If a defendant is found guilty of Arizona DUI and the court determines the defendant has been convicted of DUI within the past 7 years then the sentence is “enhanced” or made much harsher [28-1381.K]. The 7-year time period is between the dates of the commission of the DUIs, for example, a DUI committed on January 1, 2017 would be within 7 years of a DUI committed on January 1, 2024 and can be used to enhance the sentence.
Arizona law requires a prosecutor to tell the court of any prior Arizona DUI convictions within 36 months of the new DUI [28-1381.E]. The way the prosecutor notifies the court is to file a pleading known as, “Allegation of Prior Conviction.” The law does not require the prosecutor to notify the court of any Arizona DUIs committed more than 36 months prior, however, the prosecutors can and generally do so allege.
Prior DUI convictions can include, “…an act in another jurisdiction that if committed in this state would be a violation of…” Arizona DUI. [28-1381.K] An out of state prior DUI conviction cannot be used to enhance an Arizona DUI sentence unless it is for an act which if committed in this state would be a violation of…an act in the other state which also had to be in violation of Arizona DUI laws.
The test an Arizona sentencing court must use in determining this is described in State v. Moran, namely, if the act in the other state would be a violation of Arizona DUI was it possible for the defendant to have violated the other state’s DUI law in a way which would not have been a violation of Arizona DUI law. The Arizona court has no way of knowing the actual facts of the out of state conviction and so can only look to the other state’s law to see if it was possible to violate the out of state law in a way which would not have been a violation of Arizona DUI law.
In Arizona DUI law a defendant can be guilty if they drive are in actual physical control of a vehicle while impaired. [28-1381. A.1] For this purpose, “drive” means, “…to operate or be in actual physical control of a motor vehicle.” [28-101.24] Therefore, the vehicle must be a motor vehicle and so if it is possible to violate another state’s DUI law without driving or being in actual physical control of a “motor vehicle” then it is possible to violate the other state’s DUI law and not Arizona’s.
Here are 2 examples of how it is possible to violate another state’s DUI laws in a way it would not be a violation of Arizona’s DUI law:
Michigan:
Under Michigan law, a person can be DUI without driving a motor vehicle. Michigan has in effect two versions of its DUI laws, one is a basic DUI like Arizona’s, and a second version for accidents with injuries. The basic DUI law says, “…A person, whether licensed or not, shall not operate a vehicle on a highway…” while intoxicated. [MCL 257.625.1] ““Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power…” [MCL 257.79] In a Michigan Supreme Court case, a judge said a “vehicle” could be a horse and buggy. Therefore, in Michigan a defendant can be convicted of DUI while driving a horse and buggy and since you cannot be convicted of DUI in Arizona for driving a horse and buggy it is possible to commit an act in Michigan which would not be a DUI in Arizona.
California:
Laws can change over time and so what is important for this issue is what was the other state’s and Arizona’s DUI laws at the time the out of state DUI was committed. In 2019 in Arizona the definition of “motor vehicle” [28-101.50] excluded electric bikes, however in California the definition vehicle was, “…’vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power.” [California Vehicle Code §§ 23152(f)]. Since an electric bike is moved by a motor an electric bike was included in the definition of a vehicle and a defendant could be guilty of California DUI with an electric bike. California later changed its laws and so as of January 1, 2022 an electric bike is now considered a bike and no longer a vehicle, therefore a person can no longer get a California DUI on an electric bike. However, since in 2019 you could get a California DUI on an electric bike but not an Arizona DUI, a 2019 California DUI could not be considered a prior DUI for Arizona sentence enhancement.
Remember the legal test is not what act the defendant committed which violated the other state’s DUI laws, but rather could the defendant commit the DUI in the other state in a way which would not have violated Arizona DUI laws.
If you have a DUI case where the State has alleged you have an out of State prior DUI conviction it is very important to look at the DUI laws of that state to see if it was possible to violate the other state’s DUI law and not Arizona’s.
Gordon Thompson
For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.