Tempe Criminal Defense Attorney for DUI Repeat Offenses

James Novak, former prosecutor and experienced DUI defense Attorney provides answers to questions related to prior DUI charges; how they impact a current DUI; and criminal defense strategies that can be used challenge current charges and prior convictions.

The answer is sometimes, but not always. There are a number of factors, which will be discussed in detail below, that weigh heavily on determining if a prior DUI charge or conviction will be used against you in your current DUI case. The mere fact that you have an arrest or conviction on your record does not automatically mean it will be used against you for consideration of enhanced sentencing and penalties.

Prior impaired driving convictions are reviewed by the police and prosecution to determine if they qualify as “Priors” for purposes of increased sentencing or reclassification to a felony. If they do, the penalties will be more severe if convicted, or a misdemeanor will be raised to an Aggravated (felony) DUI.

Previous DUI convictions within 84 months of the current charges which that are considered “priors” will be used as considerations by the prosecution for increased sentencing or reclassification to more serious charges.

Impaired driving charges, without aggravated circumstances are generally brought as Class 1 Misdemeanors. Impaired driving offenses with aggravated factors surrounding the incident are classified as Felonies.

A second DUI conviction within 84 months is still considered a Misdemeanor, but calls for enhanced penalties and longer jail sentences.

A third DUI within 84 months is classified as an Aggravated (Felony) DUI. This is serious because all felonies in Arizona expose a person to prison sentencing.

A second DUI Conviction http://www.arizonacriminaldefenselawyer.com/second-dui.html for “impaired to the slightest degree” or .08 percent Blood Alcohol Content (BAC), increases the penalties from 10 days to 90 days. The fines, fees, costs and assessments would increase from $1,250.00 to $3,000.00; and a person’s driving privileges would be revoked for 1 year which is an increase from a 90 suspension. A suspension of a driver’s license is temporary. A revocation is a permanent loss of driving privileges.

In Arizona, DUI penalties are more severe for repeat DUI offenses. Under Arizona law A.R.S. § 28-1383 if a motorist is convicted of a third impaired driving charge within 84 months or 7 years, will elevate the charges to an Aggravated (Felony) classification and sentencing.

Felony DUI sentencing includes 4 months in prison for the 3rd violation; 8 months prison for subsequent offenses; $4,000.00 fines, fees, and assessments; revocation of driving privileges for 2 years; installation and use of Ignition Interlock Device (IID) on the driver’s vehicle for 1 year after driving privileges are restored; possible for forfeiture of vehicle; and participation in alcohol or substance abuse program.

The answer to this is also, sometimes, but not always. Numerous factors will be considered to determine if the police and prosecution may consider a previous DUI charge received in another state, as a “prior DUI” for purposes of reclassification or sentencing enhancements for more severe penalties.

There are three main factors that are considered in order to determine whether or not a previous out of state impaired driving violation constitutes a “Prior”:

1. The impaired driving conviction must have occurred within 84 months (7 years) of the current active DUI charges.
2. The impaired driving charges in another state must have led to a conviction. If the charges were dismissed or acquitted, or reduced to a civil traffic violation, then they would not constitute prior DUI conviction.
3. The DUI laws in the former state where you received it, is identical DUI laws; or the offense that was committed out of state, would have led to a violation of DUI laws in Arizona under the same circumstances.

An Arizona Court of Appeals addressed this issue, in a recent case Appeals Court Decision Out-of-State Priors http://scholar.google.com/scholar_case?case=6596550743117200796 The court upheld item three above in their ruling in 2014 where the defendant had a prior DUI in another state. The court determined that given the same circumstances of impairment and blood alcohol content issues, the defendant would have been guilty of violating impaired driving laws in Arizona.

You may also wonder what will happen if you have an existing Arizona DUI conviction on your record, and you are arrested for impaired driving in another state. State laws vary in this regard. The considerations for which a prior Arizona DUI conviction will or will not apply as a “prior” in the state you current received a DUI, will depend on the laws of that state.

When we discuss the defense of prior impaired driving charge, we are referring to the challenging of whether or not it will be used against a defendant.

Below are 5 common defenses that may be used to challenge prior DUI charges:

• The prior DUI conviction was outside of the Arizona statutory time frame. The Arizona law states that the prior DUI applies to consideration if it occurred “Within a period of eighty-four months” of the current incident. If the charge was not within 84 months, then it cannot be used to enhance sentencing in the case of conviction.
• If the same incident for which the person was convicted in another state, would not have been in violation of Arizona’s DUI laws under the same circumstances.
• The prior out-of-state DUI resulted in a “non-DUI” conviction. An example of this would be if a plea negotiation resulted in the criminal charge being reduced to a civil traffic violation such as “reckless driving”.
• The prior DUI charge was dismissed or acquitted.
• The prosecution was unable to present evidence that a prior DUI conviction within 84 months exists in Arizona or any other state.

If any of these circumstances exist, your defense attorney may file a motion to suppress use of the prior impaired driving allegation. If the court agrees, the prior DUI will not be use against you to reclassify the charges to an aggravated offense, or to apply enhanced sentencing for a misdemeanor.

Arizona has some of the toughest laws and penalties in the country. Even a first time offense can jeopardize your future and freedom. Repeat offenses are treated even more severely in the state. But no matter how serious the charge you are entitled to hire an effective attorney to defend them. You should always consult an experienced DUI lawyer before pleading guilty to any impaired driving charges. There may be defenses that can be used to help you obtain a favorable resolution to your case. Skilled DUI defense James Novak of Law Offices of James Novak, PLLC is a former prosecutor, highly skilled and experienced defense attorney. He will protect your rights, and defend your charges personally through each stage of the criminal process. He is a former prosecutor and is familiar ear and provides a free consultation for defendants facing active charges in Mesa, Chandler, Gilbert, Scottsdale, Phoenix, and Tempe AZ.

Additional Resources:

• Arizona DUI Laws
• Aggravated DUI Laws
• Maricopa County Superior Courts - Locations
• Tempe Police Department