Level 1 and Level 2 background screenings. Here we may conclude that even if the record is sealed a person seeking employment with one of these entities would still be required to disclose the details of the arrest. For this reason, anyone seeking to have their arrest record sealed or expunged should obtain certified copies of the court records prior to the final order.


For More Information Emailed to You

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

Record Expungement and Sealing: Certified Copies

People who are not citizens, are looking to become lawyers, enter the medical field, or become teachers need to make sure you obtain certified copies of your court file before your record is ordered expunged or sealed.

Obtain Certified Copies of Court Documents

The premise:

  1. You have been arrested once in your life.
  2. You are eligible to seal/expunge the record.
  3. You want to expunge or seal your arrest record.

Everyone who is eligible should get this done.

The Extra-Issues

  • You’re a student who plans to go to law school one day, or
  • You’re a non-citizen that wants to extend your status, change your status, or become a citizen some day, or
  • You are anybody else.

Key Issue You Cannot Overlook When Expunging or Sealing Your Record

Expunging or sealing a criminal arrest record is a legal opportunity that everyone eligible should take. Currently, Florida law allows you to either seal or expunge one criminal arrest record in your lifetime. There have been efforts to expand this but this is the present state of the law.

The key issue is that if you plan on sealing or expunging your record you need to obtain certified copies of the pertinent documents found in the court file. Not just regular copies but certified copies. And you need to obtain those certified copies of all the pertinent paperwork before the process is completed. The absolute minimum certified copies you need are:

  • The charging document.
  • The police report.
  • The final disposition.

There may be other documents you should have that are unique to your case. Make sure you discuss this with your attorney.

KEY TAKE-AWAY: Obtain certified copies of the pertinent records in your court file

Those certified documents should be kept in a secure place. They may be needed in certain situations such as applying to the Florida Bar or if you are not a United States citizen (see below).

What if the Clerk of Court has purged the file and these documents no longer exist? This is a very real possibility, especially with older cases. Today, many Clerk’s of Court scan all their files – so those records will be around for a long time. However, older files were not scanned. Some may be on microfiche or some other medium or just in their original paper form. If you have an older case you need to try and secure these documents as soon as possible – even if you do not qualify to have the record sealed or expunged.

People that should be thinking about obtaining certified copies.

Non-citizens: Not all arrests are going to get you deported. Which ones that will, however, are changing everyday. You cannot change the fact that you have been arrested. You can try to expunge or seal that arrest record. Before you do or when you are consulting with a lawyer to expunge your record make sure you understand the following:

  • Sealing or Expunging your record will not hide it from United States Immigration or Customs.
  • Obtain certified copies of your court record. You will need them in the future if your goal is to become a citizen or re-apply for a visa.

Wannabe Lawyers: Despite the fact that the Florida Bar is the one mandatory “association” every Florida Lawyer must be a member of – and – that the lawyer you hire to seal or expunge your record is suppose to know the law, it doesn’t mean he or she knows all of the law. So you should know this:

  • The Florida Bar will want to see the court documents of any arrest you were involved in when you apply for membership.
  • The law requires you to disclose any expunged arrest to the Florida Bar.
  • The Florida Bar will not understand what it means when you tell them your record was expunged.

Wannabe Law Enforcement and Caregivers: People who want to become law enforcement officers (including firemen) or work in the healthcare industry will also want these documents.

I could go on and on, or simply say “everyone” ever charged with a crime should have certified copies of these documents in a secure place. However, I wanted to stress this point with the ones I have listed. It is much easier just to have those certified documents handy now, than to wait and hope they still exist later.

This was rewritten from a post I wrote on ejdirgapa/Blogspot.com on April 8, 2016.


For More Information Emailed to You

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.

___________________
Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

Criminal Case Resolutions

Withholding the Adjudication of Guilt

As criminal lawyers we try to do the best for our client. This means working out the best possible resolution to the case if we can’t fight it at trial. We often are concerned about the penalties and how they will affect our client’s life. What we often forget, though, is what effect the record will have on their life. Anything other than adjudication withheld causes even the smallest offense to become a life sentence.

The Great News! that the Offer Is To Plea To A Misdemeanor

When representing defendants in felony cases we often think of an amendment to a misdemeanor as a victory. This is especially true the more serious the felony. Getting it knocked down to a misdemeanor means he or she won’t lose rights, won’t be a convicted felon, and won’t have to deal with a scoresheet for sentencing.
Those are all great achievements however, just because you got the burglary of a dwelling knocked down to a simple trespass doesn’t mean your client is “off the hook.” A plea to a lesser included offense of a misdemeanor from a felony means your client’s arrest history will still reflect a felony unless the resolution is adjudication withheld. Remember, criminal history records start at the arrest. That means regardless of the outcome of the case – your client’s criminal history will start with an arrest for the Burglary of a Dwelling.

The Hook That Is An Arrest Record

An arrest record is just that – a record of arrests. The only way to get rid of a black mark on an arrest record is to either seal the record or expunge it. Yes, your client was only found guilty of a trespass … and if you look far enough down on that record you may find some abbreviation that indicates that your client was only found guilty of the trespass. HOWEVER at the very top it will still say “arrested for Burglary of a Dwelling.” When the average person reads that, they will only see “burglary of a dwelling.”

Adjudication Withheld on All Amendments to LIO

It is very important to ask for the withhold of adjudication on the Lesser Included Offense [LIO]. This is especially true if this is the first criminal offense for your client. If your client has had previous arrests you need to know if he has ever been adjudicated guilty. If not, he still has the ability to seal or expunge an arrest (including one for a serious felony) so long as the misdemeanor disposition is adjudication withheld.

Judges and Prosecutors

Judges see lots of defendants everyday. They hear all the bad excuses and lies daily. You need to shake them out of that rut when they are dealing with your client by pointing out why adjudication withheld is appropriate for the lesser included offense. Today the main reason for asking for the withhold is the internet. Without the ability to seal the arrest, the offense your client is pleading to will haunt him or her for life. If that is not the punishment the court wants to impose then the disposition needs to be adjudication withheld.
Prosecutors need to also understand the penalties imposed. If they are willing to amend a felony to a misdemeanor they probably realize your client doesn’t deserve the punishment of a felony. They have to be made to understand that the record is a life sentence unless it can be sealed at a later date. The withhold is a necessary requirement.
___________________
Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

Why The Courts Are Wrong About Calculating HTO Status

Calculating HTO status correctly under Florida law the right way. It may not be accepted by the courts today but it is worth educating people.

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:

Reviewing 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 here is whether the Department must use the Offense Date or the Conviction Date when calculating the 5-year time frame.

How The Courts Have Calculated HTO Status

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 in this post 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 verbiage 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 Court’s Interpretation

If we take the Court’s 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 not 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.

It would be hard to believe the legislative intent was to 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 Calculating HTO Status

Let’s look again at the statutory definition. This time let’s remove some of the verbiage 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.

Let’s 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.