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Posted on September 24, 2021 in DUI

Felony vs. Misdemeanor DUI in Arizona

DUI’s in Arizona are divided into misdemeanors and felonies. A DUI can become a felony based on a variety of factors.

The state legislature included aggravating factors into the DUI laws to determine whether a DUI is a felony or misdemeanor. If you were arrested for DUI, you should have been provided with a criminal complaint at your initial appearance. This complaint will specify the charges you are facing and how the DUI is classified.

What are the Elements of a DUI Charge in Phoenix?

DUI’s all have the same foundational elements. Additional elements are added if the DUI is a felony; the state has to prove additional facts existed at the time of the DUI.

The basic elements for all DUIs require that a defendant:

  • Had actual physical control of a motor vehicle
  • While impaired by an intoxicant

Alcohol and drugs both qualify as intoxicants. The state can use the results of a blood test indicating the presence of drugs or a BAC above .08 to prove impairment. They don’t actually have to show you were unable to drive properly if they have incriminating blood work.

When is a DUI Considered a Misdemeanor?

A misdemeanor is any crime for which the maximum penalty does not exceed one year of imprisonment. If the allegations against you do not include the criteria for a felony DUI, your charge will be a misdemeanor.

Generally speaking, a first and second offense will be a misdemeanor. A BAC of between .08 and .15 will be charged as a basic DUI. A BAC above .15 is charged as an “Extreme DUI.” Both regular DUIs and Extreme DUIs are Class 1 Misdemeanors.

However, the Extreme DUI carries a harsher mandatory minimum jail sentence. For a BAC between .15 and .20, the minimum sentence is 30 days jail. For a BAC above .20, the minimum jail sentence is 45 days jail. The minimum jail sentence on DUI for a .08 to .15 BAC (a “regular” DUI) is only 10 days.

DUI and Extreme DUI are Class 1 Misdemeanors; the maximum jail sentence for both is six months.

When is a DUI Considered a Felony?

A felony is any crime for which the maximum penalty is over one year of imprisonment.

Pursuant to Arizona Revised Statute Section 28-1383, a DUI is a felony if:

  • You have two prior DUI convictions in the previous seven years
  • There is a minor under the age of 15 in the vehicle
  • Your license was suspended when you drove under the influence
  • You drove the wrong way on the road
  • You were required to use an Ignition Interlock Device at the time

Each of these facts makes a DUI a Class 4 Felony, except for having a minor in the car. Having a minor in the car makes a DUI a Class 6 Felony. A felony DUI in Arizona is also called “Aggravated DUI.”

A Class 4 Felony is punishable by between one and 3.75 years imprisonment, depending on the presence of mitigating or aggravating factors. The presumed sentence is 2.5 years.

A Class 6 Felony is punishable by between four months and two years imprisonment. This sentence can also vary based on aggravating or mitigating factors. The presumptive sentence by statute is one year.

If you have been accused of a DUI in Phoenix, Arizona, contact a criminal defense lawyer for help.

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