Difference Between Misdemeanor and Aggravated DUI

All states have laws against driving under the influence. Arizona is no exception. Arizona laws prohibit driving under the influence (DUI) of alcohol or drugs. In fact, Arizona has a “zero tolerance” meaning even the slightest amount of alcohol can lead to an arrest – something as innocent as cold-medicine or mouthwash could cause a significant problem for you. Charges and penalties for receiving a DUI vary depending on the circumstances.

Regardless of those circumstances, a DUI conviction can have grave consequences and should be faced head-on. Receiving a felony aggravated DUI charge in Arizona can result in much harsher charges, as well.

Although a felony aggravated DUI can result in severe consequences, even a misdemeanor DUI in Arizona has penalties that need serious attention. Therefore, it is wise if you have received a DUI charge to consult with an attorney.

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How Serious is a Misdemeanor DUI in Arizona?

It is against the law in Arizona for a person to be in control of a motor vehicle when impaired to the slightest degree. Although there are three classes of misdemeanors in Arizona, a DUI is only charged as a Class 1 misdemeanor — called a regular DUI — if the following conditions exist:

  • The driver’s Blood Alcohol Concentration (BAC) tests to between 0.08% and 0.15%.
  • It is not a third offense within the past seven years.

Arizona has some of the harshest DUI laws in the country. Arizona Revised Statutes, section 23-1381 (ARS §28-1381), defines Arizona’s drunk driving laws.

What are the Penalties for a First Time DUI Offense?

The first offense for someone found guilty of a DUI with a BAC of at least 0.08%, but less than 0.15% can be the following:

  • 10 days (with nine days suspended) to 6 months in jail
  • Roughly $1,500 in fines and fees
  • Suspended driver’s license for at least 90 days
  • Requirement of an ignition interlock device
  • Probation for up to 5 years
  • Community service
  • A drug/alcohol assessment and an alcohol education class

. A defense attorney can negotiate a favorable plea for a client.


Conditions for a Second Offense Charge

If arrested for a DUI within seven years of a previous DUI conviction, you are subject to a second offense DUI if convicted.

A second offense DUI carries harsher penalties and heavier fines.

Penalties for a Second DUI Offense

DUI offenses in Arizona are no laughing matter.

Penalties for a second offense regular DUI are, therefore, harsher and include:

  • 90 days in jail
  • Maximum jail sentence of six months
  • Fines and fees of around $3,470
  • Alcohol screening at your expense
  • Mandatory alcohol classes at your expense
  • Driver’s license suspension for up to one year
  • And more

A conviction will result in an ignition interlock device requirement from the MVD.

In addition, probation of up to 5 years may be ordered. Also, you will be required to perform at least 30-hours of community service and attend traffic survival school.

After conviction, you may be required to maintain a Certificate of Insurance, known as an SR-22, for three years. All of the fines, fees, and insurance will cost you nearly $20,000.

All cases are different. In Arizona, when charged with a second offense DUI, you can plead to a lesser charge. It is to your advantage to use an experienced DUI attorney when facing jail time and thousands of dollars of fines and fees.

Being in actual physical control of a vehicle with a BAC between 0.15% and 0.20% can result in a criminal charge of First or Second Extreme DUI.

These, too, are misdemeanor crimes carrying more severe penalties than the first or second DUI offenses. But none of the misdemeanor offenses are as harsh as an aggravated DUI charge in Arizona.

Aggravated DUI Charged as a Felony Crime

If you get any third DUI in 7 years, it will usually be charged as a felony. Also, though, you can be charged with aggravated driving or actual physical control while under the influence of alcohol or drugs for the following violations:

  • Driving on a suspended, restricted or revoked license.
  • Arrested and convicted of 2 or more DUIs within the last 7 years / 84 months.
  • Arrested for DUI and had a passenger in the vehicle who was 15 years old or younger.
  • Driving on the Wrong Side of a City Road, Freeway or Highway.
  • Driving under the influence that caused serious bodily harm or death – which would then also include vehicular manslaughter.

Sentencing and penalties for a felony DUI can be quite severe.

