Nos. 72261, 72312.
August 25, 1988.
Two Consolidated Original Proceedings — Florida Rules of Practice and Procedure for Traffic Courts.
John F. Harkness, Jr., Executive Director, Tallahassee, Jon H. Gutmacher, Chairman, Fort Lauderdale, and Marci Levin Goodman, Pensacola, for The Florida Bar Traffic Court Rules Committee.
Richard E. Cox, Executive Secretary, Tallahassee, for The Traffic Court Review Committee.
PER CURIAM.
The Traffic Court Rules Committee of The Florida Bar (rules committee) has petitioned this Court to approve its quadrennial report of proposed changes to the Florida Rules of Practice and Procedure for Traffic Courts (Traffic Court Rules). Pursuant to Florida Rule of Judicial Administration 2.130, the proposed amendments were submitted to The Board of Governors of The Florida Bar for review. The board unanimously recommended approval. Pursuant to rule 6.040, the proposed amendments were also submitted to The Traffic Court Review Committee (review committee) of this Court. The review committee opposed the proposed changes to rules 6.010, 6.040, 6.156, 6.183, and 6.185. At oral argument, the rules committee withdrew its proposed changes to rules 6.010 and 6.040. Pursuant to rules 6.040 and 6.156(d), the review committee also has petitioned this Court to approve its quadrennial report of proposed changes.
In its report, the rules committee proposes that rule 6.156 be amended to provide that various groups be represented on the review committee in accordance with strict guidelines (e.g., "[f]orty percent (40%) of the Committee shall be County Court Judges"). We decline to approve this change. The amendment would create unnecessarily rigid restrictions that could exclude well-qualified candidates from serving on the committee. In its report, the review committee proposes that rule 6.100 be amended to include a provision giving chief circuit judges authority to prescribe by administrative order a procedure for handling citizen complaints. We decline to approve this change. According to the review committee's own observation, "the number of citizen complaints has been extremely low." Such a change is unnecessary at this point.
Of those changes proposed by the rules committee, we hereby approve the proposed amendments to rules 6.090, 6.110, 6.140, 6.160, 6.165, 6.180, 6.183, 6.185, 6.290, 6.455, and 6.540. Of those changes proposed by the review committee, we hereby approve the proposed amendments to rules 6.115, 6.340, 6.575, and 6.600. We further approve the review committee's request that the forms contained in the appendices to rule 6.115 be deleted due to their frequent need for modification. We hereby order these forms deleted.
Appended is the text of the amended portions of the rules. The amended rules become effective January 1, 1989. The committees' comments (reason for change) are included for explanation and guidance only and are not adopted as an official part of the rules.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
PER CURIAM.
Rule 6.090 Direct and Indirect Criminal Contempt PRESENT RULE PROPOSED RULE REASON FOR CHANGE proceeded upon Rule Rule Rule 6.110 Driver Improvement, Student Traffic Safety Council and DWI Counter Attack Schools PRESENT RULE PROPOSED RULE REASON FOR CHANGE In those areas where F.S. 322.282substance abuse education course, substance abuse education course F.S. 316.193 F.S. 316.193 Rule 6.115 DWI School DUI Program Coordination Trust Fund PRESENT RULE PROPOSED RULE REASON FOR CHANGE DWI school DUI Program DWI Schools Coordinator DUI Programs Director DWI Schools Coordinator DUI Programs Director DWI Schools DUI Program DWI School DUI Program DWI Schools DUI Programs Effective July 1, 1981, all DWI Schools All DUI Programs DWI DUI school program DWI School DUI program 322.271 322.271school program DWI Schools DUI Programs See Appendix A. This form shall be subject to the approval of the DUI Program Trust Fund Commission. DWI School DUI Program See Appendix B. This form shall be subject to the approval of the DUI Program Trust Fund Commission. school program DWI School DUI Program DWI DUI DWI Schools Coordinator's DUI Programs Coordination DWI Schools Coordinator's DUI Programs Coordination coordinator's Director's DWI Schools Coordinator DUI Program Trust Fund Commission Rule 6.140 Conduct of Trial PRESENT RULE PROPOSED RULE REASON FOR CHANGE place place, room Rule 6.160 Practice as in Criminal Rules PRESENT RULE PROPOSED RULE REASON FOR CHANGE the Rules of Criminal Procedure shall govern this part. Rule 6.165 Complaint; Summons, Form, Use PRESENT RULE PROPOSED RULE REASON FOR CHANGE shall PRESENT RULE PROPOSED RULE REASON FOR CHANGE SENTENCING, REPEAT Rule OFFENDERS: F.S. 316.193 Meehan Plea Meehan v. State, 397 So.2d 1214 PRESENT RULE PROPOSED RULE REASON FOR CHANGE F.S. 316.193PRESENT RULE PROPOSED RULE REASON FOR CHANGE PRESENT RULE PROPOSED RULE REASON FOR CHANGE PROCEDURES: Rule F.S. Florida Statutes. LIMITED DISCOVERY FOR IMPLIED CONSENT HEARINGS: F.S. Rule 6.290 Withhold Adjudication Prohibited; When PRESENT RULE PROPOSED RULE REASON FOR CHANGE F.S. 316.193 Rule 63.40 Rule on Admission that Traffic Infraction was Committed; Affidavit of Defense PRESENT RULE PROPOSED RULE REASON FOR CHANGE , at the discretion of the clerk or traffic violations bureau, , at the direction of the clerk or traffic violations bureau, may shall Rule 6.455 Amendments PRESENT RULE PROPOSED RULE REASON FOR CHANGE may shall Rule 6.540 Time for and Method of Making Motions; Procedure PRESENT RULE PROPOSED RULE REASON FOR CHANGE four ten (10) Rule Rule 6.575 Retention of Case Files PRESENT RULE PROPOSED RULE REASON FOR CHANGE five seven Rule 6.600 Failure to Appear or Pay Civil Penalty; Reinstatement of Driver License PRESENT RULE PROPOSED RULE REASON FOR CHANGE 318.15 318.15person alleged offender person alleged offender person alleged offender the alleged offender he , elect to attend a driver improvement school, or request a hearing. Any request for a hearing shall be made within a reasonable period of time after the commission of the alleged offense. without a hearing and may be required to agree to attend a driver school or may agree to attend a hearing. made granted 318.14is shall be 318.14
