DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS IN ARIZONA

Arizona DUI Defense Lawyers

A FORMER POLICE OFFICER, DUI JUDGE, AND FORMER DUI PROSECUTORS AT OLIVERSON & HUSS

The State of Arizona takes all DUI prosecutions seriously.  Impaired driving may escalate into more severe crimes, depending on the facts and what transpires.  Driving Under the Influence of Alcohol or Drugs in Arizona is a Class 1 Misdemeanor for a first time offense, unless some additional aggravating elements are present.  The reality of DUI cases are that many upstanding citizens commit this offense at some point.  Several people don’t get arrested for it, and go on with their lives not thinking twice about it.  However, those that do get arrested quickly realize that an arrest and conviction for DUI/DWI in Arizona will have significant consequences.

It is very important to consult with, and retain an aggressive, experienced Arizona DUI/DWI attorney who is knowledgeable on how these cases are investigated, prosecuted, and defended.  Derek Oliverson of Oliverson & Huss is an attorney with that valuable experience.

Mr. Oliverson began his career as a law enforcement officer in Las Vegas, NV where he conducted several DUI investigations and testified as a law enforcement witness in DUI jury trials.  This experience gives Mr. Oliverson a perspective over the bulk of the defense bar in handling these cases.  Clearly, Mr. Oliverson can draw on his own experience in the field conducting DUI investigations, and identify some of the factors that may come into play that those who have not conducted one of these investigations may not know.  Mr. Oliverson’s experience as a former police officer who has investigated DUI’s and testified in DUI trials is invaluable in his representation of these cases.  In addition to experience from the law enforcement perspective in a DUI investigation, Mr. Oliverson also spent time representing the State of Arizona in DUI cases as a criminal prosecutor.  In his capacity as a prosecutor, Mr. Oliverson tried DUI jury trials to verdict, and learned how the State approaches these cases from an investigation standpoint (which he knew from his experience as a police officer), and what factors prosecutor’s look at in going forward on these cases, and also factors considered in plea negotiations.  In addition, Mr. Oliverson has experience as a DUI judge.  After he served the State of Arizona as a prosecutor, Mr. Oliverson became a municipal court judge where he presided over misdemeanor offenses, including many DUI jury trials.  This gave Mr. Oliverson a unique perspective, to mesh with his prior experiences as a police officer and DUI prosecutor.  After serving on the bench, Mr. Oliverson went back to the practice of law, where he took all of the experience he gained through every role in a DUI investigation/trial and looks to utilize that experience to place his clients in the best possible position.

Jeremy L. Huss is also a former DUI prosecutor who has years of experience in the criminal justice system.  Mr. Huss started his career many years ago handling misdemeanor DUI prosecutions on behalf of the State of Arizona.  Mr. Huss gained significant experience in handling these offenses, which provided a solid basis for him to handle more serious felonies throughout the years.

MISDEMEANOR DUI OFFENSES IN ARIZONA

DUI under A.R.S. 28-1381(A)(1) through (A)(4)

Driving Under the Influence of Alcohol or Drugs in Arizona is governed under ARS 28-1381(A), which states:

It is unlawful for a person to (A) drive or (B) be in actual physical control of a vehicle in this State under any of the following circumstances:

  1. While 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 substances if the person is impaired to the slightest degree. ARS 28-1381(A)(1).
  2. If the person has an alcohol concentration of 0.08 or more within two hours of (A) driving or (B) being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle. ARS 28-1381(A)(2).
  3. While there is any drug defined in [ARS] section 13-3401 or its metabolite in the person’s body. ARS 28-1381(A)(3).
  4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration 0.04 or more. ARS 28-1381(A)(4).

RAMIFICATIONS FOR A FIRST TIME DUI IN ARIZONA UNDER ARS 28-1381(A)

CRIMINAL CONSEQUENCES

Any person convicted under ARS 28-1381(A) in Arizona is guilty of a Class 1 Misdemeanor, and shall be punished pursuant to ARS 28-1381(I), which requires a mandatory minimum jail sentence of 10 consecutive days in jail.  However, all but 1 of those days may be suspended if the person completes alcohol/drug screening and counseling.  The number of hours a person will be subject to counseling is dependent upon the screening with the Department of Health Services approved alcohol or drug counselor.  In addition, a person must pay a fine, which will include a large surcharge, and large payments to different funds, including a Prison Construction and Operations Fund.  A court may also order the person to perform community work service hours, as well as attend a Mothers Against Drunk Driving (MADD) Victim Impact Panel.  Finally, a person may be placed on probation for a period of up to 5 years for a misdemeanor DUI.

