Gordon Thompson

DUI and Criminal Defense

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What is a Felony DUI in Arizona Number 12, State v. Driggs

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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Domestic Violence Disorderly Conduct Conviction Reversed

Domestic Violence is a serious matter. Having said that conduct which is not necessarily violent can be classified as “Domestic Violence.

When police respond to a 911 Call regarding Domestic Violence they can charge a person for one or more domestic violence crimes. A very common charge is Disorderly Conduct alleging “Seriously Disruptive Behavior” under 13 A.R.S. § 2904(A)(1).

13 A.R.S. § 2904(A)(1)  says, “A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person: 1. Engages in fighting, violent or seriously disruptive behavior.”

“Seriously Disruptive Behavior” is a somewhat vague term and can apply to many actions. Perhaps mindful of that, the Arizona Supreme Court in In Re Julio L. limited “Seriously Disruptive Behavior” to be “of the same general nature as fighting or violence or conduct liable to provoke that response in others and thus to threaten the continuation of some event, function, or activity.” In short, the behavior must be either violent or likely to provoke a violent response.  If there is no element of violence, then it is not a violation of 13 A.R.S. § 2904(A)(1).

This issue recently came up in the Court of Appeals case of Settlemeyer v. State, No. 2 CA-SA 2025-0081 Filed 1/15/26.  In Settlemeyer, the defendant and her husband were divorcing but still living together. The husband, a law enforcement officer, was on call and away from their home when he was called into work. He returned home to retrieve his equipment.

The defendant had barred their home’s front door and deactivated the garage door, preventing the husband from entering. The defendant had left the husband’s vest and uniform in his patrol vehicle but had not left a necessary radio battery and long-sleeved shirt, and he was delayed for ten to fifteen minutes while the defendant retrieved those items.  Once the husband obtained his equipment, he called 9-1-1 and waited for police to arrive before reporting for duty.

The defendant was charged in the Marana Town Court with a violation of 13 A.R.S. § 2904(A)(1).  Although the case was not specifically described as “Domestic Violence,” the Marana Town Court records say it was Domestic Violence.  The case was tried in a bench trial. The judge found the defendant guilty and said it was because the defendant had intentionally prevented the husband from entering the home and “thereby disrupted his ability to get to work on that day.” The court made no mention of violence. The defendant was then sentenced to probation and counseling, as required by 13 A.R.S. § 3601.01.

The defendant exercised her right to appeal to the Superior Court, and that court affirmed her conviction and sentence.

Under normal circumstances that would be the end of a municipal court case because a defendant has no right to a further appeal. A defendant, however, can file in the Court of Appeals what is known as a petition for Special Action.  In such petition the petitioner asks the Court of Appeals to take the case because of some unusual circumstances.  Whether the Court of Appeals accepts the petition and takes jurisdiction or not is entirely up to the court, and it often does not.

In Settlemeyer the defendant’s petition alleged the evidence was insufficient as a matter of law to be a violation of 13 A.R.S. § 2904(A)(1).  Since there was no evidence the defendant engaged in violent behavior nor behavior likely to provoke a violent response, she had a good argument.  The Court of Appeals accepted the defendant’s petition.

The Court of Appeals went on to reverse the conviction. In doing so the court said:

”Although the husband was unable to readily enter his garage or home, the defendant’s conduct is not analogous to a violent act and would not have reasonably warranted a violent response on his part. Nor was the disruption sufficient to stop his activity—The husband was delayed only briefly and was quickly provided with the equipment he needed. And The husband’s decision to wait for police to arrive after calling 9-1-1 rather than report for duty suggests that he was not seriously disrupted by the defendant’s conduct. Any inconvenience the defendant caused was simply not substantial enough to constitute criminal conduct.”  Since there was no violence there was no basis as a matter of law to convict the defendant.

What follows is strictly my personal opinion.

The Settlemeyer decision is a memorandum decision. That means it cannot be cited as legal authority. The case, however, is an important case.  Convictions are rarely reversed when the issue is sufficiency of the evidence. Additionally, the Court of Appeals rarely accepts special action petitions from a municipal court conviction when the issue is the sufficiency of the evidence.

I further believe the court only accepted the petition because the evidence clearly did not show the defendant commit a violation of .13 A.R.S. § 2904(A)(1).  The Supreme Court’s opinion in In Re Julio L.  is biding law and very clear in what that law is. There cannot be a violation of 13 A.R.S. § 2904(A)(1), “Seriously Disruptive Behavior” unless the defendant either engages in violence or in conduct likely to provoke a violent response.

The evidence in Settlemeyer did not come close to meeting the Supreme Court’s clear standard.  Domestic Violence is a very serious matter and to say a minor inconvenience without more is a crime trivializes the seriousness of domestic violence.

Domestic violence can have immediate and lifelong consequences.  Although I do not know if it happened in this case, normally at the first court appearance the judge orders the defendant not to go back to the scene of the incident, which could mean the defendant’s home. Other actions can include suspension of Fingerprint Clearance cards, which occupations such as Nurses and Teachers are required to keep valid as a condition of employment.

Because of the seriousness of domestic violence charges prosecutors and courts should follow law as clearly stated by our Supreme Court.

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.

Website:  https://www.GordonThompsonAttorney.net

Blog:  https://www.GordonThompsonAttorney.net/blog/

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Prescription Drug DUI - Prove You’re Not Guilty Without a Witness

In Arizona it may be possible to prove you’re not guilty of a Pharmacy Prescription DUI without calling a witness.

I’m Gordon Thompson DUI & criminal attorney for 46 years.

In Arizona a person is guilty of a Prescription Drug DUI if a Prescription drug is impairing the person to slightest degree. If impaired, then they are guilty if they have a prescription drug in their blood. It is however an affirmative defense that they have taken that drug as prescribed by a medical professional.

An affirmative defense is one which the defendant must prove by the standard of preponderance of the evidence, which means more likely than not. The question then is how does the defendant meet their burden of proof that they took the drug as prescribed?

The State must first present evidence that there was an active prescribed drug in the blood sample obtained by the police from the defendant. This evidence is produced through the testimony of the crime lab analyst (criminalist) who did the testing. The State’s lab test results almost always report the quantity of the active drug found in the defendant’s blood. The criminalist is also often familiar with the drug and its effects.

