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The Law Office of Jeffrey H. Garland, P.A.

Tales from the Bizzarro World – DHSMV Provides Contradictory Driving Histories

  • July 16, 2013

Johnny Morris (not his real name) was arrested on 2/16/12, in Okeechobee County for possessionof cocaine, possession of cannabis under 20 grams, possession of drug paraphernalia, andmisdemeanor driving while license suspended (DWLS). Morris bonded out of jail. The Statesubsequently filed formal charges (which added a charge of evidence tampering), and provideddiscovery, which showed that Morris’ license was suspended for refusing to submit to testingeffective on 3/17/87. The discovery notably failed to provide the results of any laboratory testingto 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 bothshowed 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 theIndian River Crime Laboratory for the results of laboratory testing of the alleged cocaine. Thelaboratory results had shown all along that the powder was “negative” for cocaine or any other illegaldrug. Based upon this development, Morris incorrectly assumed that the cocaine charge would bedropped; and he would be able to plea no contest to two counts of misdemeanor DWLS andmisdemeanor charges of possession of cannabis under 20 grams and drug paraphernalia. Was heever wrong!

Based upon the defense discovery of the laboratory results, the State was forced to drop the cocainecharge. The State, however, continued to pursue a charge of evidence tampering. The defenseresponded to the evidence tampering charge by issuing a subpoena to the crime laboratorytechnician, whose testing showed that no illegal drugs were present (other than a small amount ofcannabis). 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 whitepowder, 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 tamperingcharge. The ever resourceful prosecutor filed an amended information which “upfiled” themisdemeanor 2/16/12 DWLS to a felony of driving while permanently revoked (DWPR). Theprosecutor 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 PunishmentCode (CPC) scoresheet was about nine years on each of the DWPR charges. He was looking at thepossibility of consecutive 9-year sentences based upon the pair of DWPR counts. However, 18 yearsin prison was not enough for the ever resourceful prosecutor. He filed a notice of intention to seekhabitual 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 on1/19/13. This driving history was far more extensive than the driving histories which had beenpreviously 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 waspermanently revoked on May 17, 1988. This driving history also showed that notice was sent toMorris as, the defense would assert, was required by law.

The defense responded by filing public records requests directly with DHSMV in Tallahassee. Thedefense sought copies of any administrative orders permanently suspending Morris’ license andcopies of any notifications sent to him advising him of the permanent revocation. The Bureau ofRecords, Division of Motorist Services, at DHSMV, ultimately provided the defense with twoseparate driving histories, both of which were certified by the Chief of the Bureau of Records: onewas dated 1/22/13; the other was dated 2/19/13. Both of these certified driving histories showedthat Morris’ license had been permanently revoked on 5/17/88 in Palm Beach County, but failed toshow 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 certifieddriving history from the Okeechobee Clerk of Court, the defense moved for a mandatoryconsolidation of the separate felony case numbers. After the charges were consolidated, pursuantto Rule 3.151(b), the defense immediately filed a demand for speedy trial. The defense sought toavoid “winning” a first trial, only to have the State add charges before a second trial. The prosecutorhad shown an incredible devotion to prosecuting these charges, despite evidence showing that thecharges were questionable.

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

At trial, the prosecutor put into evidence the 1/19/13 driving history. It showed a permanentrevocation on 5/17/88, which was the same date that Morris had been sentenced for a DUI in PalmBeach County. The State introduced certified Palm Beach County records for this DUI. These courtrecords 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 Statenever provided an answer to this question.

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

After the State rested, the defense moved for a judgment of acquittal based upon the following:

  1. 1There 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.

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?

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

  1. Defendant was driving a motor vehicle on a highway.
  2. Defendant’s license was permanently revoked by an administrative order of DHSMV.
  3. 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.

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