DRIVER LICENSE CONSEQUENCES

In addition, there will also be actions the Arizona Department of Motor Vehicle will take against a person for a DUI conviction in Arizona.  Indeed, pursuant to ARS 18-1381(I)(6), if the offense involves alcohol (not drugs) the Arizona Department of Motor Vehicle will require any vehicle the person operates to be equipped with a certified ignition interlock device.  The DMV will also suspend or revoke a person’s license for this type of offense.

A person’s license will generally be suspended for a period of 90 days, and a person may obtain a temporary/restricted license after serving a 30 day hard suspension.  However, a person may lose their license for this type of offense for a period of 12 months should the person refuse to submit to a required chemical test during the DUI investigation (i.e., if someone refuses to submit to the intoxilyzer breath test).

RAMIFICATIONS FOR A SECOND TIME DUI WITHIN 7 YEARS IN ARIZONA UNDER ARS 28-1381(A)

CRIMINAL CONSEQUENCES

If a person is arrested and prosecuted for another committing another DUI under ARS 28-1381(A) within 7 years of committing the first, the State will allege the second DUI as a second time offense.  A second time offense, if charged as a second offense occurring within this timeframe, is a Class 1 Misdemeanor (however, a person must be careful as a second DUI while the license is suspended for the first will result in a Class 4 Felony Aggravated DUI).  As a result of the State alleging the first offense as an enhancement prior, the penalties increase, and the punishment is governed under ARS 28-1381(K), which states that if within a period of 84 months a person is convicted of a DUI under 28-1381(A), but has previously been convicted of a violation of 28-1381(A) (this section), 28-1382 (Extreme and Super Extreme DUI), or 28-1383 (Felony Aggravated DUI).

If this occurs, there will be additional fines, as well as the requirement to pay fees for other funds, including the Prison Construction and Operations Fund.  But, most importantly, the incarceration time significantly increases.  For a second time DUI prosecuted under ARS 28-1381(A), a person shall be sentenced to serve not less than 90 days in jail, 30 of which shall be served consecutively (one day after another not to be broken up), if the person completes a court ordered alcohol or other drug screening.  However, if a person fails to complete the screening and counseling, a Judge may issue an Order to show cause as to why the remaining jail sentence should not be served.  Also, as a ramification under this section, a person faces up to 5 years probation for a misdemeanor DUI, and also shall be ordered to perform at least 30 hours of community restitution (work service).

DRIVER LICENSE CONSEQUENCES

The DMV obviously takes action for a second time DUI offense in Arizona.  Pursuant to ARS 28-1381(K), a person’s license will be revoked for a period of 1 year, and an ignition interlock device will be Ordered to be installed.   Under ARS 28-1381(O), after completing 45 days of the revocation period, a person subject to this section is eligible for a special ignition interlock restricted driver license pursuant to ARS 28-1401.

WHAT DOES IT MEAN TO BE “DRIVING” OR IN “ACTUAL PHYSICAL CONTROL” OF A VEHICLE IN ARIZONA?

All DUI/DWI statutes in Arizona require a person to be either (A) driving, or (B) be in “actual physical control” of a vehicle.  “Driving” means exactly what it states.  This is the typical situation of a person being stopped while in the act of driving.  There is not usually much factual dispute as to this element when the person is stopped while driving.  However, a prosecution where a legitimate defense of “actual physical control” is raised may present some difficulties.  An actual physical control involves situations where law enforcement, or another witness, does not observe a person driving.  This can occur in situations where a person’s vehicle is disabled for some reason, or is parked at a location with the person within a short proximity.  There is a factual analysis in determining whether or not someone is in “actual physical control” of a vehicle.  This is based on a 1995 Arizona Supreme Court case that ruled whether or not a driver could be found in actual physical control of a vehicle depended on the “totality of the circumstances,” which meant a jury was to look at all available facts (not just where the vehicle was, and whether the keys were in the ignition).  In fact, juries should consider the “totality of the circumstances” to determine whether the person’s current or imminent control of the vehicle presented a real danger to himself or herself or others at the time alleged.  Some of the factors to be considered in a “totality of the circumstances” analysis are: was the vehicle running?; Was the ignition on?  Location of keys; position driver was found in; driver awake or asleep; headlights on or off; did the driver voluntarily pull off to the side of the road; time of day; heat or air conditioner on; windows up or down; was there any explanation for the circumstances shown by the evidence.

