For those of you that have kids, you’ve heard the phrase “no, I won’t do it.” Well, most kids don’t really say “no, I’m not going to do that”, but if you listen close to their responses, a parental translation of statements like “when I’m done watching this show” or “I’ve got homework to do” translates to just about the same thing as “whatever you are asking, I’m not going to do it”.
This sort of immature response happens in government as well. Executive orders are drafted by presidents, on things that should have been voted on by the people’s representatives. And, governmental agencies pass “regulations” that can send you to jail, even though our legislature and governor never approved such. And, these sort of government tiffs occur even on the smallest of scales. Take, for example, the dispute between Florida’s county court judges, and Florida’s Department of Highway Safety and Motor Vehicles (DHSMV).
Now, I know what you’re thinking–how can one government organization tell another “No, I’m not going to do that”? Well, because it is possible that government officials are reading this article, especially DHSMV folks, and because these workers may not recall the finer points of their middle school political science class–here’s a one sentence review. The United States has this thing called separation of powers, and that means that the legislative branch passes laws, the executive branch carries out these laws, and the judicial branch has the final say as far as the interpretation of these laws. Yes, somebody has to have the last word, and it’s the judicial branch.
[background info: on traffic cases, criminal or civil, a “conviction” will lead to points being assessed on your driving record, but a “withhold of adjudication” will not lead to points on the driving record, because a “withhold” means–technically–that you were not convicted of the traffic violation. FYI]
Florida’s DHSMV fired the first shot at county court judges when a DHSMV Chief, Maureen Johnson, sent a memorandum to all Florida Clerks of Court explaining that the DHSMV would be rejecting any Judge’s withhold of adjudication for a CDL driver. The memorandum cites Florida Statute 318.14(9) as its basis, yet that statute only prohibits CDL drivers from electing driving school in order to get a withhold. The memo from DHSMV rejects all withholds for CDL drivers, not just the withholds received by electing the driving school. Now, think about this for a minute. You’re a CDL driver. You challenge your citation in court, in front of a judge. That judge issues a withhold of adjudication, based upon the evidence and facts presented to the judge at the hearing. The DHSMV then rejects the judge’s withhold of adjudication. As stated in the memorandum to all Florida clerks, the DHSMV doesn’t care what the judge says, they’re going to reject all withholds for CDL drivers.
Yes, the DMV is sounding a bit childish here. There’s nothing in the law prohibiting a judge from withholding on a CDL driver’s citation, there’s only a law prohibiting a CDL driver from getting a withhold by electing the driver’s school. Of course, if the legislature wanted to prevent CDL drivers from obtaining withholds from judges, they could have done that as well, but elected not to do so. The DHSMV’s concern lies in the Commercial Motor Vehicle Safety Act (CMVSA), and federal highway funds are cut off if this law is not followed. The CMVSA contains the following phrase that concerns the DHSMV:
“The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver’s conviction for any violation . . . from appearing on the driver’s record“ 49 C.F.R. 384.226. (emphasis added)
The federal government is concerned that CDL drivers may “mask” various citations from their driving record. But masking means something like a diversion program– and the CMVSA mentions “diversion” specifically–in which a violation would be dismissed if the driver completed a class successfully. In criminal cases, we call it diversion, PTD, PTI, or CDP, but any way you slice a diversion program, the criminal record is dismissed upon completion. The CMVSA asks that CDL drivers not have such a dismissal option, because a dismissal “masks” from public view the particular driving violation. However, no such “masking” or “deferred imposition of judgment” is imposed by Florida’s county court judges and hearing officers. If a judge gives a CDL driver a withhold, the citation actually appears on the driving record. It is not “masked” in any way. Judgment is not “deferred” in any way. The only way to “mask” a citation in Florida is to dismiss it. So, I’m not sure how it is that the DHSMV thinks that a withhold constitutes a “masking”. It’s pure nonsense.
And, another question–if the DHSMV is going to reject judge’s withholds, and send back judge ordered withholds to the clerk of court as an “error”, what will they enter into the driving record in its place? I will assume that the DMV will not commit fraud upon the public and report that a CDL driver received a “conviction”–when clearly–the driver was not convicted. Sure, we have several laws in Florida that permit the DMV to treat a “withhold” as if it is a conviction (a withhold on a criminal Driving While License Suspended still counts as a conviction, but the driving record reflects a “withhold”). And, such treatment may apply to CDL drivers (See Florida Statute 322.01(11), for example). Nonetheless, telling judges that their court orders will be rejected as “errors” seems a bit childish, doesn’t it? Oh, and it violates the separation of powers found in our Constitution, but who reads that old thing anymore? Certainly not the DMV.