These cases discuss decisions issued by the Arizona Court of Appeals. Most are memorandum decisions. Memorandum decisions are not legal precedent for other cases. Memorandum decisions are a good guide for what it takes to be found guilty of a felony DUI in Arizona. They also show what the sentences could be. Almost all these cases arose from the defendant’s appeal after a Felony DUI trial. Sentences for cases ended by plea agreement are often less than those imposed after a jury trial.
State v. Driggs, No. 2 CA-CR 2024-0057 Filed January 7, 2026
The defendant was charged with Aggravated DUI. The charges were he was driving while impaired and over .08% while his license was suspended and separately, with 2 prior convictions in the past 84 months.
FACTS
The defendant was pulled over for excessive speed. The officer determined that the defendant had a revoked Colorado license. The officer observed exhibited signs and symptoms of impairment. The officer noticed many of the typical signs of impairment, including slurred speech, and “droopy,” “watery [,] and bloodshot” eyes. The defendant agreed to participate in field sobriety tests. During the HGN eye test, the officer observed that both of the defendant’s eyes exhibited a lack of smooth pursuit. There were empty bottles of alcohol in the defendant’s vehicle which he said he consumed. The defendant initially agreed to participate in a preliminary breath test (PBT); however, he did not provide enough air in the machine, and he eventually stated he “wouldn’t do it.” The defendant was then arrested.
The arresting officer started a 15 minute “deprivation period” while he transported the defendant to the police station. At the station, the defendant was administered an Intoxilyzer breath test that registered a blood alcohol level over .10%. After being advised of his Miranda rights, the defendant said he had started drinking at 11:00 a.m., “took four shots from the open bottle of . . . whiskey” at his residence, and left for the bar “where he had two more shots,” a beer, and a glass of wine.
The case went to trial where the above information was presented to the jury. A Colorado law enforcement officer also testified that defendant was convicted of two separate DUIs in October 2015 and that he was on felony parole. Evidence was also presented the defendant’s Colorado driver license was revoked. At trial, the arresting officer checked that the defendant did not have access to any food or alcohol, that he had not vomited, and that at 2:50 a.m. the officer had begun the fifteen-minute “deprivation period” while transporting the defendant to the police station. This is important because if a person does vomit or drink during the 15-minute deprivation period it can affect the test results.
During the “deprivation period,” the defendant was handcuffed and seated behind the officer in the police vehicle. Once at the police station, a breath alcohol test was conducted by another officer, while the arresting officer continued watching the defendant. The first breath sample was taken at 3:13 a.m. and the result was .111 BAC, and the second result at 3:20 a.m. was .112 BAC. A forensic scientist testified that if an individual “burps up stomach content into his mouth and then swallows it down without notifying the officer . . . or the officer noticing,” the breath alcohol test would not be invalidated because “a burp” has “to actually re-gurge”.
After the State rested the defendant made a Rule 20 Motion for dismissal. Under Rule 20(a)(1), the court must enter a judgment of acquittal on any offense charged . . . if there is no substantial evidence to support a conviction. Substantial evidence ‘is proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt. The defendant’s Rule 20 motion was denied.
The jury found the defendant guilty. The court then sentenced the defendant to a ten-year prison term, with credit for 482 days.
APPEAL
On appeal the defendant argued his Rule 20 dismissal motion should not have been denied. He also argued the breath tests should not have been admitted into evidence because of a possible problem with the deprivation period. The court of appeals held that based on this evidence the denial of the Rule 20 motion was not error. The court of appeals also ruled there was no evidence of an actual problem with the deprivation period and so the breath test results were properly admitted into evidence.
The conviction and sentence were therefore upheld.
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.
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