IMPAIRMENT TO THE SLIGHTEST DEGREE: ARS 28-1381(A)(1)

Under ARS 28-1381(A)(1), the law does not require the person to have a specific amount of a substance (alcohol or drugs) in their system (however, if a person has a BAC of .08 or greater in their system, there is a rebuttable presumption that the person is impaired).  Rather, this is a factual determination and law enforcement will identify factors which they feel are indicative of someone being impaired.  For example, a person’s driving behavior may be noted (i.e., were they swerving or weaving within their own lane, were they speeding or traveling at a speed under the speed limit, were their lights on).  The officer will also take note of the person’s appearance (i.e., bloodshot watery eyes, slurred speech, inability to follow instructions, inability to maintain balance, etc.), and use a totality of the circumstances approach in making an arrest decision.  Officers further develop these observations while conducting Standardized Field Sobriety Tests (FSTs).  A person is under no obligation to perform FSTs, and they rarely work in anybody’s favor, as they are tests requiring people to balance, and divide their attention between balancing and following instructions from a law enforcement officer.  Dividing attention is a huge focus for law enforcement in these investigations, as one must be able to effectively divide their attention while operating a motor vehicle.  Alcohol generally impacts one’s ability to divide their attention.  Nevertheless, these Field Sobriety Tests do nothing but provide officer’s an ability to document a lack of balance and a lack of an ability for one to divide their attention.  This will almost always lead to an arrest.

BLOOD ALCOHOL CONCENTRATION OF 0.08 WITHIN TWO HOURS OF DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL OF A VEHICLE: ARS 28-1381(A)(2)

Under ARS 28-1381(A)(2), to be convicted, a person must have a Blood Alcohol Content (BAC) of 0.08 or greater within two hours of driving or being in actual physical control of the vehicle.  However, the alcohol consumption that is placing the person above a 0.08 BAC must have been consumed before the person drove or was in actual physical control of the vehicle.  Indeed, if a person consumes alcohol after driving during that two hour window, generally prior to being contacted by law enforcement, the State will likely not obtain a conviction, and may be hard-pressed to go forward. Also, there may be an issue if law enforcement did not obtain the sample of breath or blood within 2 hours of driving or being in actual physical control of the vehicle.  This is most likely the case if the person’s BAC is close to the 0.08 threshold.  However, law enforcement, through their criminalists, will be able to do a “retrograde”, and relate-back the BAC to within two hours of driving, and may even give an opinion as to what the BAC was a the time of driving, or being in actual physical control of the vehicle.  Law enforcement makes this determination based on a general elimination rate of alcohol in the human body.  However, there are other factors that should be considered that law enforcement does not always have access to, including: when the person last ate, what the person last ate, how much the person had to drink, what the person had to drink, when the person had their first drink, and when they consumed their last drink.  Law enforcement will attempt to obtain this information out of a person during a DUI “interview”.  This will go to make their retrograde more accurate or reliable.  A person who is under investigation should always consult an attorney immediately before the investigation starts, if possible.  Through a quick consultation, a person will be advised that they must provide a sample of their blood, breath, or urine, but that they can refuse the field sobriety tests, portable breath test in the field, and to refuse to answer questions, with the exception of providing their real name and identification.  It will never work in anybody’s advantage to lie to law enforcement.  However, a lie is not necessary when someone has a right to remain silent.

ADMIN PER SE/IMPLIED CONSENT AFFIDAVIT & POTENTIAL DRIVER LICENSE ISSUES FROM IT

It is important to know that after the traffic stop, law enforcement will either release the person, or place them under arrest for DUI, and transport them to either the police department, jail, or a DUI van.  Upon arrival, the law enforcement officer will read the Admin Per Se Implied Consent Affidavit.  This affidavit will inform the person that they must submit to a test of their blood, breath, or urine (at the law enforcement officer’s discretion), and if the BAC comes back above a 0.08 percent or greater, then the person will lose their Arizona driving privileges for a period of 90 days.  However, the Admin Per Se Implied Consent Affidavit will also instruct that if the person refuses to submit to the specified test, that the person will lose their license for a period of 12 months.

