Here is the math used in Arizona: INCREASED JAIL + DUI PROBLEM = REDUCED DUI PROBLEM.  It makes perfect sense, right.  Who would risk more than a month in jail for a few drinks.  

Apparently - lots of people.  Maybe even more people now, than when the penalties were previously lower.  Unfortunately the State's math is flawed.  Let me give you some anecdotal evidence.

A few weeks ago I was sitting in an arraignment with a client waiting for our case to be called.  Before the judge started calling cases he told the packed court room about Arizona's DUI penalties.  After going through the sentencing schemes he also made the following disclosure in open court. He stated, these DUI penalties have become harsher and harsher ever since he had been practicing law (and by grey color of his remaining hair that appeared to be a long time). "However, my courtroom still stays full." He went on to say that "we all know" the new DUI penalties have not reduced the number of DUI cases but it is the law.  "Fair or not these are the laws I am required to follow."

Well it is not everyday a judge, in open court, makes such a candid admission.  Moreover, the judge's speech was absolutely correct about the Arizona DUI laws.  Those of who are involved in Arizona DUI cases, "all know" the math is wrong.  We all know, law enforcement included, raising penalties does not reduce the number DUI cases.  One reason is the real consequence of a DUI is not jail, but taking someone's life.  If that is not enough to stop someone from driving impaired, then long jail terms that no person really knows the specifics of (until after they are charged), certainly will not have a great impact.

However, I have an idea of what may work.  In part two of this post I make my case for how I believe we should address the problem.  That is, if we are serious about solving it - which I hope we are.


Lawrence Koplow

Arizona is one of a few states that has created something referred to as "Super Extreme DUI."  A DUI is "Super Extreme" if a person's blood alcohol concentration is .200 or above.  While this crime is still a misdemeanor, it carries a minimum jail term that is greater than most first time felonies.  There are several characteristics of this crime that make it unique.  Here are the five most important:

1. An extended period of an Ignition Interlock Device.  All Arizona DUI convictions require a person to install and maintain an ignition interlock device.  For a first time regular DUI, the minimum period is one year.  A conviction of Super Extreme DUI requires a minimum period of 18 months (or one and one-half years.)

2. Extended jail period.  For a regular DUI conviction, there is a minimum jail term of 1 day.  For an extreme DUI (BAC result of .150 and below a .200) conviction, there is a minimum jail term of 30 days.  For an Arizona Super Extreme DUI, the minimum jail term is 45 days.

3.  A better chance of getting your name in lights.  The Maricopa County Attorneys' Office has a website that posts booking photos of DUI offenders.  While they do not provide explicit details of how they choose who they post pictures of, we do know that they focus on people alleged to have higher blood alcohol test results (i.e. "Super Extreme DUI" and "Extreme DUI.")

4. Out of state offenders will probably go to trial.  If you live in another state and get a "Super Extreme DUI", you will have an inherent difficulty with taking a plea offer.  Many prosecuting offices offer long periods of jail for these cases.  It is not uncommon for them to offer the same amount of jail the person may get if they went to trial and lost.  For the person that lives in Arizona, they may be be able to maintain their employment during their jail term if granted work release and / or home detention.  However, out of state offenders may not have these options.  While most Arizona courts will permit them to do their jail out of state, there are very few out of state jails that will accommodate them.  Finding a jail in someone's home state for a few days can usually be accomplished.  When it comes to jail terms of 30 to 45 days, it is nearly impossible.  Most out of state jails will not accommodate these requests. Consequently, an out of state offender may need to go to trial and fight the Super Extreme allegation.  If successful, on that count alone, the minimum jail can be significantly reduced.  Thus, trial is often times the best option in these cases.

5.  Simply being charged with "Super Extreme DUI" does not mean you will be convicted of "Super Extreme DUI."  While prosecutors tend to offer extended periods of jail on these cases, that does not mean a reduction (or even dismissal) is not possible.  There are several factors that need to be examined: (1) How far above a .200 is the test result? (2) Were there any problems with the blood testing process? (3) How bad was the driving prior to the traffic stop? (4) Is there a disconnect between how the person was acting and the test result? and (5) Are there any procedural or constitutional violations?  Moreover, there are many other factors that may affect the outcome of the case.  The general concept is that if the government believes they might lose the case, the better the chance of a reduced plea offer.

In sum, Arizona Super Extreme DUI convictions are truly unique, in that the increased penalties for this misdemeanor can be more onerous than many felonies.