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Calculating Florida's HTO Suspensions

The Math Behind The 5-Year Suspension

Information provided by Eric J. Dirga, P.A., Orlando - Statewide Service

Last Updated: June 2, 2016

The Department of Motor Vehicles Suspension Letter

Usually the first time you learn about any pending driver's license suspension is when you receive a letter from the Department of Highway Safety and Motor Vehicles [DHSMV]. The notice will list out the three infractions/convictions it is using and the Offense Date and the Conviction Date for these infractions/convictions. This portion of the letter will typically look something like this:

Letter From DHSMV
offense date conv. date court entry description case no.
06-12-06 06-26-06 orange 3.0 pts driv while lic canc/rev/susp 8enu
03-01-08 05-16-08 orange 0.0 pts driv while lic canc/rev/susp 8fch
05-08-08 05-16-08 osceola 3.0 pts driv while lic canc/rev/susp 7fue

The DHSMV will calculate the five-year period with the dates under conviction date. These must all have occurred within a five-year period of time. If the conviction dates are not within five-years of each other then look at the offense dates - these will most assuredly all be within a five-year time frame.

The DHSMV Notice Letter Is An Order

When the DHSMV decides that a driver's license will be suspended they will send a notice to the driver in advance of the effective suspension date (except for lack of insurance suspensions which are immediate). Actually, what they send is not a notice - it is an Order. At the top of the page just below the DHSMV address it will state "order of license revocation, suspension, or cancellation" and below that a date. The date is important because at the very bottom of the page it states:

This order has been filed in the official records of the Division of Driver Licenses on the day and year written above. Appeals of this order may be initiated within 30 days of the date of this order by following the procedure specified in S. 322.31 F.S. HSMV F72100 PRSC MULTI REV 10/2007.

If you follow the reference given and read section 322.31, Florida Statute, you will see that the actual review is by Writ of Certiorari which is different than an appeal. If you decide to challenge a ruling by Writ of Certiorari you must have your writ finished and filed within 30 days of the order. The date of the order, in these type of DHSMV cases, is the date on the letter which is the date mailed. When you receive the letter you already have less that 30 days to challenge it.

Why a 5-Year Habitual Traffic Offender Suspension Occurs

To have the HTO designation your driving record as maintained by the Department [of Highway Safety and Motor Vehicles] must show that you have accumulated the specific number of convictions for specified offenses within a five-year period (see the statute). The specified offenses are any of the following:

  • Voluntary or involuntary manslaughter arising out of the use of a motor vehicle.
  • DUI or drunk driving.
  • Any felony in the commission of which a motor vehicle was used.
  • Driving a motor vehicle while the driver's license has been suspended or revoked [DWLSR]. (If you ever get a DWLSR citation, either "with knowledge" or "without knowledge" consult with an attorney before resolving it.)
  • Failure to stop and render aid as required under the laws of (Florida) in the event of a motor vehicle crash resulting in the death or personal injury of another. (Personal observation: hard to render aid to the dead.)
  • Driving a commercial motor vehicle while the driver's (commercial driving) privilege is disqualified.
  • (The ticket method) Fifteen convictions for moving violations for which points may be assessed.

This definition, found in s. 322.264, FS., leads most everyone to believe that three conviction dates within a five-year period will trigger the HTO designation and the suspension period. I believe this is incorrect. The statute's language, while not written as clearly as possible, states the following:

A “habitual traffic offender” is 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 for offenses described in subsection (1) or subsection (2) within a 5-year period:

Looking at this sentence grammatically we derive a clearer understanding of the meaning. First we can remove the subordinate clause that begins with "as maintained by..." Next, let's get rid of the part talking about another section of the statute that begins with "described in" and ends with "subsection (2)." Let's now read it this way:

A “habitual traffic offender” is any person whose record . . . shows that such person has accumulated the specified number of convictions for offenses . . . within a 5-year period.

Cleaned up it now seems clear that it is meant to be understood to be for offenses within a 5-year period. Because an offense can be either a conviction or not a conviction, the term conviction is describing the result of the offense. Removing the subordinate clause here gives us the result we are looking for. Unfortunately, the final paragraph of the statute continues this misnomer by ambiguously stating:

In computing the number of convictions, all convictions during the five years previous to July 1, 1972, will be used, provided at least one conviction occurs after that date.

This has led lawyers and judges to interpret "conviction date" as the calculation date for the five-year time period. However, this sentence actually does not address the computation method for the "period of time" but only the "number" of offenses resulting in convictions.

Another Statute Helps Clarify The Situation Further

Under s. 322.27, FS., subsection (5), the law specifically authorizes the DHSMV to revoke a license of any person designated a habitual traffic offender under s. 322.264, see above.

Looking at subsection (4) we find the calculation method for all suspensions under this section. This is the crucial issue with HTO suspensions - what dates are to be used to calculate the 5-year time frame? It states in unambiguous language, the following:

The department, in computing the points and period of time for suspensions under this section, shall use the offense date for all convictions.

This is the only language in any of the statutes, thus far mentioned, that addresses the computation of the period of time for suspensions and the term offense date.

Another way of reading this is only offense dates of infractions that resulted in convictions shall be used to calculate the period of time for suspensions. Regarding an HTO suspension, the period of time would have to include the specified five-year period within the HTO statute, s. 322.264, FS. This in turn should mean that offense dates are used to calculate the number of convictions within a five-year period.

This is the only computation method that makes sense. Otherwise, if we used the conviction date method a driver could avoid an HTO designation simply by waiting to pay a ticket past a specified date. There is no way the legislature would allow these statutes to be defeated by the defendant in this manner.

Regardless of these points the DHSMV and the Courts typically look at conviction dates when determining a suspension.

Contact An Attorney - There Are Alternatives

A writ is a very expensive path to take and the chances of winning one is slight at best. However, there are cheaper ways around your situation which can work. Going back to the letter you received and looking at the listed offenses causing the suspension. If one of those could be removed then you would not qualify for the suspension. Contact us for more information regarding this approach.

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