AZ Appeals Court Rules: “When Out-of-state DUI Convictions Count as Priors”

Approximately 37 million people visit Arizona each year, and 16 million of those visit the Phoenix Metro area. Whether they are here to vacation, attend school or sporting events, or to see the attractions our State has to offer, many will be driving.

Unfortunately, some will be arrested for impaired driving. Suddenly, what was supposed to be a fun and enjoyable trip turns into a nightmare.

One of the most common questions a person asks after being arrested for a repeat offense, if they are visiting or a new resident to Arizona is “How will my prior DUI received in another state, impact my current DUI charges?”

Recently, an Arizona Appeals court addressed prior DUI charges involving out-of-state DUI convictions. The Appellate court considered whether a prior out-of-state DUI conviction would be used to reclassify charges to a felony for a third DUI conviction.

In this case the defendant had been charged with two counts of aggravated DUI, two counts of aggravated driving with a BAC of .08 or more and aggravated assault on a peace officer.

The aggravated (felony) driving charges were based on the fact that the defendant had two or more prior DUI convictions within 84 months under A.R.S. § 28-1383.

The lower court dismissed the Felony DUI and BAC charges. The State Prosecution appealed the dismissal of the Aggravated DUI charges. The Appeals court agreed with the State Prosecution, and reversed the dismissal of the Felony DUI charges.

Analysis of the Decision: Out-of State DUI Counts as a Prior

The lower trial court concluded the defendant’s prior DUI convictions were in California and therefore couldn’t support aggravated DUI charges in Arizona. This is because the DUI statutes were not identical in California and Arizona.

The Court noted that that in order for an offense that occurred out of state to be counted as a “prior” the laws of the two states must be identical. Or alternatively, the offense must be such that if it had been committed in Arizona, instead of California in this case, it would have been in violation of Arizona’s impaired driving laws.

The court ruled that an examination and comparison of the two State DUI laws was required in order to answer the question of whether or not the California DUI offense constituted a “prior”.

The court acknowledged that Arizona required proof of impairment, whereas California did not.

The state argued that California’s Supreme Court had interpreted the statute to require impairment, but the trial court didn’t find this persuasive.

The defendant had argued that California permitted convictions under circumstances that wouldn’t establish a DUI in Arizona.

The state appealed, arguing that the California convictions were for violations that if committed in Arizona would have also led to convictions. Specifically, the State challenged the dismissal by the lower court, based on the contention that the defendant’s California convictions constituted “acts in another jurisdiction that if committed in this state” would have been in violation of Arizona’s DUI laws, as required under A.R.S. § 28-1383 (A),(2).

Subsequently, the appellate court compared the DUI laws of California and Arizona to determine whether the dismissals by the lower court were proper. It acknowledged that the defendant was correct in pointing out that in California, the driver did not actually need to be impaired whereas in Arizona the driver did need to be impaired to be convicted.

However, the appellate court stated that the question was actually whether there was any scenario under which the defendant could have been convicted in California, but not in Arizona.

The rule for using an out-of-state conviction for sentencing in the current case is that the court must find that the foreign conviction includes each and every element required to prove the Arizona offense. In comparing the law, they noted that California courts have said that to be regarded as driving under the influence a person must be appreciably impaired. When a person has been convicted of a DUI in California, it means that the person had been impaired to an appreciable degree. Similarly, for the BAC conviction, California prohibited having a BAC of .08 at the time of driving while Arizona prohibits a BAC of .08 within 2 hours of driving.

If a person has a BAC of .08 while driving as required under California law to be convicted, he would definitely have a BAC of .08 within two hours of driving as Arizona requires. Accordingly, he would be able to be convicted in Arizona for the same offenses for which he was convicted in California. The appellate court reversed the trial court’s order to dismissal of the Aggravated (Felony) DUI charge, and sent the matter back to the lower court, for continued prosecution of the charges.

“Not every out-of-state DUI conviction constitutes a “prior” against a current Arizona DUI.

But unless it’s elements are challenged,

the risk is great that it will be used against you.”

5 Ways in Which Arizona is Combating Repeat Offenses The Arizona Department of Public Safety (DPS) reported that strict impaired driving laws do not deter repeat offenses. They outline the alternative penalties that are in place which have proven to be the most effective in reducing repeat impaired driving offenses. They include:

• Mandatory Alcohol and/or Substance Abuse education and treatment participation;
• Intense Supervised Probation with alcohol and substance abuse monitoring;
• Mandatory Installation and Monitoring of Ignition Interlock devices (IID) in Vehicles;
• Vehicle Impoundment;
• House Arrests with Electronic Monitoring

The National Highway Traffic and Safety Administration (NHTSA) has continually evaluated the effectiveness of alternative sentencing that included participation in mandatory DUI counseling and treatment programs, as compared to incarceration alone. One study in recent years measured the effectiveness of Maricopa County’s DUI Court program which includes alcohol/substance abuse counseling and treatment program participation. They found that DUI court programs like those that exist in Maricopa County were effective in reducing repeat offenses. Further it concluded that this program was more effective than standard incarceration, or standard probation sentencing.

Repeat Offense Statistics

In 2012 the National Highway Safety Administration compiled repeat DWI convictions data in 40 states and the rate of recidivism over the prior 7 year period. The report indicated that Arizona recidivism rate for DUI offenses was 21 percent of all DUI convictions during that year, which was under the national average of 29.5 percent recidivism.

NHTSA reported that the number of arrests over the last 20 years may have decreased by as much as 19 percent for arrests and 6 percent for convictions on a national level. Their conclusions were that alternative sentencing such as DUI alcohol and substance abuse counseling and treatment, DUI courts, use of Ignition Interlock devices, close supervision and monitoring, license plate sanctions, and other interventions may have contributed to the decreased trend.

Criminal Defense for DUI in Mesa AZ

Not every out-of-state DUI conviction constitutes a “prior” against your current Arizona DUI. But unless the elements of it are challenged, the risk is great that it will be used against you.

In each case, the court will likely conduct an analysis like the one in this case study. But it illustrates the importance of consulting an experienced Arizona criminal defense attorney for DUI charges. An effective defense attorney will make sure your rights are protected, and conduct a similar analysis to determine a probable outcome for your case and best strategies to defend you. A defense should be tailored as it applies to a given case, in order to obtain the best possible resolution. Favorable outcomes can include suppression of evidence, reduction of charges or sentencing, avoidance of prison, reduced jail terms, or even case dismissal or acquittal.

If you or someone you know has been arrested or charged with a DUI, you should contact an attorney with DUI-specific defense experience to represent you. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

Additional Resources:

• Drug DUI and Super Extreme DUI laws
• Arizona Department of Public Safety
• Mesa Police Traffic Section
• Mothers Against Drunk Driving

Other Articles of Interest

• Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
• Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013