Law enforcement must give a person an opportunity to consult with an attorney prior to submitting to the tests.  However, this consultation cannot “unreasonably delay” the investigation.  Generally, law enforcement will place the person into a room, with a phone and a phone book for a period of time to reach out to an attorney for advice.  If law enforcement does not give the person an opportunity to consult with an attorney, a suppression of the results of the test would be the remedy.  In addition, law enforcement must give the person an opportunity to obtain an independent test, and must advise the person of such.  A failure of law enforcement to do so may result in a dismissal of the case.

Regardless, it is very important to understand the ramifications of failing to submit after the Admin Per Se Implied Consent is read by law enforcement during these investigations.  First, law enforcement will be able to obtain a sample regardless, as they will be able to contact an on-call magistrate and be granted a search warrant.  Second, a person will lose their license for a period of 12 months (as opposed to 90 days if they do consent to the test).  A 12 month suspension will create a hardship on anybody, and on top of that, law enforcement will obtain a sample anyway through the execution of a search warrant.

The Admin Per Se Implied Consent Affidavit form that law enforcement will law enforcement produces also provides a temporary 15-day license should a breath sample be above a .08, or the chemical test is refused.  This is another reason it is very important for a person to contact an attorney immediately, as there are certain time frames that need to be met for license purpose.  Specifically, an attorney would immediately know to file a Notice of Appearance and Request for Executive Hearing with the Arizona DMV, which would automatically extend the 15-day temporary license until at least the time the hearing is set.

INTOXILYZER BREATH TEST

The State generally obtains breath samples from people through the use of the intoxilyzer breath test.  The Intox is an instrument used to analyze the alcohol content in a person’s breath.  When a person consumes alcohol, the alcohol enters into the person’s bloodstream.  Rich and deep blood circulates around the lungs, which translates into the Intox being able to read the alcohol concentration blown out through someone’s breath.  The State must properly maintain the Intox, and quality assurance and periodic maintenance records must be kept memorializing the periodic checks.  Further, the law enforcement officer must go through a specific checklist, and specific protocol from the time they see the “vehicle in motion”, to the time they complete the investigation.  For example, there must be a “deprivation period” provided (where law enforcement ensures the person does not regurgitate, put anything in their mouth, etc.) prior to having the person submit to the breath test.  Law enforcement sometimes takes shortcuts with this, and will do the deprivation period when the officer is driving, and the person is in the back seat and not fully being observed by the officer.  Further, there are specifics that must be present for a breath test to be admissible in trial.  It is very important to consult with an experienced attorney, as DUI investigations and prosecutions can be complex with a number of issues not known by people not experienced in these matters.

DRUG OR DRUG METABOLITE: ARS 28-1381(A)(3)

This is known as a “drug DUI”.  Although there is no doubt there are significant numbers of arrests for Driving Under the Influence of Marijuana, Heroin, Methamphetamine, and other street drugs, this type of offense is commonly prosecuted in situations where people are prescribed the drugs.

A prescription for a drug will serve as a defense under this specific section ARS 28-1381(A)(3).  However, pursuant to ARS 28-1381(B), it is not a defense to an “A(1)” or an “impairment to the slightest degree” DUI that the person is or has been entitled to use the drug under Arizona law.  As such, even if a prescription is in place, a person cannot operate a motor vehicle in the State of Arizona if that prescription drug impairs their ability to operate a vehicle to the slightest degree.

In a “drug” DUI, there is not a specific threshold cutoff (like a 0.08 for alcohol).  The result will be reported in amounts on the scientific examination report generated by law enforcement, and an expert will likely be able to give opinions based on their training and experience if a drug is within or outside of the therapeutic level.  Further, an expert may be able to give opinions as to what impact those levels would generally have on an individual (all of which may be impacted by years of use, how often used, and biological factors concerning the person such as height, weight, etc).

