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Drive By Shooting: ARS 13-1209

Updated: February 11, 2021

What is Drive By Shooting in Arizona?

A.R.S. § 13-1209 criminalizes the crime of "drive by shooting" in Arizona. A drive by shooting occurs when an individual intentionally shoots a weapon from a car at either a person, another car, or an occupied structure. For a crime to be classified as a drive by shooting, the discharge of the weapon must have been intentional, and it must have been aimed directly at a person or at a car or house where a person is likely to be located. If the shooting is not directed at a person, or if the gun was not fired intentionally, then a less serious weapon crime may been committed instead.

Drive by shooting is a class 2 felony. This is one of the most serious types of felonies that can be committed in Arizona, and a person convicted of this type of crime is facing serious prison time.

A.R.S. § 13-1209 Defined

ARS 13-1209, states that a person commits drive by shooting by:

  • Intentionally discharging a weapon from a motor vehicle at a person, another occupied motor vehicle or an occupied structure.

Let's break this definition down:

"Motor Vehicle"

The term "motor vehicle" is defined under Arizona law ARS 28-101.

It is defined as a "self-propelled vehicle" and a "vehicle" is "a device in, on or by which a person or property is or may be transported or drawn on a public highway." This includes:

  • Cars
  • Trucks
  • Motorcycles
  • Tractors
  • Golf carts
  • ATVs (all-terrain vehicles)

The following are specifically not motor vehicles under Arizona law:

  • Scrap vehicles
  • Personal delivery device
  • Personal mobile cargo carrying device
  • Motorized wheelchairs
  • Electronic personal assistive mobility devices
  • Electric bicycles
  • Electric miniature scooters
  • Electric standup scooter or motorized skateboard

"Occupied Structure"

The term "occupied structure" for the purposes of Arizona's drive-by-shooting law is defined in A.R.S. 3101 as:

  • any building, object, vehicle, watercraft, aircraft or place with sides and a floor that is separately securable from any other structure attached to it, that is used for lodging, business, transportation, recreation or storage and in which one or more human beings either are or are likely to be present or so near as to be in equivalent danger at the time the discharge of a firearm occurs. Occupied structure includes any dwelling house, whether occupied, unoccupied or vacant.

Note: The term "occupied structure" encompasses much more under the drive-by-shooting law than just a building. It also includes boats, planes, storage units, or other objects that has sides and a floor, as long as a person is located inside the structure or likely to be located inside it. Furthermore, any residential house is considered an "occupied structure" even if nobody is in it, and even if the house itself is clearly vacant. In other words, even if a house isn't actually "occupied" by anybody, it will still be considered an "occupied structure" for the purposes of prosecution under ARS 13-1209.

Penalties for Drive By Shooting

Drive by shooting is listed as a class 2 felony under Arizona law. The penalties for committing a class 2 felony depend on how many prior felony convictions the defendant has.

Criminal penalties for a class 2 (non-dangerous) felony include:

  • No prior convictions: Probation or 3 to 12.5 years in prison.
  • 1 prior felony: 4.5 to 23 years in prison
  • 2+ prior felonies: 10.5 to 35 years in prison

Drive by shooting is almost always done with a gun, so it will be charged as a dangerous offense (i.e., involving a dangerous weapon). If convicted, this type of crime requires mandatory prison time.

Penalties for a first-time "dangerous" class 2 felony are:

  • 7 to 21 years in prison.

Defenses to Drive By Shooting

  • No Intent: Even if the evidence shows that a gun was fired from a vehicle, there is a still a possible defense to this charge if the act was not done "knowingly." To act knowingly is to either act with the intent to commit the conduct or knowing that circumstances are such that the conduct will occur. If a person pulls a trigger on a gun and the gun is pointed at a structure, then the person knows that the gun will go off. However, a person may also act merely "recklessly" or with "criminal negligence." In these cases, a person may accidently discharge the firearm not intending to. This could occur during a "road rage" incident, for example, if a disgruntled driver pulls a gun out at another driver. The driver may not intend to fire a shot, but if it can be shown that driver lost control and accidently squeezed the trigger, then there is no criminal intent for the drive-by-shooting charge. This action may, however, constitute other crimes, such endangerment, unlawful discharge of a firearm, or aggravated assault. While these are serious felony offenses, they will usually be charged as lesser felonies than a class 2 felony such as drive-by-shooting, and therefore can result in more lenient penalties, even if these lesser charges can be proven.
  • Mistaken Identity: In drive-by-shooting cases, it is typical for the car involved in the shooting to have multiple passengers. This can cause evidentiary sometimes with the identification of the actual individual who shot the gun. There is a large body of evidence related to the problems with memory and the ability of witnesses to accurately identify. Such issues can be raised during trial to question the accuracy of any witness identification of the defendant. If the jury is not convinced the police got the right suspect, even if a crime was committed, this should result in an acquittal.
  • Constitutional Violations: As in other cases, there may be constitutional violations that occurred in the case, such as violations of the Defendant's 4th or 5th Amendment rights. These violations may lead to the suppression of the state's evidence, the suppression of a defendant's statements, or even a dismissal of the case.

How Salwin Law Group Can Help You

If you have been charged under ARS 13-1209, an experienced defense attorney can help. We offer free consultation and can discuss your case with you today. Together we can help you get your life back.

Call Salwin Law Group PLLC today at (480) 470-6119, or contact us online to make your appointment.

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