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.

Florida Legislature Can’t Cross the Goal Line

The 2015 and 2016 Florida legislatures had very well thought out Bills to expand the ability of people to expunge and seal their criminal history. Neither session was able to bring either bill into law. In 2017, the legislature seems to have given up for the following reasons:

  • The “Information Age” will soon be at an end and people will no longer be haunted by arrests that resulted in dismissals, no bills, or acquittals.
  • It is already quite difficult for employers to look up a person’s background so expunging or sealing a record is not that important.
  • The Clerk’s of Courts and the Florida Department of Law Enforcement have each agreed to stop selling public records to private companies.

Obviously, this is simply me being facetious. The Information Age is here for good, it is very easy to look up a persons background (in very personal ways), and that is due to the fact that the Clerk’s of the Florida Courts and F.D.L.E. are all selling your (seemingly) private information to companies that sell it over the internet.

What Needs To Be Done – Expand Expungements

In 2015, a Bill was proposed that would have expanded expungements and sealings greatly. It passed every committee and every vote. All it needed was the Governor’s signature. Unfortunately, it never made it to his desk. In 2016, a watered down version of that Bill was introduced and got hammered. It never made it out of committee. The 2016 Bill simply made any arrest that resulted in a dismissal or no bill to be expungeable. Currently, if a person is arrested and the charges are ultimately dropped, dismissed, or never filed on – he or she can expunge such an arrest only once. Additional arrests that result in the same type of disposition remain on that person’s record.

The things that need to be done to protect people from a lifetime handicap is two-fold. First, a law needs to be passed preventing the sale of public records concerning criminal cases that have not been fully adjudicated. The law must also prevent the sale of public records of criminal cases that have resulted in a dismissal or no bill. Finally, a law must be passed that allows any arrest that results in a dismissal, no bill, or acquittal to be expunged. It cannot be limited to only one.

It’s Not Fear. It’s Fair.

Many people seem to oppose this because they think the public has a “right” to know such information. That’s understandable but the issue of this article concerns those people who were arrested but were never found guilty of any wrong doing. People tend to see only the arrest from an arrest history and then allow their imagination to fill in the rest of the story.

Lay-people typically cannot read an arrest history. An arrest history starts off with what law enforcement arrests the person for – not what he/she is officially charged with (if they are even charged). Rarely, does the lay-person read down to the disposition – if a disposition is even included. Ultimately, the only thing that matters for the lay-person reading an arrest history is what the arrest was for. This places a lot of weight simply on the arrest regardless of outcome.

It is only fair that a person, who has been arrested and ultimately had no charges filed or the charges were dropped, be able to have that arrest expunged. Fair for the simple reason that no one should be scarred for life for an arrest that resulted in the person being not guilty of anything. Fair in that a person should not be given just one opportunity to chear his or her record from such arrests.

Fair because we cannot handicap people simply for contact with law enforcement. Punishment should not flow to someone found guilty of nothing.


Updates From Circuit Appeals, October 2013

Florence Ellinwood Allen (1884 - 1966)

More hilarity from the courts…

Thompson v. DHSMV, 20 Fla. L. Weekly Supp. 837 (4th Jud. Cir., Aug. 31, 2012)

In this case, the court granted the Writ of Certiorari starting that “the hearing officer failed to follow the essential requirements of law…” To put this in perspective, the petitioner was trying to get his driving privileges reinstated (partially) after they were permanently revoked. Section 322.271(5), Florida Statutes, sets forth said procedure. The date this “mandate” was rendered was August 31, 2012. The date Mr. Thompson asked for his driving privileges back was October 15, 2010. Has not this court failed to follow the essential requirements of law with so long a delay? Hasn’t the Department’s decision been, in effect, granted by this delay? Anyhoo, I digress…

So section 322.271(5) allows a person to petition the Department for reinstatement of his/her driving privileges and requires that, to be considered for reinstatement, the person must demonstrate that he/she meets certain statutory criteria. This “criteria” is specifically and legibly spelled out in the statute. It cannot be missed or overlooked.

