Arizona DUI Case Review: What State v. Kisemh Teaches Defendants About Evidence

Background: What Happened on August 5, 2023

On a summer night in Kingman, Arizona, a family dispute over drinking turned into a criminal case that would ultimately reach the Arizona Court of Appeals. Glenda Kisemh, her daughter, and her niece were staying at a rental property when a confrontation over Kisemh’s alcohol use escalated. Kisemh left the property, got into the family truck, and — according to witnesses — backed directly into a service vehicle parked across the street.

When police arrived, Kisemh had already fled the scene on foot. She was found hiding near a bush in an undeveloped area — shoeless, intoxicated, using a false name, and cursing at officers. A warrant-authorized blood draw performed at the hospital less than two hours later showed a blood alcohol concentration of 0.219 — nearly three times the legal limit of 0.08 and well above the 0.20 threshold that triggers the second aggravated charge.

This case is a memorandum decision which means the following applies: NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

The Sole Issue on Appeal: Was She Actually Driving?

Kisemh’s appeal did not contest her intoxication. Her only argument was that there was insufficient evidence that she was the one driving the truck. This distinction matters enormously under Arizona law: to convict under A.R.S. §§ 28-1381 through 28-1383, prosecutors must establish that the defendant was either driving or in “actual physical control” of the vehicle.

The defense pointed to a credibility battle at trial. Kisemh’s daughter initially told police that Kisemh drove the truck, backed into the parked vehicle, and even continued driving down the street while the daughter tried to stop her — including climbing through the back window. But at trial, the daughter reversed course entirely, claiming she had lied to police out of anger.

The defense also argued the truck was difficult to start, requiring use of an electrical toggle switch, and that Kisemh had never been taught how to operate it and had never been seen driving it before.

“I saw [Kisemh] and then [Daughter] on top of her, trying to, like, switch positions and trying to, like get her out of the driver’s seat. . . . It was [Kisemh]. She was in the driver’s seat.”
— Niece’s testimony at trial (¶9)

How the Court Weighed the Evidence

The Arizona Court of Appeals applies a deferential standard when reviewing jury verdicts: it asks only whether “reasonable persons could accept [the evidence] as sufficient to support a guilty verdict beyond a reasonable doubt.” The appellate court does not re-examine witness credibility or weigh competing evidence — that is exclusively the jury’s role.

Against that backdrop, the court identified four key pieces of evidence supporting the verdict:

1. The daughter’s original statement to police. While the daughter walked back her account at trial, the jury was shown body camera footage capturing what she told officers on the night of the incident — that Kisemh drove the truck. The jury was entitled to credit that prior statement over the trial recantation.

2. The niece’s eyewitness testimony. Unlike the daughter, the niece did not recant. She testified clearly that she saw Kisemh in the driver’s seat with the daughter on top of her trying to remove her from it — consistent with a vehicle in motion.

3. Kisemh’s background as an electrician. The defense’s argument that the truck required a special toggle switch to start cut both ways. The court found it reasonable for the jury to infer that someone who works as an electrician would have little difficulty figuring out a non-standard vehicle ignition.

4. Flight from the scene. Kisemh fled on foot before police arrived, gave a false name, and hid near brush in an undeveloped area. Under Arizona precedent (State v. Lujan, 124 Ariz. 365 (1979)), a defendant’s manner of leaving a scene — even without active pursuit — can reflect “consciousness of guilt.” The jury was entitled to treat her flight as evidence she knew she had done something wrong.

What Arizona DUI Defendants Need to Understand

This case offers several important lessons for anyone facing a DUI charge in Arizona — particularly an aggravated charge involving a suspended license.

Recanted testimony does not erase what was said first. When a witness changes their story between the night of an incident and the trial date, juries see both versions. Body camera footage, dispatch recordings, and written police reports preserve the original account. The jury in this case clearly found the night-of statement more credible than the courtroom reversal.

Circumstantial evidence carries real weight. No one handed the jury a video of Kisemh behind the wheel at the moment of impact. But the combination of eyewitness testimony, prior statements, flight behavior, and background inference was enough. Arizona law does not require direct evidence of every element — reasonable inferences from circumstantial evidence are sufficient.

Aggravated DUI carries severe consequences. Under A.R.S. § 28-1383(A)(1), driving under the influence with a suspended license is a Class 4 felony. Kisemh received two concurrent 2.5-year sentences. This is not a situation where diversion programs or minimal penalties typically apply — a conviction can mean mandatory prison time, long-term license consequences, and a permanent felony record.

The “actual physical control” element is always contested. Arizona courts have long recognized that a person need not be actively driving to be guilty of DUI — sitting in the driver’s seat of a running vehicle may be sufficient. Anyone charged with DUI in Arizona should understand how this element applies to their specific situation.

A Non-Precedential Decision — But Still Instructive

It is worth emphasizing that State v. Kisemh is a memorandum decision issued under Arizona Rule of the Supreme Court 111(c). It carries no precedential weight and may only be cited as authorized by that rule. Even so, decisions like this one illustrate how Arizona appellate courts analyze sufficiency-of-evidence challenges — and they offer a clear window into the types of proof that juries find persuasive in aggravated DUI cases.

Understanding what courts look for, and what juries actually decide, is essential context for anyone building a defense strategy in Arizona.