Aggravated DUI Lawyer in Phoenix

The First Question Is Why the DUI Became a Felony

Arizona's aggravated DUI statute does more than increase the punishment for a standard DUI. A.R.S. § 28-1383 creates separate felony charges when a qualifying DUI occurs under one of several specific circumstances.

That makes an aggravated DUI defense a two-part analysis.

First, the State still has to prove the underlying DUI or Extreme DUI offense. Second, it must prove the circumstance that elevates the case to felony status.

At Cates & Reed, PLLC, we have defended criminal cases throughout Arizona since 1997. Founding attorney Dwane Cates is a Board Certified Specialist in Criminal Law, and our attorneys work directly with clients rather than turning cases over to case managers or rotating staff.

Five Routes Into Arizona's Aggravated DUI Statute

A.R.S. § 28-1383 currently identifies five ways a qualifying DUI can become aggravated.

DUI While Driving Privileges Are Suspended or Revoked

A DUI can become a Class 4 felony when it occurs while the person's driver license or privilege to drive is suspended, canceled, revoked, or refused.

The statute is broader than suspensions caused only by a prior DUI. It also contains a separate provision for certain restrictions imposed after DUI-related proceedings.

The defense may need to examine the exact status of the license, when the MVD action became effective, and whether the State can establish the facts required by the statute.

Third or Subsequent DUI Within 84 Months

A third or subsequent qualifying DUI within the statutory 84-month period can also be charged as a Class 4 aggravated DUI.

The dates of the offenses matter.

Arizona also excludes certain periods of incarceration or absconder status when calculating the statutory period, and qualifying convictions or conduct from other jurisdictions can create additional issues.

For clients whose aggravated charge is based on prior DUIs, our multiple DUI defense page explains the broader repeat-offense framework.

DUI With a Passenger Under 15

A DUI committed while a person under 15 is in the vehicle is aggravated DUI under § 28-1383(A)(3).

Unlike the other principal aggravated DUI routes, this offense is classified as a Class 6 felony, not a Class 4 felony.

Its incarceration rules also differ from the Class 4 provisions because the mandatory minimum is tied to the underlying DUI or Extreme DUI statute.

DUI While an Ignition Interlock Is Required

Aggravated DUI can also apply when a person commits a qualifying DUI while required to operate vehicles with a certified ignition interlock device.

That requirement can arise through a court order or through an MVD requirement under Arizona law.

This is a Class 4 felony, but it is important not to assume that every Class 4 aggravated DUI carries the same mandatory incarceration rule.

Wrong-Way DUI

A qualifying DUI committed while driving the wrong way on a highway is a Class 4 aggravated DUI.

Arizona defines “wrong way” as vehicular movement in a direction opposing the legal flow of traffic. The statutory definition does not include a median crossing or a crash that merely leaves the vehicle stopped facing the wrong direction.

That distinction can matter when the felony allegation depends specifically on § 28-1383's wrong-way provision.

Class 4 Does Not Always Mean the Same Mandatory Sentence

One of the most important misconceptions about aggravated DUI is that every Class 4 case automatically carries the same four-month mandatory prison sentence.

It does not.

Under current § 28-1383, a person generally must serve at least four months before becoming eligible for probation, suspension of sentence, or other release when convicted under specified circumstances, including:

• DUI with suspended, canceled, revoked, or refused driving privileges under § 28-1383(A)(1)
• A qualifying third DUI under § 28-1383(A)(2)
• Wrong-way aggravated DUI under § 28-1383(A)(5)

A person convicted through the repeat-DUI provision who has three or more qualifying prior DUI convictions within the calculated statutory period can face a minimum of eight months before release or probation eligibility.

The ignition-interlock route is also a Class 4 felony, but § 28-1383 does not place that pathway inside the same four-month mandatory-minimum subsection.

That is why a felony classification alone does not tell you the sentence.

The exact paragraph of § 28-1383, prior record, plea or trial outcome, and other sentencing laws all matter.

Arizona also permits probation for up to 10 years for a § 28-1383 conviction when probation is legally available.

Aggravated DUI Carries Additional Financial and Vehicle Consequences

A conviction under § 28-1383 includes several mandatory financial assessments.

Current law requires, among other amounts:

• A fine of at least $750
• An additional $250 assessment
• A $1,500 prison construction and operations assessment
• A $1,500 public safety equipment assessment

Those amounts total at least $4,000 before other applicable surcharges, treatment expenses, incarceration costs, restitution, or other financial obligations.

Arizona also has a vehicle-forfeiture provision specifically for aggravated DUI.

