Second DUI Defense

A second DUI is the same DUI offense, sentenced under a stricter subsection because of a prior conviction. Under § 28-1381(K), the higher penalties apply if, within 84 months, you are convicted of a second violation of § 28-1381, or of a § 28-1381 violation after a prior conviction under A.R.S. § 28-1382 or § 28-1383.

The 84-month rule has a few parts worth knowing. Each one comes from the statute:

• The dates the offenses were committed are the determining factor, not the order of the convictions (§ 28-1381(M)).
• An out-of-state act counts if it would have been a DUI, extreme DUI or aggravated DUI in Arizona (§ 28-1381(K)).
• Prior extreme and aggravated DUI convictions count, not only a prior general DUI.
• For extreme DUI, a conviction arising from the same series of acts is not a second violation (§ 28-1382(G)).

If the new case is an extreme or super extreme DUI, the second-offense penalties come from § 28-1382(E) instead, and they are higher. For national background, see Cornell LII Wex: driving under the influence (DUI), which is not a source of Arizona law.

Second DUI under § 28-1381(K)

For a second general DUI within 84 months, the court must impose the terms below. They apply subject to the jail reduction described after the list.

• At least 90 days in jail, 30 of them consecutive, with no probation or suspension unless the entire sentence is served (§ 28-1381(K)(1)).
• A fine of at least $500 and two assessments of $1,250 each (§ 28-1381(K)(2), (K)(5), (K)(6)).
• At least 30 hours of community restitution and traffic survival school (§ 28-1381(K)(3), (K)(7)).
• Revocation of your driving privilege for one year, plus an interlock if the violation involved intoxicating liquor (§ 28-1381(K)(4)).

The judge may suspend all but 30 days of jail if you complete a court-ordered alcohol or other drug screening, education or treatment program, or evidence-based psychotherapy (§ 28-1381(L)). Under A.R.S. § 28-1387(B), if you were ordered into a program before, the judge must order one again unless alternative sanctions are more appropriate. Starting early can matter, because the reduction depends on completing what the court orders.

License revocation

MVD must revoke the license of a person convicted of a second DUI or extreme DUI within 84 months (A.R.S. § 28-3304(A)(9)), counting from the date of the offense (§ 28-3304(B)). A person revoked and sentenced under § 28-1381(K) is eligible for a special ignition interlock restricted driver license (§ 28-1381(O)), and § 28-1382(H) says the same for a second extreme DUI. That license can let you drive with an interlock, subject to MVD's requirements.

The MVD clock on a second arrest

Two clocks run at once: the criminal case and the MVD case. Under A.R.S. § 28-1385, a test result of 0.08 or more can lead to an administrative suspension, and a hearing request "must be received by the department within thirty days after the date of the notice" (§ 28-1385(G)(2)(c)). The shorter 30-day option and the special interlock license in place of a suspension both require no DUI conviction within the prior 84 months (§ 28-1385(I)(2), (J)). With a conviction in that period, the suspension is at least 90 days (§ 28-1385(H)).

When a third DUI becomes a felony

A third violation within 84 months can be charged as aggravated DUI under § 28-1383(A)(2), a class 4 felony. A person convicted with two prior violations in that period is not eligible for probation or release until serving at least four months in prison (§ 28-1383(D)(2)). See our third DUI page.

A second DUI case has two parts: the new arrest and the prior conviction. We may review both, including:

• The prior conviction: Whether it qualifies, whether the offense dates fall within 84 months, and, for an out-of-state prior, whether the act would have been a DUI in Arizona.
• The stop and arrest: Whether the officer had a lawful basis for each.
• Testing: Breath machine records, blood handling, lab methods and the two-hour window. You must have been given a reasonable opportunity to arrange your own additional test (A.R.S. § 28-1388(C)).
• Actual physical control: If you were not driving, whether you were in control is a question of fact.
• Mitigation: Early screening, treatment or evidence-based psychotherapy may support a request to suspend all but 30 days under § 28-1381(L).

We talk through the options with you at each stage. Every case is different, and the result depends on the facts.