Once the State has presented this evidence the burden shifts to the defendant to show the drug was taken as prescribed by a medical professional.

One way to prove the drug was taken as prescribed is to have the medical professional testify they prescribed the drug and, given the level found in the defendant’s blood sample, the defendant would have taken it as prescribed. This method can be hard to use because medical professionals do not like to testify in court.

A second way is by one of the Rules of Evidence, with or even without a witness.  Pharmacy  Prescription Records contain most of the information the defendant needs to prove they took the drug as prescribed. By law Pharmacy Records must show who was the prescribing medical professional and instructions as to how it is to be taken, that is the frequency and dosage. Pharmacy Prescription Records are out of court statements, known as Hearsay. Hearsay is inadmissible unless the particular statement falls into an exception to the Hearsay Rule. Pharmacy Prescription Records can be admissible as an exception to the Hearsay Rule. The Pharmacy Records must be kept in the normal course of business by someone whose job is to make the Record.  Pharmacy Business Records are kept by the Pharmacy’s Custodian of Records.

The defendant can have the court issue a subpoena duces tecum directing the Custodian to appear at trial with the Pharmacy Prescription Records. The Custodian usually knows nothing of what is discussed in the Records and can only testify these are the requested Pharmacy Prescription Records. Pharmacy Prescription Records, however, are also admissible without actually having the Custodian testify in court. In response to the subpoena duces tecum, the Custodian can sign a certificate stating these are the requested Pharmacy Prescription Records and then send the Records to the court or the defendant’s attorney. The Pharmacy Prescription Records are then admissible without the custodian, unless the prosecutor can show the Records are not trustworthy.

According to the Towns case, Pharmacy Prescription Records are trustworthy.  This is because the pharmacy has a duty to keep accurate Pharmacy Prescription Records and failure to do so can result in loss of the pharmacy license and even jail. Therefore, Pharmacy Prescription Records are admissible as an exception to the Hearsay Rule.

The defendant’s attorney can then use Pharmacy Prescription Records to meet the defendant’s burden that it was more likely than not the defendant took the drug as prescribed. They can do so by asking the State’s criminalist if given the quantity found in the defendant’s blood sample the defendant could have taken the drugs as prescribed? If the criminalist says Yes, then the defendant has met the burden of showing the drugs were taken as prescribed and has done so without calling any witnesses of their own. Even better, the State’s witness has in effect said the defendant has met his burden of proof.

You may ask what if the criminalist says, No. That would be a problem, however in Arizona defendant’s attorneys have the right to interview witnesses prior to trial and so the attorney should know that prior to trial. If so then the defendant can call their own expert witness to say Yes, which is all right, however it is better to have the State’s criminalist say it.

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.

Website:  https://www.GordonThompsonAttorney.net

Blog:  https://www.GordonThompsonAttorney.net/blog/

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For Arizona Marijuana THC DUI Defense Use the Government to Win

For Arizona THC marijuana DUIs official Federal Government reports may be the best defense.

I'm Gordon Thompson DUI Attorney and I have been a criminal attorney for 46 years.

In 2020, the Arizona voters passed Proposition 207 (Prop 207) legalizing the use of marijuana.  That initiative changed THC marijuana DUI trials.

Before Prop 207 at trial the defendant had to prove he had a marijuana medical card and he was not impaired.  Now the defendant does not have to prove anything.  The State must prove he is impaired by the THC.

In § 7.2 (page 16) Prop 207 also said there can be no per se limit for THC in the blood until scientific research conclusively shows all people are impaired at a certain level. Scientific evidence does not conclusively show such a limit.  What this means is in Arizona there are no per se or automatic limits for THC like .08% for alcohol.

Without THC limits jury trials are more wide open than alcohol DUI trials. The jury must look at other evidence, including scientific evidence, to decide if the defendant was impaired.

Often in THC DUI trials the State has an expert witness testify about scientific studies regarding the signs of THC impairment which show the defendant is guilty. The defendant now can use the same witness to show he is not guilty.

One evidence rule, Arizona Rules of Evidence Rule 803(18) allows statements from studies which the witness agrees is from reliable authority to be read into evidence. See State v. West, 238 Ariz. 482, ¶ 70.  All State DUI expert witnesses agree that the National Highway Traffic Safety Administration (NHTSA) is reliable authority and so statements from NHTSA articles can be read into evidence.

The 2017 NHTSA article, Marijuana Impaired Driving, has several statements which are helpful for defendants. Those include:

“Studies that have been conducted do not show that the level of THC and the degree of impairment are closely related” (Page 12)

“There are currently no evidence-based methods to determine marijuana impaired driving.” (Page 18)

Therefore, the defendant can use the state’s expert witness to give jurors these statements and more from the Federal Government (NHTSA) to show the State’s evidence is not based on science and there is reasonable doubt.  This sounds much better coming from the State’s witness.  Thus, some of the best evidence to help defendants to show they are not guilty may come from the Federal government.

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.

Website:  https://www.GordonThompsonAttorney.net

Blog:  https://www.GordonThompsonAttorney.net/blog/

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Can I get Stopped for DUI While Driving 70 in a 75?

Legal Points

The 4th Amendment to the U. S. Constitution protects individuals from unreasonable searches and seizures.  Law enforcement officers ‘seize’ individuals by temporarily detaining them during traffic stops. Officers “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’  An officer’s reasonable suspicion arises from both the combination of the officer’s perception of the facts and his understanding of the applicable law. Courts determine whether an officer had reasonable suspicion based on the totality of the circumstances, viewed in consideration of the officer’s training and experience.   “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. The reasonable suspicion standard for traffic violations in A.R.S. § 28-1594: “A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected traffic violation.

Driving 70 in posted 75 while in the middle lane of a freeway is a traffic violation

On 11/28/25 in State v. Alvarez-Soto, The Arizona Supreme Court held that driving in the middle of 3 lanes in at speed of 70 in a posted 75 on the I-10, was an actual or suspected traffic violation and so an officer’s stop of the vehicle was justified.

