In re Florida rules of Practice & Procedure for Traffic Courts

PER CURIAM.

Pursuant to a petition from the Florida Bar and a response from the Traffic Court Review Committee, the Florida Rules of Practice and Procedure for Traffic Rules are amended in the manner as appended to this opinion. This action shall be effective January 1, 1985.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

II. GENERAL PROVISIONS

Rule 6.040 Definitions

The following terms shall have the meaning respectively ascribed to them:

“Criminal Traffic Offense” means a violation of a statute or ordinance governing traffic not subject to the provisions of Chapter 318, Florida Statutes, within the jurisdiction of a court to which these rules apply — ineluding-Chapter 322, Florida Statutes, sections-316.027,- 316.-061, 316.067, 316.072(3), 316.192, 316.193, 316.1935, 860.01, Florida Statutes and Chapter 893, Florida Statutes.

“Infraction” means a noncriminal traffic violation of-Chapter- 316,-or — sections 240.265, 320.07(3), 339.30 or-34Q,23rFloridsvStatutes, except as provided in section 318.17, F-lor-idar-Statutes-,■ which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel.

Rule 6.070 [Reserved]

Rule 6.120 [Reserved]

Rule 6.130 Case Consolidation

■Insofar — -as.practicable traffic cases shall be-tried- separately- from other easesr Where a person is cited for the commission of both a criminal and a civil traffic violation or both a civil traffic infraction requiring a mandatory hearing and a civil traffic infraction not requiring a hearing the cases may be heard simultaneously if they arose out of the same set of facts.

Under any of these circumstances the civil traffic infraction shall be treated as continued for the purpose of reporting to the Department. Prior to the date of the scheduled hearing or trial, an alleged offender may dispose of any nonmandatory civil traffic infraction in the manner provided by these rules and section 318.14, Florida Statutes.

Rule 6.150 Witnesses

(a) The procedure prescribed by law in civil and criminal cases concerning the attendance and testimony of witnesses, the administration of oaths and affirmations and proceedings to enforce the remedies and protect the rights of the parties shall govern traffic cases so far as they are applicable unless provided otherwise by these rules or by the law. Payment of witness fees and costs of serving witnesses in civil traffic eases shall be made in the same manner as a criminal traffic case.

(b) An alleged offender in a civil infraction case may offer evidence of other witnesses through use of one or more affidavits. Said affidavits shall be considered by the court only as to the facts therein which are based on the personal knowledge and observation of the affiant as to relevant material facts. However, such affidavits shall not be admissible for the purpose of establishing character or reputation.

Rule 6.155 [Reserved]

III. CRIMINAL OFFENSES

Rule 6.160 Practice as in Criminal Rules

Except as hereinafter provided, trial under this part shall be governed by the Rules of Criminal Procedure so far as they may be applicable unless they are in conflict with these rules. A person shall be considered “taken into custody” for the purpose of Rule 3.191 when he is arrested or when a traffic citation, notice to appear, summons, information or indictment is served upon him in lieu of arrest.

Rule 6.165 Complaint; Summons; Form; Use

(a) All prosecutions for criminal traffic offenses by law enforcement officers shall be by uniform traffic citation as provided for in section 316.650, Florida Statutes, or other applicable statutes, or by affidavit, information or indictment as provided for in the Florida Rules of Criminal Procedure. If prosecution is by affidavit, information, or indictment, a uniform traffic citation shall be prepared by the arresting officer at the direction of the prosecutor or, in the absence of the arresting officer, by the prosecutor, and submitted to the Department of Highway Safety and Motor Vehicles.

(b) The Court may allow the prosecutor to amend in open court a traffic citation alleging a criminal traffic offense to state a different traffic offense. No new traffic citation need be issued by the arresting officer. The court in its discretion may grant additional time to the defendant for the purpose of preparing his defense if the amendment has prejudiced the defendant.

Rule 6.290 Withholding Adjudication Prohibited; When

(a) Pursuant to the provisions of section 322.281 316.656, Florida Statutes, no court shall suspend, defer, or withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle, while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, model glue any chemical substance set forth in section 877.111, Florida Statutes, or any substance controlled by Chapter 893, Florida Statutes.