EXTREME DUI & SUPER EXTREME DUI IN ARIZONA UNDER ARS 28-1382

Under ARS 28-1382(A), it is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona if the person has an alcohol concentration (below) within 2 hours of driving or being in actual physical control of a vehicle.  This offense is a Class 1 Misdemeanor, and the way the statute is written is almost identical to ARS 28-1381(A)(2) for the prosecution of the DUI above a 0.08.  Also similarly, the alcohol concentration must result from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

Pursuant to ARS 28-1382(A)(1), a person commits an Extreme DUI as a Class 1 Misdemeanor if their BAC is above a 0.15 or more, but less than 0.20.

Pursuant to ARS 28-1382(A)(2), a person commits an Extreme DUI (“Super Extreme”) as a Class 1 Misdemeanor if their BAC is above a 0.20 or more.

The same factual issues that were discussed above under ARS 28-1381(A)(1) and (A)(2) concerning driving versus actual physical control, as well as issues with the intoxilyzer, and Admin Per Se Implied Consent Affidavit are present for a prosecution under this section.  It is important to consult with and retain an experienced DUI attorney to advise through the several nuances of DUI law in Arizona.

RAMIFICATIONS FOR A FIRST OFFENSE DUI UNDER ARS 28-1382

CRIMINAL

Under ARS 28-1382(D), a person who is convicted under this section for having a BAC above a 0.15 but less than 0.20 (28-1382(A)(1)), shall be sentenced to serve not less than 30 consecutive days in jail.  Also, pursuant to ARS 28-1382(D), a person who is convicted under 28-1382(A)(2) for having a BAC above a 0.20, shall be sentenced to serve not less than 30 consecutive days in jail.  A person also faces significant fines, and up to 5 years of probation.

However, under 28-1382(I), a judge may suspend all but 9 days for a conviction under ARS 28-1382(A)(1) (BAC above a 0.15 but less than 0.20) if the person equips any vehicle they operated with a certified ignition interlock device for 12 months.  For a conviction under 28-1382(A)(2) (BAC above 0.20), a judge may suspend all but 14 days of the sentence if the person equips any motor vehicle with a certified ignition interlock device for 12 months.  This is known as a “Sub I”.

There are courts throughout the State of Arizona and even the Phoenix Metropolitan area that do not allow a person to obtain the benefits of Subsection I.  It is important to consult with an experienced Arizona DUI attorney who is knowledgeable and skilled in the defense of these cases.

DRIVER LICENSE

There will also be license ramifications imposed by the Arizona DMV for an Extreme and Super Extreme DUI.  The same as first time DUI convictions under ARS 28-1381(A), a person’s license will be suspended for a period of 90 days.

RAMIFICATIONS FOR A SECOND OFFENSE DUI UNDER ARS 28-1382

CRIMINAL

Under ARS 28-1382(E), if within a period of 7 years, a person is convicted of a second violation of this section, or 28-1381, or 28-1383, the person shall be sentenced to serve not less than 120 days in jail, 60 days of which shall be served consecutively, if the conviction is under 28-1382(A)(1) (BAC above 0.15 but below 0.20).  And, a person who is convicted of a violation of 28-1382(A)(2) (BAC above 0.20) and has been convicted of a prior DUI within a period of 7 years, shall be sentenced to serve not less than 180 days in jail, 90 of which shall be served consecutively.  A person will also be required to pay significant fines, and up to 5 years probation, and be ordered to perform at least 30 hours of community restitution (work service).

Much like the Sub (I) discussed above, the judge may suspend all but 9 days for a conviction under ARS 28-1382(A)(1) if the person equips any vehicle they operated with a certified ignition interlock device for 12 months.  For a conviction under 28-1382(A)(2), a judge may suspend all but 14 days of the sentence if the person equips any motor vehicle with a certified ignition interlock device for 12 months.

DRIVER LICENSE

For a second time DUI where the person is convicted under ARS 28-1382, the person’s driving privilege will be revoked for a period of at least 1 year, as well as be required to install an ignition interlock device for more than 1 year.  However, under ARS 28-1382(H), after completing 45 days of the revocation period (of 1 year), a person is eligible for a special ignition interlock restricted driver license.

