Fla. Std. Jury Instr. (Crim.) 28.11

§ 322.34(2), Fla. Stat.

To prove the crime of Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) drove a motor vehicle upon a highway in this state.

Give as applicable.

2. At that time,

a. [his] [her] [license] [driving privilege] was [suspended] [revoked] [canceled].

b. [he] [she] was under suspension or revocation equivalent status.

Give as applicable.

3. At that time, (defendant) knew that

a. [his] [her] [license] [driving privilege] was [suspended] [revoked] [canceled].

b. [he] [she] was under suspension or revocation equivalent status.

Whether (defendant) knew of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status] is a question to be determined by you from the evidence.

Give as applicable. See § 322.251(1), (2), and § 322.34(2),(3),(4), Fla. Stat.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was given by personal delivery is proof that such notice was given.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was deposited in United States mail, first class, postage prepaid, addressed to the licensee at [his] [her] last known mailing address furnished to the department, is proof that such notice was sent.

If you find that (defendant) had been previously cited for driving [while license [suspended] [revoked] [canceled] and [his] [her] license had not been reinstated, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) admitted to knowing of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status].

If you find that (defendant) had received a traffic citation that contained a provision notifying (defendant) that [his] [her] license [had been suspended, revoked, or canceled] [was under suspension or revocation equivalent status], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation] [suspension or revocation equivalent status].

Do not give if the suspension was for failure to pay a traffic fine or for a financial responsibility violation. See § 322.34(2) and § 322.251(1), (2), Fla. Stat.

If you find that (defendant) had received a [judgment] [order] rendered by [a court] [an adjudicatory body] which contained a provision notifying (defendant) that [his] [her] license had been [suspended] [revoked] [canceled], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that the records of the Department of Highway Safety and Motor Vehicles include a [judgment] [order] rendered by [a court] [an adjudicatory body] that contains a provision notifying (defendant) that [his] [her] license [had been [suspended] [revoked] [canceled]] [was under suspension or revocation equivalent status], you may conclude that (defendant) knew [his] [her] license was [suspended] [revoked] [canceled] [under suspension or revocation equivalent status]. You may accept or reject the inference depending upon the circumstances of the crime and the facts presented at trial.

§ 322.01, Fla. Stat.

“Drive” means to operate [or be in actual physical control of] a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01, Fla. Stat. Some of these terms (such as “vehicle” and “electric bicycle”) have their own statutory definitions, which should be given if necessary.

“Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power[, motorized wheelchairs, and electric bicycles].

§ 322.01, Fla. Stat.; State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000).

“Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic. [A privately owned parking lot, that is open to public use by vehicles, is considered to be a highway.]

§ 322.251, Fla. Stat.

“Notice” means personal delivery or deposit in the United States mail, first class, postage prepaid, addressed to the defendant at [his] [her] last known address furnished to the Department of Highway Safety and Motor Vehicles. Mailing by the department shall constitute notification.

§ 322.01, Fla. Stat.

“Suspension or revocation equivalent status” is a designation by the Florida Department of Highway Safety and Motor Vehicles for a person who does not have a driver license or driving privilege but would qualify for suspension or revocation of his or her driver license or driving privilege if licensed.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

“Canceled” means that a license has been declared void and terminated.

The option of “on a motor vehicle” pertains to motor vehicles such as motorcycles and mopeds.

“Actual physical control” of a motor vehicle means the defendant must be physically in [or on] the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he] [she] is actually operating the motor vehicle at the time.

See the Comment section below regarding recidivism issues that do not require any finding other than the fact of a prior conviction.

Give if applicable in a bifurcated proceeding. § 322.34(2)(c), Fla. Stat.

A third or subsequent conviction is a first degree misdemeanor and requires a minimum sentence of 10 days in jail. However, a third or subsequent conviction becomes a third degree felony if the current alleged violation or the most recent prior violation of § 322.34(2), Fla. Stat., are related to and resulted from a violation of an enumerated crime.

Now that you have found the defendant guilty of Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status], you must make two further findings.

First, you must determine whether the State proved beyond a reasonable doubt that the defendant has two prior convictions for Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status]. A “conviction” means a determination of guilt that was the result of a plea or a trial, regardless of whether adjudication was withheld or a plea of nolo contendere was entered.

Second, you must determine whether the State proved beyond a reasonable doubt that the current case or the most recent conviction are related to Driving [While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled]] [Under Suspension or Revocation Equivalent Status] resulting from a violation of [Driving Under the Influence] [Refusal to Submit to a Urine, Breath-Alcohol, or Blood Alcohol test] [a traffic crime that caused death or serious bodily injury] [Fleeing or Eluding].

Lesser Included Offenses

DRIVING WHILE LICENSE SUSPENDED, REVOKED OR CANCELED OR DRIVING UNDER SUSPENSION OR REVOCATION EQUIVALENT STATUS, WITH KNOWLEDGE — 322.34(2)

CATEGORY ONE

CATEGORY TWO

FLA. STAT

INS. NO.

No Valid Driver’s License

322.03

28.9

Attempt

777.04(1)

5.1