28 A.R.S. § 721.B,  says in part:

B. On all roadways, a person driving a vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall drive the vehicle in the right-hand lane then available for traffic or as close as practicable to the right-hand curb or edge of the roadway.

In the case the defendant was driving 70 in the middle lane.  An SUV passed the defendant in the right lane.  The officer stopped the Defendant for violating A.R.S.  § 721(B) because by being passed by the SUV the defendant was driving less than the “speed of traffic,” in violation of the statute.  The court’s opinion did not say how the “speed of traffic” could be determined by the speed of exactly 1 other vehicle.  It also said, “The phrase “normal speed of traffic at the time and place and under the conditions then existing” in § 28-721(B) provides no quantitative metric. Thus, reasonable minds may differ about its interpretation and application.” This means drivers have no objective way of determining if they are in violation of the law.  If the test is the speed of other vehicles, if other vehicles going 80 pass a vehicle going the legal maximum of 75 is the driver going 75 in violation of the statute? There was no evidence the defendant was impeding any traffic.  Although there were other indicators of driving which could have been used to show reasonable suspicion the court focused on the 28 A.R.S. § 721.B violation.

Conclusion

A driver loses her constitutionally protected right to be free if she is driving in a manner which could be an actual or suspended traffic violation. Driving 70 in a posted 75 could be such a violation although a driver has no objective way of knowing what a legal speed is.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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What is Wrong Way Driving on a Highway Felony DUI?

A DUI in Arizona is what a jury says it is. All DUI defendants have either a constitutional (Felony) or statutory (Misdemeanor) right to a jury trial.  By looking at appeals from convictions we can see the facts that lead to that jury unanimously deciding, beyond a reasonable doubt, the defendant was guilty. We can also see any legal arguments the defendant may have that he was wrongly found guilty, either because there was not enough evidence to convict or that the trial judge made some error which denied him the right to a fair trial.

These appeals are only from convictions based on guilty verdicts. The State cannot appeal from a not guilty verdict and so these appeals do not show what juries thought was not enough evident to convict a defendant.

In Arizona it is a Class 4 Felony to Drive the Wrong Way on a Highway While Impaired (28 A.R.S. § 1383.A.5).  Although as of the date of this blog (12/4/25) there is a legal question as to what roadways are included in the definition of “highway”, a controlled access road, such as I-17 and Loop 303, is clearly a “highway.”  In State v. Reyes, a jury decided what is a Wrong Way Felony DUI.

FACTS

Around 4:30 a.m. on September 16, 2023, a "wrong-way detection alarm went off," alerting a traffic operations specialist that a vehicle had entered the Loop 303.

Through a live camera feed, the specialist identified the vehicle as a white pickup truck, reported the situation to law enforcement, and relayed the truck's movements to the dispatcher.

The specialist only lost sight of the truck for a few seconds as he switched between different camera systems and did not observe any other white pickup trucks in that section of Loop 303.The truck continued southbound in the northbound lanes, migrated to the right (the northbound "fast lane"), slowed down, and eventually stopped and completed a U-turn.  The truck then exited Loop 303 from the same exit ramp where it originally entered, proceeded straight across the intersection, and rejoined the northbound lanes of Loop 303.

911 calls from two motorists reported a wrong-way driver who observed a pickup truck going southbound in the northbound lanes. At trial the State used the call recordings but did not have the callers testify in court.  A DPS trooper located the white truck, observed it swerving and weaving, and performed a traffic stop at 4:35 a.m.  The driver who was the defendant had bloodshot eyes, slurred speech, and an unsteady gait. He also offered his passport when asked to provide his driver's license.  2 breath samples showed blood alcohol content ("BAC") was 0.148% and 0.149%.

The jury found the defendant guilty. The judge then sentenced the defendant to the mandatory minimum sentence of probation with 4 months in state prison.

TRIAL ISSUE

The defendant appealed from the conviction. He contended that by permitting the State to use the 911 calls at trial, the judge violated his right to a fair trial as protected by the Fourteenth Amendment Due Process.

The State only disclosed the contents of the 911 calls 2 weeks before trial and so the defendant had insufficient "time before trial to try and locate these witnesses. Possible exculpatory evidence is now unavailable." Over the defendant’s objections the judge allowed the State to present the 911 calls to the jury.

COURT OF APPEALS DECISION

The court of appeals denied the defendant’s appeal.  In doing so the appellate court held the 911 call recordings did not provide "crucial" or "critical" evidence against Reyes; instead, the recordings merely supported the other evidence presented by the State and cannot reasonably be considered foundational, "critical", evidence.

The court also said, “The State presented video evidence of Reyes entering the exit ramp and testimony from the specialist who observed the white truck driving the wrong way on the freeway. Neither the specialist nor the trooper observed any other white trucks on the freeway, and the trooper told the jury about his observations of Reyes' impairment, as well as the BAC results.”  Also, the 911 recordings were disclosed 12 days before trial, which gave the defense enough time to pursue any possible leads from the 911 for possible defenses.

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.

Website:  https://www.GordonThompsonAttorney.net

Blog:  https://www.GordonThompsonAttorney.net/blog/

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4 Years Prison for Failing to Appear at Arraignment

Arizona can be a very harsh state for Criminal & DUI cases.  A defendant in Navajo County recently found out how harsh in a recent Court of Appeals decision.

In March 2023, the defendant was involved in a car crash in which his four-year-old son suffered a serious physical injury.  The State charged the defendant with multiple felony offenses arising out of the collision.

Just over a week later, an officer with the Navajo County Sheriff’s Office served the defendant with a summons to appear in the criminal matter, handing the paperwork to him face-to-face.  The summons noted the criminal case number, listed the charges and stated, “YOU ARE HEREBY SUMMONED to appear before [the Navajo County Superior] Court at Holbrook, Arizona in Division 3 at 9:00 AM on MONDAY APRIL 10, 2023.” The summons warned Tafoya that a warrant would be issued for his arrest should he fail to appear.  Tafoya did not appear for his arraignment on April 10, 2023, and the court issued a warrant for his arrest.

That same day the County Attorney’s office filed a felony failure to appear charge (F.T.A.), which is a class 5 felony.  One week later, a Holbrook police officer arrested the defendant.  During the arrest, the officer asked Tafoya, “you know you had court, right?” and Tafoya responded that he “put in a motion to get it dismissed.”  But no such motion was filed.

