| Read Time: 5 minutes | DUI

While the majority of DUIs that occur in Arizona are misdemeanor violations, a significant number can also be charged as felonies. All DUIs in Arizona involve impairment by alcohol or drugs, but when certain additional factors are present in a DUI arrest, then a DUI becomes a felony.

In this article you will learn when a DUI is considered a felony in Arizona and how you can protect your rights as well as your future.

Is DUI a Felony in Arizona?

is a dui a felony in az

A DUI becomes a felony in Arizona under 5 circumstances: If the driver’s license is suspended (Class 4 felony); If this is the driver’s third DUI in 7-years (Class 4 felony); If there is a minor under the age of 15 in the car (Class 6 felony); If the driver is required to have an ignition interlock on the car but does not (Class 4 felony) and If the driver is driving on the wrong side of a highway (Class 4 felony).

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Note: It does not matter what level of blood alcohol content (BAC) the driver has at the time of the DUI. For purposes of Arizona’s aggravated DUI law, the mandatory minimums for an aggravated DUI do not change depending on the driver’s BAC levels (unlike the laws for misdemeanor DUIs).

1) Driving on a Suspended License with a DUI

Arizona’s aggravated DUI law, ARS 28-1383, makes is a class 4 felony for a person to commit a DUI “while the person’s drivers license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of a [a prior DUI or an admin per se suspension].”

In other words, if you should not be driving to begin with and you are caught driving while impaired by alcohol, then Arizona punishes that type of DUI harshly. Note that this type of felony DUI does not require your license to be suspended for a prior DUI. Your license can be suspended for any reason and driving while intoxicated will constitute a felony. 

Also, if you drive while your license is restricted because of an administrative suspension of your license, that constitutes a felony. This can occur if you received a prior DUI and had your license to drive suspended by ADOT, but then you qualified for a restricted license that allows you to drive to and from work or school. Even though you have partial driving privileges, a DUI with a restricted license under these circumstances constitutes a felony. 

This type of DUI is a class 4 felony.

2) Third DUI in 7 Years

If you commit a third DUI within 7 years (84 months) of two prior DUIs, then your third DUI can be charged as a felony. Both of the prior DUIs have to have been committed within 7 years of the current DUI charge. And for calculating the date of the prior DUIs, the date at the time of arrest is what matters. Not the date that you were actually convicted for the DUI. 

Example: A driver is arrested for his first DUI on January 1, 2010. It takes a year for his case to go to trial, but he is ultimately convicted of the DUI in January 1, 2011. He then commits another DUI on February 2014 and pleads to the DUI in May 2014. Both of these prior DUIs are misdemeanors. He is arrested for a third DUI on January 1, 2018. Although this is his third DUI, absent some other reason to charge it as an aggravated DUI, this charge would also be a misdemeanor violation because his first DUI was committed over 7 years ago. 

For the purposes of counting a prior DUI conviction, the court will not count multiple DUI convictions that are part of the same series of acts arising on the same day. This can be a factor because often a person is charged with multiple counts of DUI arising out the same incident. If a person drives drunk and has a BAC of 0.17, then he can be charged with 3 counts of DUI: impaired to the slighted degree (regular DUI); 2) BAC greater than 0.08 (regular DUI); and 3) BAC greater then 0.15 (extreme DUI). Even though he might be convicted for 3 counts of DUI, the actions still all arose out of a single criminal act (a single instance of drunk driving) so it only counts as 1 conviction for the purposes of the law. 

This type of DUI is also a class 4 felony

3) A Child Under 15 Is in the Car

If a child under the age of 15 is in the car while a DUI is committed, that is a class 6 felony. This is the only aggravated DUI charge that is not a class 4 felony. 

4) Driving in Violation of a Court Order for an Ignition Interlock Device

If you have been convicted of a prior DUI involving alcohol impairment (as opposed to drug impairment), then you will be ordered to install an ignition interlock device on your vehicle for a certain period of time. If you are still within the time period that you are required to have the ignition interlock installed (usually 1 year) and you get caught driving a car without the IID installed, this is a class felony 4. 

5) Driving the Wrong Way on a Highway

This one requires looking into the way Arizona law defines “highway.” First, “highway” does not just mean what we generally call “highways” or “freeways” in common English. These are the types that you get on and can travel fast without any stop lights. The use of “highway” in the aggravated DUI statute is much broader and includes most all roads. 

ARS 28-1171 defines a “highway” as “the entire width between the boundary lines of every way publicly maintained by the federal government, the department, a city, a town or a county if any part of the way is generally open to the use of the public for purposes of conventional two-wheel drive vehicular travel.” In other words, all public roads. 

Another important definition to understand this section is the legal term for “wrong way.” The law defines “wrong way” as “vehicular movement that is in a direction opposing the legal flow of traffic. Wrong way does not include median crossing or a collision where a motor vehicle comes to a stop facing the wrong way.”

Can a Felony DUI be Dismissed or Reduced to a Misdemeanor? 

Just because you are charged with a felony DUI does not mean that you will ultimately be convicted of a felony DUI. An experienced DUI lawyer can fight for you and may be able to reduce your charges or get them dismissed. There are a number of DUI defense which may help you avoid felony conviction. Or if you have been arrested and suspect that you may be charged with an aggravated DUI, speaking to an attorney about how to defend yourself before charges are filed may lead to you avoiding criminal charges altogether. 

The Maricopa County Attorney’s Office’s own data shows that a number of cases that are submitted by the police for felony DUI charges are not ultimately filed. A defense attorney can argue your case with the prosecutor making a charging decision before charges are filed. This may result in your avoiding felony charges altogether.

Author Photo

Stewart Salwin

Stewart Salwin is the founder and lead attorney at Salwin Law Group, a criminal defense law firm based in Scottsdale, Arizona, just outside of the greater Phoenix area. He is a graduate of Georgetown University and Harvard Law School, where he was taught criminal law by world-renowned defense attorneys.

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