Mr. Thompson meet all the criteria except the one regarding not drinking in the last 5-years. After the hearing concluded, Mr. Thompson wanted to reopen the hearing because he realized that he was wrong on the date of his last drink because he was in prison on that date. The Department confirmed that he was indeed in prison on that date. Despite this the Department decided not to reinstate Mr. Thompson’s driving privileges for many reasons – none of which were the criteria required by statute.

The benevolent court has, almost 2 years later, granted Mr. Thompson’s petition, quashed the Department’s order denying his request, and has thrown him back into the ring with the lions for rehearing. Department 1 – Mr. Thompson 0.

State v. Abraham, 20 Fla. L. Weekly Supp. 843 (6th Jud. Cir., Jun 10, 2013)

Mr. Abraham was charged with “possession of simulated drugs” (A PEZ dispenser with candy shaped like pills with letters on them – just kidding). When the case was set for a non-jury trial the state’s witnesses did not appear because the law enforcement agency refused to accept the subpoenas (I’m guessing the subpoenas were served late). The state asked for a continuance. The court denied the continuance and the defense asked for dismissal based on “lack of prosecution,” which it got. The state appeals.

The appellate court reversed. Trial courts “do not have absolute discretion to deny a prosecution motion for continuance based on the absence of a witness.” The record revealed no lack of diligence or dilatory tactics on the part of the State Attorney and “no discernible prejudice or injustice to Mr. Abraham” if it had been granted. Moreover, there was no evidence that the prosecution had abandoned its prosecution. Therefore, the appellate court found that the lower court had abused its discretion.

Good case for prosectors to keep in their briefcase for those times when justice must prevail.

Moore v. State, 20 Fla. L. Weekly Supp. (6th Jud. Cir., May 13, 2013)

Poor Mr. Moore was found guilty of battery at trial. He had apparently touched somebody against their wishes and caused $11,000 in costs to the victim. Note: I did not say “damages” because that is usually much higher – just the victim’s out of pocket expenses (costs).

At sentencing the court ordered $11,001.08 in restitution and imposed it as a lien since the defendant was not going to be placed on probation (and, as the court noted, there was little chance of the defendant paying it within a year). The Defense did not “necessarily dispute the amount” but was concerned  about documentation. The court ordered the amount and allowed the defense to have time for a hearing to dispute the amount if they wanted to. The defendant never asked for the hearing.

The defendant appeals the imposition of restitution. Because the defense never raised the question regarding “amount” at a hearing where the opportunity existed – it was not preserved. Amount of restitution – affirmed.

Lesson: “Fat, drunk and stupid is no way to go through life.” -Dean Vernon Wormer.

Elam v. State, 20 Fla. L. Weekly Supp. 856 (11th Jud. Cir., Jul 5, 2013)

Defendant was brought up on a violation of probation. The reasons alleged for violating said probation were for:

  • Failure to enroll in Domestic Violence Class (BIP), and
  • Complete 50 hours of community service at a rate of 5 hours per month.

The court found that he willfully violated his probation and sentenced him to 330 days in jail. This appeal ensued…

Mr. Elam’s special conditions he failed to do were as follows:

  1. You must pay for and complete the Domestic Violence Batterer’s Assessment and the Batterer’s Intervention Treatment Program …
  2. You shall successfully complete 50 hours of community service, at a rate of 5 hours per … month.

On appeal, the appellate court reversed the lower court finding that the state failed to establish that the defendant could actually afford to pay for the Domestic Batter’s Assessment and classes and because, despite having not complied with the schedule, there was still plenty of time to complete the community service.

Of note, Mr. Elam was violated 34 days into a 24 month period of supervision.

Great case for VOP case law re willfulness.


is a small time practicing attorney in Orlando. He primarily helps people with traffic related issues such as DUIs, racing, traffic tickets, and suspended driver’s license.

A Quick Break Down of the New Red Light Camera Law

Red light camera system at the Springfield, Oh...


People are a little confused…


…about the new red light camera law that went into effect on July 1, 2013. I will try to break it down so that it is understandable.


