(772)489-2200

16 Jul 2013

Tales from the Bizzarro World – DHSMV Provides Contradictory Driving Histories

0 Comment

Johnny Morris (not his real name) was arrested on 2/16/12, in Okeechobee County for possession
of cocaine, possession of cannabis under 20 grams, possession of drug paraphernalia, and
misdemeanor driving while license suspended (DWLS). Morris bonded out of jail. The State
subsequently filed formal charges (which added a charge of evidence tampering), and provided
discovery, which showed that Morris’ license was suspended for refusing to submit to testing
effective on 3/17/87. The discovery notably failed to provide the results of any laboratory testing
to confirm the presence of cocaine. The Florida Department of Highway Safety and Motor Vehicles
(DSHMV) driving history and a Driver and Vehicle Identification Database (DAVID) report both
showed that Morris’ license was suspended only for refusing to submit to testing.

While out on bond, Morris got himself into another “jam”. He was again charged with misdemeanor
DWLS on 8/20/12. His original bond was then revoked and, upon being rearrested, he was forced
to enjoy the amenities and benefits of the Okeechobee County Jail.

Morris’ family retained Attorney Jeffrey H. Garland on 10/2/12. Garland immediately contacted the
Indian River Crime Laboratory for the results of laboratory testing of the alleged cocaine. The
laboratory results had shown all along that the powder was “negative” for cocaine or any other illegal
drug. Based upon this development, Morris incorrectly assumed that the cocaine charge would be
dropped; and he would be able to plea no contest to two counts of misdemeanor DWLS and
misdemeanor charges of possession of cannabis under 20 grams and drug paraphernalia. Was he
ever wrong!

Based upon the defense discovery of the laboratory results, the State was forced to drop the cocaine
charge. The State, however, continued to pursue a charge of evidence tampering. The defense
responded to the evidence tampering charge by issuing a subpoena to the crime laboratory
technician, whose testing showed that no illegal drugs were present (other than a small amount of
cannabis). The defense was prepared to argue that, if there was no cocaine, then there was no
“evidence” to tamper with. The State’s theory was that the defendant had attempted to “eat” a white
powder, which was suspiciously similar to the breath mints also found in the vehicle.

The defense gambit was successful. The State was forced to abandon the evidence tampering
charge. The ever resourceful prosecutor filed an amended information which “upfiled” the
misdemeanor 2/16/12 DWLS to a felony of driving while permanently revoked (DWPR). The
prosecutor upfiled the second 8/20/12 misdemeanor DWLS to a felony DWPR as well.

Morris had an extensive criminal history. His minimum sentence under the Criminal Punishment
Code (CPC) scoresheet was about nine years on each of the DWPR charges. He was looking at the
possibility of consecutive 9-year sentences based upon the pair of DWPR counts. However, 18 years
in prison was not enough for the ever resourceful prosecutor. He filed a notice of intention to seek
habitual offender penalties which would have allowed a maximum sentence of 22 years in prison.

The prosecutor based the upfiled DWPR charges on a “new” driving history which was pulled on
1/19/13. This driving history was far more extensive than the driving histories which had been
previously disclosed. It turns out that DHSMV had two separate driving histories for Morris,
although there was no evidence that Morris was responsible for this situation. DHSMV “merged”
both driving histories. Indeed, the 1/9/13 driving history showed that Morris’ license was
permanently revoked on May 17, 1988. This driving history also showed that notice was sent to
Morris as, the defense would assert, was required by law.

The defense responded by filing public records requests directly with DHSMV in Tallahassee. The
defense sought copies of any administrative orders permanently suspending Morris’ license and
copies of any notifications sent to him advising him of the permanent revocation. The Bureau of
Records, Division of Motorist Services, at DHSMV, ultimately provided the defense with two
separate driving histories, both of which were certified by the Chief of the Bureau of Records: one
was dated 1/22/13; the other was dated 2/19/13. Both of these certified driving histories showed
that Morris’ license had been permanently revoked on 5/17/88 in Palm Beach County, but failed to
show that any notice had been sent to Morris.

The defense had obtained another driving history which was certified by the Okeechobee Clerk of
Court on 11/9/12. It too showed permanent revocation on 5/17/88, but failed to show that any notice
had been sent to Morris.