Penalties for a Felony Aggravated DUI

The following penalties are mandatory for a felony DUI in Arizona and include:

  • A prison sentence from 4 months to 2.5 years, but requiring at least 4 months in prison
  • Revoked or suspended driver’s license for three years
  • Use of and costs for installation of IID
  • Fines up to $150,000
  • Mandatory assessments
  • Probation fees
  • Substance abuse treatment
  • Supervised probation

If you receive a felony aggravated DUI, it is vitally important to seek counsel from an experienced DUI attorney. Mounting an effective defense can mean the difference between drastic penalties and mounting an effective defense. Don’t leave your future to chance.

You may be able to minimize the penalties and clear your name. Click the link below to schedule a FREE consultation.

“I Wasn’t Even Driving and Got Charged with a DUI.”

Since DUI stands for “driving under the influence,” you might think that you have to be operating a motor vehicle to get a DUI. Not true. The law prohibits someone from having “actual physical control” of a car while under the influence of alcohol or drugs.

What determines the actual physical control of a vehicle depends on the facts of the case. Circumstances often considered when determining “actual physical control” include the following:

  • If the car you were in was running or the ignition on
  • The location of the keys
  • Where the driver is located and in what position
  • Whether the driver is asleep or awake
  • If the headlights were on or off
  • Where the vehicle is located — on the road or legally parked
  • Time of day and weather conditions
  • Whether the driver voluntarily left the road
  • If the AC or heater is on
  • Whether the windows are up or down
  • And more

A clear definition of “actual physical control” is not found in Arizona statutes. So, for you to be convicted of a DUI, the prosecutor must prove that you were in actual physical control of the vehicle. But what does this mean?

Unless you are behind the wheel, keys in the ignition, engine running and driving when stopped by law enforcement, there is no black and white answer to “actual physical control.” The determining factors of “actual physical control” come from an Arizona Supreme Court decision, State v. Love. The Supreme Court of Arizona held that the “trier of fact” (the judge or jury) could consider all of the circumstances to determine whether someone has “actual physical control” of a vehicle.

These and other factors can have a tremendous bearing on your defense. The burden of proving you were intoxicated and in actual physical control of the vehicle at the time is the State’s burden.

The only way to know all of the facts and circumstances and how they impact your case is to sit down with your Phoenix DUI attorney and go through events from start to finish.

Effective Defenses for DUI

There are numerous defenses to a DUI charge, whether a misdemeanor or a felony aggravated DUI. A few of those defenses include:

  • The Shelter in Place Rule encourages drivers who have been drinking or are under the influence of drugs to pull off the road until they can resume driving. This defense allows the jury to consider whether the driver was using their vehicle as shelter while sleeping it off.
  • Your Constitutional Rights are essential. Even if you have not received a reading of your Miranda rights, you cannot be denied a request for having an attorney present. Time is of the essence in a DUI and having an attorney present as soon as possible can make all the difference.
  • The officer lacked reasonable suspicion for the stop.
  • There was no probable cause for a DUI arrest.
  • To be denied an independent blood or urine test or other evidence is a violation of your rights.
  • A Chemical test not administered promptly can prove to be a crucial error.
  • Improper administration of chemical tests for reasons other than time can prove to be critical errors.
  • And more

By statute, alcohol chemical testing must take place within two hours of the time of driving. If it is not, the case against you may be ineffective.

There are also common errors made with the so-called breathalyzer tests, including:

  • Disputable instrument errors
  • Operator error
  • Testing mouth and not breath alcohol
  • Inadequate or improper calibration of the instrument

Call the DUI Law Firm That Knows How to Win!

If you are facing DUI charges, your future depends on you taking control. Begin by contacting GURION LEGAL today for a FREE consultation at (480) 800-0020.

For more information about how Attorney Gurion can help you get control of the process, visit online at https://www.gurionlegal.com/.

What People Say

Client Testimonials


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September 23, 2019

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Omer is an excellent lawyer. He is known in the legal community as a skilled and prepared attorney. He is a fierce advocate for his clients.

Samantha Knobbe

Criminal Defense Attorney

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