FELONY AGGRAVATED DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS IN ARIZONA

Arizona has some of the harshest penalties for Felony DUI in the nation, and the Maricopa County Attorney’s Office vigorously prosecutes these offenses.  How the County Attorney’s office approaches these cases, and how they are going to resolve them, depends upon the facts of each case, as well as the background and criminal history of the person under investigation.

Arizona, specifically Maricopa County, is not like some other states when it comes to prosecuting Aggravated DUIs.  The prosecution of a DUI offender that has escalated to an Aggravated DUI is something the State of Arizona and Maricopa County take seriously.  The plea offers are generally harsh, and have a significant impact on a person’s liberty and financial interests.  The plea offers in these cases are also usually relayed in early preliminary proceedings, and a deadline is put on them.  If the plea offer is not taken by the deadline, it is revoked and a harsher plea generally follows.

Aggravated DUI prosecutions in Arizona are very serious.  There are multiple ways to commit an Aggravated DUI in Arizona, but all of them will have a significant impact upon an individual.  It is extremely important to consult with and retain a skilled Arizona Aggravated DUI Defense Attorney knowledgeable in how these cases are investigated and prosecuted.

FORMER FELONY AGGRAVATED DUI PROSECUTOR AND FORMER COP AND DUI JUDGE AT OLIVERSON & HUSS

Both Derek Oliverson and Jeremy Huss are former Arizona DUI prosecutors with extensive experience in these investigations.  As mentioned previously, Mr. Oliverson is a former police officer, former DUI Judge, and former DUI prosecutor.  Mr. Oliverson has a unique perspective on handling and approaching these matters, as he is one of the few Arizona Aggravated DUI attorneys who has been a part of every professional role in a DUI trial (investigation and witness as law enforcement, Judge presiding over trial, and prosecutor presenting the evidence at the trial).  Mr. Huss is a former major felony Arizona prosecutor that has handled several cases involving Aggravated DUI throughout the years.  He has also handled all different types of vehicular crimes resulting from DUI impairment, including vehicular Second Degree Murder, vehicular Manslaughter, vehicular Negligent Homicide, vehicular Aggravated Assault, and vehicular Endangerment.  Mr. Huss has handled these types of offenses for nearly 20 years, and has perspective from a long-time former prosecutor, and Arizona Aggravated DUI defense attorney.

FELONY AGGRAVATED DUI OFFENSES IN ARIZONA

ARS 28-1383 governs the prosecution of Aggravated DUIs in Arizona.  Pursuant to this statute, there are 5 different ways to commit Aggravated DUI.

AGGRAVATED DUI DUE TO LICENSE BEING SUSPENDED, REVOKED OR CANCELED: ARS 28-1383(A)(1)

ARS 28-1383(A)(1) states that a person is guilty of Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person commits a violation of ARS 28-1381 (Simple DUI Statute) or ARS 28-1382 (Extreme and Super Extreme DUI Statute) while the person’s driver license or privilege to drive is suspended, canceled, or revoked.

An Aggravated DUI in Arizona for having a suspended, revoked or canceled license is a Class 4 Felony.  The law does not require the license to be suspended, revoked, or canceled for a prior DUI, but generally, that is what occurs.  A license suspension for failing to pay a ticket, or for failing to appear, would be considered a “soft suspension” and generally will not be prosecuted as an Aggravated DUI (although it clearly could be).  However, a license suspension or revocation for a prior DUI, or a prior Admin Per Se Implied Consent Suspension is generally the cases that are prosecuted as Aggravated Class 4 Felony DUIs.  A suspension considered “soft” may still be prosecuted as an Aggravated DUI, especially if the person has prior DUI convictions.  Nevertheless, it is important to know that if a person commits a DUI, and has a license suspension, revocation, or cancelation, that it may be prosecuted as a Class 4 Aggravated DUI.

For a person convicted of a Class 4 Felony Aggravated Driving Under the Influence of Alcohol or Drugs in Arizona, they are looking at a Category 1 sentencing range.  Specifically, the offense is probation eligible (a person may be placed on up to 10 years supervised probation for an Aggravated DUI), but has a prison sentencing range of 1 to 3.75 years, with the presumptive sentence being 2.5 years.

