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Insufficient Evidence to Prove Notice of Suspension Mailed: Not Guilty!

Insufficient Evidence to Prove Notice of Suspension Mailed: Not Guilty!

B.O.B. (not his real initials) was charged with driving while license suspended with knowledge in violation of Florida Statute 322.34(2). He was arrested for this offense on March 29, 2009. He promptly retained Jeffrey H. Garland to represent him in connection with the matter.

Since he was on felony probation, B.O.B. could not “plea out” to any offense. He announced ready for trial each time the case was called. The State requested continuances each time – until the 90-day speedy trial period was about to run. At this point, St. Lucie County Judge Clifford H. Barnes set the case for a non-jury trial, promising that B.O.B. would neither be jailed nor “adjudicated guilty” if found guilty by the Court.

At this trial, the State relied upon a driving history obtained from records kept by the Department of Highway Safety and Motor Vehicles (DHSMV). This record contained an entry which said that something happened on 01/27/09, and that, as a result, the license was “SUS-INDEF”. The driving history described the action as follows: “VIO 322.058 F.S. SUPPORT DELQ NOTICE REQUIRED BY S. 322.251 GIVEN”.

B.O.B. advised the officer at the time of his original arrest that he did not know of any such suspension. He also testified at trial that he was unaware of the alleged suspension.

The State called a Department of Revenue (DOR) employee to introduce a record showing that the license would be suspended for non-payment of child support. This DOR record was dated February 27, 2008.

Attorney Garland introduced certified DMV records showing that the license was reissued on March 21, 2008. The State failed to put on any evidence of a failure to pay child support after March 21, 2008.

The State failed to call any DHSMV employee to explain the apparent discrepancy between the February 27, 2008 DOR notice and the January 27, 2009 DHSMV notice. Since the Defendant reinstated his license in March, 2008, there was no evidence to support the State’s theory that Defendant’s license should have been suspended for failing to pay child support in 2009, or that the Defendant should have known about it.

In light of these ambiguous circumstances, Judge Barnes was left to ponder whether the “presumption” was sufficient to prove actual knowledge as required by Section 322.34(2). Judge Barnes considered State v. Rygwelski, 899 So.2d 498 (Fla. 2nd DCA 2005), as persuasive. Quoting United States Supreme Court precedent, Rygwelski held: “[I]f, under the facts of the case, it is clear that the inference is the sole basis for a finding of guilt, the fact proved must be sufficient to support the inference of guilt beyond a reasonable doubt.” Id at 501-502.

Rygwelski’s “inference” was a presumption. In laymen terms, if the presumption is the only basis for proving knowledge of suspension, the fact proved must be sufficient to prove knowledge beyond a reasonable doubt.

In this case, the DHSMV driving history did not explain how notice was given. It did not specify when, how or where actual mailing may have taken place. Since the statutory presumption of knowledge resulting from this driving history was the only evidence supporting actual knowledge, Judge Barnes found that it was legally insufficient. Judge Barnes found the Defendant not guilty of driving with a suspended license with knowledge.