APPENDIX Direct and indirect Direct and indirect The change from the criminal contempt criminal contempt shall be word "punished" to the shall be punished in in the same words "proceeded upon" the same manner as manner as in the criminal were needed to make in the Criminal Rules Rules of Procedure. clear that the of Procedure. Committee intended to follow the procedure as outlined in 3.830 and 3.840, Criminal Procedure Rules. Those Rules are procedural and contain no penalties. (a) In relation to (a) The reason for the traffic law violators traffic law violators are change was to bring ordered or allowed to ordered or are allowed to Subsection (a) into elect to attend a elect to attend a driver conformity with the driver improvement improvement school or statutory language in school or student student traffic safety which traffic safety council school are are states "substance abuse council school, or sentenced to a education course" sentenced to a DWI the rather than a "DWI Counter Attack chief judge of the circuit Counter Attack School". School, the chief shall issue an judge of the circuit administrative order shall issue an designating the schools to administrative order which attendance is designating the required. No schools to which shall be attendance is approved by the chief judges required. No DWI until approval is first Counter Attack School granted by the DWI Schools shall be approved by coordinator or the Traffic the chief judges Court Review Committee. until approval is first granted by the (d) However, an out of Subsection (d) is new DWI Schools state resident sentenced to and was designed to Coordinator or the such may elect to complete a allow compliance with Traffic Court Review substantially similar (5), where Committee. program in his home state, the person did not province, or country. reside in the State of Florida, and was in Florida for only a short, temporary stay, that attendance at a substance abuse course in Florida would constitute a hardship. (5) requires only that the substance abuse course be "specified by the Court". (1) Each DWI school (1) Each The offense of approved by the DWI approved by the driving while Schools Coordinator intoxicated was is required to remit is abolished by statute, monthly the required to remit monthly thereby making assessments collected the assessments collected references to DWI pursuant to Section pursuant to Section 25.387, schools inappropriate; 25.387, Florida title of position Statutes, to the DWI coordinating such Schools Coordinator program has similarly been changed. of the Supreme Court Florida Statutes, to the on a form provided by the Supreme Court. of the Supreme Court on a form provided by the Supreme Court. (2) Each certified (2) Each certified The forms (Appendix A DWI school shall shall and B) have been cause records and cause records and accounts removed from the rules accounts to be kept to be kept in accordance since their possibly in accordance with with procedures prescribed frequent need for procedures prescribed by the Supreme Court. Such amendments does not by the Supreme Court. records and accounts will be seem to be of Such records and subject to audit by the sufficient importance accounts will be designated representative to invoke the subject to audit by of the Supreme Court. amendatory rule process the designated of the Court. Under the representative of the proposed amendment any Supreme Court. changes could be made by the Court-appointed Trust Fund Commission. (3) Each DWI School (3) Each The function of shall collect the shall collect the administering the trust trust fund in trust fund in accordance fund is also placed accordance with the with the plan attached with the Trust Fund plan attached hereto. hereto. Commission. Pursuant to Section Pursuant to Section 25.387, Florida 25.387, Florida Statutes, Statutes, the Supreme the Supreme Court hereby Court hereby adopts adopts the following plan the following plan for the implementation of for the the implementation of the Coordination Trust Fund. DWI Schools Coordination Trust Fund. (1) Effective July (1) 1, 1981, all DWI schools in the state in the state of of Florida shall of Florida shall assess assess three dollars three dollars against every against every individual enrolling in a individual enrolling course at the time in a DWI course at of the enrollment, including the time of the those who transfer to or enrollment, including from a in those who transfer another state. Federal to or from a school military employees, their in another state. dependents and retired Federal military military personnel who employees, their attend a federal military dependents and shall retired military be