Third DUI Defense
A third DUI arrest is frightening, especially when you remember what the earlier cases cost you. How the State counts your prior convictions can decide what you face, so it deserves a careful look.
We can help. Nova Law Group was built by a former Maricopa County Attorney’s Office felony prosecutor. We prepare every case as if it is going to trial, and we take a meticulous, aggressive approach, fighting from every angle, because the report is only one side of the story.
Talk to us before you talk to anyone else. Call (480) 405-6767. Consultations are free and confidential, and the earlier we are involved, the more we can do.
At a glance
- The law: A.R.S. § 28-1383(A)(2) makes a DUI an aggravated DUI when it is a third or later DUI violation within 84 months.
- How it is classified: A class 4 felony under § 28-1383(O).
- Possible sentence (first offense): With two prior violations, at least four months in prison before probation or release, within a first-felony prison range of 1 to 3.75 years under A.R.S. § 13-702(D).
- Where the case is heard: Maricopa County Superior Court in downtown Phoenix. Confirm the building on your current notice.
- What to do now: Gather any paperwork from your earlier cases. If you were served an MVD suspension notice, your hearing request must reach MVD within 30 days after the date of the notice.
What the law says
Under § 28-1383(A)(2), a DUI becomes a felony when, within a period of 84 months, it is your third or later violation of the DUI laws. The violations that count are DUI under A.R.S. § 28-1381, extreme DUI under A.R.S. § 28-1382 and aggravated DUI under § 28-1383. Out-of-state offenses count too, if the conduct "if committed in this state would be a violation" of one of those laws.
In plain terms, the State has to prove:
- A new DUI, extreme DUI or aggravated DUI, including that you drove or were in actual physical control of the vehicle.
- At least two prior violations that qualify under the statute.
- That the offenses fall within the 84-month period.
How the 84 months are counted
- The dates you committed the offenses decide the 84 months, "regardless of the sequence in which the offenses were committed" (§ 28-1383(B)).
- A conviction for an offense "arising out of the same series of acts" does not count as a separate violation.
- Time on absconder status from probation, and time spent in any jail or prison, is left out when the 84 months are counted. That can reach further back than you might expect.
For general background on how DUI laws work across the country, see Cornell LII Wex: driving under the influence (DUI). The Arizona rules are the statutes cited on this page.
How it is classified
The number of prior violations within 84 months changes both the charge and the minimum time in custody.
| Your history within 84 months | Charge and class | Minimum custody |
|---|---|---|
| One prior violation | Second DUI, class 1 misdemeanor (§ 28-1381(C) and (K)) | 90 days in jail, 30 of them consecutive (§ 28-1381(K)) |
| Two prior violations | Aggravated DUI, class 4 felony | At least four months in prison (§ 28-1383(D)) |
| Three or more prior violations | Aggravated DUI, class 4 felony | At least eight months in prison (§ 28-1383(E)) |
Possible penalties
- Prison before release: With two prior violations, § 28-1383(D) says 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. With three or more, § 28-1383(E) raises that to eight months.
- Felony range: For a first felony offense, § 13-702(D) sets a class 4 range of 1 year (mitigated), 1.5 years (minimum), 2.5 years (presumptive), 3 years (maximum) and 3.75 years (aggravated). Prior felony convictions can change the range.
- Probation terms: If you are placed on probation, § 28-1383(H) allows the court to order incarceration as a term of probation. It also requires screening, education or treatment, or evidence-based psychotherapy, as ordered.
- Fines and assessments: Section 28-1383(J) requires a fine of at least $750, plus assessments of $250, $1,500 and $1,500.
- License: MVD revokes your driving privilege and will not issue a new license within one year of the conviction (§ 28-1383(J)). You must also complete traffic survival school (§ 28-1383(K)).
- Ignition interlock: If alcohol was involved, A.R.S. § 28-3319(D) sets a 24-month interlock period for this charge, and § 28-1383(J) lets the court order a longer one. See our ignition interlock page.
Consequences beyond the sentence
- Your record: A felony DUI conviction also counts as a prior if you are charged again within 84 months. Later, you may be able to ask the court to set aside the judgment of guilt or to seal the record, depending on the offense and your history. See record sealing and set-asides.
- Firearms: A class 4 felony is punishable by more than one year in prison, so a conviction generally brings the federal firearm ban in 18 U.S.C. § 922(g).
- Immigration: Some criminal convictions are grounds for removal under 8 U.S.C. § 1227(a)(2). If you are not a U.S. citizen, talk to an immigration lawyer before you accept any plea.
- Work and daily life: Losing your license for at least a year, followed by an interlock, can affect your job and your family. A felony record can come up in background checks for jobs, housing and professional licenses.
Some cases resolve with a plea that reduces the charge or the time in custody. The conviction still follows you. Avoiding jail is not the same as avoiding a conviction.
