In Arizona, a second DUI can carry with it higher fines and jail time than a first-time DUI offense. This article discusses when a DUI counts as second-offense DUI, how the punishment can be increased, and whether a resolution for lower charges may be possible.
What Happens if You Get Two DUIs?
If this is your second DUI within 7 years, then you can be charged with a second offense DUI. Your exact DUI charges will still depend on your blood alcohol concentration (BAC), but the minimum punishments for a second-offense DUIs are significantly higher than for a first-time offense.
Get Legal Help TodayNote: If your previous DUI conviction is more than 7 years old, then the mandatory minimum punishments are the same as for a first-offense DUI. And if this is your third DUI offense in 7 years, you can be charged with an aggravated DUI, which is a felony crime.
Punishments for a Second DUI
How a driver is punished for a second DUI within 7 years depends on that driver’s BAC level. As with a first-time DUI, a second-time misdemeanor DUI is divided into three different categories: a “regular,” “extreme,” and “super extreme.”
Note: For purposes of calculating time, 7 years is counted from the date of crime of the first DUI, not from the date of conviction. For example, if your first DUI occurred on January 1, 2015, but you were not sentenced until August 1, 2015; the seven-year time period begins on January 1st.
Second-Offense “Regular” DUI
A DUI is considered a “Regular” DUI if the BAC registers lower than a 0.15%. Under those circumstances, the mandatory minimum punishment includes the following:
- 90 days in jail (reducible to 30 days with completion of screening)
- Minimum $3,000 in fines
- Ignition interlock device
Second-Offense “Extreme” DUI
A second “extreme” DUI can be charged when the BAC is over a 0.15%. Here are the mandatory minimum punishments:
- 120 days in jail, 60 must be served consecutively
- Minimum $3,250 in fines
- Ignition interlock device
Second-Offense “Super Extreme” DUI
The highest level of misdemeanor DUI is the second-time “Super Extreme” DUI. This DUI charge comes with the following punishment:
- 180 days in jail, 90 must be served consecutively
- Minimum $3,750 in fines
- Ignition interlock device
License Consequences for a Second DUI
If you are convicted of a second DUI of any kind, your license will be suspended for one year. In contrast, under a first-time DUI offense, your license may only be suspended for 90 days.
What Happens if Your First DUI Conviction was “Set Aside”?
Some people wonder whether having their first DUI offense dismissed under Arizona’s “set aside” law (ARS 13-905) means that the prior DUI cannot be used by the prosecution. Unfortunately, that is not the case.
In fact, Arizona’s set aside statute specifically states that a “conviction that is set aside may be … used as a prior conviction.”
While a set aside can have many benefits, unfortunately reducing the punishment for a second DUI is not one of them.
Pleading Down a Second-Offense DUI
A second DUI can still be the subject of plea negotiations, the same as a first-time offense. And while the mandatory minimum punishment for a second DUI is greater, the State will still have to prove the underlying DUI offense beyond a reasonable doubt at trial in order to secure a conviction. So as second DUI is still susceptible to the same DUI defenses as any other DUI.
Potential defense to the underlying DUI charge include:
- Problems with the chemical test used to measure BAC
- A margin of error inherent in the blood testing procedure that may reduce a higher level DUI to a lower level charge
- Violation of the Right to Counsel or Right to Remain Silent
- The police conduct an illegal traffic stop
- Insufficient evidence of impairment
A DUI defense lawyer will often be able to negotiate a plea agreement with the prosecutor in an attempt to reduce or dismiss certain DUI charges. One possibility is to attempt to negotiate with the prosecutor to plea the case as a first-time offense rather than a second-time offense. Sometime an argument can be made for this if the prior DUI is particularly old.
Example: A person is pulled over for a DUI in 2022. The driver has a prior DUI that occurred in 2006. Because the prior DUI is 6 years old, it can be used as a prior DUI to enhance the sentence if the driver is convicted of a second DUI. In order to secure a plea deal, some prosecutors may be willing to drop the allegation that this is a second DUI offense because the prior DUI is close to being 7 years old. A defense attorney may be able to secure a plea to a first-time DUI, without all the consequences that comes with a second DUI conviction.
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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