Clients who are charged with driving without a license sometimes ask me this question. ‘Why was I charged with driving with a suspended license in the past if I never had a license to begin with?’
In the past, many drivers arrested for driving without ever having a license were being charged with driving with a suspended driver’s license, (Florida Stat. sec. 322.34). Driving with a Suspended License can be punished as a second degree misdemeanor, first degree misdemeanor or third degree felony.
Why were they being charged with driving with a suspended license?
Some state attorney’s offices wanted to provide a harsher punishment for people driving without a license who were charged more than one time for the offense. They were trying to create a way to enhance the charge of No Valid Driver’s License.
Florida Statute Section 322.03 (No Valid Driver’s License “NVDL”) is not an enhanceable crime. An enhanceable crime means the statue itself was written so that a person who repeatedly is convicted for the crime can have their sentence enhanced by increasing the degree of the charge. NVDL is a second degree misdemeanor. Therefore the State was limited to seeking a sentence up to 60 days in jail, six months probation and $500.00 fine.
Conversely, drivers that have a suspended license can receive harsher penalties each time they are charged and convicted of Driving with a Suspended License. The charge of Driving on A Suspended License is an enhanceable crime.
How did the state attorney’s offices enhance NVDL?
When the defendant was being sentenced on a NVDL, the State asked the judge to suspend the defendant’s “privilege to drive.” That way, they believed (and persuaded local courts) that if and when a person is arrested for driving without having a license in the future, they could then be charged with Driving with a Suspended Driver’s License. The State argued that since their privilege had been suspended in the prior case, they now can be charged (under Fl. Stat. Sec 322.34) for Driving with a Suspended License, the enhanceable offense.
Burgess v. State, September 2016
The Second District Court of appeals ruled that a person could not be convicted of Driving with a Suspended License if they never had a license. It held that “defendant, who never had a driver’s license, could not be convicted of driving a motor vehicle while his license was revoked for being a habitual traffic offender.” Burgess, 198 So.3d 1151 (2nd DCA 2016). This had binding effect on cases in southwest Florida.
State v. Miller, September 2017
The Florida Supreme Court ended the state attorney enhancement statewide.The Court reviewed a case against Daryl Miller who was charged with Driving with a Suspended License as a Habitual Offender, a felony (Fl. State Sec. 322.34(5). The Supreme Court held “[t]he plain language of section 322.34(5), Florida Statutes, provides that an offender must have had his or her driver license revoked as a habitual traffic offender in order for the felony penalty to apply. The State cannot revoke a license that never existed. Consequently, a person cannot violate section 322.34(5) without ever having obtained a driver license.” Miller, 193 So.3d 1001, (Fla. 2017)
Geiger v. State, August 2019
The Fifth District Court of Appeals just held that a person cannot be charged and convicted of a felony Driving While License Suspended charge alleging the person’s license had been permanently revoked when they never had a driver’s license. (emphasis added). The Court stated (the DWLSR Habitual charge) should have been dismissed on the ground that he has never had a driver’s license.” Geiger v. State, 44 Fla. L. Weekly D1923b (Fla. 5th DCA 2019)
In conclusion, unless and until the legislature decides to make NVDL an enhanceable offense, it will remain a second degree misdemeanor no matter how many times the person is charged with this offense.