Florida Suspended License - Attorney Interview

This is a transcript from an interview with David Haenel, an attorney based on Florida's west coast and a member of the Advocate Law Group. His firm is comprised of six attorneys, both prosecutors and former public defenders. Their practice focuses on traffic violations and criminal law and they cover every aspect of it from traffic tickets to misdemeanors and felonies. Attorney Haenel, who serves on the Florida traffic court rules committee, focuses a good deal of his practice on suspended license issues and has created a website (www.fightyoursuspension.com) that deals with the issues of license suspension and how to get your license back. According to Haenel, approximately 30 percent of the motoring public in the state of Florida is under some sort of suspension.

Interviewer: What are Florida's license suspension laws?

David: Florida has some unique laws. Unlike in some states where your license won't get suspended for failure to pay a ticket, in the state of Florida, if you don't pay a ticket, your license will get suspended - and I'm talking relatively fast. If you receive a ticket and you don't do anything with it, expect to have some sort of a notification from the DHSMV (Department of Highway Safety and Motor Vehicles) within about 90 days saying that your license is going to be suspended because you failed to comply with the traffic ticket.

Interviewer: Why do you think Florida is so tough on in this issue when other states seem to be a bit more lax?

David: I think Florida has been known for years as more of a transient state. A lot of people move here from other areas, especially the Northeast and Midwest. Florida was very liberal throughout the years, but the legislature in the last 10 or 15 years has created all these different ways for people to lose their licenses and it's just created an unbelievable number of people don't have valid licenses.

Interviewer: What's the difference between a license suspension and a license revocation?

David: Revocation is usually something that comes from the court. So, for example, if you get a DUI (Driving While Under the Influence) and let's say you refuse to take the breath test, then your license will be administratively suspended by the Department of Motor Vehicles for a particular time period, usually 12 months if it's a first time DUI. If you get convicted of that DUI in court, the court may order your license to be revoked. So, the court or the local clerk is telling the DHSMV, " Hey, we have a conviction on somebody's record for a DUI, we want you to revoke his or her license for whatever period of time would be necessary, six months, a year, whatever the case may be."

Interviewer: How do Florida's suspension laws differ from other states' laws?

David: I've discovered that when people move here, they attempt to get a Florida license and they are run through something called the National Driver Registry, or the NDR. What we've been discovering is that these people have suspensions out of state, so Florida won't even issue them a license until such time as they clear up whatever is suspending them out of state.

You run into this a lot. I can't tell you how many times I speak to somebody who comes down to Florida with a valid New Jersey license, for example. They go to get their Florida license and think it will just be handed to them. Well, Florida runs them through this NDR and they say, No, you have a hit out of North Carolina from 1999. The person's says, "What are you talking about?" So, then they have to contact North Carolina and clear up that issue.

If they can't do it or they can't do it fast enough, the next thing you know, they get stopped for driving while their license is suspended and now we're in criminal court over a ticket that wasn't paid in North Carolina. The problem is that people will still continue to drive until they get stopped.

Any time you're dealing with an administrative agency, especially with as many licensed drivers as we have in this state, it's daunting. I sat at the DHSMV today for several hours trying to take care of a client issue and the same questions kept coming up over and over again to these folks. Florida is actually pretty good in the fact that they contracted out with the local tax collectors' offices to do miniscule DHSMV type functions. They charge a convenience fee for that, but it takes a little bit of a burden off the Department of Motor Vehicles and their offices. However, there's still a lot of progress to be made.

Interviewer: How many people in Florida have their licenses actually suspended now?

David: Well, the most recent statistics that I received from the Department of Highway Safety and Motor Vehicles, pursuant to a public records request, is that about 30 percent of the motoring public is currently under some sort of a suspension, revocation, disqualification, whatever the case may be. That's obviously a huge, huge number - somewhere around 4.6 million drivers that are under some sort of a suspension or revocation.

Interviewer: How have insurance companies and the DHSMV added to the problems?

David: In many instances, insurance companies don't report to the DHSMV properly or on time that the person has valid insurance, so that triggers a suspension. The problem that you have is that the DHSMV sends these notices of suspension out to individuals using third class or bulk rate mail. So, if the person hasn't updated their address with the DMV, they may actually be under a suspension and really not know about it.

That creates a whole other issue. Someone could get pulled over for running a red light or a stop sign, whatever the case may be, and the next thing you know, they're getting handcuffed because they didn't get that notice in the mail. That's a huge problem.

Interviewer: What should, and shouldn't, Florida drivers do when their licenses have been suspended?