The County Attorney’s office filed an Allegation of Prior Convictions with the court. The effect of filing the allegation was to eliminate probation as a possible sentence and to increase the possible sentence ranges.  The County Attorney was not required to file the allegation, and easily could not have filed the allegation.

The F.T.A. charge went to a jury trial at which the defendant testified. He explained that he did not read the summons or understand that it related to criminal charges against him, assuming instead that it had to do with his then-pending case with the Department of Child Safety (“DCS”).  The defendant testified he had no prior felony failures to appear however he did have one misdemeanor failure to appear in 2020.

The jury returned a guilty verdict.  The court then sentenced him to a minimum term of four years imprisonment, with credit for 108 days of incarceration. The defendant must have had at least two allegeable prior felony convictions because a 4-year sentence for a class 5 felony could only be possible if the defendant had 2 allegeable prior convictions.

It is important to note defendant was convicted and sentenced to 4 years in prison for the act of not appearing at exactly one court date.  Moreover, that court date was for the arraignment, at which the defendant is simply advised of the charges and conditions of release are set. The court date was not for a jury trial, when witnesses and jurors would have had to be present and therefore would have been inconvenienced when the defendant failed to appear.

Additionally, judging from the facts it would have been easy to simply find and arrest the defendant on the original charges and hold him in custody until the trial. The Sheriff’s Department personally served the defendant and so had an idea where he could be found. The Holbrook police arrested the defendant one week after the failure to appear.

Even if guilty the defendant did not have to be sentenced to 4 years in prison. As stated above 4 years is only possible if the defendant has at least 2 prior felony convictions and the County Attorney files an allegation of prior convictions. Had the State not filed allegations of prior convictions the defendant would have been eligible for probation with no jail.

It is also important to note that this 4-year prison sentence for failure to appear at one court date will cost the people of Arizona over $150,000 to pay for the costs of the defendant’s incarceration.

Lastly, from public court records the defendant appears to have been found not guilty of the most serious charges, Aggravated Assault. 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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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Agg DUI Properly Joined for Trial with Theft Charge

A defendant’s Aggravated DUI and Theft charges were properly joined for trial.

The Facts

The Tempe Police Department received a report of a stolen vehicle. The vehicle was reported to and be in a certain area. The police stopped the vehicle and eventually the defendant was identified as the driver. The defendant appeared to be impaired. The police got a blood sample from the defendant.

Trial Court Proceedings

The defendant was first charged with felony theft of the vehicle.  The police received the blood test results which showed methamphetamine and fentanyl. The defendant then was also charged with Aggravated DUI.

The County Attorney asked the court to have the charges joined together for a trial. The Arizona Rules of Criminal Procedure allow separate charges arising from the same incident to be joined. The reason is to avoid having to present the same evidence in two separate trials together.

Joinder is permitted if the offenses are:

of the same or similar character;

based on the same conduct or otherwise connected in commission or

alleged to have been part of a common scheme or plan.

The defendant objected to Joinder. He alleged because he alleged severance (keeping the charges separate) not joinder was needed to promote a fair determination of his guilt or innocence for each offense.  The idea is the jury hay be unfairly prejudiced against him if it hears he has two separate types of charges.

The court granted the County Attorney’s request for joinder.  The defendant failed to then file a separate severance motion. That motion is required under the rules.

The jury found the defendant not guilty of theft but guilty of Aggravated DUI.

Court of Appeals Decision

The court of appeals denied defendant's appeal regarding the joinder of his DUI and theft cases was denied. The court said joinder was not a mistake, The court affirmed the conviction and sentence.

The defendant’s failed to submit a separate motion for severance meant the issue was not preserved for appeal. An issue not properly preserved can be still be considered on an appeal if the what happened in the trial court was “fundamental error”.

“Under fundamental error review, the defendant bears the burden to establish that:

(1) error exists,

(2) the error is fundamental, and

(3) the error caused him prejudice.

Error is fundamental when it “goes to the foundation of the defendant’s case, takes away a right that is essential to the defendant’s defense, or is of such magnitude that the defendant could not have received a fair trial. In short it is a very heavy burden.

The court said there was not only no fundamental error but even if the issue had been preserved, no error.  Joinder is appropriate when the two charges (Theft & DUI) arose from the same incident.

That rule may be logical but for a defendant it stacks the odds against him,

Schwab appealed his convictions for DUI, arguing the court erred in joining his DUI case with his theft case.  The court found no fundamental error in the joinder decision.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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DUI Case Studies | Why they Matter

DUI case studies provide practical insight into how particular DUI cases are resolved.  These case studies are for misdemeanor DUI cases only.  Felonies are far different and are not discussed in my case studies.

These case studies are important because they are real-life situations. The studies not just hypothetical possibilities. What is also important is I do not just describe the cases. I also include my thoughts and actions as the case progressed. The cases are a sample of what I have been doing on a day-to-day basis for 46 years.

Here are several principles I keep in mind as I handle an individual case:

1. For felony DUIs you need a reason to try the case; for misdemeanor DUIs you need a reason not to try the case.

Felony cases are far more serious because the outcomes can be much worse after trial. I remember a case 30 years ago which another lawyer had. It was a felony DUI, and the defendant’s license was suspended because he forgot to pay the reinstatement fee from his first DUI. If he had only paid the reinstatement fee, the case would have been a misdemeanor and if guilty likely 30 days in jail. There was no bad driving and the defendant was stopped for a suspended license plate. There were no breath or blood tests. The mandatory minimum sentence was 4 months in prison.  I do not know what the plea offer was, but it probably was the minimum of 4 months. The defendant lost at a jury trial. The prosecutor and probation department recommended the 4-month minimum. The judge said on balance the defendant was not a bad guy, and then gave him the presumptive sentence of 2.5 years. The defendant may have had good reason to try the case, but he ended up with a much worse sentence by doing so.  Although a judge doing something like this is not as common as it was 30 years ago, it is always a possibility the outcome of a felony case can be much worse after trial.