However, a first time felony offender will generally be placed on supervised probation for a Class 4 Aggravated DUI.  But, the Class 4 Aggravated DUI due to a license suspension, revocation, or cancellation carries with it a mandatory prison sentence of at least 4 months in prison as a term of probation.  Aggravated DUI as a Class 4 Felony (3 out of 4 theories) is the only crime in Arizona that requires a 4 month prison sentence as a term of probation.  The 4 month sentence is also served at 100% time, and not eligible for the 85% soft time available in many other sentences.

If a person commits an Aggravated DUI under this section, and has an historical (allegeable) felony conviction, the person will be in a Class 4 Felony, Category 2 sentencing range.  This means the person is no longer probation eligible, and will be facing a mandatory prison sentencing range of anywhere between 2.25 years and 7.5 years, with the presumptive sentence being 4.5 years.  If a person commits an Aggravated DUI under this section, and has two historical (allegeable) prior felony convictions, the person will be in a Class 4 Felony, Category 3 sentencing range.  In this range, there is no probation eligibility, and the person is facing a mandatory prison sentencing range of 6 years to 15 years, with the presumptive sentence being 10 years.

AGGRAVATED DUI AS A THIRD OR MORE OFFENSE WITHIN 84 MONTHS (7 YEARS): ARS 28-1383(A)(2)

Under ARS 28-1383(A)(2), a person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if, within a period of 84 months (7 years), the person commits a third or subsequent violation of either ARS 28-1381(A) (Simple DUI statute) or ARS 28-1382 (Extreme and Super Extreme DUI Statute).  Any time that someone serves in custody or on absconder status would be precluded in determining the time period.

An Aggravated DUI as a third or more offense within 84 months in Arizona is a Class 4 Felony.   It is punished the same as the Class 4 Aggravated DUI due to a license suspension, revocation or cancellation.

For a person convicted of a Class 4 Felony Aggravated Driving Under the Influence of Alcohol or Drugs in Arizona, they are looking at a Category 1 sentencing range.  Specifically, the offense is probation eligible (a person may be placed on up to 10 years supervised probation for an Aggravated DUI), but has a prison sentencing range of 1 to 3.75 years, with the presumptive sentence being 2.5 years.

However, a first time felony offender will generally be placed on supervised probation for a Class 4 Aggravated DUI.  But, the Class 4 Aggravated DUI due to a license suspension, revocation, or cancellation carries with it a mandatory prison sentence of at least 4 months in prison as a term of probation.  Aggravated DUI as a Class 4 Felony (3 out of 4 theories) is the only crime in Arizona that requires a 4 month prison sentence as a term of probation.  The 4 month sentence is also served at 100% time, and not eligible for the 85% soft time available in many other sentences.

If a person commits an Aggravated DUI under this section, and has an historical (allegeable) felony conviction, the person will be in a Class 4 Felony, Category 2 sentencing range.  This means the person is no longer probation eligible, and will be facing a mandatory prison sentencing range of anywhere between 2.25 years and 7.5 years, with the presumptive sentence being 4.5 years.  If a person commits an Aggravated DUI under this section, and has two historical (allegeable) prior felony convictions, the person will be in a Class 4 Felony, Category 3 sentencing range.  In this range, there is no probation eligibility, and the person is facing a mandatory prison sentencing range of 6 years to 15 years, with the presumptive sentence being 10 years.

AGGRAVATED DUI WHILE A PERSON UNDER 15 YEARS OF AGE IS IN THE VEHICLE: ARS 28-1383(A)(3)

Under ARS 28-1383(A)(3), a person is guilty of Aggravated Driving or Actual Physical Control while under the Influence of Intoxicating Liquor or Drugs if the person commits a violation of ARS 28-1381(A) (simple DUI statute), or 28-1382 (Extreme and Super Extreme DUI statute) while a person under 15 years of age is in the vehicle.

This offense is charged as a Class 6 Felony, unlike other Felony Aggravated DUI/DWI offenses which are charged as a Class 4 Felony.  This specific offense also does not carry a mandatory 4 month prison sentence as a term of probation.  However, a person convicted under this section may still face up to 10 years supervised probation.  Also, the requirements discussed above for first time and second time misdemeanor DUI offenders, and the minimum sentencing requirements would still apply to a person convicted under this section.