David: Well, obviously the first thing they shouldn't do is drive. They need to find out what it is that's suspending them and where it is that's suspending them. There are a lot of good websites out there that they can use to find this information. (Click here to check the status of your driver's license.) They can put their driver's license number into a little box and they will find out where they're suspended from if it's within the state of Florida. That is a very good first step.

If it's the result of a ticket, for example, then what will end up happening is the clerk's office phone number will be provided on there and that'll give them an opportunity to contact the clerk in that particular county to find out what must be done to clear up the problem.

Interviewer: What other tips would you give Florida drivers to avoid having their licenses suspended?

David: People have to realize that if you get pulled over with a suspended license, the officer has discretion on how to handle the situation. The officer could issue you a ticket with a court date and say, "Okay, go to court," or the officer could say, "I'm going to arrest you." If that happens, the next thing you know, you're ending up in jail for a simple unpaid ticket such as a seat belt violation. As you accumulate more of these 'driving while license suspended' charges, it has an absolute snowball effect.

I run into this on a daily basis where somebody will just pay off some driving while license suspended citations and the next thing you know, they're habitual traffic offenders and they're facing a felony for paying tickets like they thought they were supposed to do.

Interviewer: How many circumstances have you seen where an officer will actually arrest somebody instead of giving them a ticket? Is it fairly common?

David: A lot of that is based upon the attitude of the driver and their contacts within the community. It helps if they are local and the officers think that they will show up in court. Officers have that discretion in certain circumstances.

The officer has discretion on whether to give somebody a driving while license suspended with knowledge or a driving while license suspended without knowledge. Obviously the without knowledge is the least serious of the two and basically is a civil infraction, very similar to a speeding, red light or careless driving ticket. It wouldn't necessarily require a mandatory court appearance, but that is where some of the problems occur because those individuals clear up the suspension and then go to the clerk's office and just pay the ticket. That becomes strike number one for a lot of people.

So, if you get three strikes in five years, you lose your license for five years and you become a habitual traffic offender. Typically when you get pulled over, the officer should use some discretion and determine whether this person really knows that their license is suspended.

When we get these criminal driving while license suspended cases in our office and the person says, "Listen, I told the cop over and over again that I didn't know my license was suspended and he still wrote me up for driving while license suspended with knowledge." That element of knowledge is basically what we fight in all of these criminal cases because the person really didn't know that their license was suspended.

We try to find out the ultimate reason for the underlying suspension such as any prior driving while license suspended offenses. Many people are just not familiar with the process - even how to reinstate a license. For example, say you get a ticket in Tampa. You might not take care of it within the first 30 days as you're required to do. If you didn't request an extension and end up paying the ticket on the 40th day, you have to reinstate the pending suspension. They'll make you take a clearance form to the DHSMV to pay that reinstatement fee.

In some counties, like Sarasota, you could pay the ticket, say $12 to $18, and then it will go to the DHSMV side of the program. The clerk will report that the person has paid the reinstatement fee and has taken care of the citation.

So, it actually makes more work for the Department of Motor Vehicles because some of these counties don't report to the DHSMV; instead, they give them a letter and tell them to go to the DHSMV and reinstate their license. The clerk could do it internally and charge a fee for it; it would make the system so much smoother.

Interviewer: What is a D-6 suspension?

David: One example of a D-6 suspension would be a failure to appear in criminal court to address a charge. It's called a D-6 because the court is taking action through the clerk because you didn't do something with your citation. Let's say you get a criminal driving while license suspended citation and you don't show up for your court date. In lieu of issuing a bench warrant, the judge may say, "I'm just going to D-6 his or her license." Basically, it's just telling the DHSMV to suspend the license and not to reinstate it until the person comes before that court and gets an order from the judge reinstating the license.

It's almost in lieu of issuing a bench warrant. In some situations, the D-6 is used interchangeably when somebody didn't take care of a traffic ticket within a certain time period, then they D-6 the license.

Interviewer: What percentages of cases get D-6'd versus a warrant?

David: Unfortunately, judges seem to be issuing warrants more and more and you're seeing less and less of D-6ing the license. That's a whole problem in and of itself because that just clogs the court docket even more and clogs the state attorney's office because now the prosecutor is getting involved and having to put that case or that ticket into a warrants file. So then, that little ticket for $115 now becomes a criminal offense, and if you missed your court date, now you've got a warrant and it just goes on and on and on.

Interviewer: How can drivers with suspended licenses get their licenses reinstated and how long does that generally take?

