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VERIFIED MOTION TO VACATE OR SET ASIDE DRIVER’S LICENSE SUSPENSION AND, IN TURN, MOTION TO
DISMISS CHARGE OF DRIVING WHILE LICENSE SUSPENDED
State of Florida vs. ****** ******* *******
Case No.: 412012CF****
Page 1 of 5
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR MANATEE COUNTY
CRIMINAL DIVISION
STATE OF FLORIDA, CASE NO. 41 2012 CF ****
DIVISION V
VS.
****** ******* *******,
Defendant.
/
VERIFIED MOTION TO VACATE OR SET ASIDE DRIVER’S LICENSE SUSPENSION AND, IN
TURN, MOTION TO DISMISS CHARGE OF DRIVING WHILE LICENSE SUSPENDED
COMES NOW, ****** ******* *******, by and through the undersigned attorney, ******* R.
RILEY, and hereby moves this Honorable Court to enter an Order Vacating the Florida DMV’s September 11,
2012 Order of Suspension and, in turn, dismiss the present charge of driving while license suspended under
Florida Statute 322.34(2)(c), and as good grounds therefore would state as follows:
1. ******* possessed a lawful business purpose Florida Driver’s license, (Class E). His auto insurance
carrier, Dairyland Auto and Serenity Group, Inc., both divisions of Peak Property and Casualty
Insurance Corporation, filed the requisite AAMVA Uniform Financial Responsibility Form, for
certification SR-22 insurance coverage; as required by law, and thereby establishing the fact that
******* was insured, beginning February 24, 2012. See AAMVA Uniform Financial Responsibility
Form and the Florida Automobile Insurance Identification Card, attached hereto and incorporated herein
as composite Exhibit A.
2. On February 24, 2012, ******* made a premium payment for six months of non-(vehicle) owner
coverage with Serenity Group, Inc., in the amount of $254.61. A copy of which is attached hereto and
incorporated herein as Exhibit B.
3. The term of coverage was for six months, with authorization for future premium payments for
automatic renewal to occur via electronic funds transfer (EFT). Through consenting to EFT premium
payments, ******* authorized his auto insurance carrier to withdraw any payment necessary to maintain
Page 2 of 5
his automobile insurance coverage. Proof of *******’s consent and authorization for EFT premium
payments is found in the attached exhibit, wherein a “Y,” for “yes,” exists in the requisite space; attached
hereto and incorporated herein as Exhibit C.
4. However, as a result of the carrier’s failure to withdraw the payment from the designated Visa credit
card, Mr. *******’s insurance lapsed. His SR-22 certification with the DMV was unilaterally revoked,
and done so without any prior notice to *******; or opportunity to cure.
5. The auto insurance carrier’s failure to provide ******* notice of an impending cancellation of
coverage is both a contractual breach, and violation of Florida’s statutory provisions providing
requirements for giving a policy holder notice of cancellation. The insurance carrier failed to produce a
United States Postal Proof of Mailing form in order to prove it properly canceled the insurance. In this
case, the insurance company cannot produce the proof of mailing either. See Florida Statute
§627.728(1)(c) on “Nonpayment of premium” on notice attached hereto and incorporated herein as
Exhibit D.
6. Moreover, Mr. ******* was never provided any notice of a potential suspension of his driver’s license
from the DMV. Notice of the suspension, and delivery of the Order, both steps, are required pursuant to
Florida Statutes Section §325.25(2), see Rodgers v. State, 804 Sp.2d 480 (Fla. 4th DCA 2001); attached.
7. On September 18, 2012, ******* received an “Order of Suspension” from the DMV, via U.S. Mail.
As cause for the suspension, the Order states, “failure to maintain SR-22/FR-44 Certification of Liability
Insurance.” The document from the DMV provided that *******’s driver’s license was suspended
(unbeknownst to Mr. *******), on September 11, 2012. See Order of Suspension attached as Exhibit E.
8. That very same day of receipt, September 18, 2012, Mr. ******* immediately called Serenity Group,
Inc., his auto insurance carrier, and renewed his policy. The same policy that should have remained in
effect due to Mr. *******’s written authorization for automatic withdraw of the funds necessary to
maintain the insurance coverage from the specified credit card. See Automobile Insurance Identification
Card showing the effective date of coverage, as of September 18, 2012, attached hereto as Exhibit F. See
also the receipt for this payment attached as Exhibit G.
Page 3 of 5
9. With confirmation of SR-22 coverage in effect, and written confirmation that his automobile insurance
carrier notified the DMV of his having coverage, Mr. ******* reasonably believed the suspension of his
driver’s license was entirely cured. Mr. *******’s belief turned out to be a good-faith mistake. *******
first became aware of the error in regard to the status of his driver’s license on September 29, 2012.
10. On September, 29, 2012, Mr. ******* was pulled over in Manatee County for speeding. He was
arrested at the scene for driving on a suspended driver’s license; for which he was released on bond.
