Tag Archives: Driver’s license

Double-Jeopardy Issues with Suspended License Cases


Defendant and Counsel (1895), by Yeames, an ex...

Defendant and Counsel (1895), by Yeames, an example of the problem picture, which invites the viewer to speculate on the woman’s alleged crime and on whether or not she may be guilty. (Photo credit: Wikipedia)

Just a quick post on double-jeopardy issues with suspended license cases

Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).  Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).

A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).

A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?

The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).

but, . . .

A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).

but wait, . . .

A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).

When someone figures out what the Gil case is trying to say please comment or contact me and let me know.

Enjoy

1 Comment

Filed under Florida Criminal Defense, Orlando Criminal Defense Attorney

Can A Fixed “Suspension” Thwart a Conviction for DWLS-HTO


Airline Highway, Metairie, Louisiana. Louisian...

Airline Highway, Metairie, Louisiana. Louisiana Department of Motor Vehicles office. (Photo credit: Wikipedia)

I have been perplexed by an issue that seems to depend on the Court I am before. When a client hires me with a new law offense for driving while his license has been suspended as a habitual traffic offender [HTO] and I am able to remove the HTO status and get him a valid drivers license, can the state still prove their case? The statute  (s.322.264) defines HTO as “[a] ‘habitual traffic offender’ is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles [DMV], shows that such person has accumulated the specified number of convictions for offenses described in . . .”  Some judges will note the new driving record and find no factual basis for the offense causing the state to drop their case. Other judges are under the belief that it is what the Department records reflected on the day of the arrest and will not dismiss for lack of factual basis.

The “No Factual Basis” Argument

In Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2002), the appellate court was presented with the question of whether a computer printout of the defendant’s driving record (as maintained by the Department) was sufficient to present a prima facie case for the first two elements of the offense of driving while license suspended for HTO [DWLS-HTO](that 1. the defendant’s license was suspended under s. 322.264, and 2. that the Department gave notice of the suspension to the defendant). The answer was in the affirmative.

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. These statutes permit the state to make this proof by presenting a certified copy of the motorist’s driving record maintained by DMV.

Id. at 483.

Typically, the state has in their possession (and they provide through discovery) a copy of the defendant’s driving record that is usually within a month of the arrest but not on the date of the arrest. This record will show that on a specific date before the arrest the defendant’s license was suspended for a period of time that extended through the date of arrest. It will also show a date that is allegedly the date notice was sent to the defendant. According to Rodgers, this is all they need to introduce to get past a judgment of acquital [JOA] for the first two elements of the offense. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002); Bowen v. State, 833 So.2d 288 (Fla. 5th DCA 2002);  see also, Card v. State, 927 So.2d 200 (Fla. 5th DCA 2006).

By logical implication a record, as maintained by the Department, that does not show a suspension prior to the date of the arrest would not present a prima facie showing to withstand a JOA.

As Maintain on the Date of Arrest

The other argument is that it doesn’t matter that the record has been “fixed” it just matters whether or not the Department maintained a record on the day of the arrest that reflected a suspension and notice. This theory is supported by State v. James, 928 So.2d 1269 (Fla. 2d DCA 2006).

In James, the court states that “[e]ven if Mr. James is successful in vacating his Hillsborough County conviction, the DMV records would be affected only from the date that the conviction was set aside.” However, the court seems to make several presumptions in this case. For instance, the court presumes that the record reflected a third conviction and that the DMV record was “accurate.” Moreover, the court points out that the DMV record only need show that the driver’s privilege had been suspended “at the time” the driver was stopped.

State’s Record vs. Defendant’s Record

Let’s say the Driver is stopped on day 1 and cited for DWLS-HTO. On day 20 the State runs a DMV record and it indicates that the Driver was designated HTO on day -10. Their DMV record would then show that from day -10 to day 20 the DMV maintained a record that indicated the Driver was HTO. On top of that, the record would reflect that the suspension was for 5-years. Then let’s say the Driver fixes his DMV record and on day 50 the DMV record does not show an HTO designation at all. Once fixed, and once there are no longer the prerequisite offenses for HTO designation, the DMV redacts the suspension from their maintained records.  Now, should a trial occur, the state would have a record on day 20 showing an HTO designation, the Driver would have a record on day 50 showing no designation, and no one would have anything showing what the DMV had maintained on their records on the day of the offense.

