Driving With a Suspended License – HTO
Believe it or not, you can go to jail after simply paying off your traffic tickets, and then driving on your suspended license. Here's how this works.
A well-meaning clerk at the traffic court tells you that, in order to get your license back, you'll need to pay all your outstanding tickets. This makes sense, but the consequences of not consulting an attorney first can be devastating. So, you take the clerk's advice and pay the tickets, thinking you have fixed the suspended drivers license. They hand you a shiny new plastic DL, but two months later you're pulled over and charged with the crime of driving while license suspended. How could this happen, especially when you're only following the advice of the traffic clerk by paying your fines off?
Driving on a suspended license (DWLS) is a serious criminal charge in the State of Florida. There are plenty of defenses to this charge, so don't give up your rights and defenses without talking to John first (or, if you're out of town, be sure to talk with an attorney within a few miles of the courthouse you'll be visiting--you need local help on a case like this).
If you have been charged with Driving While License Suspended (citation, a misdemeanor, or felony as a Habitual Traffic Offender), the first question is, did the officer had the right to pull you over? If yes, we'll then need to examine your official DMV driving record and look at the underlying reasons for your license suspension and challenge any incorrect suspensions. If the original suspension was improper, we will work to have the current charges dropped or dismissed.
Here's where the problems can begin. You get pulled over and given a ticket for "Driving While License Suspended Without Knowledge". This is NOT a criminal offense, because it is "without" knowledge. So, most people simply pay the ticket without realizing that, later down the road, a few more of these tickets will result in the Department of Motor Vehicles suspending your driving privileges for five (5) years as a Habitual Traffic Offender (HTO).
There are many ways to become a Habitual Traffic Offender, and because of this, once you receive any sort of Driving While License Suspended citation you should seek legal advice immediately. Every now and then, the DMV makes available amnesty programs for those with suspended licenses for financial reasons. One such program is called the "Clerk's Option", and I've devoted a whole separate page to this topic, but here are the basics.
The Clerk's Option is found in Florida Statute 318.14(10)(a), and was created by the legislature to permit folks charged with criminal driving on a suspended license a chance to avoid criminal court by obtaining their license back before their first court appearance. Making this work is tricky, but it's a good deal for those who can move fast and take advantage of it. After all, who wants to go to court if you don't have to?
Don't pay a Traffic Ticket Without Knowing the Consequences
Remember that paying a ticket for Driving While License Suspended is actually entering a "guilty plea" to the court. That guilty plea can have lasting effects on your driving record should you be accused of other qualifying offenses within five (5) years of paying it. Don't pay this ticket without first seeking legal advice.
In rare cases, a 5 year habitual traffic offender suspension can be imposed when a driver racks up fifteen (15) convictions for moving traffic offenses for which points may be assessed. Yes, fifteen moving violations is a lot. But, that's only 3 per year, over a five year period. It can happen. This is why it is so important to make sure every single moving violation is properly defended -- you don't want to end up with a long license suspension years down the road as these violations accumulate.Defending an HTO Accusation Requires an Examination of the Underlying Causes of the Suspension
When examining a Driving While License Suspended as an HTO case, it's important to scrutinize each and every so-called "conviction" that created the habitual traffic offender suspension. Recent court opinions have held that certain out of state convictions cannot be used against a driver, nor can another state's habitual status support a Florida charge. For more details on these out-of-state issues, see my article "Out of State Habitual Offender Cannot Support Florida DWLS as an HTO" (I know, not the catchiest title, but informative at least...).
Believe it or not, there's no such thing as a felony charge of Driving While License Suspended as a Habitual Traffic Offender (HTO). This may seem a bit nit-picky, but the only felony charge involving a five year HTO suspension is if your license is revoked. Again, maybe this is too much detail for this page, but the proper charge is Driving While License Revoked as a Habitual Traffic Offender. That is a felony, punishable by up to 5 years in prison. There is actually a case out there where a driver appealed his felony conviction because he pled to Driving While License Suspended as a Habitual Traffic Offender and claimed that there is no such crime. The appeals court agreed, but found that because he was charged under the correct statute, 322.34(5), that the clerk of court could simply correct the error and note that the correct label for the crime was Driving While License Revoked as an HTO. See Funderburk v. State, 2019 Fla. App. LEXIS 2486 (Fla. 4th DCA 2019).
There are a few drivers out there who have never bothered to, ever, get a license. In some odd way, this is good news if you've been charged with Driving While License Suspended as a Habitual Traffic Offender. Because, even though the DMV can issue a 5 year HTO suspension to any person caught driving without a license three times, the felony crime of driving while license revoked as an HTO doesn't apply to folks who have never had a license to be revoked. Weird, right? Florida Statute 322.34(5) clearly states that "any person whose driver's license has been revoked" as a habitual traffic offender commits the felony offense. The misdemeanor offense of DWLS includes language for persons without a license, but the felony only includes persons whose license has been "revoked". If you want more details on how this defense plays out, read my article entitled "Felony Driving While License Suspended Overturned".