After July 1, 2013, if you violate a red light camera intersection the first thing you will get is a “Notice of Violation.” This continues to not be a ticket. It is simply a slime-ball company (that has paid millions to politicians to propagate this legislation and reduce the yellow light times all in the name of “safety”) asking you to pay them a lot of money so that they don’t issue you a ticket. What has changed is the following:


  • The time to pay the “Notice” money has been extended from 30 to 60 days.
  • You can now challenge the “Notice” before it becomes a citation in a made up Kangaroo Court where the rules of evidence don’t apply.
    • Don’t do this or, if you do, don’t call me to represent you.
    • You will be found guilty and they can add up to $250 in administrative fees on top of the $158.
    • If you are found guilty and do not pay the fine and admin fees they will place a hold on your vehicle registration.


If you wait-out the 60 days and do not pay the $158 and you do not foolishly challenge the “Notice” then the municipality can issue you a citation. This is a ticket. The fine amount is still $262. You can still challenge this ticket in a “real” court where evidentiary rules still apply. If you get a citation – this is when you can call me. I represent people for any Orange County red light camera citations.


What You May Have Heard But Could Not Rationally Comprehend


Yes, indeed. Our elected officials – politicians to the core – did indeed have the yellow light times reduced in 2011 in an effort to make more money off of these red light cameras. When confronted with these revelations they squirmed and lied and then proclaimed that they will lengthen the yellow times (not to what they were) in order to help elderly drivers who have slower reaction times. Yes, these people have no shame. Oh yeah, projected time for the yellow lights to be lengthened – not till the end of 2014.


is an Orlando attorney practicing criminal defense. He represents clients seeking criminal record expungements throughout the state of Florida and all traffic infractions/charges in Central Florida.


Pedro Gil v. The State of Florida

In 2011, Pedro Gil was issued a citation Driving With A Suspended License. He went to court and pled guilty to the charge on the citation. He was adjudicated guilty and fined. Pedro thought he had done the responsible thing and could move on with his life.

Hey! Look! It’s a prosecutor! Hooray!

Then the State Attorneys Office filed a Felony Information charging him with Driving While License Suspended as a Habitual Traffic Offender. The State knew or should have known that Pedro had already accepted the charge on the citation. Regardless, the State was not satisfied with what Pedro had done to appease the Gods of Justice for his sins and went forward with the felony case.

Thwarted by Common Sense

Because these cases are obviously double jeopardy, Pedro’s attorney moved to dismiss the Information and the Circuit Court agreed. The case was dismissed.

Truth, Justice, and the American Way – or – Throw Money at It

Let’s not forget that the State Attorney’s Office has tons of money from Florida tax payers and they really don’t care how they waste it. So, they appealed the Circuit Court in Miami up to the Third District Court of Appeal.

The Mysteries of the Judicial System – No, It is NOT Like TV (at all!)

Now, here we have to digress a bit. District Courts do nothing but appeals and other assorted appellate-like things. In order for these judges to do all these things they hire attorneys to write their decisions for them. Then they go through the arduous task of signing them. The Clerk publishes them. My guess is that they give these attorneys the direction they want the decision to go and then have the attorneys prepare the written decision. I say all this because the Third Districts decision ended up being the proverbial “mud pie” from kindergarten. I expressed my views about it in an earlier post.
See, the Third District, despite all logic, found that poor Pedro COULD be charged with an additional driving with a suspended license charge despite obvious double jeopardy (and previous appellate decisions). The opinion was so hard to read I new it had to be written by a brand new attorney just hired by the court. It made no sense! Reading it was an exercise in mental gymnastics and when the law becomes that confusing it is time to leave.

Depression and Debauchery

Now I was pretty adamant that the Third DCA had gotten this case wrong. WRONG, WRONG, WRONG! But a friend who I consider fairly intelligent and less “into” common-sense-principles than I got me thinking that all my legal thought processes could be on the fritz. Depression set in. I drank heavily. I danced on tables. Pictures were posted.


Alas, today I received the Florida Supreme Court’s opinion (Gil v. State, 38 Fla. L. Weekly S581 (Fla. 2013)) reviewing the Third DCA’s decision for poor Pedro.
Obvious double jeopardy is still double jeopardy!! May the sun rise on this golden land of milk and honey…

Human salvation lies in the hands of the creatively maladjusted.
-Martin Luther King, Jr.