The definition of HTO refers to the records “as maintained by the DMV.” In the scenario above, the maintained records on the day of the trial would not show the suspension. However, James suggests that it is what the records reflect at the time of the offense. The state can only show what the records reflected on day 20. Is this enough for a judgment of acquittal? It is definitely enough to argue that the charge has not been proven beyond a reasonable doubt. And if the State tries to argue that the record was “fixed” object as to facts not in evidence (unless they have done their due diligence and produced the certified records of the “fix”).

So the question remains, can a fixed suspension thwart a conviction for DWLS-HTO?

As of the day of this post I have yet to go to trial and argue this issue.

2 Comments

Filed under Florida Criminal Defense, Orlando Criminal Defense Attorney

Return to Confusion: With or Without Knowledge – Updated 08/13/12.


Driver's license from Brazil, as issued in the...

Driver’s license from Brazil, as issued in the year 1987 (Photo credit: Wikipedia)

The Supreme Court of Florida has tried to clarify what the State need to do to prove a DWLS case when it does not have the presumption of knowledge that is found in the statute.

ANDERSON v. STATE, 37 Fla. L. Weekly S227a (Fla. Mar 15, 2012)

Anderson entered a no contest plea to the charges of burglary of a dwelling, grand theft, and falsification of ownership to a pawnbroker. The trial court adjudicated her guilty of all three counts and sentenced her to five years imprisonment. However, the court suspended her sentence on the condition that she complete two years of community control followed by probation. Before a meeting between Anderson and her probation officer, an arrest warrant had been issued for Anderson based on an alleged violation of her probation resulting from a failure to pay restitution. Due to Anderson’s failure to pay restitution, the Florida Department of Highway Safety and Motor Vehicles (DHSMV) had also suspended her driver’s license.

Upon Anderson’s arrival at the meeting, the probation officer arrested her for violation of her probation due to her failure to pay restitution. As the probation officer patted down Anderson, she discovered that Anderson had possession of automobile keys. Anderson admitted to the probation officer that the keys belonged to her and that she had driven a vehicle to the meeting. At the time Anderson drove the vehicle to the meeting, she allegedly did not have actual knowledge that her license was suspended, and she contended that she had not received a written notice of the suspension. She was charged with driving with a suspended license pursuant to section 322.34, Florida Statutes (2011). After her arrest, Anderson paid the required restitution, and the DHSMV reinstated her license. However, Anderson still faced a charge of violation of probation based upon the charge of driving with a suspended license.

During Anderson’s violation of probation hearing, defense counsel contended that the trial court should not find a violation of probation because the State had failed to satisfy the requirements of section 322.34(2), as it had not proven that Anderson had actual knowledge of her suspended license before she drove to the meeting with her probation officer. Anderson testified that the address to which the DHSMV mailed the notice of suspension was her place of residence at the time of the license suspension and the DHSMV’s mailing.

At issue is whether the Fifth District misconstrued the knowledge requirement of section 322.34(2) in light of the decisions in Brown and Haygood. In those decisions, the district courts held that, in instances where section 322.34(2)’s rebuttable presumption does not apply, the State must prove that an individual has actually received notice of a license suspension to establish knowledge of that suspension. See Haygood v. State, 17 So. 3d 894, 896 (Fla. 1st DCA 2009); Brown v. State, 764 So. 2d 741, 743-744 (Fla. 4th DCA 2000).

Under section 322.34(2), Florida Statutes (2011), any person who drives while his or her license is cancelled, suspended, or revoked, with knowledge of this fact, may be convicted of driving while a license is cancelled, suspended, or revoked, which is classified as either a misdemeanor or a felony of the third degree. The text of section 322.34(2)-(4) is as follows:

(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice as provided in subsection (4). There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s records for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation.

