In the last several years and as a result of the COVID 19 pandemic, the Maricopa County Attorney's Office has experienced a huge backlog of Aggravated DUI cases which are waiting to be formally charged. Many people estimate that there is at least 7,500 Aggravated DUI charges which need to be filed. Moreover, the County Attorney receives hundreds of new Aggravated DUI submittals each month. If you were arrested for a possible Aggravated DUI in the last couple years and have not yet appeared in court, you should keep a careful eye out for a summons.
What Constitutes Aggravated DUI in Arizona?
There are several instances where you can be arrested and prosecuted for Aggravated DUI. These include:
1. Driving on a suspended or revoked license and being arrested for DUI
2. Being arrested for a DUI after having been previously convicted of two misdemeanor DUI offenses within the past seven years
3. Driving the wrong way on a highway while impaired by drugs or alcohol
4. Operating a motor vehicle without a required certified ignition interlock device while impaired.
5. Driving while impaired by alcohol or drugs and having a child under the age of 15 in your car.
Penalties for Aggravated DUI
Depending upon the circumstances, Aggravated DUI can be classified as a Class 4 or a Class 6 felony. Aggravated DUI's involving passengers under the age of 15 are Class 6 felonies while all other types of Aggravated DUI in Arizona are Class 4 felonies. In either scenario, prosecutors aggressively enforce the law related to felony DUI and people charged with these offenses will face very harsh penalties.
For a Class 4 Felony:
- Individuals face a minimum of 4 months in prison. However, the potential prison sentence can can be increased to 15 years if the person has prior felony convictions, is on probation, etc.
For a Class 6 Felony:
- There is mandatory jail term depending upon your alcohol concentration. However, people can also be sentenced to prison terms of up to 5.75 years if they have prior felony convictions, are on probation, etc.
Aside from the potential jail or prison terms, an Aggravated DUI conviction will result in:
- Up to 10 years probation
- A $1500 prison assessment
- A $1500 Department of Public Safety Assessment
- A $250 DUI abatement fee
- Drug and/or alcohol treatment and counseling
- Driving privilege revoked for up to 3 years
- Court ordered ignition interlock device for your car once your driving privileges are reinstated.
What are the Defenses to an Aggravated DUI Charge?
Certainly, being charged with Aggravated DUI can result in severe consequences and can have a negative impact upon your future. However, an experienced and qualified Aggravated DUI attorney can help protect your rights and achieve the most favorable result possible.
Defenses Against an Aggravated DUI Charge May Include:
1. Lack of Driving or Actual Physical Control:
In Arizona the State must establish you were driving or in actual physical control of a vehicle while impaired. Consequently, the prosecutor must have a witness who observed you driving or show that you were in actual physical control of a car. Actual physical control of a motor vehicle is determined by a variety of factors such as the vehicle's location, your location within the car, whether the engine was running, being awake or asleep, etc.
2. No Reasonable Suspicion to Stop:
An officer must have a valid reason to stop you before making a DUI arrest. This means the officer must have some reasonable suspicion that criminal activity has or is likely to occur, or the officer has witnessed an actual traffic violation. If the officer lacks a valid reason for stopping and detaining you, all evidence related to the DUI can be suppressed, thereby causing the DUI charges to be dismissed. This occurs in situations where you did not commit any traffic violation prior to being stopped by police.
3. No Probable Cause to Arrest:
The Officer must have reliable information which would lead a reasonable person to conclude that you were impaired to drive a car. The officer must perform a thorough investigation and have sufficient evidence before making an arrest. If the officer fails to develop probable cause, the DUI charges are subject to dismissal.
4. Improperly Administered Field Sobriety Tests (FST's):
The National Highway Traffic Safety Administration (NHTSA) has established specific guidelines regarding the administration of FST's. Commonly administered field tests include Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the One Leg Stand. The Walk and Turn and One Leg Stand tests should not be given if the suspect:
- is 50 pounds or more overweight;
- is 65 years of age or older;
- has any back, hip, leg, knee, or ankle injuries;
- has any disability effecting balance (past head injuries); and/or;
- is wearing shoes with heels two (2) inches or higher.