subject to the personnel who attend assessment. In addition, a federal military effective October 1, 1986, DWI school shall be second and third offenders subject to the evaluated for eligibility assessment. In for restricted licenses addition, effective pursuant to section October 1, 1986, (2)(b), Florida second and third Statutes, shall be assessed offenders evaluated three dollars upon for eligibility for enrollment in the program restricted licenses and upon each subsequent pursuant to section anniversary date of such (2)(b), enrollment for the duration Florida Statutes, of the restricted license shall be assessed period. three dollars upon enrollment in the program and upon each subsequent anniversary date of such enrollment for the duration of the restricted license period. (2) In no case (2) In no case shall the shall the assessment assessment be waived. be waived. (3) Each school (3) Each shall remit on a shall remit on a monthly monthly basis the basis the assessment assessment collected. The monthly collected. The remittance shall be monthly remittance forwarded at such time so as shall be forwarded at to be received by the such time so as to be Supreme Court by the seventh received by the working day of the next Supreme Court by the month. The remittance shall seventh working day be in the form of a check or of the next month. money order payable to the The remittance shall State of Florida and be sent be in the form of a with a form entitled " check or money order payable to the State Coordination Trust of Florida and be Fund-Remittance of $3.00 sent with a form Additional Assessment." entitled "DWI Schools Coordination Trust Fund — Remittance of $3.00 Additional Assessment." See Appendix A. (4) Each DWI school (4) Each shall cause records shall cause records and accounts to be and accounts to be kept kept which show the which show the collection of collection of each each assessment and which assessment and which will be subject to audit by will be subject to the Supreme Court. The audit by the Supreme records Court. The records of the assessments shall of the assessments shall be be in a form in a form specified by the specified by the Supreme Court. Supreme Court. See Appendix B. (5) Each school (5) Each shall be responsible shall be responsible for all for all costs, if costs, if any, incurred any, incurred through compliance with the through compliance requirements of the fund. with the requirements of the fund. (6) Each DWI school (6) Each may request a $3.00 may request a $3.00 increase in the fee increase in the fee charged charged for for enrollment in the enrollment in the course, to cover the DWI course, to cover assessment. The the assessment. The DWI Schools Office shall Coordinator's Office determine whether a change shall determine in the fee is appropriate. whether a change in the fee is appropriate. (7) Monies (7) Monies collected by collected by the fund the fund shall be used by shall be used by the the DWI Schools Coordinator's Office Office to pay to pay for staff for staff salaries, travel salaries, travel and and other expenses realted other expenses to the functioning of the related to the office. The fund will also functioning of the be used to pay for programs office. The fund will in which the also be used to pay office engages, for programs in including but not limited which the to, interstate reciprocity, coordinators office training, certification, engages, including monitoring and technical but not limited to, assistance. The Supreme interstate Court may assess the fund reciprocity, for reasonable costs for the training, administration of the fund. certification, monitoring and technical assistance. The Supreme Court may assess the fund for reasonable costs for the administration of the fund. (8) The DWI Schools (8) The Coordinator shall be the administrator of shall the fund. be the administrator of the fund. All trials and All trials and hearings There was a major hearings shall be shall be held in open court elimination in this held in open court and shall be conducted in an particular Rule, as the and shall be orderly manner according to Committee felt that all conducted in an law and applicable rules. questions pertaining to orderly manner All proceedings for the the conduct of any according to the law trial of traffic cases shall trial or hearing were and applicable rules. be held in a suitable covered by case Questions pertaining for the purpose; such decision, law, and the to the conduct of facilities shall be subject Rules and that an the trial or hearing, to inspection and approval official should not be not covered by law or of the Review Committee. permitted to decide on these rules, shall be any other basis. It was determined by the also felt that the word official. Except in should be emergencies, all substituted for the proceedings for the word as in some trial of traffic emergency situations cases shall be held hearings had been held in a room suitable outside, etc. for the purpose; such facilities shall be subject to inspection and approval of the Review Committee. Except as Except as hereinafter The purpose of the hereinafter provided, provided, charge was to make trial under this part clear that both shall be governed by A person pre-trial as well as the Rules of Criminal shall be considered "taken trial, under this Procedure so far as into custody" for the part, was governed by they may be purpose of Rule 3.191 when