Habitual Traffic Offender Revocation
If you received a letter from the Department of Highway Safety and Motor Vehicles (DHSMV) that your driver’s license has been or is about to be revoked or suspended for a five (5) year period as a Florida Habitual Traffic Offender (HTO), then contact an attorney at the Sammis Law Firm.
The five-year revocation is often caused by three DWLS or DWLSR convictions. If you hire an attorney to get one of those prior convictions vacated (or taken off your driving record), then the five-year revocation disappears. Act quickly because certain deadlines exist in these cases which can potentially block certain avenues of defense.
Follow these steps:
- First, stop driving until your driving privileges are reinstated.
- Second, send us a copy of your lifetime Florida Driving Record. A company called Drive Safe Today can email you a copy of your lifetime driving record for $24.95 (or save money by obtaining a copy of your driving record at your local clerk of court or the DHSMV).
- Third, send the driving record (along with your name and phone number) to Tammy Baker, at firstname.lastname@example.org.
- After we get your driving record and your contact information, one of the attorneys in the firm will call you for a free and confidential consultation to discuss your options.
Most people are better off vacating a prior conviction instead of waiting a year to apply for a hardship license.
Attorneys on Eliminating the HTO Revocation in Florida
In this article, we explain how it might be possible to get your Florida driver’s license reinstated much sooner if you hire an attorney. The attorney can go back to court to attack one of those three convictions that originally caused the HTO status. In order to vacate a prior conviction, the attorney will file and litigate a post-conviction motion.
If the conviction is vacated and removed from your record, then the Bureau of Driver Improvement (BDI) with the Division of Driver Licenses at the DHSMV will immediately lift the five-year HTO revocation.
At that moment, your driver’s license would again become valid (assuming you had no other issues causing a suspension or revocation).
Our attorneys fight the five-year Habitual Traffic Offender revocation throughout all of the greater Tampa Bay Area including:
- Tampa and Plant City in Hillsborough County;
- New Port Richey and Dade City in Pasco County;
- Clearwater and St. Petersburg in Pinellas County;
- Brooksville in Hernando County; and
- Bartow, Winter Haven and Lakeland in Polk County, FL.
By fighting the HTO revocation you may be able to save your privilege to drive, avoid the expenses of having a hardship license, and avoid the need for high-risk insurance premiums.
HTO Revocations in Florida are Common
The DHSMV website does not even discuss your right to collaterally attack one the underlying offense through a motion to vacate or set aside the conviction. As a result, many people suffer the five (5) year suspension not knowing that they have other options under Florida law.
According to the Bureau of Driver Records, the Florida DHSMV sent out the following number of habitual traffic offender notices to Florida drivers:
- 22,742 HTO notices in 2008;
- 23,753 HTO notices in 2007;
- 21,816 HTO notices in 2006.
(Source JB Report, Statistics and Special Projects by the Florida DHSMV).
How the HTO Revocation Occurs
To be deemed a habitual traffic offender in Florida your driving record (maintained by the Florida DMV) must show you have accumulated certain convictions as explained below.
In many of these cases, the HTO revocation results merely from three driving with a suspended license civil or criminal cases. The person who entered the plea might not have had an attorney. Even if the person had an attorney when they entered the plea, they might not have known that a conviction would cause a five-year HTO revocation.
The problem is compounded by the fact that the attorneys with the Public Defender’s Office are typically not allowed to fight the underlying offenses through post-conviction motions.
Fighting to Remove the HTO 5 Year Revocation
You can fight to remove the HTO status with the help of an attorney who is experienced in fighting Florida Habitual Traffic Offender (HTO) revocations.
Fighting to remove the HTO revocation depends on timing issues because different legal challenges can be filed:
- within 30 days after you receive the notice;
- within 60 days after you were convicted of the last driving offense or ticket; or
- within two (2) years after you were convicted of the last offense or ticket.
Many people are surprised to learn that they have up to two years after their conviction to file a motion to vacate or set aside a conviction that caused the Florida habitual traffic offender five-year revocation.
Contact us today to preserve all avenues of attack to remove the underlying offenses that caused your HTO status. Find out how a motion to vacate could potentially cause the HTO status to be lifted so that the driver’s license again becomes valid without any restrictions.
