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A.R.S. § 28-1383:
Aggravated Driving or Actual Physical Control While Under the Influence

Introduction

According to the Maricopa County Attorney’s Office, on average two in three people will be involved in a drunk driving crash in their lifetime. Because of this, Arizona is known to have extremely strict and dynamic DUI laws. A DUI in Arizona can either be classified as misdemeanor or a felony.

Misdemeanor DUI

At its base, there are four ways an individual can commit DUI found in Arizona Statute § 28-1381. First, an individual must have been driving or was in actual physical control while in the state of Arizona and have committed one of the following:

1. The person was under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substance if the person is impaired to the slightest degree.
2. The person has a blood alcohol concentration (BAC) of .08 or more within two hours of driving.
3. The person had any drug defined in A.R.S. 13-3401 or its metabolite in the person’s body.
4. The suspect vehicle is a commercial motor vehicle that requires a commercial driver license (CDL) and the person has a BAC of .04 or more.

In a separate statute, Arizona has created a law that hands down harsher punishment the higher the blood alcohol concentration is. Arizona Statute § 28-1382 defines what is known as Extreme DUI and Super Extreme DUI:

1. 0.15 or more but less than 0.20.
2. 0.20 or more.

Felony DUI

Arizona Statute § 28-1383 lays out the circumstances of a felony DUI. A felony conviction will receive harsher penalties and consequences than a misdemeanor conviction. A person commits felony DUI, or Aggravated Driving Under the Influence, when they commit a violation of either A.R.S. § 28-1381 or A.R.S. § 28-1382 listed above and one of five of the following circumstances exist:

1. The person’s driver license or privilege to drive is suspended, canceled, revoked, or refused or a restriction is placed on the person’s driver license or privilege to drive as a result of a previous DUI.
2. The current violation is the driver’s third DUI violation in a period of 84 months (7 years).
3. A person under 15 years of age is in the vehicle at the time of the DUI.
4. The driver is required to have a certified ignition interlock device installed.
5. The person drives the wrong way on a highway.

Suspended License

A driver will be charged with Aggravated DUI if the driver’s license or privilege to drive is suspended, revoke, or has a restriction. For this to occur, the state will need to prove two things: (1) the driver’s license or privilege to drive was suspended, canceled, revoked, refused, or restricted at the time the defendant was driving, and (2) the driver knew or should have known that the license or privilege had such restriction.
The state does not have to show the driver actually knew, but that the driver should have known. The following jury instruction given at trial helps to understand this requirement:

 Once mailed by the Motor Vehicle Department, the defendant is presumed to have received notice of the suspension. The State is not required to prove actual receipt of the notice or actual knowledge of the suspension. Compliance with the notice provision required by state law of the suspension may be presumed if the notice of suspension was mailed by the Motor Vehicle Department to the defendant at the address provided to the Department on the licensee's application or provided to the Department pursuant to a notice of change of address or other source, including the address on a traffic citation received by the Department.

You are free to accept or reject this presumption as triers of fact. You must determine whether the facts and circumstances shown by the evidence in this case warrant any presumption that the law permits you to make. Even with the presumption, the State has the burden of proving each and every element of the offense beyond a reasonable doubt before you can find the defendant guilty.

RAJI (Criminal) NCSTI 28.3318 (4th ed.)

At trial, the state would call a custodian of records to testify as to the Motor Vehicle Department records. A copy of the records would be presented at trial and the custodian will explain that the record shows the date of the revocation, the status of the revocation at the time of driving, and the notice sent to the address given on file. The jury would then be free to accept or reject the testimony of the custodian of records and the presumption that the driver should have known the driving privilege was revoked.

3rd DUI in 84 Months

For a third DUI offense that has been committed within 84 months, or 7 years, of the previous two offenses, a driver will be charged with Aggravated DUI. This includes a DUI conviction in Arizona or a DUI conviction in another state that would have been a DUI in Arizona had it occurred here.

The dates the driver committed DUI is the date used in tolling the time for the 84-month period. So, if a driver was pulled over for DUI on January 1st, 2010 and was later charged and convicted of DUI either by taking a plea deal or being found guilty at trial, the key date would be January 1st, 2010. Any subsequent DUI committed between January 1st, 2010 and January 1st, 2017 would be charged as a second DUI offense and any third DUI between that same time will be charged as the felony Aggravated DUI. If the third DUI is committed after January 1st, 2017, it will be charged as a second DUI and the 84-month period will count from the second DUI offense. A fourth DUI would need to be committed within 84 months of the second offense to be charged as Aggravated DUI. It is important to keep in mind that any time in incarceration is excluded when determining the 84-month period.

While a prior DUI may fall outside of the 84-month period, the state and prosecutor will most likely still use the prior DUI conviction at sentencing to argue that the driver has not learned his lesson and should not receive a lenient sentence.

Kids in Car

A driver will be charged with Aggravated DUI if at the time of driving there was a person under 15 years of age in the vehicle. The state will rely on witness or police officer testimony that they saw a person that appeared under 15 in the vehicle. At a later time, the officer will run a check on the name of the child to see his or her exact age. The state will rely on this officer testimony and witness observations to prove this element of the offense.

Ignition Interlock Device Requirement

Much like the driving on a suspended license charge, the state will call a custodian of records from the Motor Vehicle Department to prove that a person had an ignition interlock device requirement at the time of driving in a DUI offense. This charge only requires there to be an IID requirement, it does not matter whether the vehicle being driven had the device installed or not.  

Wrong Way

For this charge, “wrong way” means vehicular movement that is in a direction opposing the legal flow of traffic. Wrong way does not include median crossing or a collision where a motor vehicle comes to a stop facing the wrong way.

Penalties of Aggravated DUI

DUI with a person under 15 years old is a class 6 felony while the other four charges are a class 4 felony. Aggravated DUI carries a minimum 4 months in prison, except for a kids in the car violation which requires the minimum jail time of the misdemeanor violation they committed. The court will impose a minimum of $4,000 in fines, revoke the driver’s license for a year, require a certified ignition interlock device, require completion of a traffic survival school course, and may include other counseling and screening requirements.

There are a number of defenses and challenges a suspect can raise during the process after being charged with Extreme DUI. Whether it is challenging the validity of the stop, the administration of any of the field sobriety tests, or the procedure of obtaining a warrant or fighting for better terms of a plea deal, an experienced attorney will navigate this process with you. At Scottsdale DUI Lawyer, you get top-notch representation with personable communication - call today.