11. As of September 29, 2012, Mr. *******’s insurance policy had been in effect since September 19,
2012. A period of 11 (eleven) days. Mr. *******’s call on September 18, 2012, resulted in a policy
taking effect that very same day. See Florida Automobile Insurance Identification Card, attached hereto
as Exhibit H.
12. Mr. ******* renewed his insurance policy by paying another premium with the same Visa card used
to purchase coverage back on February 24, 2012.
13. Based on the foregoing, Mr. ******* respectfully moves this Honorable Court to Vacate or Set Aside
the DMV Order of Suspension, and Dismiss this Charge of Driving on a Suspended License, on the basis
that Mr. ******* was not provided proper legal notice that his insurance premium would lapse and, in
turn, his SR-22 Certification be revoked when his insurance premium was to be paid automatically by the
designated credit card. It was reasonable for ******* to rely on the insurance carrier’s promise to
automatically withdraw the premium amount for continued coverage. Mr. *******’s proof of insurance
coverage at the time of being pulled over, as well as the fact that the new SR-22 Certificate had been filed
with the DMV approximately 10 days earlier on September19, 2012, is sufficient grounds to establish that
the DMV’s Order of Suspension should be vacated and this charge dismissed.
14. The undersigned has contacted the Assistant State Attorney, Mr. William Moran, in regard to this
Motion, and he DOES or DOES NOT object.
Page 4 of 5
WHEREFORE, the undersigned Attorney respectfully requests this Honorable Court vacate the
order of suspension and dismiss this charge of driving on a suspended license.
I hereby certify that the foregoing statements of fact are true.
STATE OF FLORIDA
COUNTY OF PASCO
Dated in New Port Richey, Florida this ____ day of October 2012.
****** ******* *******
SWORN TO AND SUBSCRIBED before me this ____ day of October 2012, by ****** ******* *******,
who is personally known to me, and who did take oath.
Notary Public
Printed Name
My commission Expires:
Respectfully Submitted,
__________________________
********************.
Florida Bar No. ********
5426 Crafts Street
New Port Richey, FL 34690
(727) ****-****
Page 5 of 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion to Vacate or Set Aside Driver’s License
Suspension and Motion to Dismiss was mailed and faxed on this ___ day of October, 2012 to the State
Attorney’s Office at 1112 Manatee Avenue West, Bradenton, Florida 34205 and Fax 941-742-5810.
__________________________
***********************

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Verified Motion to Vacate or Set Aside Charge of Driving While License Suspended

  • 1. VERIFIED MOTION TO VACATE OR SET ASIDE DRIVER’S LICENSE SUSPENSION AND, IN TURN, MOTION TO DISMISS CHARGE OF DRIVING WHILE LICENSE SUSPENDED State of Florida vs. ****** ******* ******* Case No.: 412012CF**** Page 1 of 5 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR MANATEE COUNTY CRIMINAL DIVISION STATE OF FLORIDA, CASE NO. 41 2012 CF **** DIVISION V VS. ****** ******* *******, Defendant. / VERIFIED MOTION TO VACATE OR SET ASIDE DRIVER’S LICENSE SUSPENSION AND, IN TURN, MOTION TO DISMISS CHARGE OF DRIVING WHILE LICENSE SUSPENDED COMES NOW, ****** ******* *******, by and through the undersigned attorney, ******* R. RILEY, and hereby moves this Honorable Court to enter an Order Vacating the Florida DMV’s September 11, 2012 Order of Suspension and, in turn, dismiss the present charge of driving while license suspended under Florida Statute 322.34(2)(c), and as good grounds therefore would state as follows: 1. ******* possessed a lawful business purpose Florida Driver’s license, (Class E). His auto insurance carrier, Dairyland Auto and Serenity Group, Inc., both divisions of Peak Property and Casualty Insurance Corporation, filed the requisite AAMVA Uniform Financial Responsibility Form, for certification SR-22 insurance coverage; as required by law, and thereby establishing the fact that ******* was insured, beginning February 24, 2012. See AAMVA Uniform Financial Responsibility Form and the Florida Automobile Insurance Identification Card, attached hereto and incorporated herein as composite Exhibit A. 2. On February 24, 2012, ******* made a premium payment for six months of non-(vehicle) owner coverage with Serenity Group, Inc., in the amount of $254.61. A copy of which is attached hereto and incorporated herein as Exhibit B. 3. The term of coverage was for six months, with authorization for future premium payments for automatic renewal to occur via electronic funds transfer (EFT). Through consenting to EFT premium payments, ******* authorized his auto insurance carrier to withdraw any payment necessary to maintain
