Driving with a Suspended License – HTO


Believe it or not, you can go to jail after simply paying 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 is a serious (and common) 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 first calling us.

If you have been charged with Driving While License Suspended (citation, misdemeanor, or felony With Two Priors or As a Habitual Traffic Offender), the first thing I want to know is whether or not the officer had the right to pull you over.  Next, we'll 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 this "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's many ways to become a Habitual Traffic Offender, and because of this, once you receive any sort of Driving While License Suspended ticket  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's the basics. The Clerk's Option was created by the legislature to permit folks charged with criminal driving on a suspended license with 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.


Remember that paying a "ticket" for Driving While License Suspended, is actually entering a "guilty plea" to the court that can have lasting effects on your driving record should you be accused of other qualifying offenses within five (5) years of paying that "ticket". Know your rights. Don't pay this ticket without first seeking legal advice.

In rare cases, a 5 year habitual traffic 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.   Even so, this is why its 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. 


When examining a DWLS 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...).

A felony charge of Driving While License Suspended as a Habitual Traffic Offender (HTO) has a few interesting quirks to look out for when defending these allegations.  For example, what happens to a person charged with this felony who has never actually had a drivers license?   Florida's DMV will issue an HTO 5 year suspension to anyone caught driving without a license three times in a five year period.  But, doesn't it seem weird to get a "suspended" license charge when there was never any license to suspend in the first place!  Actually, having never had a license issued can be a defense to a felony DWLS as an HTO charge, though the misdemeanor DWLS crimes do not have such a defense (don't ask me why, ask the legislature that wrote these laws...).  The reason for this is found within Florida Statute 322.34(5), which 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".


A felony driving while license suspended 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.  These financial obligations include failing to pay child support and failing to pay a civil fine.  In such cases, the felony charge will be reduced to a first degree misdemeanor.  In order to get a felony HTO charge reduced to a misdemeanor, all three underlying HTO suspensions must be for financial reasons.  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)

Oddly enough, you can be arrested for BOTH driving on a suspended license (a misdemeanor) and felony driving on a suspended 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".

So, say you are one of many drivers in the State of Florida that has had the misfortune of a Habitual Traffic Offender (HTO) designation. Not to worry, there are ways to fix an HTO suspension.  This HTO designation means the DMV has suspended your driving privileges for five (5) years by 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) Do not despair, we can help you. You may have the right to challenge some of the "plea's" entered 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.

Of course, there are many forms of Driving While License Suspended, such as the simple traffic citation mentioned above, but also a criminal misdemeanor offense of Driving While License Suspended With Knowledge, and the felony offenses of Driving While License Suspended With Two Priors or Driving While License Suspended as a Habitual Traffic Offender (HTO).  The laws now have changed regarding the felony DWLS as HTO, as it is no longer a felony to drive as an HTO if all of the underlying suspensions are due to financial reasons.


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 court system is split on this issue.  First of all, consider the fact that our legislature has decided to draft a separate 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 Central Florida, people need a car and a valid driver's license to get to work every day. If you are charged as a habitual traffic offender (HTO) and your license is suspended, your ability to earn a living may be in danger. We urge you to contact our criminal defense office today for strong advocacy and defense both in court and before the DMV.

E-mail: jguidrylaw@msn.com

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