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DUI, DWI & Criminal Legislation in Arizona  

Arizona Aggravated (Felony) DUI , section: 28-1383

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Substantive DUI/Excess Alcohol Offense, Arizona Felony DUI

28-1383. Aggravated driving or actual physical control while under the influence; violation; classification; definition

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 section 28-1381, section 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 section 28-1381 or 28-1382 or under section 28-1385.

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

B. The dates of the commission of the offenses are the determining factor in applying the sixty month provision provided in subsection A, paragraph 2 of this section regardless of the sequence in which the offenses were committed. For purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts.

C. The notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in section 28-3318 or pursuant to the laws of the state issuing the license.

D. A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under either of the following:

1. Subsection A, paragraph 1 of this section.

2. Subsection A, paragraph 2 of this section and within a sixty month period has been convicted of two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.

E. A person who is convicted under subsection A, paragraph 2 of this section and who within a sixty month period has been convicted of three or more prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison.

F. In addition to any other penalty provided by law, a person who is convicted under subsection A, paragraph 3, subdivision (a) of this section shall be sentenced to at least the minimum sentence required pursuant to section 28-1381, except that if a person has been convicted of at least two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or convicted of at least two prior acts in another jurisdiction that if committed in this state would be violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, within a sixty month period, the person shall be sentenced to serve at least the minimum sentence required pursuant to this section.

G. In addition to any other penalty provided by law, a person who is convicted under subsection A, paragraph 3, subdivision (b) of this section shall be sentenced to at least the minimum sentence required pursuant to section 28-1382, except that if a person has been convicted of at least two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or convicted of at least two prior acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section, or any combination of those sections, within a sixty month period, the person shall be sentenced to serve at least the minimum sentence required pursuant to this section.

H. A person who is convicted of a violation of this section shall attend and complete alcohol or other drug screening, education or treatment from an approved facility. If the person fails to comply with this subsection and is placed on probation, in addition to the provisions of section 13-901 the court may order that the person be incarcerated as a term of probation as follows:

1. For a person sentenced pursuant to subsection D of this section, for an individual period of not more than four months and a total period of not more than one year.

2. For a person sentenced pursuant to subsection E of this section, for an individual period of not more than eight months and a total period of not more than two years.

I. The time that a person spends in custody pursuant to subsection H of this section shall not be counted towards the sentence imposed if the person's probation is revoked and the person is sentenced to prison after revocation of probation.

J. The court:

1. Shall report the conviction to the department. On receipt of the report, the department shall revoke the driving privilege of the person. The department shall not issue the person a new driver license within three years of the date of the conviction and, for a conviction of a violation of subsection A, paragraph 1 or 2 or paragraph 3, subdivision (b) of this section, shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the conclusion of the license suspension or revocation or on the date of conviction, whichever occurs later. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

2. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. Any fine imposed for a violation of this section and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in this paragraph.

K. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs committed under:

1. Subsection A, paragraph 1 or 2 of this section is a class 4 felony.

2. Subsection A, paragraph 3 of this section is a class 6 felony.

L. For the purposes of this section, "suspension, cancellation, revocation or refusal" means any suspension, cancellation, revocation or refusal.

Comments : It is a felony in AZ to be DUI with 2 or more prior DUIs within 60 months, to be DUI in AZ with a suspended driver license, or with a minor child in the car. A felony DUI in Arizona is very serious. In many cases, there is a mandatory 4 months in an Arizona prison before any possibility of release. There is also the possibility of vehicle forfeiture.

If you have been arrested in Arizona for DUI, Attorney Daniel Jaffe is happy to discuss your case with you. You can reach him directly at 480-361-2446.

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