If someone is to be sentenced for a misdemeanor DUI in Arizona and they have another conviction for DUI within seven years of their current case, then they are subject to harsher sentencing laws as a second offense. However there are certain limitations on whether the other conviction can be used in court to enhance, or increase, the sentence as a second offense, which is one among many reasons why you need a Phoenix criminal defense attorney to help you.
In order to make the person subject to being sentenced as a second offender, the prosecutor must prove to the court 1.) that it is the same person for both cases, and 2.) that in the other case the person either was represented by an attorney or was advised of their right to an attorney and waived that right, and 3.) that they were convicted in Arizona for DUI, or committed acts in another state which if committed in Arizona would be a violation of Arizona DUI laws.
Many times convictions from other states cannot be used to show the person engaged in acts which if committed in Arizona would be a violation of Arizona DUI laws. The only practical way the Arizona court can determine what acts the person engaged in is to look at the records of that other state’s court case. It would not make sense to bring the witnesses from the other state and have them testify at trial here, so realistically the court can only use the records of that other court case. Those records would not say what specific acts the person engaged in; rather, they would only show the judge or jury made a finding that the acts the person engaged in had been a violation of that state’s DUI laws.
Therefore, the Arizona court determines the acts by looking at the other state’s laws, and if the other state’s laws are different from Arizona law then that means the person did not necessarily engage in acts which if committed in Arizona would be a violation of Arizona DUI. Let me give you an example; let’s say the other state made it a crime to be driving and having an alcohol level of .05% within two hours of driving. Arizona law has a standard of .08%, so someone who was found guilty in the other state of having an alcohol level of .05% would not be guilty in Arizona because it’s not illegal to drive here with an alcohol level .05%. Even if the evidence was that the person had an alcohol level of .20% it would not matter, because there’s no way for the Arizona court to determine the alcohol level from court records; the court records will only show it had to be at least .05%. So, if the state laws are different, then the acts the person would’ve had to commit are different and a violation in another state would not necessarily be a violation of Arizona’s laws.
In a second example, in Arizona someone is guilty of DUI if they are driving or in actual physical control of a motor vehicle while impaired to the slightest degree by drugs and/or alcohol. All states’ laws say someone is guilty if driving and impaired to the slightest degree, so in that regard Arizona law is not different from any other states’.
However, under Arizona law the person must either be driving or in actual physical control while impaired. Arizona law defines actual physical control differently than most other states’ laws. In Arizona the person is in actual physical control if they, “actually pose a threat to the public by their present or imminent control of a motor vehicle” while impaired. Most other states’ laws only require that the person exercise present or imminent control over the motor vehicle, and do not also require, as Arizona does, that the person “actually pose a threat to the public.” Therefore, someone can be guilty of a DUI in another state without “actually posing a threat to the public” whereas in Arizona they cannot. Remember, it is not what the person actually did in the other case that determines if it is a good conviction for sentence enhancement purposes in Arizona, but rather did the person engage in acts which if committed in Arizona would be a violation of Arizona DUI laws.
These are technical points that a good criminal defense lawyer in Phoenix can argue about in court, but the main thought you should have is, never assume that another DUI conviction can automatically be used for sentence enhancement purposes, particularly if it is for an out of state DUI conviction.
If you have a DUI case in Gilbert, Phoenix, Mesa, Scottsdale, or anywhere in Arizona you should always be represented by an experienced criminal defense attorney like me, Gordon Thompson.