Florida May Not Prosecute Both Single Traffic Charge and Habitual Traffic Offender Charge – Gil v. State

July 17, 2013 by David S. Seltzer

Here in Florida, we have a criminal charge for driving after your license is taken away for being a habitual traffic offender. A habitual traffic offender is someone with 15 convictions for moving violations within five years, or three convictions for serious offenses in five years. The three serious offenses include DUI, vehicular manslaughter, any felony using a motor vehicle, or driving with a suspended license. Unfortunately, it’s very easy to have your license suspended in Florida; the state will suspend a license for too many tickets or even conduct not related to driving, such as failure to pay child support. If the driver doesn’t realize it, which is possible if he or she changes addresses often, he or she can be charged criminally for driving with a suspended license and rack up points toward habitual traffic offender status. And driving as an HTO is a felony carrying up to five years in prison. So I was very interested to see an HTO case involving double jeopardy, in Gil v. State.

Pedro Gil was stopped for speeding in Miami-Dade County in 2009. His license was suspended at the time, and police records showed he was an HTO. He was arrested for driving with a suspended license, a misdemeanor, and for driving as a habitual traffic offender, a felony. The DWLS charge expressly excludes habitual traffic offenders. Gil pleaded nolo contendere to misdemeanor DWLS. On the same day, the state’s attorney charged him with a violation of the felony HTO statute. Gil moved to dismiss, arguing that he’d been placed in double jeopardy in violation of Florida law, which states that courts should not convict again for lesser included offenses, offenses with identical elements of proof, or offenses that are degrees of an earlier offense. He and the prosecution pointed to conflicting appeals court cases. The trial court granted the motion to dismiss, but the appeals court reversed.

The Florida Supreme Court reversed again, restoring dismissal of the HTO charge. It found two reasons Gil could not be prosecuted: the DWLS charge expressly says it’s mutually exclusive with an HTO charge, and they are also variant offenses that prosecuted together would be double jeopardy. It found that the language of the DWLS statute was unambiguous about being mutually exclusive with the HTO statute. On double jeopardy, the court said the Florida double jeopardy statute is designed to comply with Fifth Amendment caselaw by barring prosecution if the two statutes are “degrees of the same offense.” The court found they were. They are pat of the same statute; HTO designation can be obtained by repeatedly committing DWLS; and the legislative history supports this conclusion. Thus, the court disapproved the appeals court and reinstated dismissal of the charge.

I agree strongly with the high court that the driving while license suspended statute is mutually exclusive on its face with the habitual traffic offender statute. I’d like to add that it’s easier than you might think to be designated as a habitual traffic offender in Florida. As I mentioned, Florida suspends licenses for a variety of offenses, not all of which are necessarily related to driving. You can also be designated an HTO without ever driving with a suspended license, if you rack up 15 traffic offenses that put points on your license, like speeding tickets. Once you’re an HTO, you cannot legally drive, even to work, for at least a year. That’s why it’s vital to get a lawyer to address your traffic tickets or offenses as early as possible.

If you’re charged with a criminal traffic offense or need help clearing away tickets in Florida, don’t wait to call Seltzer Law, P.A. You can reach us through our website or call 1-888-THE-DEFENSE (1-888-843-3333) today.

Similar blog posts:

Flawed Technology Allows Challenges to Majority of Tickets From Red Light Cameras

Florida Supreme Court Rules Correct Address and Notice Enough to Support Suspended License Conviction – Anderson v. State

Suspect Admits to Drinking and Driving on Suspended License in Fatal Hit-and-Run