For misdemeanor DUIs, many times the offer is plead to the most serious charge. For example, if a test result is less than .15%, to plead to a regular DUI charge; or, if the test result is more than .15%, to plead to an Extreme DUI charge. If that is true, then many times after a jury trial the sentence is the same as the plea offer. The sentence could always be worse but rarely is, and an experienced attorney knows when this might be. If there was an accident the sentence could be worse. The question then is why not try the case, what is there to lose?

Felonies you can lose a lot, misdemeanors, not very likely.

2. If you do not know the answer, that means you do not know the answer.

Over my 46 years of practice this has been an important point to remember, most particularly in jury trials.  A lawyer can make an educated guess as to what will happen at trial but it is exactly that, a guess. Guesses can turn out wrong and so a lawyer must always be open to that possibility. All lawyers, including me, have tried cases thinking I would win, or lose, and then the opposite happens. A lawyer must always be open to the possibility they could be wrong. A lawyer should be very careful saying they know what will happen.

3. Trials often have elements of irrationality.

To serve as a juror one must appear to be fair and impartial.  Jurors are also instructed to decide the case based on the facts presented at trial, and not to use information they know from outside the trial. I was once a juror myself, and what surprised me when we deliberated is how quickly the other jurors went off on tangents. They tried to decide the case with facts that had nothing to do with what was presented at trial, and I had to gently remind my fellow jurors what they were talking about was not evidence presented at trial.  Of course, the judge and lawyers had no idea the jurors were doing this and therefore could not have addressed those points during the trial. I as a lawyer could remind them to stick to the facts presented at trial, and this was true because I know the criminal jury instructions well. On this case, without me, the jurors could have decided the case based on facts not presented at trial. A trial lawyer needs to keep this in mind and although it is hard to do, anticipate the irrationality.

These are a few of my thoughts about cases and trials. I invite you to review my case studies to see what actually happens in real life.

Please keep in mind, nothing I have said here or in the case studies is legal advice for anyone else.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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Court says Wrong Way DUI Drivers can go to prison even if they don’t know they are driving the Wrong Way

In 2018 the Legislature added a new felony DUI offense, 28 A.R.S.§ 1383.A.5, Driving the Wrong Way on a Highway While Impaired. The mandatory minimum sentence includes 4 months in State Prison. If an impaired driver is driving the right way the minimum penalty could be 1 day. If the same impaired driver drove the wrong way the minimum penalty is 4 months. The only difference between a day in jail and 4 months in prison is the direction of travel.

In criminal law most crimes require the defendant to know all of the crime’s elements. This means the defendant must know he is committing the crime. Knowledge can be from actually knowing or “should have known”. An example of “should have known” comes from the crime of driving on a suspended license. The state can prove “should have known” by showing the MVD mailed a suspension notice to the address the defendant gave to the MVD.

An exception to this rule is what are strict liability crimes. These are acts which are so obvious and dangerous that the defendant need not know he is committing the crime. One example is DUI. The DUI does not require proof that the defendant knew he was impaired.

On August 6, 2025 the court of appeals issued an opinion on this issue in Franz and Schlemmer vs. State. The court held the defendant did not need to know he was driving the wrong way on the highway. The court said all the State need do is show the particular stretch of roadway was properly marked with signs showing the correct flow of travel. The court went on to say the defendant could also present evidence that the direction of travel was correctly shown by signs. If the defendant presented such evidence, then he could get a jury instruction saying the jury could consider if the roadway was properly marked.

What is not clear from the decision is, does the defendant have to have knowledge he is driving the wrong way or not. The court said the defendant does not have to know that he is driving the wrong way. The defendant’s knowledge of the right and wrong way could come from the roadway signs. If the defendant does not have to know he is driving the wrong way, then what difference would the signs make? By leaving open the possibility of arguing the roadway signs did not properly show the wrong way it would seem the court is saying the defendant could be not guilty because the source of his knowledge, the signs, were not proper.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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Defendant's 2 Agg DUI convictions upheld but sentence reduced

State v. Seantain Leroy Cook

Seantain Leroy Cook appealed his 2 aggravated DUI convictions. The basis for the cases was driving with a suspended license in two separate DUI incidents in 2021.

The DUIs were first charged as misdemeanors in a municipal court. Mr. Cook's suspended license meant the DUI charges were felonies. The misdemeanor DUIs were dismissed. Then the felony DUIs were charged in Superior Court.

The defendant first represented himself. Later into the cases and at trial, he was represented by a court-appointed attorney. The cases went to a jury trial and the verdicts were guilty on both. The defendant had 4 prior felony convictions. The presumptive or normal sentence was 10 years. Taking into account the 4 priors the judge gave a 12-year sentence.

The defendant himself made several arguments on appeal.

First, right to a speedy trial violation.

Second, his lawyer had a conflict of interest because he was paid a government salary.

Third, that the court delayed in letting him represent himself.

Fourth, there wasn't enough evidence to convict him.

Fifth, his previous felony convictions shouldn't have counted to Aggravate his sentence.

The appeals court rejected all but one of the defendant’s arguments:

First, the defendant was himself responsible for the speedy trial violation.

Second, no conflict of interest just because his lawyer was paid a salary.

Three, the complaints about the delay complaints had to be brought in a separate proceeding.

Fourth, the court said there was enough evidence to convict him. The court said there was proof that the defendant knew his license was suspended.

Fifth, the prior felony convictions could be used to increase his sentence.

The court did agree with one argument

The 12-year sentence was two years longer than the presumptive term for his offense. To give a sentence longer than the presumptive a jury must find "aggravating" factors. Prior felonies can be aggravating factors. These prior felonies though were too old (from 1999–2007) to be aggravating factors for his 2021 offenses. Since the jury didn’t find any other aggravating circumstances, the 12-year sentence was improper. The court reduced the sentence to the presumptive 10 years.

Conclusion:

Cook’s convictions for aggravated DUI stand, but his sentences were too long under the law. The case is sent back to the lower court for resentencing with the correct sentence limits.

The case is available here.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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Deportation for Misdemeanor Arizona DUI?

Legal residents are now generally not deportable for one Arizona misdemeanor DUI conviction.  Legal residents can be deported for one DUI if it involves Controlled Substances, and these substances include Marijuana and Prescription Medications, even if legally prescribed.

