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F.S. 322.28 on Google Scholar

F.S. 322.28 on Casetext

Amendments to 322.28


The 2022 Florida Statutes

Title XXIII
MOTOR VEHICLES
Chapter 322
DRIVER LICENSES
View Entire Chapter
F.S. 322.28 Florida Statutes and Case Law
322.28 Period of suspension or revocation.
(1) Unless otherwise provided by this section, the department shall not suspend a license for a period of more than 1 year and, upon revoking a license, in any case except in a prosecution for the offense of driving a motor vehicle while under the influence of alcoholic beverages, chemical substances as set forth in s. 877.111, or controlled substances, shall not in any event grant a new license until the expiration of 1 year after such revocation.
(2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply:
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions:
1. Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver license or driving privilege shall be revoked for at least 180 days but not more than 1 year.
2. Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver license or driving privilege shall be revoked for at least 5 years.
3. Upon a third conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for the violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver license or driving privilege shall be revoked for at least 10 years.

For the purposes of this paragraph, a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as proscribed by s. 316.193 will be considered a previous conviction for violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for violation of s. 316.193.

(b) If the period of revocation was not specified by the court at the time of imposing sentence or within 30 days thereafter, and is not otherwise specified by law, the department shall forthwith revoke the driver license or driving privilege for the maximum period applicable under paragraph (a) for a first conviction and for the minimum period applicable under paragraph (a) for any subsequent convictions. The driver may, within 30 days after such revocation by the department, petition the court for further hearing on the period of revocation, and the court may reopen the case and determine the period of revocation within the limits specified in paragraph (a).
(c) The forfeiture of bail bond, not vacated within 20 days, in any prosecution for the offense of driving while under the influence of alcoholic beverages, chemical substances, or controlled substances to the extent of depriving the defendant of his or her normal faculties shall be deemed equivalent to a conviction for the purposes of this paragraph, and the department shall forthwith revoke the defendant’s driver license or driving privilege for the maximum period applicable under paragraph (a) for a first conviction and for the minimum period applicable under paragraph (a) for a second or subsequent conviction; however, if the defendant is later convicted of the charge, the period of revocation imposed by the department for such conviction shall not exceed the difference between the applicable maximum for a first conviction or minimum for a second or subsequent conviction and the revocation period under this subsection that has actually elapsed; upon conviction of such charge, the court may impose revocation for a period of time as specified in paragraph (a). This paragraph does not apply if an appropriate motion contesting the forfeiture is filed within the 20-day period.
(d) The court shall permanently revoke the driver license or driving privilege of a person who has been convicted four times for violation of s. 316.193 or former s. 316.1931 or a combination of such sections. The court shall permanently revoke the driver license or driving privilege of any person who has been convicted of DUI manslaughter in violation of s. 316.193. If the court has not permanently revoked such driver license or driving privilege within 30 days after imposing sentence, the department shall permanently revoke the driver license or driving privilege pursuant to this paragraph. No driver license or driving privilege may be issued or granted to any such person. This paragraph applies only if at least one of the convictions for violation of s. 316.193 or former s. 316.1931 was for a violation that occurred after July 1, 1982. For the purposes of this paragraph, a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is also considered a conviction for violation of s. 316.193. Also, a conviction of driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other similar alcohol-related or drug-related traffic offense outside this state is considered a conviction for the purposes of this paragraph.
(e) Convictions that occur on the same date resulting from separate offense dates shall be treated as separate convictions, and the offense that occurred earlier will be deemed a prior conviction for the purposes of this section.
(3) The court shall permanently revoke the driver license or driving privilege of a person who has been convicted of murder resulting from the operation of a motor vehicle. No driver license or driving privilege may be issued or granted to any such person.
(4)(a) Upon a conviction for a violation of s. 316.193(3)(c)2., involving serious bodily injury, a conviction of manslaughter resulting from the operation of a motor vehicle, or a conviction of vehicular homicide, the court shall revoke the driver license of the person convicted for a minimum period of 3 years. If a conviction under s. 316.193(3)(c)2., involving serious bodily injury, is also a subsequent conviction as described under paragraph (2)(a), the court shall revoke the driver license or driving privilege of the person convicted for the period applicable as provided in paragraph (2)(a) or paragraph (2)(d).
(b) Upon a conviction for a violation of s. 316.027(2)(a), (b), or (c) involving injury, serious bodily injury, or death, the court shall revoke the driver license of the person convicted for a minimum period of 3 years.
(c) If the period of revocation was not specified by the court at the time of imposing sentence or within 30 days thereafter, the department shall revoke the driver license for the minimum period applicable under paragraph (a) or paragraph (b) or, for a subsequent conviction, for the minimum period applicable under paragraph (2)(a) or paragraph (2)(d).
(5) A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s. 322.2616 during judicial review of the departmental order that resulted in such suspension, and a suspension or revocation of a driving privilege may not be stayed upon an appeal of the conviction or order that resulted in the suspension or revocation.
(6) In a prosecution for a violation of s. 316.172(1), and upon a showing of the department’s records that the licensee has received a second conviction within 5 years following the date of a prior conviction of s. 316.172(1), the department shall, upon direction of the court, suspend the driver license of the person convicted for a period of at least 90 days but not more than 6 months.
(7) Following a second or subsequent violation of s. 796.07(2)(f) which involves a motor vehicle and which results in any judicial disposition other than acquittal or dismissal, in addition to any other sentence imposed, the court shall revoke the person’s driver license or driving privilege, effective upon the date of the disposition, for a period of at least 1 year. A person sentenced under this subsection may request a hearing under s. 322.271.
(8) The court shall permanently revoke the commercial driver license of a person who is convicted of, or has entered a plea of guilty or nolo contendere to, regardless of whether adjudication is withheld, any felony involving human trafficking under state or federal law which involves the use of a commercial motor vehicle. If the court has not permanently revoked such driver license or driving privilege within 30 days after imposing a sentence, the department must permanently revoke the driver license or driving privilege pursuant to this section.
History.s. 40, ch. 19551, 1939; CGL 1940 Supp. 4151(654); s. 40, ch. 20451, 1941; s. 2, ch. 59-95; ss. 24, 35, ch. 69-106; s. 5, ch. 72-175; s. 94, ch. 73-333; ss. 2, 3, ch. 74-248; s. 7, ch. 74-384; s. 1, ch. 75-113; s. 43, ch. 76-31; s. 3, ch. 76-153; s. 1, ch. 77-174; s. 20, ch. 80-290; s. 9, ch. 82-155; s. 4, ch. 82-403; s. 9, ch. 83-228; s. 10, ch. 84-359; s. 8, ch. 86-296; s. 4, ch. 87-167; s. 3, ch. 89-525; s. 31, ch. 91-221; s. 2, ch. 91-243; ss. 11, 24, ch. 91-255; s. 416, ch. 95-148; s. 8, ch. 96-330; s. 51, ch. 96-413; s. 12, ch. 96-414; s. 10, ch. 98-223; s. 45, ch. 99-248; s. 1, ch. 2001-189; s. 5, ch. 2002-297; s. 61, ch. 2013-160; s. 4, ch. 2014-225; s. 14, ch. 2021-187.