the Rules of Criminal applicable unless he is arrested, or when a Procedure, unless there they are in conflict traffic citation, notice to was a conflict. The with these rules. A appear, summons, information previous Rule had only person shall be or indictment is served upon applied to "trial — and considered "taken him in lieu of arrest. the Committee felt that into custody" for the pre-trial and purpose of Rule 3.191 post-trial procedures when he is arrested should also apply. or when a traffic citation, notice to appear, summons, information or indictment is served upon him in lieu of arrest. (b) The Court may (b) The Court may allow It was felt that Due allow the prosecutor the prosecutor to amend in Process required the to amend in open open court a traffic Court to grant a court a traffic citation alleging a continuance to the citation alleging a criminal traffic offense to defendant as a matter criminal traffic state a different traffic of right, if the offense to state a offense. No new traffic amendment prejudiced different traffic citation need be issued by the defendant. The offense. No new the arresting officer. The Committee felt that traffic citation need court grant additional this should be be issued by the time to the defendant for mandatory and not arresting officer. the purpose of preparing discretionary. The Court in its his defense if the amendment discretion may grant has prejudiced the additional time to defendant. the defendant for the purpose of preparing his defense if the amendment has prejudiced the defendant. New Rule 6.180 Sentencing In New Rules 6.180 DUI Cases Sentencing In DUI Cases 6.180 is new and A Defendant is designed to codify alleged to have a prior existing procedures in conviction within the DUI cases. Subsection meaning of (a) of the Rule sets shall have a right to forth what has become silence concerning any prior known as a " conviction at the time of ". plea or sentence. If such (2 DCA, right is invoked by the 1981). the Defendant, the State shall have a reasonable time, if requested, to determine if any prior convictions exist. If the State is unable to prove any prior convictions, then the Defendant, shall be treated as if no prior convictions exist. This provision shall not prevent the Department of Motor Vehicles from suspending a Defendant's driving privilege for a longer period than the Court has entered if a prior record is discovered by the Department. New Rule 6.183 Peremptory New Rule 6.183 Challenges Peremptory Challenges In every jury trial in This Rule was which a Defendant is charged initially drafted to with a violation of allow six (6) , each party shall peremptory challenges have THREE (3) peremptory per side in all DUI challenges, but the trial trials on the basis court, in the interest of that the penalties in a justice, may in its DUI were normally more discretion permit additional severe than most third challenges. degree felonies, that the trial was as complicated as any second degree felony, and that it was also subject to extreme jury prejudice due to "media-blitz" publicity and the pressures from citizen action groups, as well as the numbers of prospective jurors who were non-drinkers and/or had religious reasons against drinking. The proposed rule met with strong opposition from the Committee as drafted, with an almost even split vote. An amendment was proposed, which is the above rule as written, which satisfied all members of the the Committee, as it was recognized that the outlined problems existed, and the Committee felt that a rule was needed to affirmatively show that additional peremptories should be freely granted by the court when the need arose. New Rule 6.185 Implied New Rule 6.185 Implied Consent Hearings Consent Hearings In all 6.185 is new, hearings arising under and was unanimously 322.261, the following passed by the Committee procedure shall be followed: as needed to define the procedures to be used 1. A hearing shall be in "Implied Consent" scheduled within TWENTY (20) hearings. Section days of the filing of the (A)(2) was inserted to petition with the Court. recognize that Due Process considerations 2. The Court may grant a sometimes mandated State or Court Continuance continuances to be of any hearing on the charged against the request of either party for State or taken by the good cause shown. The Court. This is already granting of a State or Court the practice followed Continuance shall not cause in many courts. Section the suspension of a (A)(3) was changed petitioner's driving several times before privileges. receiving unanimous approval in its 3. Proceedings under this presently drafted form. Rule shall be governed by The Committee wanted to the provisions of the make clear that Florida Evidence Code, although hearsay except that otherwise exceptions are inadmissible hearsay shall admissible under the be permitted to establish Florida Evidence Code, compliance with F.S. that all hearsay, even 322.261(3)(a), hearsay that does not fall within the exceptions should be admissible to establish In reasonable cause as to all hearings arising under the Defendant being the 322.261 a Defendant driver, since many may, at the time the arrests take place at petition is filed, also the scene of an demand in writing from the accident where all State Attorney, limited drivers are outside of Discovery concerning the their vehicles and the hearing. Upon such request, officer must rely on the State shall