Arizona Felony DUIs may lead to deportation, particularly if the felony is for DUI while driving on a suspended license.

A bill is pending in the United States House of Representatives which would make deportation mandatory for one misdemeanor DUI.  Also, a noncitizen would be denied entry for any misdemeanor DUI.

This bill is a reaction to two tragic fatal DUI accidents, one in Alabama and the other in Arizona.  When tragedies occur some people and politicians blame existing laws and say, “if only we had a better law this would not have happened”.  These two accidents are no different. Both defendants were illegal immigrants.  As such they should have been deported before the accidents.  This proposed bill would have done nothing to prevent these fatal accidents.  Had the current deportation law been enforced these fatal accidents would not have happened.  I have been doing DUI cases for 46 years and I know how tragic these events can be for victims, defendant’s families and defendants.  The problem with this bill is it would mandate deportation for individuals who may otherwise positively contribute to our country.  People of all walks of life commit DUIs.  For example, President George W. Bush admitted to one DUI and Vice President Chaney two.  Both went on to have very successful careers which had substantial impacts on American life.  This bill could exclude many people, such as specialized scientists, who could help improve our country.  This proposed bill would have done nothing to prevents these accidents, though enforcement of current law by deporting illegal defendants would have.

The bill has passed the House of Representatives and has gone to the Senate.  It remains to be seen what will happen there and if the bill is actually passed and signed into law.

The opinions expressed in this post are my personal opinions and are not intended to be an authoritative statement of law nor legal advice.

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.

Website:  https://www.GordonThompsonAttorney.net

Blog:  https://www.GordonThompsonAttorney.net/blog/

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Arizona DUI Suspensions & Out of State Licenses

Out of state drivers are subject to harsher DUI license penalties than Arizona drivers.

Driver-licensed residents of all states have a “Privilege” to drive in all other states. The “Privileges & Immunities” Clause (P & I) to the U.S. Constitution creates the "Privilege”.  and in Arizona under the P & I in the Arizona Constitution. Without the P & I, an Arizona-licensed driver could be arrested in Utah for driving without a license.

The P & I requires the states to treat other states’ residents the same as it would its own residents. So, Arizona must treat other states' licenses the same as it would treat Arizona licenses. That’s the legal principle but with Arizona DUIs it does not work that way.

When an Arizona Officer arrests a driver for DUI they may serve the driver with a suspension order. The DUI suspension order can be for 12 months or 90 days.  If the driver has an Arizona license in their possession the officer takes the license. The suspension order is also a temporary driving permit. The officer cannot take an out of state license. The suspension order acts as a temporary driving "Privilege".

Arizona and most states are members of the Interstate Driving Compact. Those states share information about actions and suspensions committed in their respective states.

Arizona is only required to honor the “Privilege” if the out of state license is valid and not suspended. If the other state finds out about the DUI arrest it can take action under that state's law. The other state can act even though the Arizona MVD and courts have not yet done so. If the other state suspends that license, the driver no longer has a “Privilege” to drive in Arizona. The temporary "Privilege" served by the officer is now void.

The Arizona MVD does not treat out of state drivers the same for some DUI suspensions.  The P & I should bar this but so far it has not.  An Arizona license is subject to one of two administrative DUI suspensions, which could be for 12 months (Implied Consent) or 90 days (Admin Per Se).  The driver may be able to get a Special Ignition Interlock Restricted Driver’s License (SIIRDL).

There are two benefits to having a SIIRDL:

1. The driver can now drive anywhere with a SIIRDL (No more to and from work only);

2.  A DUI Alcohol conviction in court triggers an interlock requirement.  The requirement is usually for 12 or 18 months, after the suspension ends. The time the driver has the SIIRDL counts against this interlock requirement.  For example, assume a driver has a SIIRDL for a 12-month suspension and the conviction requirement is also 12 months. That driver's interlock (IID) requirement ends when the suspension ends, not 12 months later.

As of the date of this post (July 11, 2025) the Arizona MVD is refusing to issue SIIRDLs to out of state licensed drivers. The MVD is doing this though the other state has not suspended the license.  The MVD action seems to violate the P & I.  What this means is out of state drivers, unlike Arizona drivers:

1. May not drive at all during the 90 day or 12 month suspension;

2. Must wait until the end of the suspension before complying with the DUI conviction IID requirement.

In law a question is, does a person have a right if there is no remedy to enforce that right? What good is a right if I cannot force the government to give me that right? For now, for most out of state drivers it is not worth it to try to force the Arizona MVD to issue a SIIRDL. The remedy is to bring a lawsuit against the MVD in Superior Court. Such a lawsuit would take months to be resolved. During that time the other state may suspend the license. If so, Arizona would not be required to grant a “Privilege” to a suspended out of state licensed driver. For most drivers the expense of a lawsuit is not worth it if the license is going to be suspended anyway.

It is important for out of state drivers to hire a DUI attorney who knows about these licensing issues.  Please call me anytime to talk about your situation.

The contents of this post are my personal opinions and are not legal authority or advice.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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DUI & Understanding Arizona MVD Corrective Action Notices

The Arizona Department of Transportation (ADOT), Motor Vehicle Division (MVD), is required to notify customers in writing of actions taken against their Arizona driver license -OR- privilege to drive in Arizona (for those licensed in another State).  Unfortunately understanding those notices is not always easy, even for professionals, and here we will help you figure out how to interpret them.

Due to technical issues within the Arizona MVD, or even due to issues with the Postal Service, notices sometimes do not arrive by mail and I recommend anyone with an Arizona driver license create an account on the AZ MVD Now website so they can easily keep track of their license status, and any issues therewith.  Corrective action notices are generated and available on the AZ MVD Now account days before they could possibly be received by mail, and you can access those notices by logging into your account and navigating to My Account, My Documents.  There you can download (or upload) documents to/from MVD.  Navigating to Other Services, Compliance Issues Management will show you any current or future compliance requirements which you will need to address.

Once you have created your account, navigated to My Documents and downloaded a Corrective Action Notice from Arizona MVD, the next hurdle will be to interpret the document.  This is not always easy, particularly in a case where there are multiple corrective action notices issued at once and many of them can seem at first glance to be duplicates.  The first step to understanding the notices is to place them in order by Withdrawal Number.

