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Reduced Jail Terms for Extreme DUI Offenses Are Not Applied Retroactively

Beginning in 2012, judges in Arizona were afforded the authority to reduce a significant portion of the 30 day jail sentence that is required upon a conviction for extreme DUI. Prior to that time, Arizona Revised Statute 28-1382 required that the judge impose a mandatory sentence of 30 consecutive days in jail if a person was found guilty of driving with a blood alcohol concentration in excess of .150%. Effective January 1, 2012, that statute was amended to provide that 21 of the 30 days may be suspended if the driver has an ignition interlock installed in his or her vehicle. Inasmuch as MVD requires individuals to get an ignition interlock device for a minimum of 12 months if they are convicted of extreme DUI, this change provided a potential benefit to many if not most people convicted of extreme DUI.

Because the changes to 28–1382 did not provide whether or not they would be applied retroactively, various courts in Arizona were issuing inconsistent decisions with regard to this issue. For example, a person convicted in 2012 of an extreme DUI committed on December 15, 2011, may have been entitled to a reduced sentence in one court but not another, based on whether the date of violation or the date of conviction was the triggering event for that particular jurisdiction. A recent decision by the Arizona court of appeals held that the amendments to 28–1382 are not retroactive and persons convicted of extreme DUI with dates of violation prior to 2012 are not eligible for a reduced jail sentence, regardless of when the conviction or sentencing takes place.

There are additional remaining unresolved issues pertaining to the extreme DUI sentencing laws. For example, some judges interpret 28–1382 to read that a person is only required to have the device installed in order to receive a reduced jail term, while others also require that the person not incur any violations with the device including those that result from providing a breath sample containing alcohol. In the upcoming year, we may see published decisions from the courts which could clarify this issue as well.