provide the the statements of Defendant with a copy of the witnesses for all arrest report or probable details and cause affidavit of the identifications; and arresting officer, and shall other stops are made by make a copy of any video a "fellow officer" who tape in the cause available turns it over to for viewing by the another officer for the petitioner and/or his final arrest. attorney no less than TWO (2) business days prior to the hearing. A failure of the State to so provide limited Discovery shall require the Court to grant a Court or State Continuance of the hearing if the petitioner so moves. (b) The Court is This paragraph was also prohibited from eliminated by the accepting a plea of Committee as there is guilty or nolo no "lesser offense" contendere to a for a DUI. Moreover, lesser offense from the enhanced penalty, a person charged with under (4) driving while under for a blood alcohol the influence, as level of .20 or above, provided for in has inherently changed Chapters 316 and 322, the entire previous Florida Statutes, meaning of the whose chemical eliminated subsection. results show a blood The new enhanced alcohol content by penalty portion of the weight of .20 percent statute creates a or more. "lesser offense" to the "enhancement" — but not to the DUI. IV TRAFFIC INFRACTIONS (a) If any person (a) If any person admits In order to provide admits that a traffic that a traffic infraction for uniform application infraction was was committed, the official of the affidavit of committed, the shall set the civil penalty defense procedure official shall set and enter judgment throughout the state, the civil penalty accordingly and for this the proposed amendment and enter judgment purpose may hear evidence on would require the clerk accordingly and for the nature of the case and to accept such this purpose may after the hearing may refuse affidavits (under the hear evidence on the to accept the admission in appropriate nature of the case his discretion. cicumstances) rather and after the hearing than placing the may refuse to accept question of acceptance the admission in his within the discretion discretion. of the clerk. (b) No admission (b) No admission shall be shall be received by received by the court other the court other than than by appearance of the by appearance of the offender or the offender's offender or the attorney in open court or as offender's attorney herein provided in these in open court or as rules or by statutory law. herein provided in The acceptance by a court of these rules or by a signed admission or waiver statutory law. The of trial, contrary to the acceptance by a court provisions of these rules or of a signed admission statutory law is forbidden. or waiver of trial, contrary to the provisions of these rules or statutory law is forbidden. (c) Any person (c) Any person charged charged with the with the commission of a commission of a traffic infraction who is traffic infraction not a resident of or who is not a resident domiciled in the county of or domiciled in where the alleged infraction the county where the took place may alleged infraction took place may, at the discretion of the file a written statement clerk or traffic setting forth facts violations bureau, justifying the filing of an file a written affidavit of defense or file statement setting an affidavit of defense forth facts directly if practicable upon justifying the filing posting a reasonable bond of an affidavit of set by the official. defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the official. Any person charged Any person charged with with the commission the commission of a traffic of a traffic infraction who is a resident infraction who is a of or domiciled in the resident of or county where the alleged domiciled in the infraction took place, if county where the unable to appear because of alleged infraction an extended illness or took place, if unable extended absence from the to appear because of county, may an extended illness or extended absence from the county, may, file a written statement at the direction of setting forth facts the clerk or traffic justifying the filing of an violations bureau, affidavit of defense or file a written file an affidavit of defense statement setting directly if practicable upon forth facts posting a reasonable bond justifying the filing set by the official. of an affidavit of defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the official. If a written If a written statement of statement of facts is facts is filed and in filed and in the the opinion of the official, opinion of the it affirmatively appears official, it from these facts that the affirmatively appears interests of justice will from these facts that best be served by allowing the interests of the alleged offender to file justice will best be an affidavit of defense, served by allowing such affidavit, upon the the alleged offender posting of a reasonable cash to file an affidavit appearance bond set by the of defense, such official, may be filed with affidavit, upon the the clerk of the court or posting of a the traffic violations reasonable cash bureau. appearance bond set by the official, may be filed with the clerk of the court or the traffic violations bureau. Any such affidavit Any such affidavit shall shall be sworn to be sworn to before a notary before a notary public, deputy clerk or public, deputy clerk clerk. Upon acceptance of an or clerk. Upon