In the case of a person convicted of an Extreme DUI charge, if there has not already been an administrative license suspension put into effect, the person can expect to receive at least 5-6 corrective action notices, including:  28 ARS 1387.D Suspension, 1387.D Suspension Fee, Ignition Interlock Device (IID), IID Suspension Fee, Traffic Survival School (TSS) (plus a duplicate TSS notice from the administrator of the TSS program in Arizona, the Arizona Chapter of the National Safety Council), and TSS Suspension Fee.  Though all 6 of those notices should be issued in the example described, sometimes certain notices are not issued or are missing, and on rarer occasions after conviction there is no action taken at all, and the person has to decide either to bring it up to MVD and correct it to get it over with, or to risk receiving the notices in the future, perhaps even years later.  Other possible notices include an IID Deferment Eligibility Notice (6 months with the IID instead of 12 months), a Revocation Notice, a Points Suspension Notice, associated action Fee Notices, etc.

The Suspension (or Revocation) Notices are the most straightforward, and will specifically state, “ATTENTION:  A Suspension of your driving privilege will take effect on X”.  Important points to note are the Notice Date, Withdrawal Number, Statutory Authority, Date Action Begins, and Date Action Ends.  You may have the right to request a hearing to contest the action if you disagree with it, and if so that right will be stated on the notice, including the timeframe you have to request a hearing (typically 15-30 days, PLEASE NOTE that timeframe is counted from the Notice Date, NOT from the Date Action Begins).

Less clear are Notices such as the IID, TSS, and any of the Suspension Fee notices.  The first clue to those notices is in the “Next Steps” area, for instance, the IID notice will say “Ignition interlock device (IID) required to be installed” while the TSS notice will say “”Take and complete Traffic Survival School (TSS) course”.  ).  If a person receives an IID or TSS corrective action notice, they should also receive an associated Suspension Fee Notice which only takes effect if the person does not install the IID, or attend the TSS, within the required time.  Unfortunately the Suspension Fee notices do not specify which action they are linked with, so placing them in order by Withdrawal Number helps to figure this out (so the “action” Withdrawal# would be 11111111, and the associated Suspension Fee notice would be Withdrawal# 11111112).

The IID and TSS notices are also very confusing in that the language of the notice leads to the impression that action is being taken because you already failed to do something required.  For instance, the IID notice states “A Suspension of your driving privilege will take effect on X”.  What it should say is, IF you do not install the IID by X, THEN a Suspension will take effect on that date.  Similarly in the TSS notice, you are told “Effective on X, your driving privileges will be withdrawn” (and BTW that means suspended), and the Description says “Failure to attend Traffic Survival School”.  Only by looking at the Start Date and only if that Start Date is correct (unfortunately it is not always correct) can you see the suspension will only go into effect IF you do not complete TSS prior to the Start Date (which should be within 60 days of the conviction OR 60 days of the notice).

Though improper, you could even receive a Corrective Action which is EFFECTIVE BEFORE YOU RECEIVED IT.  This means you may be issued a Corrective Action which is backdated to be effective before the date it was issued.  Not appropriate, but it happens frequently.

Hopefully this helps in understanding Arizona MVD Corrective Action Notices.  For more information, create and access your AZ MVD Now account online, call MVD at [phone] or visit an Arizona MVD branch for assistance.  You can also get a copy of your Arizona MVD Driver License Record (MVR) on AZ MVD Now by navigating to Driver License & ID, then Driver License Record Request.  Once purchased it is available for you to access/download in My Account, My Documents. 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.

Website:  https://www.GordonThompsonAttorney.net

Blog:  https://www.GordonThompsonAttorney.net/blog/

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AZ Misdemeanor DUI Post-Conviction Rights

A person convicted of a misdemeanor DUI has several post-convictions right which may mitigate the harshness of the sentence. These rights are separate from an appeal which is governed by other court rules. Several of the post-conviction rights are listed below.

 Right to Post-Conviction Relief

If you were convicted for a criminal offense and you believe a serious error was committed in your case you must file for post-conviction relief under Rule 33 in the trial court within 90 days of sentencing. An example of a serious error is the offense did not occur within the jurisdiction of the court. If you do not file a timely Notice Requesting Post-Conviction Relief, you will most likely never have another opportunity to make this request.

2. Application to Set Aside Judgment of Guilt

Upon fulfillment of the conditions of your probation or all terms of the sentence and discharge by the court, you may apply to the Trial Court to have the judgment of guilt set aside. Whether to set aside a conviction is within the discretion of the judge. If the court grants your Application, the court will set aside the judgment of guilt and order that you be released from all penalties and disabilities resulting from the conviction except those imposed by the department of transportation or the game and fish commission. The granting of an Application to Set Aside does not remove or expunge the conviction.

3.  Application for A Certificate of Second Chance

An Application for A Certificate of Second Chance (2nd Chance Certificate) helps individuals with certain criminal convictions in their efforts to obtain occupational licenses issued under Arizona Revised Statutes Title 32, and to obtain housing (13 A.R.S. § 905(M)(3)).  An Application for a 2nd Chance Certificate should be included in an Application to Set Aside the conviction, however it can be applied for separately from that Application. If an Application to Set Aside is granted for a misdemeanor conviction the order must include a 2nd Chance Certificate.  If an Application to Set Aside has already been granted you can separately file an Application for a 2nd Chance Certificate.

4. Petition to Have the Criminal Case Records Sealed

After the required waiting period, (at least 3 years for class 1 misdemeanors, such as DUIs) you may petition the court for an order to seal the case records agency of your arrest, conviction, and sentence.

The sealing of case records relates only to records under the control of criminal justice entities, including the courts, the Department of Public Safety, prosecutors' offices, and law enforcement agencies. If a petition to seal criminal records is granted, the records will be removed from public access however it does not expunge or destroy the records.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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CDL Disqualification for DUI Suspensions

Based on a recent change in MVD procedure, a DUI Admin Per Se (.08%) or Implied Consent (Refusal to Submit to Testing) Suspension now triggers a CDL disqualification even if there is no court conviction or even a DUI case filed.  As of the date of this post (February 13, 2025) the Arizona MVD is imposing CDL disqualifications in a way that is not authorized by law.