After receipt of this pair of certified driving histories directly from DHSMV, as well as the certified
driving history from the Okeechobee Clerk of Court, the defense moved for a mandatory
consolidation of the separate felony case numbers. After the charges were consolidated, pursuant
to Rule 3.151(b), the defense immediately filed a demand for speedy trial. The defense sought to
avoid “winning” a first trial, only to have the State add charges before a second trial. The prosecutor
had shown an incredible devotion to prosecuting these charges, despite evidence showing that the
charges were questionable.

The defense then moved to dismiss the pair of DWPR charges. If the defense had three certified
driving histories, which failed to show any notice of permanent revocation, then on what basis could
the State argue that its driving history was “better” or “more reliable”? All of the driving histories
were produced from the same DHSMV database. There was no evidence or testimony to explain
why the same database would yield different results to separate inquiries. The motion to dismiss was
denied.

At trial, the prosecutor put into evidence the 1/19/13 driving history. It showed a permanent
revocation on 5/17/88, which was the same date that Morris had been sentenced for a DUI in Palm
Beach County. The State introduced certified Palm Beach County records for this DUI. These court
records showed that the Palm Beach County Court did not impose a permanent license revocation.
If the Palm Beach County Court did not permanently revoke the license, then who did? The State
never provided an answer to this question.

The prosecutor called a DHSMV records custodian. The custodian agreed that DHSMV would not
consider a license to be permanently revoked, unless either ordered by a judge in open court, or via
an order of administrative revocation. He testified that an administrative revocation would require
both an order and the giving of proper notice. The notice, to be proper, must be sent to the driver
at his last known address. The custodian admitted that Morris’ license was not permanently revoked
by the Palm Beach County Court on 5/17/88, and that there was no evidence of entry of an
administrative order of permanent revocation. The custodian agreed that the State’s driving history
showed that notice was sent, but also agreed that the three defense driving histories did not show that
notice was sent.

After the State rested, the defense moved for a judgment of acquittal based upon the following:
1. There was no permanent revocation of defendant’s license by the Palm Beach County Court
on 5/17/88.
2. There was no evidence of a DHSMV administrative order of permanent revocation.
3. There was insufficient evidence that notice of permanent revocation was sent to Morris at
his last known address.
Ruling: denied.

The defense placed its three certified driving histories into evidence during its case in chief. The
defense then renewed its motion for judgment of acquittal at the conclusion of all of the evidence.
The defense made the additional argument that its three driving histories were no less reliable than
the State’s single driving history. Indeed, two of the defense driving histories were certified by the
Chief of the Bureau of Records at DHSMV. The State’s driving history had only been printed out
by the Okeechobee Clerk of Court. The State had offered no evidence to explain how a “reliable”
database could spit out diferent answers to the same question: Was Morris’ license permanently
revoked?
Ruling: denied.

The defense requested a jury instruction requiring proof beyond a reasonable doubt of these three
elements:

A. Defendant was driving a motor vehicle on a highway.
B. Defendant’s license was permanently revoked by an administrative order of DHSMV.
C. Notice of permanent revocation was sent to Morris’ last known address.
Ruling: denied.

Instead, the judge instructed the jury that Morris’ only had to know that his license had been
suspended for any reason. The judge failed to inform the jury that there had to be proof of both an
order of administrative revocation and that notice of such permanent revocation had been sent to
Morris’ last known address.

Based upon the court’s instruction, the jury had little choice. As Morris had never contested charges
of cannabis and paraphernalia possession, the jury returned verdicts of guilty as charged on all four
counts.

After denying motions for new trial and an additional motion for judgment of acquittal, the court
sentenced Morris to 107 months in prison on May 17, 2013. The matter is on appeal to the Fourth
District Court of Appeal.

The Fourth District will have to decide whether the State can pick and choose its driving histories,
which are all generated from the same database. The defense will contend that contradictory
information generated by the DHSMV database is simply unreliable. The State should not have been
allowed to admit any driving history without first establishing reliability of the system. The defense
will maintain that judgments of acquittal should have been granted as to both revoked license
charges.

Here’s a wake up call to all of you out there. The DHSMV records system is flawed. Whether the
errors relate to the age of the entries (almost 24 years old!), or to some other cause, is not known.
Truly, it is the bizarro world where the State prosecutes revoked license charges in the face of three
contradicting driving histories.

[top]