affidavit by an official it acceptance of an shall be accepted as an affidavit by an appearance. Such affidavits official it shall be be accepted where accepted as an a mandatory hearing is appearance. Such required to either deny or affidavits may be admit the commission of the accepted where a infraction or as an mandatory hearing is appearance denying the required to either commission of the infraction deny or admit the where no mandatory hearing commission of the is required. Such affidavit infraction or as an shall be considered in appearance denying evidence by the official the commission of the presiding at the time when infraction where no such case is scheduled for mandatory hearing is hearing and the case may be required. Such adjudicated upon evidence affidavit shall be offered in support of the considered in complaint and such evidence by the affidavit. official presiding at the time when such case is scheduled for hearing and the case may be adjudicated upon evidence offered in support of the complaint and such affidavit. The charging The charging instrument The revision deletes instrument may be may be amended at any time the word "may" and amended at any time prior to the hearing, substitutes the word prior to hearing, subject to the approval of "shall". This brings subject to the the official. The official the Rule in accord with approval of the grant a Due Process. official. The continuance if such official may grant amendment requires one in a continuance if the interests of justice. No such amendment case shall be dismissed by requires one in the reason of any informality or interests of justice. irregularity in the charging No case shall be instrument. dismissed by reason of any informality or irregularity in the charging instrument. (a) A motion for (a) A motion for new The Committee changed new hearing or in hearing or in arrest of the time period to arrest of judgment, judgment, or both, may be become uniform with or both, may be made made within Criminal Procedure within four days, or days, or such greater time 3.590. such greater time as as the official may allow, the official may not to exceed thirty (30) allow, not to exceed days, after the finding of 30 days, after the the official. finding of the official. For the purpose of For the purpose of record In light of recent record retention retention pursuant to the statutory change pursuant to the General Records Schedule D-T providing for the six General Records 1, case files with an year (rather than four) Schedule D-T 1, case outstanding of unsatisfied renewal of drivers files with an D-6 shall be considered licenses, a outstanding or disposed of years corresponding change in unsatisfied D-6 shall after the submission of the records retention was be considered D-6 by the clerk to the deemed appropriate. disposed of five Department of Highway Safety years after the and Motor Vehicles. If the submission of the D-6 clerk disposes of a file, by the clerk of the the Department shall be Department of Highway notified. Safety and Motor Vehicles. If the clerk disposes of a file, the Department shall be notified. (a) In any case (a) In any case where no It was thought that where no mandatory mandatory hearing is an alleged offender who hearing is required required and the person has fails to appear until and the person has signed and accepted a after his driver signed and accepted a citation but fails to pay license has been citation but fails to the civil penalty or appear, suspended (which could pay the civil penalty notice of such failure shall be years later) should or appear, notice of be sent to the department not be allowed to elect such failure shall be within 5 days after failure a hearing in those sent to the to comply in order to comply cases where the state department within 5 with the requirements of has been prejudiced by days after failure section (1). the passage of time. to comply with the requirements of section (1). (b) If the person (b) If the appears after the appears after the notice has been sent notice has been sent but but before the before the department has department has suspended the driver suspended the driver license, the civil penalty license, the civil may be paid without a penalty may be paid hearing or the without a hearing or may agree the person may agree to attend the hearing. The to attend a hearing. department shall be notified The department shall immediately on a form to be be notified supplied by the department. immediately on a form to be supplied by the department. (c) If the person (c) If the appears after the appears after the driver license has driver license has been been suspended, the suspended, alleged offender may may pay the pay the civil penalty civil penalty without a hearing and may be required to agree to attend a driver school or may agree to attend a hearing. If an election to attend a hearing is made and it is determined that the infraction was committed the If an offender is subject election to attend a hearing to the penalty is and it is provisions of section determined that the (5), Florida infraction was committed the Statutes. The person offender shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station in order to have the subject to the driving privilege penalty provisions of reinstated. section (5), Florida Statutes. The person shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station in order to have the driving privilege reinstated.