Moving Violation

Good Ruling for Commercial Drivers in Florida

In Florida if you possess a regular drivers license, and you receive a moving violation, you have three options for non-mandatory traffic infractions:

  1. Elect a driver improvement school
  2. Pay the citation
  3. Elect to fight the citation in Court.

However, the options available to a commercial driver are limited as they can pay the citation or fight the ticket in Court.

Until a memo from the Department of Highway Safety and Motor VehiclesDHSMV) began circulating on January , 2014, it was commonplace for a Judge to withhold adjudication on a commercial driver if the facts and driving record warranted such a result. A withhold of adjudication would mean that a driver wouldnt receive point on their license BUT the violation would still appear on their record as has been commonplace for years.

Since the memo began circulating over a year ago, each county has been inconsistent with their interpretation of the memo and the sentences they were imposing on a commercial driver appearing before them. In an order from Sarasota County (State v John Brandy, 2014 TR 15144 NC) Judge Phyllis Galen on March , 2015, the Judge ruled that the Court has the authority to withhold adjudication on a commercial driver appearing before them on a moving violation. The Judge discussed the separation of powers between the branches of Government and opined that under Florida Law, a withhold of adjudication is NOT masking since the violation still appears on a driving record.

Finebloom, Haenel, and Higgins have been representing motorists across the State of Florida for over 10 years. David Haenel, one of the partners is the former Florida Bar Traffic Court Rules Committee chairman. They can be reached at 1-800-FIGHT-IT (344-4848)

Washington State Man Gets Light Sentence after 7th DUI Conviction

In December 2013, a Washington State Man led police on a high speed chase in his $70,000 Ferrari after leaving a bar one night.  During the chase, the driver, Joshua Shaun Goodman, drove at speeds in excess of 100 miles per hour before hitting two cars and a house, injuring a passenger in his car.  Goodman was arrested for his role in the chase and for having a .16% BAC.  The DUI was Goodman’s seventh.  In the months that followed, Goodman made repeated requests for modifications in the terms of his bail, once to attend a soccer competition in Las Vegas, which was denied, and again to see the Seahawks play in the Super Bowl in New York, which was approved.

Goodman was sentenced in his DUI case last week, and in a move that sparked protests, was only sentenced to a week of work release for the DUI, despite the number of prior DUI offenses.  Under Washington State law, he was supposed to get at least 120 days in jail, but the judge found that such as sentence would cost Goodman his business and the jobs of the people that he employed, putting too substantial a burden on him.  The result has been protests that Goodman was given justice based on the amount of money he has, rather than any definition on what the punishment for a seventh DUI should be.

In Florida, any DUI past a third DUI would be considered a third degree felony.  This would mean that under Florida law, someone who was convicted of a seventh DUI would be facing a fourth felony conviction.  The sentence for such a felony would be a maximum of 5 years in jail.  However, that does not necessarily mean that there is a minimum sentence if all the felonies on someone’s record are non-drug offenses or do not involve a violent crime.  While Florida judges are suppose to follow a standard set of sentencing guidelines that create a type of formula that would determine sentence, judges still have a great amount of discretion when it comes to sentencing non-violent felony offenders, even repeat ones such as Goodman.

The chances of Goodman being on the road at all that night would have been significantly lower if he was in Florida to begin with, however.  After his fourth DUI conviction, he would have had a permanent loss of his license, with no chance of it being given back.  This means that he would not have been allowed to be driving at all.  Even if by some chance he had been allowed to get his license back, he would have been required by Florida law to have an interlock on cars he drove for at least five years.  This would mean that the car would not have been able to start for him in the first place.

DUI Arrest in Lake Mary Shows Importance of Florida’s “Wash Out” Period

A man was recently arrested in Lake Mary for a DUI, something that alone would not be newsworthy.  In this case however, the case has been drawing public attention after it was revealed that the DUI charge was this person’s fifth time being caught for drinking and driving.  38-year-old Brian Whittemore was caught by police outside a liquor store with three children in his car, one of which was apparently hanging out of the vehicle.  He failed his field sobriety test, but it is unclear at this time what his BAC was.  Sources told news station WESH that Whittemore was arrested for drinking and driving in 1996, 1997, 1998 and 2012.  Besides his DUI, Whittemore was also charged with driving with a suspended license and assault.

The initial reaction for many when seeing a story like this is wonder as why Mr. Whittemore was not in jail.  The answer goes back to what is called the “wash out” period or “look back” period, meaning the amount of time that the court looks back in a person’s record when determining whether a DUI offense counts as a second or third offense.  In Florida, the wash out period is five years for a second DUI and 10 years for a third DUI.

While Mr. Whittemore was arrested for 4 other DUI’s over his lifetime, the court would not have taken the ones from 1996, 1997 and 1998 into consideration when he as being sentenced on his 2012 DUI arrest, meaning that he would have been sentenced as if he were a first time offender.  This is because his other DUI arrests were 14, 13, and 12 years prior.  This would have meant that even if he were sentenced the maximum, he would have most likely gotten 6 months in jail and a fine of $1000, assuming that his BAC was under .15% and there were no children in the car.  However, he was subject to a lifetime suspension on his driver’s license as there is no wash out period when it comes to determining how long a license is suspended, just on jail time and fines.

Even this latest arrest would be subject to this wash out period and only his 2012 drunk driving conviction would be considered when it comes to his sentence.  This does not mean that he will be getting away with it; he will actually be facing some pretty harsh sentencing.  Since he was driving with three children in the car, Whittemore faces a fine of between $2000-$4000 and jail time of up to 12 months with at least a 10 day mandatory sentence.

Although the wash out period can limit the amount of time that Whittemore can be sentenced because this would have been considered his second offense, the court is still allowed to look at all of his drunk driving convictions when sentencing him.  While his sentence is limited to the fines and jail time above, the likelihood of getting the maximum sentence is relatively high because a judge would be able to take his entire criminal history into account.