A proceeding to suspend a person’s driver’s license for an Admin Per Se or Implied Consent violation begins when either a police officer personally serves a copy of the proposed order of suspension (which must also be filed with the MVD) or the MVD mails the driver a proposed order of suspension.

Pursuant to Arizona statute, a CDL disqualification must be imposed 10 days after the MVD receives notice that the CDL driver has been convicted of a DUI or has been found responsible for an Admin Per Se or Implied Consent suspension against their license.  This means that by law (28 A.R.S. § 3312.I) a disqualification for an Admin Per Se or Implied Consent suspension may only be imposed after there has been a conviction or finding ( in this context “conviction” and ‘finding” mean the same thing) that the driver was in violation of the Admin Per Se or Implied Consent laws.  A conviction or finding occurs 1. when the driver is served with an order of suspension and does not request a hearing within 30 days, or, 2. if the driver does timely request a hearing, but at an administrative hearing a judge rules the driver violated either of these laws.  Thus, unless the driver does not timely request a hearing or if they do and a judge rules the driver violated one of these laws, there is no legal basis to impose the CDL disqualification.  The one exception is when the Federal Government sends a notice of Arizona that a particular driver is a danger, which is very rare.

The Arizona MVD is currently ignoring the plain language of 28 A.R.S. § 3312.I, and is imposing disqualifications when there has been no conviction or finding the driver has violated one of these laws.  Rather the MVD is imposing disqualifications 10 days after the date of the incident where an officer has issued a suspension order and filed the order with the MVD.  By using this procedure, the MVD is denying CDL drivers their right to contest these suspension orders and immediately effecting a year-long disqualification of their CDL without a conviction or finding of responsibility.

The Arizona Court of Appeals has made it clear the Legislature and not the MVD determines the status of licenses, and MVD cannot come up with a procedure which is contrary to a law passed by the legislature.  State v. Cabrera, 202 Ariz. 296, ¶ 13. Therefore, the Legislature has passed a law mandating the procedure for issuing CDL disqualifications, and yet the MVD substitutes its procedures for the Legislature’s, which procedure is not legal.

This is an important issue, and if the MVD continues to ignore the plain language of 28 A.R.S. § 3312.I the courts will ultimately have to decide this issue. In the meanwhile, any CDL driver who receives an Admin Per Se or Implied Consent suspension order should immediately contact a lawyer to try to preserve their CDL.

This post will be updated when any changes occur.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/

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AZ THC Per Se License Suspensions

Can I get a 90-day DUI license suspension if I have THC in my blood but I am not impaired? According to a recent Court of Appeals decision the answer is No in Arizona.

Some states, such as Washington, have set per se limits (5 nanograms) on the amount THC (the active ingredient of Marijuana) in blood. These limits mean someone is guilty of DUI or can have their license suspended if they are driving and have at least 5 nanograms of THC in their blood, even if they are not impaired. This is not currently possible in Arizona.

In 2020 the Arizona voters approved Proposition 207 which changed the laws for Marijuana use. Prop 207 legalized the use of marijuana for people 21+ and decriminalized use in most instances for under 21 years. Prop 207 also said the State cannot impose penalties for the lawful use of marijuana.

For Marijuana DUIs Prop 207 made two important changes.

A person can only be found guilty of the crime of Marijuana DUI if the driver is impaired to the slightest degree by the THC in their body. This was a major change in the law because before Prop 207 a driver who had THC in their body was automatically guilty, unless the driver was not impaired and using Marijuana pursuant to a Medical Marijuana Card authorization.

Prop 207 said the State may not set a per se limit (such as 5 nanograms) unless and until the scientific evidence is conclusive (that all persons are impaired at that level) and National Highway Traffic Safety Administration (NHTSA) recommends that particular limit (like .08% alcohol). (Prop 207, section 7.1, p. 16) To date the scientific evidence does not support any particular limit. (2017 NHTSA Report to Congress & 2021 Yale Medical School Report).

Arizona has a non-criminal DUI procedure under 28-1385, by which a driver’s license can be suspended for 90 days. For drugs such as THC, a driver’s license must be suspended if the person has in their body, “Any drug defined in section 13-3401 or its metabolite is in the person's body except if the person possesses a valid prescription for the drug.” Marijuana is a drug under 13-3401.19. No Arizona physician “prescribes” marijuana and an Arizona Medical Marijuana Card is an “authorization”, not a “prescription.” Therefore, anyone with THC in their blood is subject a 90-day suspension even though their use of marijuana may have been legal under Prop 207.

Prop 207 and 28-1385 are therefore in conflict. Prop 207 said there can be no penalties for the lawful use of Marijuana and 28-1385 imposes the penalty of a 90-day license suspension for the lawful use of Marijuana even with no impairment.

In the Kirsten decision the Arizona Court of Appeals resolved that conflict by saying there can be no 90-day suspension unless the THC in the driver was causing impairment.  The court said Prop 207’s language is clear, no penalty without impairment and a license suspension is a penalty.

This case will change the procedure for the MVD’s Admin 28-1385 Per Se suspension hearings for Marijuana. In a suspension hearing for alcohol the evidence need only be test results showing .08% Alcohol, or the presence of any alcohol in a person under the age of 21 years, or .04% for a Commercial Driver License holder (CDL) driving commercially.  In a case of a drug as defined in 13-3401 the lab report only has to show the presence of the drug.  These tests and lab results are hard and fast objective evidence.  In suspension hearings for Marijuana there are no limits by which objective lab results can show the person is above or below the limit.  Because Prop 207 prohibits the setting of limits until the scientific evidence conclusively shows everyone is impaired at that limit, there will be no limits for now.  Therefore, the evidence presented at the suspension hearings will have to be subjective. For example, does the presence of certain eye conditions mean someone is impaired by THC, and what scientific studies is that conclusion based on? In effect, 28-1385 Admin Per Se administrative hearings now will have to be mini-trials on the issue of impairment.

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.

Website:  https://www.GordonThompsonAttorney.net Blog:  https://www.GordonThompsonAttorney.net/blog/