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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 90194
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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My license is suspended for 5 years for habitual offender and

Customer Question

My license is suspended for 5 years for habitual offender and many charges of DWLSR. Therefore I purchased a motorized bicycle (gas) which according to the Florida DMV, is considered simply a bicycle, not a moped, not a motorized vehicle. Around 10/20/10 I was arrested on my way to work, charged with DWLSR, possesion of a Revoked Driver's License, and driving a "motorized vehicle" on the side walk . I am already on probation for prior DWLSR so I can get a violation of probation and major jail time. Need HELP to prove I was NOT driving a "motorized vehicle", just a bicycle as stated by the DMV representative I spoke to.
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 3 years ago.
I am afraid FS 316.003(2) "definition of bicycle" states: "Every vehicle propelled solely by human power, and every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels."

If 50 cc or less, these vehicles are not motorcycles by driver license law definition, FS 322.01(25), so a motorcycle endorsement is not required per FS 322.03(4); however, to operate them on streets and roadways, you must be at least 16 years old and hold at least a regular operator (Class E) or “Motorcycle Only” driver license. Even though these vehicles are 50 cc or less, they still fall under the driver license law definition of “Motor Vehicle” and a driver license is required to operate a “motor vehicle.” FS 322.03(1), 322.01(26) and 322.05(1).

Thus, since yours was not electric powered under the Florida law, but gas powered and while it may not require a motorcycle endorsement, it does require a license. At this point you need to contact a local attorney to defend you to seek to minimize any probation violation and they can argue you made a mistake and were improperly informed by the party that sold it to you and in most cases the court will give you some break.


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Customer: replied 3 years ago.
But I spoke directly with the DMV and explained my situation and an exact description of my bicycle. They said that it is still considered a bicycle. They cannot register it and it does not need a license. They told me to fight it in court. The definiton for Motor Vehicle in FS 316.003 (21) spicifically excludes bicycles and mopeds.
Expert:  Law Educator, Esq. replied 3 years ago.
You are right it excludes mopeds and bicycles but the second part of what I gave you above states they are excluded from motorcycle endorsements but not drivers licenses. Bicycle specifically states "electric" power, not gas. And you need to read the drivers license laws I provided above which define when you need the license.
Customer: replied 3 years ago.

These laws only apply to "motorized vehicles". And since the DMV told me that it is NOT a "motorized vehicle" then I cannot get a license or registration for it. In other words, they REFUSED to give me a license even though I cannot get one anyways. But the point is that it is a bicycle by there terms.

 

If the the term "motorized vehicles" excludes my bicycle from its terms, and the law ONLY requires a License to operate a "motorized vehicle", then I understand that my bike does not require a license.

Expert:  Law Educator, Esq. replied 3 years ago.
They may have refused to give you a license plate because the vehicle does not require one. I have provided you with the law on these vehicles, which do not require license plates, but still require drivers licenses which is why the officer cited you (this is something very common and the officers know the law on these issues whether you believe it or not). The law is as I cited it above and I do not know what to tell you, I quoted the law EXACTLY and did not paraphrase, so I did not miss anything because I have had several others who have been in the same boat and I have had to explain the exact same thing to them.
Customer: replied 3 years ago.

Well, okay, then moving along a little bit. If the police report is innacurate in more than one way, can I use that to try an dismiss the case? For example, he only estimates my speed at 30 but has no other proof. Also states the bicycle has no lights, which it had TWO lights in the front. Also says it has a speedometer which I DO NOT HAVE, it is only a device to tell you have bicycle gear you are in (1-8 gears), it has nothing to do with the motor. There are a few discrepancies that I can address. I dont think he has video proof either. He did take pictures though. What I am trying to say is that if I can find a few innacurate descriptions on his report then I can kind of proof that the rest of his report is also innacurate.

Expert:  Law Educator, Esq. replied 3 years ago.
His estimate of the speed will be based on his testimony and you can challenge that by pleading not guilty and going to trial and questioning the officer on cross examination. He would then have to testify to how he determined your estimated speed to be 30 MPH and you would have to present reasonable evidence as to your speed to counter his testimony.

As far as the description of the bike and lights etc, taking a picture of those to present as evidence to counter the officer's statements would likely be helpful as well, but if there is no speedometer, then this could work against your claim you were not going 30 MPH and you need to present the manufacturer's specifications on the bike to show it cannot go that fast (which would be part of your argument if it cannot go over 20 that no license is required). You need to find material discrepancies showing that no license was required to defeat the driving without a license (suspended/revoked license) charge and these discrepancies may go towards any moving violation charges, but not the license charge.
Customer: replied 3 years ago.

Can I get a written statement by he DMV stating that I do not need a Driver's License to operate my "type" of bicycle and use that in court? Even though I understand there are certain grey or areas or unclear terms in the Laws..... I practically had written permission and "understood" by means of the DMV that could drive my bicycle without a Drivers License or any other requirements for Motor Vehicles.

