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HABITUAL TRAFFIC OFFENDER (HTO)- FLORIDA


JACKSONVILLE HABITUAL TRAFFIC OFFENDER DEFENSE ATTORNEY


In Florida, habitual traffic offender (HTO) status is a designation used by the Florida Department of Highway Safety and Motor Vehicles to revoke a person’s driver’s license for a period of five years.  If your driver’s license has been revoked or suspended as a result of being a “habitual traffic offender,” contact a Jacksonville Habitual Traffic Offender Attorney in to discuss ways to reinstate your driving privileges.


Definition of Habitual Traffic Offender (HTO)- Florida Law


Under Section 322.264, Florida Statutes, a “habitual traffic offender” is defined as any person whose driving record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has, within a five-year period, accumulated:


(1) Three or more convictions of any or all of the following offenses:



(2) Fifteen convictions for moving traffic offenses for which points may be assessed as set forth in Section 322.27, Florida Statutes, including those offenses set forth above.


The process of being designated as a habitual traffic offender is best described with an example. Suppose Driver X is convicted of DUI in 2007.  As part of his conviction, his driver’s license is suspended for a period of twelve months.  He fails to complete the DUI school and does not obtain a hardship license.  Consequently, his driving privileges remain suspended.  Five months later, while driving to work, he is pulled over and cited for driving with a suspended license. The same thing occurs two weeks later.  Driver X, without the benefit of counsel, pleads guilty to both driving with suspended license charges.  At this point, Driver X has accumulated within a five-year period three or more of the offenses needed for HTO status.  Once the record of his two most recent suspended license convictions is received by the Department of Highway Safety and Motor Vehicles, he will be designated as a habitual traffic offender and will lose his regular license for a minimum mandatory period of five years.  Barring a Motion to Vacate his prior convictions (discussed below), even Jacksonville’s esteemed “law doctor” can’t save him. Driver X must wait a full year (in addition to the time he was already suspended for DUI) before even becoming eligible for a hardship license.


Consequences of Habitual Traffic Offender (HTO) Status- Florida Law


Under Section 322.27(5), Florida Statutes, a designation as a habitual traffic offender requires the Department of Highway Safety and Motor Vehicles to revoke that person’s Florida driver’s license for a minimum of five years.  Unless the designation occurs in error and a hearing is requested to establish the error, the affected driver will not be eligible regular driver’s license for a period of five years.  The full five year revocation is mandatory, as there is no provision made in the law for mitigation or exceptional circumstances. See Chaitkin v. Dep’t of Highway Safety & Motor Vehicles, 294 So. 2d 352, 354 (Fla. 1st DCA 1974).


Can Habitual Traffic Offenders Get a Hardship License in Florida?


Under Section 322.271(1)(b), Florida Statutes, a person classified as a habitual traffic offender is not eligible for a hardship license until a full year has elapsed from the date of revocation.  Upon expiration of the 12 month period, the affected person may petition the Department of Highway Safety and Motor Vehicles for reinstatement of his or her driving privilege on a hardship basis. Upon such petition and after investigation of the person's qualification and fitness and need to drive, the Department must hold a hearing to determine whether the driving privilege should be reinstated on a restricted basis solely for business or employment purposes.


Constitutionality of Florida’s Habitual Traffic Offender Law


The Florida statutes defining and punishing designated habitual traffic offenders have survived numerous constitutional challenges since their enactment in the 1970s.  The HTO statutes are not unconstitutional as ex post facto laws, and the standard for defining a “habitual traffic offender” does not violate a driver's due process or equal protection rights.


Causes of Habitual Traffic Offender Status in Florida


As referenced above, there are several ways for a person to be classified as habitual traffic offender in Jacksonville, Florida.  First, habitual traffic offender status will be conferred on any person who, within a five year period, is convicted three or more times of one or more of the following offenses: (1) voluntary or involuntary manslaughter, (2) DUI, (3) any felony where a motor vehicle is used in the commission of the crime, (4) driving a motor vehicle with a driver’s license suspended, cancelled, or revoked (with or without knowledge), (5) failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another, (6) driving a commercial motor vehicle while his or her privilege is disqualified.


A driver may also be classified as a habitual traffic offender where a driver accumulates fifteen convictions for moving traffic offenses for which points may be assessed (as set forth in Section 322.27, Florida Statutes), including those offenses outlined in number 1-6 above. Because a designation as a “habitual traffic offender” can be caused by an accumulation of infraction “points,” and because the Department of Highway Safety and Motor Vehicles administers the points system, the Department’s decisions receive great weight in determining HTO classifications on this basis.


Specified points are assigned for the following violations:

  1. Reckless driving, willful and wanton;
  2. leaving the scene of a crash resulting in property damage of more than $50;
  3. unlawful speed resulting in a crash;
  4. passing a stopped school bus;
  5. unlawful speed not in excess of 15 miles per hour of lawful or posted speed, and unlawful speed in excess of 15 miles per hour of lawful or posted speed;
  6. violation of a traffic control signal device;
  7. all other moving violations, including parking on a highway outside the limits of a municipality, but no points will be assessed for violation of the statute governing high occupancy vehicle lanes or the statute governing the use of roller skates, coasters, toy vehicles, or similar devices on a roadway;
  8. any moving violation covered above, excluding unlawful speed, resulting in a crash;
  9. any conviction under the Florida Litter Law provision that involves the use of a motor vehicle; and
  10. any conviction under the statutory provision prohibiting the possession or use of a traffic signal preemption device.