Call (813) 250-0500 to schedule a free consultation over the phone or in the office. From our initial free consultation, we can help you develop a strategy to best protect your privilege to drive.
Contact an attorney at the Sammis Law Firm to fight to remove your Habitual Traffic Offender status for any underlying offense that occurred in Hillsborough County or the surrounding counties of Polk County, Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, FL.
Florida’s Definition of Habitual Traffic Offender Suspensions
Florida Statute Section 322.264 defines the phrase “habitual traffic offender” as a person whose driving record maintained by the DMV shows three serious driving offenses, including:
- Driving While License suspended with or without knowledge; or
- the accumulation of 15 convictions for moving violations for which points may be accessed within a five (5) year period.
To figure the five (5) year period, DHSMV goes from the date of conviction (or plea) to the date of conviction (or plea).
As explained in Florida Statute Section 322.264, even if the court withholds adjudication on the criminal version of DWLS, the withhold still counts as a conviction.
Problems with Getting the HTO Hardship License
Many people contacting the Sammis Law Firm are interested in obtaining a hardship license so that they can drive to and from work. If you are able to successfully attack the offenses that cause the Florida HTO revocation or suspension, then no hardship license is needed because you may be able to have your full driving privilege reinstated.
The problem with seeking a hardship license after the HTO revocation is that you are not eligible at all during the first year beginning on the effective date that the license was suspended or revoked. That means that you can not drive for any reason. After one year, you can apply for a hardship license through the Administrative Review Office so that you can drive to and from work.
Before you can obtain a hardship license you must complete the Advanced Driver Improvement (ADI) School unless alcohol was involved, and then you are required to complete a Driving Under the Influence (DUI) school (in certain cases).
Even after the five-year HTO revocation has expired, a resident of the State of Florida can petition through the Administrative Reviews Office to restore driving privileges.
After the petition is filed, the DHSMV will conduct an investigation into the driver’s fitness to drive. If the request is properly filed, the department is required to hold an administrative hearing to determine whether full driving privileges can be restored or whether driving privileges will only be restored on a restricted basis for business or employment purposes.
You owe it to yourself to talk with an experienced Florida Habitual Traffic Offender lawyer before you continue to suffer the consequences of the HTO suspension. Many people are surprised to learn that they could have avoided the revocation or suspension by going to court with an experienced attorney.
In some cases, the individual was represented by an attorney who never told them that their plea would subject them to a five-year habitual traffic offender revocation. Those same individuals are even more surprised to learn that it is possible to undo the damage even up to two years later.
Three Offenses Can Cause a Habitual Traffic Offender Revocation
In Florida, any driver who has three offenses listed below within a Five (5) year period becomes a Habitual Traffic Offender and receives a Five (5) year revocation or suspension of their driver’s license. The qualifying offenses include:
- DUI – Driving Under the Influence;
- DWLSR – Driving While License Suspended or Revoked regardless of whether adjudication was withheld (except that a civil infraction for driving while license suspended without knowledge does not count only if adjudication was withheld on that civil infraction. If you paid the fine for a civil infraction for DWLS without knowledge- then it counts);
- Vehicular Manslaughter – voluntary or involuntary;
- Committing certain felonies while using a motor vehicle;
- Failing to stop and as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury or another; or
Although less common, the Florida Habitual Traffic Offender (HTO) suspension or revocation can also occur if the driver has fifteen moving violation convictions for which points may be assessed within a five year period.
Typical Habitual Traffic Offender Case – Does this Sound Familiar?
An individual is arrested for driving while license suspended (DWLS) without knowledge (which is a civil infraction) in 2007 in Bartow, Polk County, and pays the ticket. In 2008 in Dade City, Pasco County, the individual is again arrested for driving while license suspended, but this time the offense is “with knowledge,” which is a criminal offense.
The individual goes to court on this second ticket, and the court “withholds adjudication.” In 2009, the individual is again arrested for DWLS with knowledge, this time in Clearwater, Pinellas County.
When the last ticket is resolved, even if the court in Clearwater again withholds adjudication, the individual will receive notice from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) of a five (5) year Habitual Traffic Offender Suspension.