If a person is convicted of a first time Class 6 Aggravated DUI with a Minor Present, there is probation eligibility.  However, there is a possible prison range of anywhere from 4 months to 2 years prison, with the presumptive sentence being 1 year.  If a person is charged with this offense, but has 1 historical (allegeable) prior, they will be in a Category 2 sentencing range where there is no probation eligibility.  The mandatory prison sentencing range for a Class 6 Felony as a Category 2 is anywhere from 9 months to 2.75 years in prison, with the presumptive term being 1.75 years.  If a person is charged with this offense, but has 2 historical (allegeable) priors, they will be in a Category 3 sentencing range where there is no probation eligibility.  The mandatory sentencing range for a Class 5 Felony as a Category 3 is anywhere from 2.25 years to 5.75 years, with the presumptive sentence being 3.75 years.

AGGRAVATED DUI WHILE THE PERSON IS ORDERED TO HAVE A CERTIFIED IGNITION INTERLOCK DEVICE: ARS 28-1383(A)(4)

Pursuant to ARS 28-1383(A)(4), a person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs while the person is ordered to equip any motor vehicle the person operates with a certified ignition interlock device, commits a violation of ARS 28-1381(A) and ARS 28-1382.

For a person convicted of a Class 4 Felony Aggravated Driving Under the Influence of Alcohol or Drugs in Arizona, they are looking at a Category 1 sentencing range.  Specifically, the offense is probation eligible (a person may be placed on up to 10 years supervised probation for an Aggravated DUI), but has a prison sentencing range of 1 to 3.75 years, with the presumptive sentence being 2.5 years.

If a person commits an Aggravated DUI under this section, and has an historical (allegeable) felony conviction, the person will be in a Class 4 Felony, Category 2 sentencing range.  This means the person is no longer probation eligible, and will be facing a mandatory prison sentencing range of anywhere between 2.25 years and 7.5 years, with the presumptive sentence being 4.5 years.  If a person commits an Aggravated DUI under this section, and has two historical (allegeable) prior felony convictions, the person will be in a Class 4 Felony, Category 3 sentencing range.  In this range, there is no probation eligibility, and the person is facing a mandatory prison sentencing range of 6 years to 15 years, with the presumptive sentence being 10 years.

AGGRAVATED DUI WHILE DRIVING THE WRONG WAY ON A HIGHWAY: ARS 28-1381(A)(5)

Pursuant to ARS 28-1383(A)(5), a person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person commits a violation of ARS 28-1381(A) (Simple DUI Statute) or ARS 28-1382 (Extreme and Super Extreme DUI Statute) while driving the wrong way on a highway.

An Aggravated DUI While Driving the Wrong Way on the Highway in Arizona is a Class 4 Felony.   It is punished the same as the Class 4 Aggravated DUI due to a license suspension, revocation or cancellation, and Aggravated DUI as a third or more offense within 84 months.

For a person convicted of a Class 4 Felony Aggravated Driving Under the Influence of Alcohol or Drugs in Arizona, they are looking at a Category 1 sentencing range.  Specifically, the offense is probation eligible (a person may be placed on up to 10 years supervised probation for an Aggravated DUI), but has a prison sentencing range of 1 to 3.75 years, with the presumptive sentence being 2.5 years.

However, a first time felony offender will generally be placed on supervised probation for a Class 4 Aggravated DUI.  But, the Class 4 Aggravated DUI due to a license suspension, revocation, or cancellation carries with it a mandatory prison sentence of at least 4 months in prison as a term of probation.  Aggravated DUI as a Class 4 Felony (3 out of 4 theories) is the only crime in Arizona that requires a 4 month prison sentence as a term of probation.  The 4 month sentence is also served at 100% time, and not eligible for the 85% soft time available in many other sentences.

If a person commits an Aggravated DUI under this section, and has an historical (allegeable) felony conviction, the person will be in a Class 4 Felony, Category 2 sentencing range.  This means the person is no longer probation eligible, and will be facing a mandatory prison sentencing range of anywhere between 2.25 years and 7.5 years, with the presumptive sentence being 4.5 years.  If a person commits an Aggravated DUI under this section, and has two historical (allegeable) prior felony convictions, the person will be in a Class 4 Felony, Category 3 sentencing range.  In this range, there is no probation eligibility, and the person is facing a mandatory prison sentencing range of 6 years to 15 years, with the presumptive sentence being 10 years.

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