An understandable guide on how a misdemeanor DUI becomes a felony DUI in Arizona, and the minimum penalties for each type.
Aggravated DUI confusion
Many people finding themselves in Superior Court in Arizona are understandably confused at their aggravated DUI charges. Among the most common misconceptions about why someone has been charged with felony aggravated DUI, is that it is simply a result of a high blood alcohol concentration (BAC). But, under Arizona law, regardless of how high a BAC is during a DUI incident, the BAC itself does not dictate whether a person receives felony or misdemeanor charges. There are four (4) factors that can increase a misdemeanor DUI charge into a felony. These factors are found in the Arizona Revised Statutes (A.R.S.), section 28-1383. The penalties can vary depending on which subsection a person is charged under.
Aggravated DUI for suspended, revoked, restricted license
First, committing a DUI while your license or privilege to drive in Arizona is suspended, revoked, or restricted can result in charges of a class 4 felony DUI. A license is different than a privilege to drive. When one refers to a "license" to drive, people generally think of the plastic card that we refer to as a "driver's license." Legally, the term "license" in this situation refers to the licensing of a person by the State of Arizona to drive, not to the physical card itself. A "privilege" to drive is easy to think of as the ability to drive in another state, which Arizona is supposed to recognize. (For example, if you have a valid license to drive in California without any restrictions there, you can legally drive in or through Arizona). If convicted of this type of aggravated DUI, the minimum penalties under law include a mandatory term of 4 months in state prison, license revocation (yes, if your license is already suspended, a revocation can also take place) of a minimum of a year, up to 10 years probation, and approximately $4650 in fines and "assessments." This person would also be required to get a certified ignition interlock device on his/her vehicle in order to get the privilege to drive back.
Aggravated DUI for 3 DUI's within 7 years
Second, committing a DUI within the same 7 year period as 2 other DUI convictions can result in a class 4 felony DUI charge. The order of the DUI's doesn't matter as long as the third occurs within that 7 year period. (For example, if a person was convicted of DUI in 2012 for a DUI committed in 2012, and convicted in 2014 for a DUI committed in 2014, then if a 2013 DUI was charged after the conviction in 2014, although was committed before the 2014 event, this could be the basis for the felony charge. It does happen this way on occasion, but not often.) The important thing to remember here, is that the order of the offenses doesn't matter as long as they all fall within a 7 year period. The penalties are the same as the suspended, revoked, restricted type of aggravated DUI discussed above.
Aggravated DUI for having a kid in the car
Third, committing a DUI with a person under the age of 15 in the vehicle can result in a class 6 felony charge. (Many people don't understand the logic of this lower-level felony charge for this offense. One might argue that DUI with a child in the car is far more deserving of harsh punishment than committing a DUI on a suspended license.) But, that aside, the punishment for this type of felony aggravated DUI is far more lenient, in terms of incarceration. Upon conviction of this type of DUI with a BAC above .08 but below .15, a person must serve a minimum of 10 days jail (jail is incarceration in a county facility, prison is a state facility). However, a judge can suspend 9 of the 10 days of jail if the person completes a court ordered alcohol or other drug screening, education or treatment program. The judge will typically allow the person to complete the program within a certain number of months, and order the person to serve the other 9 days if the program isn't completed in that time. The person convicted is subject to the probation lengths and minimum fines and MVD penalties as noted above. (Also note, the minimum jail time and fines are higher with BAC's above .15 and above .20. See A.R.S. 28-1382 and 1383.)
Aggravated DUI for getting a DUI when you have an ignition interlock requirement
Fourth, if a person is currently required to have an ignition interlock device at the time he/she commits a DUI, a class 4 felony could be charged. It should be noted that this type of charge can result simply by the person being required to have a certified ignition interlock device, not just from getting a DUI while one has an ignition interlock device in his/her car. This charge can result from a DUI in a car with a device or without, so long as the driver is supposed to be only driving a vehicle with the interlock device. The minimum fines, MVD consequences, and probation lengths are the same as the above mentioned types of aggravated DUI. However, probably because of legislative oversight, this particular type of aggravated DUI does not have a mandatory prison term attached. It is theoretically possible for a person to be convicted of this type of felony aggravated DUI and not have to serve any incarceration time, in either jail or prison.
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