Aggravated DUI Defense

Aggravated DUI is defined in A.R.S. § 28-1383. It starts with an ordinary DUI, usually a violation of A.R.S. § 28-1381, which covers driving or being in actual physical control of a vehicle while impaired to the slightest degree, with an alcohol concentration of 0.08 or more within two hours of driving, or with certain drugs or their metabolites in your body. It can also mean extreme DUI under A.R.S. § 28-1382, which covers an alcohol concentration of 0.15 or more within two hours of driving.

The prosecution then has to prove at least one of the circumstances listed in § 28-1383(A):

• Restricted license. You committed the DUI while your license or privilege to drive was suspended, canceled, revoked, or refused, or while it carried a restriction that resulted from an earlier DUI violation or DUI-related suspension.
• Third DUI within 84 months. This is your third or later DUI-related violation within 84 months, counting violations of § 28-1381, § 28-1382, or § 28-1383, and similar offenses from other states.
• Child passenger. A person under 15 years old was in the vehicle.
• Ignition interlock requirement. A court had ordered, or the Arizona Department of Transportation, Motor Vehicle Division (MVD), had required under A.R.S. § 28-3319, that any vehicle you drive have a certified ignition interlock device.
• Wrong-way driving. You were driving the wrong way on a highway. The statute defines "wrong way" as vehicle movement in a direction opposing the legal flow of traffic, and it does not include a median crossing or a collision where a vehicle comes to a stop facing the wrong way.

For the 84-month count, the dates the offenses were committed control, not the order of the convictions. An offense that came from the same series of acts does not count as a separate prior, and time spent incarcerated or on absconder status is not counted in the 84 months. § 28-1383(B).

For a first felony conviction that is not a dangerous offense, A.R.S. § 13-702(D) sets these prison ranges:

If the court finds at least two aggravating or two mitigating circumstances, it can use the wider range in the same subsection: 1 to 3.75 years for a class 4 felony and 0.33 to 2 years for a class 6 felony. Prior felony convictions raise these ranges under A.R.S. § 13-703, and a dangerous-offense finding raises them under A.R.S. § 13-704.

The aggravated DUI statute adds its own requirements:

• Mandatory prison for most versions. If you are convicted under paragraph 1 (restricted license), paragraph 5 (wrong way), or paragraph 2 (third violation within 84 months), you are not eligible for probation, pardon, commutation, suspension of sentence, or release on any other basis until you have served at least four months in prison. § 28-1383(D). If the paragraph 2 conviction involves three or more prior violations within 84 months, the minimum is eight months in prison. § 28-1383(E).
• Child passenger cases. You must serve at least the minimum jail term that applies to the underlying DUI under § 28-1381 or § 28-1382. § 28-1383(F) and (G). The length of that minimum depends on the underlying DUI and any prior violations.
• Screening and treatment. You must complete alcohol or other drug screening, education, or treatment, or evidence-based psychotherapy, as the court orders. § 28-1383(H).
• Fine and assessments. The court must impose a fine of at least $750, plus the additional assessments listed in § 28-1383(J).

We test the stop and the arrest. We review why the officer pulled you over or approached your car and how the investigation unfolded. Body camera and dash camera video can show details the written report leaves out.

We challenge the underlying DUI. An aggravated DUI cannot stand without a DUI under § 28-1381 or § 28-1382. We look at the breath or blood testing, whether the sample was taken within two hours of driving, and whether you were actually driving or in actual physical control. If the case is based on a drug metabolite, § 28-1381(D) provides that a person who used a drug as prescribed by a licensed medical practitioner is not guilty under that paragraph.

We examine the aggravating factor. Each version of aggravated DUI depends on a specific fact. In a license case, we check MVD records and whether notice of the suspension took effect as the statute requires. In a third-offense case, we check the dates of each prior offense, whether it falls inside the 84 months, and whether excluded time was counted correctly. In an interlock, child-passenger, or wrong-way case, we test the evidence on that exact point.

We look for gaps in the evidence. We request dispatch records, breath machine records, lab documentation, and video. Missing or inconsistent records can matter.

We plan for every outcome. Depending on the evidence and your history, a case may be dismissed, negotiated, or taken to trial. We explain each option so you can make an informed choice.