Statutes updated from Official Statutes on: August 29, 2022
F.S. 322.28 on Google Scholar

F.S. 322.28 on Casetext

Amendments to 322.28


Arrestable Offenses / Crimes under Fla. Stat. 322.28
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 322.28.


Civil Citations / Citable Offenses under S322.28
R or S next to points is Mandatory Revocation or Suspension

Current data shows no reason a civil citation or a suspension or revocation of license should have been issued under Florida Statute 322.28.


Annotations, Discussions, Cases:

  1. Whipple v. State

    789 So. 2d 1132 (Fla. Dist. Ct. App. 2001)   Cited 13 times
    The language of section 322.28 is facially clear and unambiguous. The statute specifically mandates the suspension of driving privileges for violations of section 316.193. Unlike section 322.28, section 316.655, a permissive catch-all statute, does not address periods of suspension or revocation of driving privileges stemming from a DUI conviction under section 316.193. Rather, section 316.655, provides generally for the revocation or suspension of driving privileges based on the totality of the circumstances and the violation of any offense prohibited by chapter 316 or any law of this state. Thus, section 322.28, the more specific statute, controls in this instance.
    PAGE 1136
  2. Anderson v. Department of Highway Safety & Motor Vehicles

    751 So. 2d 749 (Fla. Dist. Ct. App. 2000)   Cited 3 times
    Paul Anderson petitions for a writ of certiorari that would order the circuit court to stay the suspension of his driving privileges. The suspension followed his refusal to submit to a breath, blood or urine test pursuant to subsection 322.2615(1)(a), Florida Statutes (1999). When he first appealed the suspension to the Department of Highway Safety and Motor Vehicles, the suspension was sustained. Next, he petitioned for a writ of certiorari in the circuit court where he requested a stay of the suspension alleging that subsection (5) of section 322.28, Florida Statutes (1999), recently added to the Florida Statutes, is unconstitutional. Subsection 322.28(5) provides:
    PAGE 750
  3. State v. Peterson