Assume that the individual, now with notice of the HTO suspension, drives again. This time the individual is arrested in Hillsborough County for Driving While License Suspended or Revoke as a Habitual Traffic Offender, which is a third-degree felony punishable by a $5,000,00 fine and five (5) years in Florida State Prison.
At the Sammis Law Firm, we would proceed with a comprehensive defense that may span four counties to address the Habitual Traffic Offender Suspension- Polk County, Pasco County, Pinellas County, and Hillsborough County.
First, we could collaterally attack one or more of the underlying driving while license suspended cases from 2007, 2008, or 2009. If one or more of those cases can be vacated or set aside, and then resolved in a way that does not count toward a HTO suspension, then the individual may be able to get their driver’s license reinstated, even while the felony driving while license suspended case is still pending in Hillsborough County Circuit Court.
Second, we could defend the individual on the felony charge of driving while license suspended in Hillsborough County while helping them get their license reinstated. If the driver license is reinstated then we can then use that fact to attempt to negotiate a disposition for a reduced charge of “no valid” driver’s license which will not cause another suspension.
Prosecutors are often impressed with the fact that the individual is finally taking all necessary steps to address the problem and prevent any future offenses. As a result, the prosecutor is often much more likely to reduce the charge.
Additionally, the client can still fight the Felony Driving on a Suspended License case on the merits by pursuing any number of defenses that might exist in the case, such as a motion to suppress the driver’s identity because of an unlawful stop of the vehicle by law enforcement. All of these avenues of attack are available to avoid a felony conviction, possible jail or prison sentence, long probationary term, and another suspension that might otherwise occur.
The end result may be that the individual is now educated about the consequences of driving on a suspended license, and will not make that mistake again. The individual now has a reinstated driver’s license, and may be able to avoid any felony charge or conviction (especially if the case is reduced to the misdemeanor charge of “no valid” driver license).
This result is much better than having a felony criminal record, incarceration or felony probation, and a five (5) year HTO suspension.
The Next Time You Are Caught Driving, the Consequences May Be More Serious
Any person arrested for driving while under a Florida Habitual Traffic Offender revocation or suspension is guilty of a third-degree felony punishable by a $5,000.00 fine and five years in Florida State Prison. See Florida Statutes §322.264 and §322.34(5).
Even being arrested for the third time for driving while license suspended or revoked with knowledge is guilty of a third-degreee felony (if they have a prior forcible felony conviction) punishable by a $5,000.00 fine and five years in Florida State Prison. See Florida Statutes Sections §322.34(2).
These offenses are serious and each new offense makes the problem worse. But you may be able to reverse the damage before it is too late.
Filing a Petition Writ of Certiorari to Challenge the Revocation Order
In many cases, the DMV does not receive notice of a conviction from the clerk of court in the county in which the conviction occurred until years after the conviction. Recently, counties including Lee County, Orange County, and Okaloosa County (just to name a few) have begun sending notices of very old convictions to the DMV. As a result, many people are receiving Habitual Traffic Offender revocations years after the convictions occurred.
One of the most obvious problems with this procedure is that the driver is then at a huge disadvantage in contesting one of the underlying convictions that caused the HTO revocation. As discussed below, a traffic ticket for driving while license suspended without knowledge can best be contested within 60 days of the date of conviction. The criminal conviction can only be contested up to two years after the conviction.
But what if the DMV does not send notice of the HTO revocation until more than two years after the last conviction occurred? One possibility is filing a petition for writ of certiorari challenging the Florida DMV’s revocation order. The petition for writ of certiorari must be filed within 30 days of the order of revocation in the Circuit Court of the county in which the driver lives.
At issue in the petition for certiorari is whether the Florida Department of Highway Safety and Motor Vehicles acted without jurisdiction or failed to follow an essential requirement of the law by issuing the revocation years after the three underlying convictions occurred.
The best argument for such an appeal is that because of the delay in processing the HTO revocation, the defense of “laches” bars the revocation. The defense of laches applies because the driver became prejudiced by the delay which procedurally barred from successfully contesting one of the underlying offenses. See DHSMV v. Hagar, 581 So.2d 214 (Fla. 5th DCA 1991) (which granted no relief to the driver fighting a habitual traffic offender revocation under the “laches” theory based on a different theory of prejudice).