This is the key paragraph in this section.

(3) In any proceeding for a violation of this section, a court may consider evidence, other than that specified in subsection (2), that the person knowingly violated this section.
(4) Any judgment or order rendered by a court or adjudicatory body or any uniform traffic citation that cancels, suspends, or revokes a person’s driver’s license must contain a provision notifying the person that his or her driver’s license has been canceled, suspended, or revoked.

I have yet to see a citation that “cancels, suspends, or revokes” anyone’s drivers license except a DUI citation.

In section 322.251(1), Florida Statutes (2011), the Florida Legislature delineated what constitutes notice of a cancellation, suspension, or revocation:

All orders of cancellation, suspension, revocation, or disqualification issued under the provisions of this chapter, chapter 318, chapter 324, or ss. 627.732-627.734 shall be given either by [1] personal delivery thereof to the licensee whose license is being canceled, suspended, revoked, or disqualified or [2] by deposit in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the department. Such mailing by the department constitutes notification, and any failure by the person to receive the mailed order will not affect or stay the effective date or term of the cancellation, suspension, revocation, or disqualification of the licensee’s driving privilege.

The Fourth District examined the text of section 322.34(2) and its knowledge definition.  The district court stated that, because the case before it involved a suspension for failure to pay traffic fines, the plain text of section 322.34(2) removed the rebuttable presumption that the notice sent to the defendant’s address fulfilled the knowledge requirement of section 322.34(2).  It held that, absent the invocation of this presumption, the plain language of section 322.34(2) requires the State to prove the defendant actually received notice of the suspension.  The district court also noted that the only evidence presented by the State with regard to notice was the driving record of the defendant that reflected notice was mailed to the address of record, but that there was no evidence that Brown still resided at the same address when the notice was mailed.  The Fourth District concluded that the mailing of the notice itself, given the lack of application of the presumption of section 322.34(2), was insufficient to establish that the defendant actually received notice of his license suspension.  The court accordingly held that the State failed to establish that the defendant received notice and reversed his conviction for driving with a suspended license.

After the Brown decision, the First District decided Haygood, which also applied the current version of section 322.34. See Haygood, 17 So. 3d at 895-96. There, the defendant was convicted of driving with a suspended license.  The First District reversed the conviction because the State presented insufficient evidence to demonstrate that the defendant had knowledge of his license suspension.  As in Brown, the State introduced a copy of the driving record of the defendant into evidence, which reflected that the defendant’s driver’s license was suspended for failure to pay a traffic fine and child support.  Unlike the driving record in Brown, however, the driving record for the defendant in Haygood failed to list the address of the defendant.  Nonetheless, it did provide that, in compliance with section 322.251, notice of the suspension had been provided to the defendant.

In rendering its decision, the First District agreed with and adopted the reasoning in Brown.  The district court held that the reasoning in Brown was in accord with the plain text of section 322.34.  The district court stated that according to the driving record of the defendant, the license suspension was due to failure to fulfill a financial responsibility.  It held that this negated the application of the rebuttable presumption in section 322.34(2) with regard to knowledge created by an entry in the DHSMV record, and thus required that the State present evidence that the defendant actually received notice of his license suspension.  The district court concluded that the State failed to satisfy this requirement because the mere fact that the driving record of the defendant listed his license suspension did not establish that the defendant actually received notice of that suspension. See id. It reversed the defendant’s conviction for driving while his license was suspended.

In the decision below, the Fifth District correctly held that the State sufficiently established the knowledge requirement of the current version of section 322.34(2) because (1) the mailing of the written notice of suspension satisfied the notice requirement of section 322.251(1), and (2) the State proved that this was the address of Anderson at the time of the mailing. This result is in accord with the plain language of sections 322.34 and 322.251(1), as construed together and taken as a whole.