DWLS as a Habitual Traffic Offender: Is It a Felony, or a Misdemeanor?
Most officers will arrest a driver on a felony charge if caught driving on a five year HTO suspension. But, just because you've been arrested for something, that doesn't mean you'll be convicted of it. There are plenty of ways to minimize the damage here.
A felony driving while license revoked as a habitual traffic offender cannot be sustained if the underlying HTO suspension is comprised of driving while license suspended charges arising from purely financial obligations. Under these circumstances, the felony charge should be reduced to a first degree misdemeanor, punishable by up to one year in jail. See Fl.Stat. 322.34(10)(b)(2) Basically, if your license revocation is purely financial, you'll get a misdemeanor instead of a felony. These financial obligations include failing to pay child support and failing to pay a civil fine. For example, in one Florida case, a driver attempted to dismiss her felony HTO charge because her suspension was based on one DUI and two financial driving while license suspended charges. The appeals court found that, because only two of the three suspension cases involved financial reasons, the felony charge was appropriate--motion denied. Wyrick v. State, 50 So.3d 674 (Fla. 5th DCA 2010). (Some of the laws on this type of charge have changed, so be sure to call me if you have any questions).
A felony driving on a suspended license as a Habitual Traffic Offender will not be reduced to a misdemeanor if any part of the HTO suspension involves one of these four offenses: (1) Driving Under the Influence, (2) Refusal to submit to a breath test, (3) a traffic offense causing death or serious injury, or (4) fleeing or attempting to elude.
Oddly enough, you can be arrested for both driving on a suspended license (a misdemeanor) and felony driving on a revoked license as an HTO. It took the Florida Supreme Court's opinion in the case of Gil v. State to inform prosecutors throughout Florida that this practice is unconstitutional. 118 So. 3d 787 (Fla. 2013). Gil is important because it demonstrates why you should have a good criminal defense attorney early in a case. You see, Gil was not initially charged with felony DWLS as an HTO, he was only charged with a misdemeanor DWLS. So, his defense attorney pled out the misdemeanor immediately, knowing that a felony was coming shortly. And, just like clockwork, a felony was filed against Gil after he had already pled to the misdemeanor. The Florida Supreme Court ruled that the State could not bring the felony charges once Gil was already convicted of a similar misdemeanor. I have completely oversimplified the legal concepts involved, and a quick plea does not work in every instance, but there are more details about this case in my article "Overzealous DWLS prosecution Gets Struck Down".
How to Overturn a 5 Year Habitual Traffic Offender Suspension
There are many ways to fix an HTO suspension, and I'm going to oversimplify them much like a heart surgeon once told me that he just a glorified plumber. Anyway, let's start with the basics. An HTO suspension means the DMV has suspended your driving privileges for five (5) years because the driver receiving three qualifying offenses within a five year period (a combination of any three driving while license suspended's, or DUI, or Leaving the Scene of an Accident with injuries).
Under Florida law, you have the right to challenge some of the offenses that form the foundation of the HTO status. If you successfully challenge ANY one of the three underlying HTO offenses, you get your driving privileges back—no more five year suspension!
We have helped many clients erase their HTO suspension; we may be able to help you too. Not to bore you with the details here (too late?), but our appeal to obtain a withhold of adjudication typically involves three legal issues: (1) constitutional grounds regarding the entry of a plea without knowing the consequences, (2) a showing of good cause to either extend the time to request a withhold under Florida Traffic Rule 6.360, and (3) a proper request for a penalty reduction pursuant to Rule 6.490 (good cause must be shown under this rule as well as 6.360).
Driving on a Suspended License Without Ever Having a License
It sometimes happens that a citizen has never obtained a valid driver's license, and yet gets caught driving. Would such a person be driving while license suspended, if they've never had a license to begin with? The answer is yes, and no. Our legislature has a crime called "Driving Without a Valid License". This crime is found in Section 322.03(1) of the Florida Statutes, and it is a second degree misdemeanor.
In the case of Crain v. State, the defendant was convicted of driving while license suspended--even though Crain never had a license to suspend. 79 So. 3d 118 (Fla. 1st DCA 2012). This appellate court overturned Crain's conviction for driving while license suspended as a habitual traffic offender, and reduced the charge to a second degree misdemeanor of driving without a valid license. But not all courts agree with Crain, as another jurisdiction in Florida came to the opposite result in Carroll v. State, 761 So.2d 417 (Fla. 2nd DCA 2000). To read more about the reasons underlying these two conflicting opinions, check out my article "Driving While License Suspended Without Ever Having a License".
In October of 2019, the legislature amended Florida Statute 322.34(5) so that the felony driving on a suspended license as a habitual traffic offender now applies to folks who have never had a license. Thus, the sort of legal maneuvering seen in Crain is no longer valid.
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