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.