By Michelle Behan, The Behan Law Group
In Arizona, the penalties for a DUI increase if the driver has previously been convicted of a DUI. Penalty-enhancing prior convictions are not limited to DUIs that occurred in Arizona. Under certain circumstances, an out-of-state conviction for DUI can enhance an Arizona DUI. The penalties for second offense DUIs in Arizona that occur within seven years are harsh, and range from 30-180 days in jail, fines and fees in excess of $3,500, and supervised probation. A third DUI within seven years is a felony, and will carry a sentence of 4 months -2.5 years in the state prison.
In order for a court to determine whether an out-of-state DUI conviction can constitute a prior in Arizona, the court takes a look at the elements of the out-of-state statute the driver was convicted of violating. If those elements are the same as the elements of the Arizona statute, then the out-of-state prior counts as a penalty enhancing Arizona prior. In State v. Ault, the Arizona Supreme Court established that the reviewing court must conclude that the foreign conviction includes, “every element that would be required to prove an enumerated Arizona offense.” 157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988).
Common differences in DUI statutes from state to state include the definition of “under the influence” and requirement of proof of a prohibited blood alcohol concentration at the time of driving.
Under the Influence
The definition of “under the influence” means various things throughout the United States. Several states, such as Nevada and North Dakota, prohibit a driver from being under the influence of drugs or alcohol while driving or in physical control of a motor vehicle. Convictions involving these types of statutes would not constitute prior convictions in Arizona, as the Arizona element requiring the driver to also be “impaired to the slightest degree” is missing. A.R.S. §28-1381(A)(1).
Time of Driving
There is a split throughout the country regarding what the state is required to prove in order to convict someone of having a prohibited blood concentration. In Arizona, you cannot have an alcohol concentration above .08 within two hours of driving. Other states, like Nevada, require the prosecutors to prove what the BAC was at the time of driving. A Nevada conviction for having a BAC of .08 at the time of driving would be a prior conviction in Arizona, as the time of driving is encompassed by the element “within two hours of driving.”
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