The Answer That Has Been Plaguing Civilians and Attorneys for Decades, Now Explained.
For some reason, this is an issue that continues to puzzle civilians and attorneys alike. Does Arizona Law regarding ‘Aggravated DUI – License,’ mean what it says, or does it mean something else.
Unfortunately, despite what appears to be a fairly clear statement, the Arizona Supreme Court has determined that it means something other than what it appears to state.
The law/statement as written in A.R.S. §28-1383, reads as follows:
A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:
1. Commits a violation of section 28-1381, section 28-1382 or this section while the person’s driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385
In simpler terms, this law states ‘A person is guilty of Aggravated DUI if they were Driving or in Actual Physical Control while the person’s license/ privilege to drive was suspended, cancelled, revoked refused or while a restriction is placed on the person’s license/privilege to drive as a result of being convicted of a prior DUI or for being suspended for being suspected of DUI.’
There are a few problems with this law as written, the biggest of which is that the Legislature, who wrote this law many decades ago, were, presumably, not English Majors. A lack of appropriate punctuation has lead to the confusion.
The way civilians and confused defense attorneys read the law is that a person is Guilty of Aggravated DUI if their license or privilege to drive was suspended, cancelled, revoked, refused, or restricted, BECAUSE of a DUI conviction or previous DUI arrest.
This is an understandable interpretation. Unfortunately, it is incorrect.
The ‘Aggravated DUI – License’ law, pursuant to §28-1383, could more correctly be stated as, ‘A person is Guilty to Aggravated DUI if their license or privilege to drive was suspended, cancelled, revoked, or refused. Or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.’
The current standing of the law is that an Aggravated DUI can occur if the person committed a DUI while their license was suspended, cancelled, revoked, or refused, for any reason. Or, if the person’s license was restricted due to a previous DUI conviction, or a previous arrest for a DUI.
Although a prosecutor may take into consideration why a person’s license/privilege to drive was suspended, and that can be a factor in plea negotiations, the current standing of the law is that a person’s license/privilege to drive can be suspended, cancelled, revoked, or refused for anyreason.
One possible reason that this is unknown to many lawyers is that decades ago, the Arizona Legislature performed a big rearrangement of the Vehicular Code (Arizona Revised Statutes, Title 28), and what was previously Aggravated DUI pursuant to A.R.S. §28-692.02, was then changed to Aggravated DUI pursuant to A.R.S. §28-697, and later became Aggravated DUI pursuant to A.R.S. §28-1383.
In 1994, the Arizona Supreme Court decided a case called State v Pitts, 178 Ariz. 405 (1994).
Mr. Pitts was convicted of Aggravated DUI in 1991, and although the Aggravated DUI law was renumbered to §28-697 in 1992, by the time the Arizona Supreme Court considered the case in 1994, they, appropriately, referred to the Aggravated DUI statute numbers in effect at the time of the incident (1991), which was A.R.S. §28-692.02.
This is why it is difficult for modern-day lawyers to find this case, because we now have Aggravated DUI laws under A.R.S. §28-1383, which is twice removed from the numbering referenced in the Pitts case.
The Aggravated DUI language from 1991, which is very similar to modern-day Aggravated DUI Language, allows for a Felony Aggravated DUI conviction if the person was guilty of a DUI while the license was suspended, cancelled, revoked, or refused, for any reason.
The ‘Aggravated DUI – License’ law, then written under A.R.S. §28-692.02, stated that it was an Aggravated DUI when a person, “Commits a violation of [DUI] while the person’s driver’s license is suspended, canceled, revoked or refused or in violation of a restriction placed on a driver’s license as a result of violating [DUI Laws].”
The Court specifically held, “The suspension, cancellation, revocation, or refusal of licenses referred to in A.R.S. § 28–692.02(A) need not have arisen out of a prior DUI conviction. See, e.g.,Ohara v. Superior Court, 138 Ariz. 247, 674 P.2d 310 (1983).” Pitts at 407.
The Supreme Court came to this conclusion because, at the time the law was written “a license cannot be canceled because of a DUI,” [sic] therefore to read every part of the law as requiring that the licensing issue be based on a DUI conviction or prior DUI arrest, would lead to a part of the law being meaningless. See Pitts at 407.
It is fundamental in Arizona law that the Legislature does not intend to write a statute that contains a void, meaningless, or futile provision, which is why the Supreme Court came to the determination that Aggravated DUI “applies to anyone driving under the influence while his or her license is suspended or revoked, without regard to the reason for the suspension or revocation.” Id.
It is only a License Restriction that must be based on a prior DUI conviction, or a Restricted License based on an arrest for a prior DUI.
So, for example, a Restricted License based on the need for glasses, or a Graduated License which restricts the operator to drive only during certain hours of the day, would not fall under the provisions of ‘Aggravated DUI – License’ laws, as their restriction was not due to a prior DUI arrest or conviction.
Proper punctuation by the Legislature may have resolved this issue once and for all, but for now, attorneys and civilians can wonder why the Aggravated DUI law seems to say one thing, while the Arizona Supreme Court seems to say that it means something else.
Ignorance of the law is not a defense. The reason laws are published, in books and online, is to make society aware of what is and is not considered a crime. Unfortunately, this is one of those instances where the reading of the law, and what it appears to say, is in direct contradiction with what the Arizona Supreme Court has determined that the law really means.
This can easily be fixed with proper punctuation. Just adding a period, a space, and a single capitalized letter would make the law perfectly clear on its face, without all the confusion, and without having to reference case law from 1994.
Unfortunately, despite the numerous revisions to the Vehicular Code (Title 28) over the decades, no Legislature has decided to make this simple modification, in order to clarify it for the public.
Also, unfortunately, some attorneys wrongly advise their clients, giving them false hope, and leading them to believe that they cannot be convicted of an Aggravated DUI, because their license was suspended or revoked for something other than a DUI.
That is what prompted me to write this up, so no one will hopefully suffer the consequences of an uninformed lawyer.
Attorney Brian Sloan