If an officer fails to follow the NHTSA guidelines during a DUI investigation, the FST's can be attacked as unreliable.
5. Denial of the Right to Counsel:
When a DUI suspect requests an attorney, the police must provide you with an opportunity to speak with a lawyer telephonically as soon as is reasonably possible. The police must give you a private room to speak along with a telephone. If the police fail to provide access to an attorney, the DUI charges can be dismissed or blood or breathalyzer results suppressed.
6. Violation of Miranda Warnings:
Before any questioning by law enforcement officers of a person in custody he or she must be warned that they:
- have a right to remain silent;
- any statement they make may be used as evidence against them
- have a right to the presence of an attorney
- if they cannot afford an attorney, one will be appointed for them prior to any questioning.
If police violate a person's Miranda rights, any statements the person makes during police questioning cannot be used against them.
7. Inaccuracy of the Breath Testing Device:
In order for breathalyzer tests to be used by the prosecutor, police must have followed the required procedures outlined by the Department of Health Services. Among other things, these procedures include a fifteen minute deprivation period. The breathalyzer instrument must be calibrated every 31 days and must also undergo periodic standard quality assurance testing every ninety days.
If any of the maintenance checks appear out of tolerance, or if required procedures were not followed, the breath tests can be suppressed.
8. Intoxilyzer Results:
The Intoxilyzer Machine is a breath-testing device manufactured by C.M.I. to analyze your breath sample through an infrared spectroscopy for the purposes of determining the amount of alcohol present in your system. There are issues surrounding the potential accuracy and reliability of the Intoxilyzer. There are many ways to challenge the breath result such as the machine's inherent margin of error, failure to follow required procedures, issues with calibration or quality assurance testing, etc.
9. Retrograde Extrapolation:
Subtractive retrograde is a method which can be used to show that a person's alcohol concentration at the time he was stopped by police was lower than at the time they took a blood or breath test. This issue is dependent upon many factors such as when alcohol was consumed, whether a person ate any food, the time the person last consumed alcohol, etc.
10. Deficiencies in Blood Alcohol Testing & Issues in Blood Cases:
Results of blood alcohol testing are admissible if the State can establish the blood was drawn by qualified personnel and the particular scientific analysis utilized complied with scientific standards. A gas chromatograph is used to analyze blood samples and the State must show the machine was in proper working order. Also important are issues regarding storage of the blood sample, integrity of the blood kit, preservatives used in the blood sample, etc.
11. Denial of Independent Test:
A person has a due process right to collect independent scientific evidence of their blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence and the State may not unreasonably interfere with your ability to gain such evidence. If this occurs, dismissal of the DUI charge or suppression of the blood or breath tests may result.
12. Not Having Notice that Your License Was Suspended:
If your driving privilege was not suspended or revoked, or if you did not receive notice of the suspension, an important element of Aggravated DUI may not be satisfied.
Aggressive Defense of Aggravated DUI Charges
Call (480) 833-8613
A felony DUI offense in Arizona is a serious crime which can result in prison, probation, huge fines and a revocation of your driver's license. Additionally, a felony conviction will negatively impact other aspects of an individual's personal and professional life. Consequently, if you have been charged with a felony DUI, it is important to contact an experienced and aggressive DUI attorney to help you achieve the most favorable result.
Raymond A. Kimble specializes in DUI defense and has a working knowledge of all the city, justice and superior courts in Arizona. Through his experience, Mr. Kimble can assess and evaluate your particular situation and provide the best possible defense strategy. Mr. Kimble is always able to resolve DUI cases with the least amount of jail time, fines, etc. Mr. Kimble is able to expose weaknesses in a prosecutor's case which can result in a dismissal or reduction of DUI charges and has successfully defended many DUI cases at trial. Raymond A. Kimble is a former police officer and DUI Prosecutor who has successfully defended thousands of people charged with DUI in Arizona over the last twenty years.