DUI & Criminal Defense

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Phoenix, Arizona 85004

Aggravated DUI Arizona (Updated 2019)

Aggravated DUI is the name the Arizona legislature has given to DUI cases that are felonies. A.R.S. § 28-1383 provides:

A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:

1. Commits a violation of § 28-1381, § 28-1382 or this section while the person’s driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating § 28-1381 or 28-1382 or under § 28-1385.

2. Within a period of eighty-four months commits a third or subsequent violation of § 28-1381, § 28-1382 or this section or is convicted of a violation of § 28-1381, § 28-1382 or this section and has previously been convicted of any combination of convictions of § 28-1381, § 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of § 28-1381, § 28-1382 or this section.

3. While a person under fifteen years of age is in the vehicle, commits a violation of either:

(a) Section 28-1381.

(b) Section 28-1382.

4. While the person is ordered by the court or required pursuant to § 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, commits a violation of § 28-1381, § 28-1382 or this section.

5. Commits a violation of § 28-1381, § 28-1382 or this section while driving the wrong way on a highway. [RECENTLY ADDED TO THE LAW]

Aggravated DUI

Frequently Asked Questions

Arizona has both misdemeanor and felony DUI offenses.  “Aggravated DUI” is simply the name Arizona gives to felony DUI cases. Arizona’s Aggravated DUI statute is A.R.S. 28-1383.  When I was a prosecutor in the Vehicular Crimes Section of the Maricopa County Attorney’s Office, these were the most common crimes we prosecuted.  

There are several ways a person can violate Arizona’s Aggravated DUI statute.  In each scenario, there is a violation of the misdemeanor DUI law plus some other aggravating circumstance that the legislature believed merited converting the offense to a felony.

  • First, a person violates the aggravated DUI statute by, driving while under the influence of intoxicating liquor or drugs (i.e. violating the misdemeanor DUI statute):
    While their driver’s license is either suspended, canceled, revoked, or while there is any restriction.
  • Second, a person violates the aggravated DUI statute by, driving while under the influence of intoxicating liquor or drugs (i.e. violating the misdemeanor DUI statute):
    Within a period of eighty-four months commits a third DUI.
  • Third, a person violates the aggravated DUI statute by, driving while under the influence of intoxicating liquor or drugs (i.e. violating the misdemeanor DUI statute):
    While a person under fifteen years of age is in the vehicle. 
  • Fourth, a person violates the aggravated DUI statute by, driving while under the influence of intoxicating liquor or drugs (i.e. violating the misdemeanor DUI statute):
    While the person is ordered by the court or required pursuant to equip any motor vehicle the person operates with a certified ignition interlock device.
  • And fifth, a person violates the aggravated DUI statute by, driving while under the influence of intoxicating liquor or drugs (i.e. violating the misdemeanor DUI statute):
    While driving the wrong way on a highway (this is new in 2019).

No. If convicted the aggravated DUI statute does have some mandatory minimum punishments.  However, the mandatory minimums sentence varies depending upon which section of the law you have been charged. 

State v. Gomez, (2019) holding that knowledge of a passenger’s age is not required to violate the section of the Aggravated DUI statute prohibiting operate a vehicle under the influence of drugs or alcohol while carrying a passenger less than 15 years of age (A.R.S. section 28-1383(A)(3)).

State v. Olquin, 216 Ariz. 250. 165 P.3d 228 (App. 2007),  holding that ARS 28-1383(A)(3) does not require the government to prove the identity of the person under the age of fifteen who was in the vehicle.

State v. Robles, 213 Ariz. 252. 141 P.3d 748 (App. 2006), holding that the crime of Aggravated DUI does not have a lesser included offense of driving on a suspended license. 

State v. Galati, 195 Ariz. 9. 985 P.2d 494 (1999), holding the court erred by allowing the defendant to admit aggravating elements (license suspended and he had two prior DUI convictions) and then ordering a jury trial to proceed only on the elements of the DUI portion of the aggravated DUI charges.  The decision provides a trial court cannot bifurcate a trial when doing so precludes a jury from considering prior convictions that are elements of a charged offense.

State v. Claybrook, 193 Ariz. 588, 975 P.2d 1101 (App. 1998), holding that when a person has a valid out of state license it still does not prevent a conviction for driving on a revoked license; once Arizona license revoked, a driver must reapply and obtain Arizona license before the driver can legally drive in Arizona.

State v. Williams, 144 Ariz. 487 (1985), holding that ARS 28-1383 does not specify a culpable mental state for any of the means of committing the crime of aggravated DUI.

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