How Does a DUI in Arizona Become a Felony?

I am a felony DUI attorney and under Arizona law, a felony DUI is officially known as Aggravated DUI. There are 5 ways an impaired or intoxicated driver can have a DUI charge upgraded to a felony:

1. When the driver’s license has been previously suspended or revoked;
2. When the driver is a repeat offender – defined by statute as two or more prior DUI convictions within the past seven years;
3. When there is a child under the age of fifteen in the vehicle;
4. When the driver should have an ignition interlock device in the vehicle; and
5. When the driver is traveling left of center.

The legal distinction between a felony and a misdemeanor is for a felony, a person can be sent to Arizona Department of Corrections (commonly known as prison). For a misdemeanor, incarceration happens at the city or county jail. For most misdemeanor DUIs (even those misdemeanor offenses that require weeks or months in the county jail), work release and house arrest with an ankle bracelet are now common alternatives to flat time in the local jail. As a result, most of my misdemeanor DUI clients are able to keep working while serving their mandatory jail sentences.

For a felony DUI, however, the state prison does not have any type of work release or work furlough programs. As such, a felony DUI comes with extremely harsh financial consequences. Very few employers are inclined to hold someone’s job while they serve several months in prison.

When the Arizona legislature first created felony DUI a few decades back, the initial theory was that any repeat offender had already been through court-ordered, out-patient substance abuse treatment. Consequently, residential treatment was needed and attendance compelled through a four month prison term.

Over the years, additional methods of committing Aggravated DUI were added to the statute. These new forms of felony DUI did not include a repeat offender requirement. For example, a first-time DUI offender driving on the right side of the road could be subject to as little as one day in jail. If that same first-time offender were driving left of center, then the mandatory minimum penalty becomes four months in prison.

DUI with a child under 15 in the car is the only form of felony DUI that does not mandate a prison sentence. It is still a felony, however, which means huge financial penalties, restrictions associated with supervised probation, and the loss of key civil liberties (such as voting and the right to possess a weapon).

And, please be careful about driving your kid’s friend home after the ball game if you have had a few beers. In 2019, the Arizona Court of Appeals declared that the State need not prove that the driver had knowledge that his or her young passenger was under the age 15. See, State v. Gomez, 246 Ariz. 237, 437 P.3d 896 (2019). The child’s birthdate, not the driver’s knowledge, is the controlling factor.
Fortunately, most first-time felony DUI offenders are not placed in general population, rather the Department of Corrections has established minimum security DUI units. While such prison yards tend to be safer than general population, they are, nonetheless, still a force separation from family and friends.

The ability to find the weaknesses in the State’s evidence and then negotiate a felony DUI down to a misdemeanor charge are essential skills for a DUI attorney. The attorneys at Rowley Chapman & Barney have over thirty years of experience in keeping felony DUI offenders out of prison. If you or a family member have been charged with Aggravated DUI, please give us a call at (480) 833-2341.

Attorney Profile: Brian D. Strong – Criminal Defense
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DUI Defense Lawyer
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