A third-offense DUI in a seven-year period is an automatic aggravated DUI in Arizona. A class 4 felony, penalties include at least four months in prison, a 3-year license revocation, at least $4,000 in fines, an alcohol and drug screening, traffic school, and using an ignition interlock device for two years. A DUI-3rd is a felony even if no injuries or property damage results.
In this article, our Arizona criminal defense attorneys discuss:
- 1. What is a DUI-third?
- 2. What are the penalties for a DUI third in Arizona?
- 3. What happens to my license?
- 4. How can I win the case?
- 5. Can a DUI get sealed?
1. What is a DUI-third?
A DUI-third in Arizona is a third DUI case in a seven-year time span. The first offense DUI and second offense DUI could have occurred anywhere in the U.S., not just Arizona. And it does not matter whether the prior convictions were ordinary DUIs, Extreme DUIs, or Super Extreme DUIs.
People face Arizona charges for driving under the influence even if they are just slightly impaired by drugs or alcohol. And drivers who are not impaired at all can still get convicted of DUI by having a blood alcohol concentration (BAC) above the legal limit – 0.08% or higher.1
2. What are the penalties for a DUI third in Arizona?
A class 4 felony, a third DUI conviction within seven years of two prior DUIs carries:
- A mandatory minimum 4-month Arizona State Prison sentence;
- At least $4,000 in fines;
- 3-year driver’s license suspension;
- An ignition interlock device (IID) for 2 years;
- Alcohol and drug screening, education, or treatment; and
- Traffic survival school course2
3. What happens to my license?
A third offense DUI in Arizona triggers a 3-year license suspension.5 The only way DUI defendants can keep their driving privileges is to win the criminal case and the administrative MVD hearing with the Arizona Motor Vehicles Department (MVD).
The MVD hearing operates independently from the criminal case. Winning one does not guarantee that the defendant will win the other. In fact, MVD hearings are harder to win than criminal cases. Whereas criminal court requires prosecutors to prove guilt beyond a reasonable doubt, the MVD judge just needs a “preponderance of the evidence” to suspend the defendant’s license.6
4. How can I win the case?
Various defense strategies exist that could cause a third DUI charge to be reduced to a lesser offense or even dismissed. Twenty potential DUI defenses in Arizona are the following:
- Any prior DUI arrests occurred more than seven years before the current case.
- One or both prior DUI charges were dismissed or reduced to a lesser driving offense.
- The defendant was just a passenger in the vehicle and never took control of the wheel.
- The police did not have sufficient reasonable suspicion to pull the defendant over in the first place. (For example, perhaps the police were racially profiling the defendant.)
- The police gave the defendant incorrect instructions for performing the field sobriety tests (the walk-and-turn, one-legged-stand, and horizontal gaze nystagmus tests).
- The defendant had medical conditions that prevented him/her from performing the field sobriety tests, such as a twisted ankle or a balance disorder.
- The defendant had an eye condition that caused him/her to fail the horizontal gaze nystagmus test.
- The DUI arrest was executed without sufficient probable cause to believe a crime had been committed.
- The police failed to wait and observe the defendant for a full 15 minutes before administering the chemical breath test.
- The breathalyzer was defective and returned inaccurate blood alcohol content results.
- The tech who calibrated the breathalyzer had a lapsed certification.
- The breathalyzer had not been calibrated recently.
- The police did not get a warrant to perform a blood draw if the defendant refused the blood draw.
- The blood samples were contaminated somehow.
- The tech who handled the blood samples had a lapsed certification.
- The defendant was having a seizure or in a diabetic coma, and the police mistook it as intoxication.
- The defendant had dental work – such as a bridge – that allowed alcohol to pool, and it caused the breath test to return an inflated BAC number.
- The defendant had swished with a mouthwash that contains alcohol, and it caused the breath test to register an inaccurately high BAC number.
- The defendant suffered from a medical condition – such as GERD, acid reflux, or auto-brewery syndrome – that caused the breathalyzer to return false positives for a high BAC.
- The police committed misconduct, such as coercing a confession or conducting an unlawful search of the vehicle.
5. Can a DUI get sealed?
Arizona law does not allow criminal records to be sealed or expunged. The next best option is to ask the judge to “set aside” the case. This acknowledges that the defendant completed all the sentence requirements. Set asides show up on future background checks, and they look good to potential employers, landlords, etc.7
Contact our experienced attorneys if you’re facing felony or misdemeanor DUI / DWI charges. Our DUI lawyers serve clients throughout Arizona, including Phoenix, Scottsdale, Gilbert, and more.
- ARS 28-1381; see also State v. Clark, (Ariz. Ct. App. 2020) 472 P.3d 544.
- ARS 28-1382.
- ARS 28-1381; ARS 28-1382.
- ARS 28-1381.
- ARS 28-1385.
- See Wieseler v. Prins, (Ariz. Ct. App. 1990) 167 Ariz. 223, 805 P.2d 1044, 66 Ariz. Adv. Rep. 40 (MVD hearings use the “preponderance of the evidence” standard.).
- ARS 13-905.