Criminal Defense
Since 1993
Since 1993
Can an Out-of-State “Habitual” Status Haunt You in Florida?
By: John Guidry
Yes, we see more Driving While License Suspended (DWLS) charges here in Orlando than other cities in Florida (well, maybe Miami gets a few more than us). The Sunshine State attracts drivers from all across the country, and they bring their bad driving records with them.
So, when a person is arrested here in Central Florida for driving while license suspended as a Habitual Traffic Offender (HTO), can that conviction stand when it’s based upon an out-of-state habitual designation?
We’ve seen our courts uphold enhanced DUI charges for multiple offenses when the State can prove out-of-state prior convictions. But the same cannot be said when attempting to enhance a DWLS charge up to a felony HTO charge. Let’s see why.
Facing a felony DWLS charge based on an out-of-state record?
The State might be misapplying the law. Call John today at (407) 423-1117.
The Legal Breakdown: Neary v. State
In Neary v. State, 66 So. 3d 1085 (Fla. 5th DCA 2011), Michael Neary was convicted in Flagler County of Driving While License Revoked as a Habitual Offender—a third-degree felony.
- The Problem: Neary was a resident of Georgia. It was the State of Georgia that had designated him a Habitual Traffic Offender, not Florida.
- The Defense: Florida’s definition of a “Habitual Traffic Offender” is very specific.
The Statute: Under Section 322.264, Florida Statutes, a Habitual Traffic Offender is defined as:
“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…”
It was that specific phrasing—“as maintained by the Department of Highway Safety and Motor Vehicles” (referring to Florida’s DHSMV)—that formed the basis of the Fifth District overturning Neary’s conviction.
The Ruling: The habitual traffic records were NOT maintained by Florida’s DHSMV as required by the statute. Florida had no such records; only Georgia did. As such, Neary did not meet the definition of a Florida Habitual Traffic Offender, and his felony conviction could not stand.
John’s Takeaways
These HTO cases can be tricky. They are never as straightforward as one might think at first glance.
- Words Matter: The State Attorney often tries to copy-paste laws from one situation (like DUI enhancements) to another. But in Neary, the specific wording of the statute saved the defendant from a felony.
- Check the Source: If your license suspension is based on an out-of-state record, we need to verify if Florida has actually “maintained” that record or if they are just relying on another state’s computer system.
- Felony vs. Misdemeanor: The difference here is huge. A standard DWLS is a misdemeanor. A DWLS as a Habitual Traffic Offender is a felony punishable by up to 5 years in prison. Knocking out that “HTO” status is the difference between a slap on the wrist and becoming a convicted felon.
Don’t Let Them “Import” Your Felony
If you have been charged with a felony traffic offense because of something that happened in another state, you need an attorney who reads the fine print.
Call me at (407) 423-1117. Let’s check the records.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.