    754 So. 2d 156 (Fla. Dist. Ct. App. 2000)   Cited 1 times
    DMV argues that the stay departs from the essential requirements of law because it violates section 322.28(5), Florida Statutes (1999), which provides that a court may not stay the administrative suspension of a driver's license during judicial review of the order. DMV is correct that the stay violates this statutory provision and is a clear departure from the essential requirements of law.See Department of Highway Safety Motor Vehicles v. Olivie, 25 Fla. L. Weekly D366 (Fla. 3d DCA Feb. 9, 2000) (quashing order of the circuit staying suspension of the respondent's driver's license). We accordingly issue the writ and quash the order staying the suspension.
    PAGE 157
  4. Boulineau v. Dep't of Highway Safety & Motor Vehicles

    247 So. 3d 660 (Fla. Dist. Ct. App. 2018)
    In light of the clear language of section 322.28, including the legal fiction created by section 322.28(2)(e), Petitioner fails to show that the circuit court departed from the essential requirements of law by denying the writ of certiorari for review of the final agency action. The petition for second-tier certiorari review by this Court is therefore DENIED .
    PAGE 663
  5. State v. Peacock

    185 So. 3d 632 (Fla. Dist. Ct. App. 2016)   Cited 1 times
    We find the Department's reliance upon Begley misplaced as this case does not involve section 322.2615. As for section 322.28( 5), that statute does not expressly apply to hardship or restricted licenses and participation in and dismissal from DUI programs. Nor does it cite to section 322.271 as it does sections 322.2615 and 322.2616. We note also that section 322.28( 5) speaks to the revocation and suspension of a person's driving privilege, not the cancellation of such as does section 322.271(5)(c). While section 322.271(5)(d) provides that the department shall revoke a person's driving privilege if the person, after license reinstatement, is convicted of an offense for which mandatory revocation is required, this case involves subsection (5)(c) and the cancellation of a hardship license. We also find it significant that section 322.271 does not expressly prohibit stays as do section 322.28( 5) and other statutes in chapter 322. See § 322.2615(13), Fla. Stat. (2015) (providing for an appeal of any decision of the Department sustaining a suspension of a person's driver's license by petition for writ of certiorari but setting forth that “an appeal shall…
    PAGE 636
  6. McDaniel v. State

    683 So. 2d 597 (Fla. Dist. Ct. App. 1996)   Cited 17 times
    In his motion, Mr. McDaniel alleged that the trial court could not lawfully revoke his license on a permanent basis pursuant to section 322.28(2)(e) because he had only been convicted of one alcohol-related offense. The trial court denied the motion, finding that because Mr. McDaniel "was convicted of DUI manslaughter in violation of § 316.193, he met the requisite criteria for permanent revocation." It is obvious that the trial court construed section 322.28(2)(e) to require a mandatory permanent revocation of Mr. McDaniel's license because his only DUI offense resulted in a death.
    PAGE 598
  7. Lescher v. Florida Dept

    985 So. 2d 1078 (Fla. 2008)   Cited 10 times
    The third factor is whether the sanction comes into play only on a finding of scienter. See Hudson, 522 U.S. at 99-100, 118 S.Ct. 488. The license revocation statute, section 322.28, does not contain a scienter element.
    PAGE 1084
  8. Gwin v. Motor Vehicle Administration

    385 Md. 440 (Md. 2005)   Cited 52 times
    " 322.28. Period of suspension or revocation
    PAGE 447
  9. DHSMV v. Brandenburg

    891 So. 2d 1071 (Fla. Dist. Ct. App. 2005)
    We also agree with the Department that the two different periods for suspension and revocation of driver's licenses provided for in the statutes do not violate double jeopardy. That concept applies to double or multiple criminal punishments. The two statutes discussed above, sections 322.28 and 322.2616, are not criminal statutes and they do not impose criminal punishments. Section 316.193, entitled "Driving under the influence, penalties," is the criminal statute which provides criminal penalties for this DUI offense, including fines. Sections 322.28 and 322.2616 are purely administrative provisions, and the requirements they impose fall within the Legislature's constitutional power to insure public safety on the highways. See Smith v. City of Gainesville, 93 So.2d 105 (Fla. 1957); McDaniel v. State, 683 So.2d 597 (Fla. 2d DCA 1996); Dept. of Highway Safety Motor Vehicles v. Degrossi, 680 So.2d 1093 (Fla. 4d DCA 1996).
    PAGE 1075