Another Loophole Found for Driving While License Suspended as a Habitual Traffic Offender

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Some folks would say that successful negotiations involve “getting to YES.”  I disagree, because too many people say “yes” but don’t really mean it.  We’ve all encountered that dinner time telemarketer that says “You want to stop the suffering of abused children, don’t you?”  Yes.  Of course I do.  But, my “yes” doesn’t mean I’m going to open my wallet.  I’m saying “yes” to get them off the phone.

A better strategy is to get people saying “no” early, because “no” is a far more comfortable word.  An entire book has been written about the nuances of yes vs. no, (and its a great book), called  “Never Split the Difference,” by Chris Voss & Tahl Raz.  Their book explains negotiating techniques that request ‘no’ responses, rather than ‘yes’ responses.   Negotiation techniques can play into every aspect of life (obvious, I know, you’re really learning something today).  One example found in the book involves fundraising, and how the standard phone scripts for these campaigns can raise more money–depending upon whether the scripts are rigged for ‘yes’ responses versus ‘no’ responses.   Yes, these telemarketers are just reading stuff from their computer screen, written by so-called negotiation experts.  Studies have shown, believe it or not, that scripts which prompt a ‘no’ response yield far greater donations.  An example from the book goes something like this:

Fund-Raiser: Do you think we need change a change in the White House this November?”  Response: “Yes, I do.”  “Fund-Raiser: Can you give me your credit card number so you can be part of that change?” (example of a “yes” based script)

Fund-Raiser: Are you going to sit and watch them take the White House in November?”  Response: “No, I’m not.”  “Fund-Raiser: If you want to do something today to make sure that doesn’t happen, can you give to our committee to fight for you?” (example of a “no” based script)

As a side note, and barely related to the “Yes & No” mentioned above, I should tell you about how Derek Sivers feels about saying “Yes” to anything.  (Isn’t this our second side note?  When are we going to read about driving on a suspended license?)  Derek recommends never saying yes to anything.  Never.  If you’re going to say yes, it had better be a “HELL YES!!”.  The original version of this decision making model involves a more vulgar F-word–but the point is–you should be saying “No” most of the time, unless you’re really enthused.  I find this advice great for a guy like me, whose done criminal defense for 24 years (oh, my web people love these types of sentences).  But, when I was just starting my career, I said “yes” to many things, just to get my feet wet.  Now that I’m a bit older, I admit that there’s a certain power to saying “no”.  Fortunately, I am in a position to say “no” frequently.  Anyway.

So, what does all of this have to do with driving while license suspended, and loopholes in that law?  One more thing before we get to “law” and “loopholes”.  Something’s bugging me today, and I’m sure “it’s my own damn fault”.

Yes, my website tells folks that I give free “consultations”.  The problem is, many people want free “legal advice”, and that’s different from a consultation.  Try calling a doctor and asking for medical advice over the phone.  You won’t get through to the doctor, guaranteed.  And even if you do, you’re not going to get professional advice for free.  Basically, if you want legal or medical advice about your particular situation, you’re going to need to become a patient or client.

Yes, my “legal knowledge” is my stock in trade–so I shouldn’t give it away for free, I suppose.  If I owned a car lot, my stock in trade wouldn’t be knowledge, it would be cars, and I doubt anyone would show up at my dealership asking for a free car.

Yes, I’m finally getting around to explaining our loophole of the day.  But I’m warning you, this is going to sound like an episode of Inside Baseball.  

Today’s case involves a bad driving record.  Really bad.  This driver has been designated a Habitual Traffic Offender (HTO) three times.  He has 11 convictions for driving on a suspended license (only takes three convictions to become a habitual traffic offender).   He has two driving under the influence convictions.  And after all these shenanigans, he gets caught driving again.  Shocking, I know.

After 24 years of defending criminal cases (my web people love sentences like this, and they love me when I mention the counties I work in, but I’m not going to list them now, just to piss them off), I’ve seen quite a few bad drivers that have been caught unnecessarily.  One client I had recently was on his way to the hospital.  That was what I would deem necessary.  Another client was caught leaving a strip club late at night.  Not so necessary, I suppose.  Anyway, we don’t know why our bad driver of the day was out driving, but he was arrested for felony Driving While License Suspended as an HTO.  Finney v. State, 2017 Fla. App. LEXIS 7238 (Fla. 1st DCA 2017).

Mr. Finney’s felony charges were based on Florida Statute section 322.34(5), which states that “any person whose driver license has been revoked pursuant to Section 322.264 (habitual traffic offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree.” Id. footnote 1.  Now, there’s a loophole here, because Florida law does not permit someone to be charged with a felony under Section 322.34(5) if that person has never held a valid license.  This felony only applies to drivers who have had their license revoked, and I addressed this loophole in an article from last year which you can find here.

Mr. Finney’s defense attorney filed a Motion to Dismiss based on the fact that he’s never had a valid license (loophole cited above), and as such, Mr. Finney should win on a technicality.  The judge agreed, and dismissed this felony charge.  Can I stop writing now?  Article over?  No.

After receiving a dismissal beat down, the prosecutors filed more felony charges against Mr. Finney.  This time, they filed felony Driving While License Suspended (with prior convictions) based upon Florida Statute section 322.34(2)(c).  Mr. Finney has 11 prior convictions for driving with a suspended license, and the state only needs two priors to get a felony based upon section 322.34(2)(c).

But, there’s a problem.  This problem reveals itself if you just read the statute.  Here it is:

Any person whose driver license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:

(c) A third or subsequent conviction is guilty of a felony of the third degree . . . .

Remember, Section 322.264 defines “habitual traffic offender.”  So, the problem here is the phrase above which applies 322.34(2)(c) to everyone except persons defined in section 322.264.  Well, who are persons defined in section 322.264?  Habitual traffic offenders.  Who is a habitual offender?  Mr. Finney.

So, Mr. Finney’s defense attorney filed a second Motion to Dismiss, based upon the plain language above, which specifically excludes habitual traffic offenders.   This time, the trial judge denies the motion and basically argues that to dismiss a felony for the second time would go “against public policy and [would neglect] public safety.”  Id.  Now, does the trial judge’s reasoning sound like a legal argument?  No.  Every time you hear a judge deny a motion based upon public policy or public safety, start shopping for an appellate attorney, because you’re going to have a decent appeal.

Mr. Finney appealed the judge’s denial of his second motion to dismiss, and the appellate court overturned his conviction because, “based on this clear and unambiguous language, we agree with Finney that section 322.34(2) does not apply to persons who are habitual traffic offenders.”  Id.  The appellate court goes on to state the obvious, “indeed, there appears to be a gaping loophole in section 322.34 because as the statute is written, an offender who is a habitual traffic offender but who has never had a driver’s license can escape felony punishment and receive a lesser punishment than a habitual traffic offender who had obtained a license”.  Id.

Sometimes, it takes a couple of motions to get the job done.  Hats off to Finney’s attorney for hanging in there and filing for dismissal at every turn.