 

Again, even though this does not exempt me from what the law exceeds, there is a reason why the DMV is there for, if they stated something that wasn't true or was true, how can I be held accountable for it?

Expert:  Law Educator, Esq. replied 3 years ago.
You can ask DMV for a written letter stating you do not need a DRIVERS license (not a license plate or registration that is different) to operate the exact vehicle you were operating and submitting that to the court would be enough for them to find you not guilty and dismiss the case. Your argument was you relied on their expertise and that is a mitigating factor, but you are going to have to show that they examined the bike or saw it or you provided the make/model and they made their determination based on that.
Customer: replied 3 years ago.

Finally, a small glimpse of light at the end of the tunnel. So these small details are what I am trying to look for so that I dont go to jail. Are there any other possible details I could probably use against this case? Remember, even though I could go to trial, I want to get the case dropped right away on my initial court date so that it doesnt go to trial and I dont get a violation of probation.

 

 

Expert:  Law Educator, Esq. replied 3 years ago.
The only real way to do this is to get someone from DMV to actually see the bike to determine if a drivers license is required or not and if they determine it is not then ask them for a written letter to that effect and you could then present that to the prosecutor as grounds to dismiss the case without any trial.
Customer: replied 3 years ago.
Do you think a public defender would suffice in this matter or should I hire a lawyer? I have a lot to prove here and a lot at risk. If you think I need a lawyer, how can I be referred to a good lawyer?
Expert:  Law Educator, Esq. replied 3 years ago.
Because there is a potential probation violation involved on top of the traffic citation, you should indeed hire an attorney to get the best representation because you are going to need the attorney to go the extra mile in arguing this that most times a public defender (assuming you can even qualify for one since if they can prove you can pay for an attorney the court will not allow you a PD) does not have the time to do. As far as referrals, this site strictly prohibits us from making referrals and the best we can suggest to find a local traffic/criminal law attorney in your area are the same sites used by other attorneys, http://www.martindale.com and http://www.findlaw.com
Customer: replied 3 years ago.
I am looking online in a few different "official state websites" such as flsenate.gov and leg.state.fl.us

for both of these sites the statutes 320.01(1) and 316.003 (21) clearly exclude mopeds from the definition of "motor vehicle" yet when you look up statute 322.01(27) the word moped doesn't even appear in the definition of "motor vehicle"

There are different meanings to the word Motor Vehicle. Which one is the right one? or maybe I can use that "confusion" in court.....
Expert:  Law Educator, Esq. replied 3 years ago.
The proper definitions are those I supplied you above pertaining to requiring a drivers license and being 16 to operate, but not requiring a motorcycle endorsement. You can argue confusion, but the court's answer will be the old axiom "ignorance of the law is no defense."
Customer: replied 3 years ago.
okay, so here is another question. Since I "violated probation" I am being looked for as of now. What are some consequences for not turning yourself in right away? or if they went to your job, looked for you and you werent there even someone said you were there. Can I get another charge for fleeing, evading, or resisting arrest even though I never had any kind of physical or visual contact with ANY of the officers?
Expert:  Law Educator, Esq. replied 3 years ago.
I have been more than patient in assisting you, and please realize that I am not trying to be rude or offensive here, but the terms of this service are one question (and directly related follow ups) per payment, and you have not even clicked on accept one time yet (all you have done is made a deposit and that is not released until you click accept and if you are a subscription customer you can click on accept for multiple questions all for the same monthly price, but you still need to click accept for us to get compensated for our time, which in this case has been considerable including looking up and reproducing statutes for you).

Now, to answer your question, you need to let your probation officer know about this as soon as possible because it is always worse when they find out on their own. They will not generally revoke your probation until such time you are actually convicted of the offense because you at least have some argument here to mitigate the circumstances. Also, your mitigating argument that you obtained information from DMV on this matter would also be used with the judge on the probation violation, and generally there would be no jail time but a fine and perhaps an extension of the probation.
Customer: replied 3 years ago.
I completely understand. I accepted the answer yesterday but maybe it didn't go thgough, I will accept again today. I really appreciate the time you have spent in helping me. This is a crucial time for me as I know I will be going to jail in the next few days and I will not have any other information until my arraignment date on Nov 22nd. I just want to ask a final question if I may so that I can stop freaking out a little bit. Can an attorney speak to the Prosecutor prior to the arraignment date to see if they can somehow temporarily stop the "warrant for my arrest" or whatever they are doing..... because of my Violation, due to the investigation being done by the attorney.
Expert:  Law Educator, Esq. replied 3 years ago.
Maybe the accept was not completed by you, since there is no record of any accepts for you only a deposit.

Yes an attorney can speak to the prosecutor and also the probation officer and arrange with the court so that while there may be a probation violation you will not go to jail on that violation but the hearing would be held off until the disposition of the new case and then the attorney can work on negotiating the probation violation to avoid or minimize jail time. Most times on these cases it will be an extension of probation (maybe 5-10 days in jail with weekend jail or suspended) and that is the typical way these cases are handled.

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