How we defend a third DUI charge
A third DUI case is really two cases: the new arrest and the prior record. We look closely at both.
- The priors: We get certified records for each earlier case. We check whether each one was actually a conviction under § 28-1381, § 28-1382 or § 28-1383. A prior case that ended in a different conviction, such as reckless driving, is not a DUI conviction.
- The dates: We measure the 84 months from the offense dates and check any time the State says should be excluded for jail or absconder status.
- Same series of acts: Two convictions from one incident may count as only one violation under § 28-1383(B).
- Out-of-state priors: We compare the other state's law with Arizona's to see whether the conduct would have been a violation here.
- The new arrest: We review the reason for the stop, field sobriety tests, body camera video and how breath or blood samples were collected and tested.
- Mitigation: Treatment, a record of sobriety and steady work can help in negotiations and at sentencing.
Why Nova Law Group
Nova Law Group was built by Ryan Tait, a former Maricopa County Attorney’s Office felony prosecutor. The practice is criminal defense first. We keep caseloads deliberately low, which means the lawyers on your case have time to actually watch the video and read the reports line by line. We take cases to trial when trial is the right pressure. Overcharging happens, and a case that is genuinely prepared for trial changes the conversation with the prosecutor. Most criminal cases are quoted as a flat fee. Consultations are free and confidential.
Common questions
Maybe. The 84 months are measured by the dates of the offenses, and time spent in jail or prison or on absconder status is left out of the count. That can bring an older case back inside the window. We check the exact dates before you make any decisions.
It can. Section 28-1383(A)(2) counts acts in another jurisdiction that would be a DUI violation if committed in Arizona. Whether a particular out-of-state conviction fits that test depends on the other state's law and the record.
Probation is not available until you have served at least four months in prison, or eight months with three or more priors. The court can also impose a longer prison term within the § 13-702 range. Reducing or defeating the felony allegation is often the focus of the defense.
Felonies in Maricopa County are heard in Maricopa County Superior Court in the downtown Phoenix criminal court complex: the Central Court Building at 201 W. Jefferson St. or the South Court Tower at 175 W. Madison St. Confirm the building on your current notice. A Maricopa County felony does not go through a justice court first. On a felony, the right to appointed counsel attaches.
There are two clocks. If you were served a suspension notice under A.R.S. § 28-1385, the hearing request "must be received by the department within thirty days after the date of the notice." The MVD hearing is narrow and separate from the criminal case.
Sources
Arizona statutes link to the official text on azleg.gov, the Arizona State Legislature’s website. Federal law and general legal references link to Cornell Law School’s Legal Information Institute (LII). Laws change, so the version in effect on the date of your case controls.
Arizona law (azleg.gov)
- A.R.S. § 28-1383: Aggravated driving or actual physical control while under the influence; county jail program; annual report; violation; classification
- A.R.S. § 13-702: First time felony offenders; sentencing; definition
- A.R.S. § 28-1381: Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing
- A.R.S. § 28-1382: Driving or actual physical control while under the extreme influence of intoxicating liquor; trial by jury; sentencing; time limitation
- A.R.S. § 28-3319: Action after license suspension, revocation or denial for driving under the influence or refusal of test
- A.R.S. § 28-1385: Administrative license suspension for driving under the influence or for homicide or assault involving a motor vehicle; report; hearing
Cornell Legal Information Institute
Awards and ratings reflect the standards of the organizations that issue them. They do not predict the outcome of any case.
Hear What Our Clients Say
Across 67 Google reviews, plus Yelp and Avvo. These are clients’ own words, reproduced from our review profiles.
“These guys are the best attorneys in all of Arizona. It is definitely the most professional group of lawyers… I recommend this firm!”
“Sydney was extremely thorough regarding every single detail of my criminal case… it ultimately resulted in a clear and powerful win for my case.”
“They fought tirelessly for my case and helped me achieve a favorable outcome. Exceptional service and results.”
“The firm provided me with the most professional legal representation possible. Mr. Ryan Tait patiently explained… beyond my expectations.”
“The best law firm that I have ever dealt with. The amount of passion & commitment that they dedicated for my case… truly what separated them from other law firms.”
“Oh my goodness, our lawyer Ryan Tait was amazing. He does what he says he’s going to do. A very patient lawyer… He’s a miracle worker.”
“I was being charged with a few felony counts and facing a few years in prison… I made the best choice of my life calling this law firm.”
Past results do not guarantee a similar outcome.
Talk to a Maricopa County criminal defense lawyer
If you have been arrested, charged, or contacted by a detective, the decisions you make in the first few days matter. Nova Law Group defends misdemeanor and felony cases in the Superior Court and in municipal and justice courts across Maricopa County.
Free, confidential consultation: (480) 405-6767
Prefer not to call? Send us your case details and a member of our team will follow up with you.
Submitting a form or calling does not create an attorney-client relationship. Information on this page is general and is not legal advice about your case.