IV. TRAFFIC INFRACTIONS

Rule 6.330 Election to Attend Traffic School

(a) Unless a mandatory hearing is required pursuant to section 318.19, Florida Statutes, or the alleged offender appears at a hearing before an official, an alleged offender may elect to attend a driver improvement school or a student traffic safety council school where such schools are available in lieu of payment of the civil penalty. Attendance at a driver improvement school shall not operate to waive the surcharges for excessive speed imposed by section 318.18(3), Florida Statutes. The person must appear at the traffic violations bureau of the court having jurisdiction of the case to make such an election7 within ten days of the date of the citation. If the person begins the driver school course, such action shall constitute an admission and a waiver of the right to a hearing. An offender may elect to-attend a driver improvement school or student traffic safety council school to satisfy only one-traffic infraction citation-during each calendar year,

Rule 6.430 [Reserved]

Rule 6.450 Order of Hearing

(a) If it is admitted that the traffic infraction was committed, the official shall permit the offender to offer a statement concerning the commission of the infraction. The official may examine the offender and issuing officer concerning the infraction prior to making a determination as to the civil penalty to be imposed.

(b) Prior to the commencement of a hearing the official shall briefly describe and explain the purposes and procedure of the hearing and the rights of the alleged offender.

(c) The issuing-officer — shall,- after being sworn, testify-and-of-fer evidence-to the facts concerning the alleged-infrac-tiom — After-such-testimony, the official and the alleged-offender — or his- counsel may examine such-off-icer-7

(c) Thereafter the alleged offender may offer sworn testimony and evidence and after such testimony is offered shall answer questions as may be asked by the official.

(d) If the testimony of additional witnesses is to be offered, the order o& in which such witnesses shall testify shall be within the discretion of the official conducting the hearing. Any such witness shall be sworn and shall testify, and may then be questioned by the official, and thereafter may be questioned by the alleged offender or counsel.

(e) Upon the conclusion of such testimony and examination, the official may further examine or allow such examination as the official deems appropriate.

(f) At the conclusion of all testimony and examination, the alleged offender or counsel shall be permitted to make a statement in nature of a closing argument.

(g) In any case where a contested infraction hearing is held, and the offender, who has either asked for the contested hearing or has otherwise received proper notice of the hearing, fails to appear for the hearing, the official can proceed with the hearing, take testimony and, if it is determined that the infraction was committed, impose a penalty as if the offender had attended the hearing. In the interests of justice, the court may vacate the judgment upon a showing of good cause by the offender.

Rule 6.455 Amendments

The charging instrument may be amended at any time prior to hearing, subject to the approval of the official. The official may grant a continuance if such amendment requires one in the interests of justice. No case shall be dismissed by reason of any informality or irregularity in the charging instrument.

Rule 6.460 Evidence

(a) The rules of evidence applicable in all hearings for traffic infractions shall be the same as in civil cases, except to the extent inconsistent with these rules, and shall be liberally construed by the official hearing the case. Evidence admissible shall include but not be limited ■to-accident reports.

(b) Any party to a noncriminal traffic infraction may make a tape-recording of the hearing. The provision and operation of the recording equipment shall be the responsibility of the alleged offender unless otherwise provided by the court. The original recording shall immediately be delivered to the clerk at the end of the hearing who shall seal and file it. Such tape shall be transcribed for an appeal if ordered by the alleged offender. Transcription shall only be by an official court reporter at the alleged offender’s expense.

Rule 6.470 Costs

(a) In those cases where a hearing is held to determine whether a traffic infraction was committed, court costs up to fifteen twenty-five dollars may be assessed by the official against the offender in addition to the penalty imposed.

Rule 6.480 Deferred Payment of Penalty Imposed

Upon motion of the offender or upon his own motion an official may allow a reasonable amount of time before requiring the payment of a penalty imposed. If payment is not made after such extension or extensions the failure to pay shall be reported to the-department within ten days- for the purpese-of-suspending the offenders driving license, such action will be considered a failure to comply for purposes of section 318.15, Florida Statutes.

Rule 6.540 Time for and Method of Making Motions; Procedure

(a) A motion for new hearing or in arrest of judgment, or both, may be made within four days, or such greater time as the official may allow, not to exceed 40 30 days, after the finding of the official.

Rule 6.560 Conviction of Traffic Infraction

An admission or determination that a person has committed a traffic infraction shall constitute a conviction as that term is used in Chapter 322, Florida Statutes, and section 943.25(4) and (8), Florida Statutes, unless adjudication is withheld by an official in those cases in which withholding of adjudication is not otherwise prohibited by statute or rule of procedure.

Rule 6.570 Reporting Action Requiring Suspension of Driver License

Any noncompliance with the provisions of Chapter 318, Florida Statutes, resulting in the suspension of a driver license shall be reported to the department within ten days of the noncompliance five days after an offender’s failure to comply with the requirements of section 318.-18(1), on a form to be supplied by the department. Any noncompliance may be determined without the necessity of holding a hearing.