David: It depends on the nature of the suspension because there are so many reasons for suspensions. Once you run your driving record and you find out what it is that's suspending you, you need to be a little cautious and not just pay off the tickets because that may result in even further problems. For example, you may be unknowingly driving around with citations for license suspension. You then find out about them and, thinking you're doing the right thing, pay them. However, the next thing you know, you get a letter from the DHSMV saying, "Hey, congratulations, you just paid off $500 worth of tickets, but now you have three major violations in a five year period and now you're going to lose your license for five years."

Just paying off the tickets may also result in some points suspensions, depending on if they're moving violations or not. So, there's just no way to say for sure because every case is very, very unique.

Interviewer: How do you assist clients in getting their licenses reinstated?

David: We look at their driving records and do everything we can to contact the clerk's offices in those counties to find out what exactly it is that's suspending them and then walking them through the process. Some people can't get their license reinstated; they might be under a five year suspension or they might be under a permanent suspension whereby they would have to wait a certain number of years. Permanent suspensions can never get a license because of the current status of the law, but the habitual traffic offender would have to wait a certain number of years, usually one, before they're eligible for even a hardship license.

Interviewer: Why is it better for somebody to contact an attorney then try and do it themselves?

David: Because most people think that they're doing the right thing, but in reality, they're actually taking steps backwards because they end up paying those tickets off and triggering a five year driver's license suspension.

Interviewer: Under what circumstances can a driver with a suspended license get a temporary license for business or hardship?

David: It depends on the nature of the suspension. For example, in a point's suspension example, the person would have to complete an advanced driver improvement school class, which is12 hours long, and then they would have to get themselves to the DHSMV. It's not in every county though; the offices are scattered throughout the state, so getting to an office could be problematic when you can't drive. They would actually have to go there, get a ride there, and explain to the hearing officer (an employee of the DHSMV who's not a lawyer) why it is that they need a hardship license. Then the hearing officer would make a decision based on the nature of the suspension and a showing of the certificate of completion of the long term 12 hour traffic school class. The hearing officer has the ultimate discretion whether to grant or not grant the hardship license.

Interviewer: What penalties do drivers face when their license is suspended?

David: In a criminal driving while license suspension situation, depending on if they have prior offenses, they could face anywhere from up to 60 days in the county jail on a first time offense to up to 11 months and 29 days on a second offense, or more. If they accumulate a certain number of driving while license suspensions, now we're facing a felony habitual traffic offender charge. That's a third degree felony punishable by up to five years in state prison.

There's not a person that comes to my office who has spent some time in jail who does not run into somebody who was in jail as a result of a driving while license suspended. The state prison is full of people who are in there for some sort of a driving charge.

Interviewer: When these people come to you, are they shocked that this has happened to them over a traffic violation?

David: Yes, depending on if they're 'frequent flyers', so to speak. Some people know the system and are trying to do their best to get out of it. Other individuals who've never been in the situation can't believe that it went this far.

However, no one's ever told them how the system works, they may have moved, they may have not gotten proper notification, etc. There are a million reasons that go into all these different facts.

Interviewer: How does Florida's points system operate?

David: Depending on the nature of the violation, three or four points are usually assessed. There are some exceptions, like leaving the scene of an accident would be six points, but for the most part, what we do on a daily basis deals with three or four points. Speeding tickets, for example, are four points if it's 16 or more miles over the speed limit and three points if it's up to 15 miles over the speed limit.

Most people don't realize that if you commit a violation out of state, those points will also transfer back to your Florida license. In a lot of states, people get a ticket out of state and they pay the ticket, the next thing you know, it transfers back to the state of Florida to your driving record as if you would have received that violation or that type of violation in the state of Florida.

So, for example, if you get a speeding ticket doing 80 mph in a 60 mph zone in Georgia, four points are going to transfer back to the state of Florida on your driving record.

That's why it's so important to fight out of state tickets. It's best to try and find a lawyer to get it reduced to a non-moving violation so that nothing transfers back to the state of Florida.

Florida's kind of unique when it comes to the disposing of traffic tickets. Basically, it disposes them in one of two ways. Either you're adjudicated guilty and then you end up with points on your license or the court withholds adjudication.

We have this terminology called a 'withhold', but that's not a formal conviction under Florida law. So, that means you would not be assessed any points on your license. So, you'll get assessed three or four points if the ticket is speeding related and four points for a moving violation with an accident, such as careless driving, an improper change of lane, a failure to yield right-of-way following an accident, etc. Any moving violation with an accident is four points. Reckless driving is also four points.

Ironically, no points are assessed after a DUI. There's other ramifications you'll get on a DUI, obviously with insurance, but you don't get any points assessed from the DMV on a DUI.

