Aggravated, Actual Physical Control DUIs in Arizona Law - Statute 28-1383

by Aaron M. Black • April 12, 2022

DUI StopWith some of the harshest DUI laws in the nation Arizona and Greater Phoenix authorities aggressively perform arrests for driving while impaired by alcohol or drugs. Among their legal avenues are aggravated driving or being in actual physical control of a vehicle while impaired under Arizona Revised Statute §28-1383 and its companion offenses.

Law enforcement has several approaches in charging an aggravated DUI allegation under this statute which raises the seriousness of a DUI conviction. An aggravated enhancement carries stiffer penalties than a DUI itself. An aggravated enhancement to a DUI raises the offense from a misdemeanor DUI to a Class four or Class 6 felony. Class four is the more severe but both are serious offenses.

The aggravated allegation in the Class four felony range are:
  • Committing a DUI while riving with a license that is knowingly suspended, canceled, revoked, refused or restricted.
  • A repeat DUI offender who has a third DUI conviction within seven years of the first.
  • Committing a DUI while driving the wrong way on any public road.
  • Committing a DUI while ordered to have the ignition interlock installed. 
An aggravated allegation in the less harsh Class six felony are:
  • If a minor age 15 or younger was a passenger in the vehicle driven by an impaired driver, who can also be charged with child endangerment. The impaired driver’s blood-alcohol concentration is used to gauge the seriousness of this offense. The officer will make the arrest at the traffic stop and the child will be returned to a family member if one exist or if a family member cannot be reached to Child Protective Services.
 
Punishments for class 4 and 6 felony convictions
The court in sentencing for an aggravated DUI offense are severe. The punishments for an aggravated enhancement are:
  • A mandatory minimum of four months in the Department of Correction
  • Revocation of the privilege to drive
  • Steep fines up to six figures
  • A term of probation that restricts your freedom for up to 10 years
  • You may also be ordered by the court to work many hours in a community service project.
  • Court-ordered installation of an ignition interlock device that prevents the engine from starting if the device detects alcohol on your breath.
  • Increased car insurance premiums, and paying for SR-22 insurance, which tells the DMV if your insurance elapses.
  • Substance abuse screening and attending 36 abuse alcohol education and treatment classes at your own expense.
  • A felony that will remain on your record forever.
     

Other consequences of a felony DUI conviction

An aggravated DUI felony conviction has serious life-changing ramifications.

A felony conviction means the loss of the right to vote in elections or hold public office, to possess and carry a firearm, revocation or suspension of a professional license required by teachers, real estate agents, financial consultants, truckers, and other professions regulated by professional organizations.

A felony conviction makes it difficult to get or keep a job or rent an apartment. A felony conviction will also stain a person’s reputation in the community and becomes public record for anyone to see. News coverage can occur in severe crashes and in cases involving high profile people. Felons cannot enlist in the military.

Being jailed for at least four months and perhaps longer can result in your employer terminating you and college students who are convicted can be expelled from their schools.

Aggravated actual physical control

Authorities can charge a motorist with an aggravated DUI even if the person was not driving and the vehicle is not moving. All under law that is necessary is the defendant to have been in “actual physical control” of the vehicle under Arizona Revised Statute §28-1381 if the person’s license was suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license.

An aggravated enhancement is allowed if the defendant had a child age 15 or younger in the vehicle at the time a traffic officer investigated, or if the present offense happened within seven years if a third offense is committed.

The defendant had been driving on the wrong side of the road, which includes residential streets.

The law does not define actual physical control. A jury needs to determine if actual physical control had occurred by considering a number of factors including:
  • Keys in Car IgnitionWhere was the ignition key?
  • Was the ignition turned on?
  • Was the engine running?
  • Where and in what position was the occupant in the vehicle?
  • Was the occupant asleep or awake?
  • Where was the vehicle stopped?
  • Were the vehicle’s headlights on?
  • Were the windows up or down?
  • Did the driver voluntarily leave the roadway to park?
     

Aggravated DUI Defenses

Each case is unique in that it has its own particular set of facts and circumstances but a defendant has common defenses available under law.

Law enforcement must of had the legal authority to make the traffic stop by having a probable cause or reasonable suspicion that a law was broken or about to be broken?

Did the traffic officer violate the defendant’s constitutional rights by failing to recite the Miranda rights, which are the right to remain silent so you won’t convict yourself and your right to have an attorney present during questioning?

Were the field sobriety tests inaccurate or administered improperly or did the defendant have medical issues that impacted the testing?

Were the breathalyzer, blood, or chemical tests flawed in some manner such as the blood sample was tainted?

Did the police report contain factual errors or omissions favorable to the defendant?

Did the MVD properly send notice of the suspension?

DUI Defense Attorney Aaron M. Black

It is paramount to have a seasoned DUI defense attorney, such as myself, promptly after the arrest. It is always my goal to win a dismissal of the charges or to at least reduce the charge to a lesser offense.

I will conduct an independent investigation of the case including scrutinizing the police report and the arresting officer’s performance record. I will interview any witnesses and will work to develop evidence that is favorable to you.

Throughout the case you will receive timely personalized legal services. You will never be handed off to an assistant.

Launch your defense immediately by calling 480-729-1683, which is available 24/7, and I will respond promptly unless I am in court on in trial. Or use my online contact form on my website.

I defend felony aggravated and actual physical control DUI cases throughout Arizona, including the Maricopa, Pinal, Yavapai, and Coconino County Superior Courts.
 

About the Author

Aaron Black is the founder and sole attorney of the Law Office of Aaron Black. Located in Phoenix, Arizona, his DUI and criminal defense law firm provides legal services to people who have received felony or misdemeanor charges from the state.

Aaron has developed a strong interest in defending people who have been arrested and received criminal charges for driving under the influence. With his professionalism and knowledge of Arizona DUI and criminal law, he has acted as a check and balance on the police, prosecution and courts and has protected a great number of his clients from excessive and unfair sentencing.

Along with DUI defense, Aaron handles a range of other criminal matters, including aggravated assault, burglary, domestic violence, drug possession, drug trafficking, fraud defense, insurance fraud, sex crimes and white-collar crime.

After graduating college in 2003 from the University of Arizona, Aaron decided to pursue a law degree. He followed a family long tradition and went to the University of South Dakota School of Law where he pursued his goal of becoming a criminal defense lawyer.

After passing the Arizona and South Dakota bar exams, Aaron joined the Maricopa County Office of the Public Defender where he defended hundreds of people charged with serious criminal offenses. His work as a public defender helped him sharpen his litigation skills and gave him a unique insight into the Arizona criminal justice system.

Over the course of his 15-year legal career, Aaron has spent a considerable amount of time in both Arizona justice, municipal, state and federal courts. He has argued over 50 jury trials, tried over 100 bench trials and has become one of the highest-rated criminal and DUI defense attorneys in Phoenix and the surrounding areas. He has received a 10/10 rating from the legal directory Avvo because of his legal background and successful case record. Since 2014, he has received the Super Lawyer rating for his work as a Phoenix DUI and criminal defense attorney.

You can review Aaron’s Attorney Bio page for more information about his background, education and experience as a Phoenix DUI and criminal defense attorney.
In light of the Coronavirus pandemic, I wanted to inform clients and potential clients I am still available for consultations. I am always available by phone, text and/or email. We can also use Facetime for social distancing. The criminal justice system is not stopping due to COVID-19.

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