  • 2. Page 2 of 5 his automobile insurance coverage. Proof of *******’s consent and authorization for EFT premium payments is found in the attached exhibit, wherein a “Y,” for “yes,” exists in the requisite space; attached hereto and incorporated herein as Exhibit C. 4. However, as a result of the carrier’s failure to withdraw the payment from the designated Visa credit card, Mr. *******’s insurance lapsed. His SR-22 certification with the DMV was unilaterally revoked, and done so without any prior notice to *******; or opportunity to cure. 5. The auto insurance carrier’s failure to provide ******* notice of an impending cancellation of coverage is both a contractual breach, and violation of Florida’s statutory provisions providing requirements for giving a policy holder notice of cancellation. The insurance carrier failed to produce a United States Postal Proof of Mailing form in order to prove it properly canceled the insurance. In this case, the insurance company cannot produce the proof of mailing either. See Florida Statute §627.728(1)(c) on “Nonpayment of premium” on notice attached hereto and incorporated herein as Exhibit D. 6. Moreover, Mr. ******* was never provided any notice of a potential suspension of his driver’s license from the DMV. Notice of the suspension, and delivery of the Order, both steps, are required pursuant to Florida Statutes Section §325.25(2), see Rodgers v. State, 804 Sp.2d 480 (Fla. 4th DCA 2001); attached. 7. On September 18, 2012, ******* received an “Order of Suspension” from the DMV, via U.S. Mail. As cause for the suspension, the Order states, “failure to maintain SR-22/FR-44 Certification of Liability Insurance.” The document from the DMV provided that *******’s driver’s license was suspended (unbeknownst to Mr. *******), on September 11, 2012. See Order of Suspension attached as Exhibit E. 8. That very same day of receipt, September 18, 2012, Mr. ******* immediately called Serenity Group, Inc., his auto insurance carrier, and renewed his policy. The same policy that should have remained in effect due to Mr. *******’s written authorization for automatic withdraw of the funds necessary to maintain the insurance coverage from the specified credit card. See Automobile Insurance Identification Card showing the effective date of coverage, as of September 18, 2012, attached hereto as Exhibit F. See also the receipt for this payment attached as Exhibit G.
  • 3. Page 3 of 5 9. With confirmation of SR-22 coverage in effect, and written confirmation that his automobile insurance carrier notified the DMV of his having coverage, Mr. ******* reasonably believed the suspension of his driver’s license was entirely cured. Mr. *******’s belief turned out to be a good-faith mistake. ******* first became aware of the error in regard to the status of his driver’s license on September 29, 2012. 10. On September, 29, 2012, Mr. ******* was pulled over in Manatee County for speeding. He was arrested at the scene for driving on a suspended driver’s license; for which he was released on bond. 11. As of September 29, 2012, Mr. *******’s insurance policy had been in effect since September 19, 2012. A period of 11 (eleven) days. Mr. *******’s call on September 18, 2012, resulted in a policy taking effect that very same day. See Florida Automobile Insurance Identification Card, attached hereto as Exhibit H. 12. Mr. ******* renewed his insurance policy by paying another premium with the same Visa card used to purchase coverage back on February 24, 2012. 13. Based on the foregoing, Mr. ******* respectfully moves this Honorable Court to Vacate or Set Aside the DMV Order of Suspension, and Dismiss this Charge of Driving on a Suspended License, on the basis that Mr. ******* was not provided proper legal notice that his insurance premium would lapse and, in turn, his SR-22 Certification be revoked when his insurance premium was to be paid automatically by the designated credit card. It was reasonable for ******* to rely on the insurance carrier’s promise to automatically withdraw the premium amount for continued coverage. Mr. *******’s proof of insurance coverage at the time of being pulled over, as well as the fact that the new SR-22 Certificate had been filed with the DMV approximately 10 days earlier on September19, 2012, is sufficient grounds to establish that the DMV’s Order of Suspension should be vacated and this charge dismissed. 14. The undersigned has contacted the Assistant State Attorney, Mr. William Moran, in regard to this Motion, and he DOES or DOES NOT object.
  • 4. Page 4 of 5 WHEREFORE, the undersigned Attorney respectfully requests this Honorable Court vacate the order of suspension and dismiss this charge of driving on a suspended license. I hereby certify that the foregoing statements of fact are true. STATE OF FLORIDA COUNTY OF PASCO Dated in New Port Richey, Florida this ____ day of October 2012. ****** ******* ******* SWORN TO AND SUBSCRIBED before me this ____ day of October 2012, by ****** ******* *******, who is personally known to me, and who did take oath. Notary Public Printed Name My commission Expires: Respectfully Submitted, __________________________ ********************. Florida Bar No. ******** 5426 Crafts Street New Port Richey, FL 34690 (727) ****-****
  • 5. Page 5 of 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Motion to Vacate or Set Aside Driver’s License Suspension and Motion to Dismiss was mailed and faxed on this ___ day of October, 2012 to the State Attorney’s Office at 1112 Manatee Avenue West, Bradenton, Florida 34205 and Fax 941-742-5810. __________________________ ***********************