If the person convicted owned and operated the vehicle used in the offense, A.R.S. § 28-1384 generally requires the court to order forfeiture, subject to the statute's exceptions.

The Child-Passenger Aggravated DUI Is Different

A DUI with a passenger under 15 should not be analyzed using the same penalty summary as a Class 4 aggravated DUI.

It is a Class 6 felony.

Section 28-1383 directs the court to impose at least the minimum incarceration required by the underlying DUI statute. That means the minimum can depend on whether the underlying charge is a standard DUI under § 28-1381 or an Extreme/Super Extreme DUI under § 28-1382.

Arizona also has a separate statute governing eligible non-dangerous Class 6 felonies.

In an appropriate case, Class 6 felony law may allow the offense to remain undesignated during probation or ultimately be designated a misdemeanor. Eligibility depends on the offense, criminal history, disposition, and other statutory requirements.

That possibility should not be confused with a Class 4 aggravated DUI, which cannot simply be treated as an undesignated Class 6 offense unless the actual negotiated disposition changes the charge.

MVD and the Criminal Case Are Two Separate Tracks

An aggravated DUI can create both a criminal prosecution and a separate driver's-license proceeding.

The criminal felony case ultimately proceeds in Arizona Superior Court.

The MVD process addresses driving privileges separately.

After qualifying DUI test results, A.R.S. § 28-1385 allows MVD to impose an administrative suspension. A requested hearing focuses on a limited set of issues, including whether the officer had reasonable grounds for the DUI arrest, whether a qualifying test was taken, and whether the testing method and results were reliable and accurately evaluated.

The outcome of that administrative proceeding does not decide the criminal case.

Arizona law expressly provides that if an MVD suspension is not sustained after administrative review or hearing, that ruling does not control and is not admissible in the criminal prosecution.

A conviction under § 28-1383 creates an additional license consequence. MVD must revoke the person's driving privilege and generally may not issue a new license for at least one year after conviction.

Some repeat-DUI situations can result in longer revocation periods. Current MVD guidance identifies a three-year revocation for a third or subsequent DUI within seven years.

Ignition-interlock requirements also depend on the particular DUI and licensing history rather than one universal two-year rule.

Defending an Aggravated DUI Means Challenging Two Different Things

A felony DUI defense should not focus only on the aggravating circumstance.

The State has to prove both levels of the case.

The Underlying DUI

Depending on the allegations, the defense may examine:

• Whether the stop or detention was lawful
• Whether the State can prove impairment
• Blood or breath testing procedures
• Laboratory records and chain of custody
• Drug evidence
• Whether the accused was driving or in actual physical control
• Statements obtained during the investigation

A person found in a parked vehicle is not automatically outside Arizona's DUI statute. Actual physical control is a separate legal question that depends on the facts.

The Felony Trigger

The defense can also examine the exact § 28-1383 allegation.

That can mean reviewing:

• MVD records and the effective status of a license
• Prior DUI dates and convictions
• Whether an out-of-state offense legally qualifies
• How the 84-month period was calculated
• Whether an ignition-interlock requirement was actually in force
• The passenger's age
• Whether the conduct satisfies Arizona's statutory definition of wrong-way driving

Weakness in either layer can materially change the case.

Prior DUI and License Records Deserve Independent Review

A prior conviction should not simply be accepted because it appears in a database.

Where a repeat-DUI allegation depends on an out-of-state matter, the defense may need to determine whether the prior conduct would qualify under Arizona's statutory requirements.

The same applies to driving-status cases.

Section 28-1383 includes rules governing when notice of suspension, cancellation, revocation, or refusal becomes effective. The records supporting that felony allegation should be reviewed rather than assumed accurate.

This is one reason aggravated DUI cases require more than simply debating the BAC result.

A Felony Record Has Serious Consequences, but “Permanent” Is Too Simple

An aggravated DUI conviction can affect employment, professional licensing, civil rights, firearm rights, insurance, and future criminal proceedings.

A felony conviction can also suspend civil rights under Arizona law.

Those consequences are serious, but they are not accurately described by saying nothing can ever change.

Arizona provides post-conviction remedies for some eligible defendants, including setting aside a judgment and petitioning to seal qualifying criminal records after the applicable waiting period.

A sealed aggravated DUI can still remain available for certain statutory purposes, and special disclosure rules apply to some jobs involving the operation of vehicles.

Civil-rights restoration also depends on the person's conviction history and completion of the sentence.

For more information about those issues, see our restoration of civil rights practice.