Does this add another element requirement, in cases without the presumption, for the state? Proof that the address used by the DMV was the residence of the defendant at the time of mailing? Does an annotation that the defendant received a “duplicate” or “replacement” license (for an address change maybe) defeat that presumption? In this case the supreme court requires some evidence that the address was the correct address of the defendant.

As provided by the Legislature, the knowledge requirement of section 322.34(2) is fulfilled when an individual “received notice” of that suspension as contemplated in section 322.34(4).  Subsection (4) of 322.34 mandates that any judgment or order rendered by a court or adjudicatory body or uniform traffic citation that results in the cancellation, suspension, or revocation of a license must contain a provision notifying the person of that action.

Section 322.251(1), which concerns the same subject matter as section 322.34 — i.e., driving while a license is cancelled, suspended, or revoked — explicitly outlines two mechanisms for delivery of a written notice of a license suspension, revocation, or cancellation under section 322.34.  The first mechanism is to provide the notice “by personal delivery.”  The second mechanism is to “deposit [the notice] in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the [DHSMV].”

Here, the State sufficiently proved knowledge by verifying that the DHSMV sent notice of Anderson’s license suspension by mail and that Anderson received it. More specifically, it established that it sent notice of the license suspension in accordance with section 322.251(1), i.e., it entered into evidence the driving record of Anderson, which illustrated that the DHSMV mailed written notice of Anderson’s license suspension to her last known address.

If it were so simple. I would argue every date on the driving record, have the prosecutor point it out, have the custodian, if subpoenaed, explain how he/she knows, etc. Argue every bit of 90.901 and 803(6), etc. It seems, with this case, that the DMV record may not be self-authenticating.

The State then established that Anderson received that notice, as evidenced by the testimony of Anderson that she resided at the address to which the DHSMV sent the notice at the time of the mailing. Section 322.34(3) permits the consideration of this type of testimony as evidence of receipt of notification and knowledge of a license suspension. See § 322.34(3) (permitting a court to consider evidence of knowledge, “other than that specified in subsection (2),” when it determines whether an individual knew of a license suspension).

This seems to be the crux of this case. Establish that notice was sent by entering Department record AND establish that it was sent to the correct address (not just the last updated address).

Anderson contends that, in cases such as hers — i.e., when an individual’s license is suspended due to failure to fulfill a financial responsibility — the rebuttable presumption in section 322.34(2) does not apply. She asserts that the State, therefore, must prove that she actually received the notice and had actual knowledge of her suspension.

The Legislature, however, did not contemplate such an exacting burden of proving actual knowledge for the State, even in instances when the rebuttable presumption of knowledge in section 322.34(2) does not apply. Rather, the plain language of section 322.34(2) permits the State, in instances of a suspension for a reason other than the failure to fulfill a traffic fine or some other financial responsibility, to invoke a rebuttable presumption of knowledge. To do so, the State must only establish that a judgment or order of suspension as provided in section 322.34(4) has been entered on an individual’s driving record. When, as in this case, the suspension is for failure to fulfill a traffic fine or financial responsibility, the plain language of section 322.34(2) negates the applicability of that presumption. The language of that section, however, does not alter the requirement that the State, even without the invocation of the rebuttable presumption, must prove only that the individual received notice. Here, the State fulfilled this burden by establishing that the DHSMV mailed Anderson written notice of her suspension to the address where she resided at the time of the mailing.

Usually, the basic information of name, address, etc. does not trigger the Miranda requirements of notice of rights. Any use of such information in a case like this seems like it would be incriminating. Because such information is required at a traffic stop maybe it can be argued that, like the accident report privilege, it cannot be used at trial.

Accordingly, we hold that the Fifth District properly affirmed Anderson’s license suspension and the revocation of her probation. We, therefore, affirm the decision below. We disapprove Brown and Haygood to the extent that those decisions conflict with the opinion of this Court.

4 Comments

Filed under Florida Criminal Defense, Orlando Criminal Defense Attorney