Can Out of State Convictions Cause Habitual Traffic Offender Status?


Yes. Under Section 322.264, Florida Statutes, any violation of any federal law, any law of another state or country, or any valid ordinance of a municipality or county of another state similar to offenses outlined in Florida’s Habitual Traffic Offender statute can be used to habitualize a driver.


I Have Been Charged with Driving With a Suspended License. Will a Withhold of Adjudication Save My Driver’s License?


The answer depends on the nature of the charge.  If adjudication is withheld and the charge is driving with a suspended, canceled, or revoked driver’s license without knowledge (a civil infraction), then the offense will not be used towards classifying you as habitual traffic offender.  However, if the charge is driving with a suspended, canceled or revoked driver’s license with knowledge (a criminal offense), then a withholding of adjudication makes no difference.  The offense will be used towards HTO classification.


Can the Payment of Traffic Fines More Than 5 Years Old Cause HTO Status?


Yes, according to the Florida Department of Motor Vehicles.  The Department of Motor Vehicles routinely habitualizes drivers for the payment of fines pertaining to civil infractions (i.e. driving on a suspended license without knowledge), which occurred more than five years before their most recent offense.


Example: Driver X pleads guilty to DUI 2012.  As discussed above, DUI is an offense that counts towards habitual traffic offender classification.  Driver X wants to obtain a hardship license. Before the Department of Motor Vehicles will issue the hardship license, Driver X must pay off some old traffic fines, including two citations for driving on a suspended license without knowledge (a civil infraction).  The citations date back to 2001, more than five years prior. Common sense would dictate that: (1) the offenses occurred more than 5 years before, and thus they will not be used to habitualize Driver X, and (2) the State of Florida should not penalize drivers for meeting their financial obligations.  Neither is the case. Under this scenario, the Department will designate Driver X as a habitual traffic offender, resulting in an additional 5 year loss of his driving privileges.  The reason: the Department will treat the payment of the fine as a “conviction” date, which results in Driver X having three HTO qualifying convictions within a five year period.


The solution: Driver X must  request a hearing with appropriate court and request that adjudication be withheld on his 2001 civil DWLS infractions prior to paying the fines pertaining to those infractions.  As discussed above, a withhold of adjudication on a civil suspended license charge (i.e. driving on a suspended license without knowledge) is not used by the Department of Motor Vehicles in designating driver as a habitual traffic offender. Thus, a simple withhold will preserve Driver X’s license privileges for the long-term.


Is Habitual Traffic Offender Amnesty Available to Remove My HTO Classification?


No.  Contrary to the claims made on several Jacksonville criminal defense lawyer websites, the Habitual Traffic Offender “amnesty” law was phased out effective July 1, 2011.


When Do Habitual Traffic Offenders Get Their Licenses Back?


First, you can petition for a hardship license after one year. Under Section 322.271, Florida Statutes, a person whose driving privilege has been revoked due to designation as a Habitual Traffic Offender may, upon expiration of 12 months from the date of their license revocation, petition the Department of Motor Vehicles for reinstatement of his or her driving privilege. Upon such petition and after investigation of the person’s qualification, fitness, and need to drive, the Department must hold a hearing pursuant to Chapter 120, Florida Statutes, to determine whether the driving privilege shall be reinstated on a restricted basis solely for business or employment purposes.


If not eligible for a hardship license, the driver must wait the full five years before petitioning again for restoration of their driving privileges.  Upon such petition and after investigation of the person’s qualification and fitness to drive, the Department of Motor Vehicle must hold an administrative hearing to determine whether driving privileges shall be restored either on an unrestricted basis or on a restricted basis solely for business or employment purposes. Note here that the revocation will remain in effect until the affected driver actively petitions for reinstatement.  Restoration and reinstatement does not occur automatically.  State v. Green, 747 So. 2d 1007 (Fla. 3d DCA 1999).


How to Avoid Habitual Traffic Offender Status Jacksonville, Florida


The phrase, “an ounce of prevention is worth a pound of cure” has special significance where a driver is classified as a habitual traffic offender.  First, it is essential that you do not plead to an offense that may lead to an HTO classification.  Thus, you should consult with a Jacksonville criminal defense attorney prior to pleading to any driving offense.


If prevention has failed, there are often steps that can be taken to restore your driving privileges without waiting the full year (for a hardship license) or the full five years (for a regular license).  With a Jacksonville criminal lawyer at your side, you may be able to contest the legality of the decision to classify you as a habitual traffic offender in the first place.  If you have received a notice of a Florida Habitual Traffic Offender designation, you have thirty days from the date you receive the notice to bring any legal challenges you may have.


Even where there are no legal grounds to challenge the designation based on your current driving record, you may have options for vacating prior convictions that counted towards your HTO classification.  This is done through a Motion to Vacate, which challenges the validity of  a prior plea (and conviction).  There are many grounds for challenging a plea and, if the challenge is successful, it may result in a technical conviction being lifted from your driving record.  If the vacated conviction was causing your HTO designation, then you will avoid the five year habitual traffic offender revocation.



If you have received a letter from the Department of Highway Safety and Motor Vehicles notifying you that your license is about to be revoked for five years because of a Florida Habitual Traffic Offender designation, contact an experienced Jacksonville Habitual Traffic Offender lawyer today.  Our Jacksonville criminal attorney has extensive experience fighting HTO designations and vacating prior convictions.  In appropriate cases, you may be able to save your license.  Call us today for a free consultation.    

HABITUAL OFFENDER STATUTE