Orlando has it’s fair share of drivers without licenses. When a driver is pulled over for a traffic offense and an officer discovers no valid driver’s license on file, the officer’s knee jerk reaction is to simply charge driving while license suspended or revoked either with knowledge, or without knowledge. If it is determined that the driver “knew” he didn’t have a license, it’s a misdemeanor or felony offense, depending upon priors.
But not so fast.
Driving while license suspended or revoked (DWLS) means just that–that the driver PREVIOUSLY had a license, and for some reason he either had it suspended or revoked. Thus, can a person who has NEVER had a license be charged with the same crime? In some cases yes, but in certain felony situations, no. Let’s look at how our appeals court sorted out just such an issue on a felony DWLS, in the case of Crain v. State, 79 So.3d 118 (Fla. 1st DCA 2012).
Crain was convicted of DWLS, but he never actually owned a valid license. He was convicted of violating the felony statute found in 322.34(5), driving while license suspended as a Habitual Traffic Offender. The testimony at trial from the Florida Department of Highway Safety and Motor Vehicles included the explanation that even citizens without licenses can have their driving “privilege” suspended.
The jury instruction for violating this law required the jury to find Mr. Crain guilty if he (1) drove on our highways and (2) while his “driver’s license or driving privilege” was revoked as a habitual traffic offender. The problem is, the court added to the jury instruction the words “or driving privilege”. The jury responded with the question “Can you have the privilege taken away if you’ve never had a license?” Smart jury (once again!). The judge chose to avoid the question rather than answer it directly.
The statute in 322.34(5) here is clear–“Any person whose driver’s license has been revoked” as a habitual traffic offender and drives on our highways is guilty of a felony. The court goes on to explain what a “driver’s license” really is. Basically, if you’ve never had one, this statute does NOT apply! The court rightfully declares something that MANY trial courts have long forgotten, “one of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter.” Id. Quoting Perkins v. State, 576 So.2d 1310 (Fla. 1991). The appeals court overturned Crain’s felony conviction, and reduced it to a more suitable misdemeanor statute.
So there you have it. A felony DWLS overturned. Nice work.