Requesting an Administrative Hearing to Review Your Record
The HTO notice from the Florida DHSMV also explains that you can apply for an administrative hearing to review your driving record (known as a “driver license record review”) if you believe that you have any legal basis to show cause why the revocation is unjustified.
You only have thirty (30) days from the date of the order of suspension to file a request for an administrative record review hearing.
Common mistakes that warrant a showing that the revocation is unjustified include:
- showing court entry errors on your Florida driving record related to the type of offense and whether you were convicted of the offense;
- an incorrect entry that resulted from a case of mistaken identity when a citation belongs to another person who has a similar or identical name;
- identity theft if someone else used your driver license number or identification;
- the officer that issued the citation put incorrect identification information on the citation;
- the clerk of court made a mistake entering the information into the computer;
- the three offenses listed were not separated by less than five years;
- the DHSMV waited too long before sending notification of the suspension to the driver; or
- the DHSMV listed the wrong offenses.
Legal basis to show that the revocation is unjustified, however, would not include a request to remove or attack the conviction on your record if it was properly entered. You can appeal the decision from the administrative hearing if an illegal entry is not properly removed, or file a “writ of certiorari.”
Although such steps are usually not necessary because the easier course of action would be to petition the court that made the error requesting the court send written certification to the DHSMV for a review under Florida Statute Section 120.057(2) to correct the driving record.
If the information on the letter you received notifying you of the five year Habitual Traffic Offender suspension is correct, you must act quickly to file a motion to attack one of the underlying offenses as discussed below.
The Court Has a Responsibility to Advise the Defendant
A license revocation is such a serious consequence that the Florida Supreme Court has directed judges to give this collateral consequences (the five-year revocation) warning to all defendants entering a DWLS plea. The Florida Supreme Court has directed that Rule 3.172, Fla. R. Crim. P., be amended to inform the defendant of this consequence. Bolware v. State, 995 So.2d 268 (Fla. 2008).
Another important defense was discussed in State v. Miller, 193 So.3d 1001 (Fla. 3rd DCA 2016). In that case, the defendant was charged with driving while his license was revoked as a habitual offender, even though he has never had a Florida driver license.
The criminal defense attorney filed a sworn motion to dismiss which was treated by the Court as a motion for a reduction of the charge to the offense of driving without a valid driver license (NVDL). The defendant was found guilty of NVDL and the state appealed.
The Third District Court of Appeal affirmed the trial court decision. The Appellate Court reviewed several Florida appellate cases which dealt with this issue and concluded “… as a matter of law that having, at some time, a Florida driver’s license is an element of a section 322.34(5) offense” and thus “a defendant may not be convicted as a habitual traffic offender under section 322.34(5) for driving with a suspended license when no license had ever been issued to that defendant.”
Finding an Attorney to Fight the HTO Revocation
If you need an attorney to fight your Habitual Traffic Offender Suspension we represent clients throughout the greater Tampa Bay area on serious driving or traffic offenses.
Find you what you can do now to protect or reinstate your Florida driver’s license today. E-mail us a copy of your driving record with your contact information and we will contact you today to discuss your options.
“In today’s society, it is difficult, if not impossible in some locales, to travel from place to place without a driver’s license. In many areas there is inadequate or no public transportation.
We have come to rely more and more on the use of personal motor vehicles to get to work, to shop, to attend recreational activities, and to attend many other activities that are a part of daily life.
It is sometimes virtually impossible to perform the ordinary functions of life without ready access to a motor vehicle. Thus, having a driver’s license is often not just a desire but a necessity.”
Bolware v. State, 995 So.2d 268 (Fla., 2008)(Quince, J., dissenting).
To resolve your Florida Habitual Traffic Offender Status, do the following:
- Stop driving until your driver license is reinstated or you obtain a hardship license;
- Get a copy of your driving history;
- Learn more about the recent case law regarding Florida Habitual Traffic Offender Decisions; and
- Contact an experienced Florida habitual traffic offender lawyer to discuss your case today.
Call (813) 250-0500.
This article was last updated on Friday, August 9, 2019.