Red light running is also four points. That used to be three points, but that went up back in 2005. They're really trying to put a hard stance on red light running. There's a big push on that.

In addition, commercial drivers, people that hold a commercial license, can not elect traffic school any longer. Florida is kind of unique that they allow traffic school if you get a citation. You can attend traffic school once every 12 months for a total of five times in your lifetime. However, if you have a commercial driver's license, you can not make that traffic school election. The only way you'd be able to keep the points off is to go to court and ask the judge to do it.

Two laws took effect in 2005. One was that they raised the number of points on a red light ticket from three to four and secondly, that commercial drivers could no longer elect traffic school in an attempt to keep points off their license.

We represent a large number of commercial drivers - not only our own clients, but a lot of third party trucking companies who have a lot of commercial drivers that pay into a legal plan. It's a big problem. If these commercial drivers get points on their license, they could lose their job.

Interviewer: Is there anything special that you do with commercial drivers?

David: We go to court and we make sure that the officers can prove the case. Florida, unlike a lot of other states, does not have municipal or state prosecutors dealing with traffic tickets. If it's a run of the mill traffic ticket, the prosecutor is the officer. So the officer, on behalf of the state, stands up and tries to prove his or her case through the testimony of the witnesses or through the other driver. If it's a speeding ticket, then he's got to bring in the proper calibration certificates in order to win the case.

We try to make the judges understand that, but for the change in the law, this person would have been eligible to elect traffic school. The change in the law doesn't really make sense because the person doesn't even have to be driving a commercial vehicle. You can be in your private vehicle, get a ticket and because you possess a commercial license, you can not elect traffic school either. So, you would have to go through the court system in order to keep the points off your license.

Interviewer: Are damages available when someone's license has been wrongly suspended? Can they sue?

David: I would imagine that they could sue. We haven't done that, but I'm discovering some interesting scenarios with individuals that have hyphenated last names of the Spanish origin that might qualify. Here's what I mean:

Someone gets stopped, let's say in Sarasota County, without a valid license. Their name is Juan Ramirez-Gomez with a date of birth of 1/1/70. The DHSMV, because that person didn't have a license, would create a record for them - what we call a dummy record. It would begin with the first letter of their last name and would be approximately 15 characters long.

What we were discovering is that the DHSMV has a computer system that was trying to match up that person's name and date of birth with someone who actually has a valid license number already.

In some cases, that other person may have had a valid license. The next thing you know, their license gets suspended because the DHSMV system is not 100 percent accurate. It was a nightmare trying to convince somebody that these were two different people. If they don't have a thumbprint on the back of the ticket, trying to get that cleared off the record can be a nightmare.

Could you have legal action? Yes. Obviously, you have to assess your damages such as, did the person get arrested, were they just given a ticket and did they have to hire a lawyer?

Interviewer: What questions should someone ask a Florida license suspension attorney before hiring him or her?

David: They should ask questions such as, "How much experience do they have in this area of the law, what do they think the outcome is going to be and how are they involved in the community?"

I'm also on the Florida Traffic Court Rules Committee, a committee that meets several times a year to write traffic court rules. The state of Florida has a bunch of traffic court rules and the committee is constantly getting together and trying to brainstorm to either tweak the current rules, make new ones, whatever the case may be, because as the legislature passes certain laws, we need to make sure that the rules address those laws.

Last year, for example, the state of Florida said that anybody who's doing 30 miles or more over the posted speed limit is subject to a mandatory infraction hearing. So, you can't just try and circumvent the situation by electing traffic school in order to try and keep the points off your license.

The nice thing is that the traffic court rules allow for an attorney to appear on behalf of the client. So, if you live in Miami and you pick up a ticket in Tampa, you hire a lawyer and you don't actually have to go to court. The lawyer can go for you.

That's huge, especially for somebody who doesn't live in the state. Obviously, we have a lot of tourists. I'm constantly dealing with people that aren't from the area who can't come back to court in whatever county it is in which they received the citation. It's called a mandatory infraction. That's a huge, huge new change in the law. That came out the same time the commercial driver's license change in the law occurred in 2005.

There was also a change dealing with license suspensions on mandatory infractions. There used to be no minimum requirement to suspend somebody's license if they received a ticket for careless driving, for example, and the person was seriously injured. The legislature has created all these new laws which say that your license shall be suspended for a certain period of time, usually 90 days, if there's a serious injury to another individual.

Interviewer: How are attorneys compensated in license suspension cases?

David: Attorneys are usually compensated with a flat fee agreement.