Arizona’s extreme DUI statute is A.R.S. § 28–1382. Subsection (D)(1) requires thirty consecutive days in jail for a DUI involving an alcohol concentration of 0.15 or more but less than 0.20, and subsection (I) allows for all but nine of those to be suspended. For an alcohol concentration of 0.20 or more, the same subsections require forty-five consecutive days in jail and allow for all but fourteen days to be suspended.
Depending on the court, you may be able to do home detention for some of your time. The relevant home detention statute is A.R.S. § 9-499.07. In 2011, Senate Bill 1200 made some substantial changes to the law. Here is what it changed regarding the eligibility requirements a prisoner must meet for the program:
Notwithstanding section 28-1387, subsection C, if the prisoner is sentenced under section 28-1381, subsection K or section 28-1382, subsection D or E, the prisoner first serves a minimum of
fifteen consecutive daysTWENTY PER CENT OF THE INITIAL TERM OF INCARCERATION in jail before being placed under home detention OR CONTINUOUS ALCOHOL MONITORING.
To be clear, it used to require fifteen days before eligibility, but it changed to only require twenty percent. Unfortunately, there’s apparently ambiguity now because the self-explanatory words “initial term of incarceration” are not defined.
For an alcohol concentration of 0.15 to 0.20, is the initial term the nine you serve initially or the whole thirty, twenty-one of which you’ll almost certainly avoid? For an alcohol concentration over 0.20, is it the fourteen or the forty-five? Treating “the initial term of incarceration” as the term of incarceration you initially serve is what the words say, which would mean you’ll be eligible after two days or three days, respectively, if you round up. The problem with that as far as I can tell is the fact the plain text is helpful to defendants. Treating the whole term, including the part you don’t initially serve, as the “initial term” results in harsher sentences of six and nine days, respectively. That’s three times the jail. What do you want to bet the painfully obvious but pro-defendant meaning the plain language of the law conveys is the one that the appellate court has decided to reject in favor of the ridiculous alternative?
In Arizona, the county superior courts hear appeals from city courts and county justice courts, which only handle misdemeanors. DUI cases involving violations of A.R.S. § 28–1382 are misdemeanors, so the issue I’ve outlined above typically arises there. That means that, when it comes up in Maricopa County and the side that doesn’t like the trial court’s decision appeals, it goes to the lower court and administrative appeals judge at the Maricopa County Superior Court. I find it quite telling that, of the almost two dozen case links on the court’s topics page, the defendant only won in a single case and it involved a motion to suppress blood where officers also had a breath sample. In other words, the defendant probably lost anyway. Every single time in every single one of those other cases on the topics page, and unsurprisingly in every single one of the dozens of other Maricopa County lower court appeal cases I’ve randomly come across perusing rulings over the years, the judgement and sentence were affirmed when the defendant appealed and the trial court was reversed when it did something in favor of the defendant and the state appealed. Any guess how the court came down on the home detention issue?
Here is the court’s ruling. It should come as no surprise that the appeal came from Scottsdale City Court, where no price is too high to pay for the taxpayers and no distance too far to go for the bloodthirsty prosecutors if it means the city gets to squeeze even one more day out of a poor criminal defendant. Other rulings on the subject from different city and justice courts but before the same appellate court just seem to cite to that ruling.
In the ruling, the court relies mostly on the fact the home detention statute mentions only subsections (D) or (E) of the extreme DUI law, which provide for the full sentences of 30 and 45 days, not the initial terms people actually serve because of subsection (I). According to the ruling, “subsection (I) does not give a trial court the authority to impose a sentence, it only gives the trial court the authority to suspend a portion of the sentence already imposed.” In other words, because one statute fails to cite to a specific subsection of another statute, the “initial term” apparently no longer means the initial term but rather the entire term. The result is eye rolls from judges when lawyers make arguments that silly and irrelevant from the defense table.
The ruling also cites a case, State v. Oppido, though it seems to me that the case does more to call the ruling into question than it does to support it. In Oppido, the trial court read the old home detention statute literally, which is apparently not the way to do things when it helps the defendant. The appellate court disagreed.
The law back then used to require 15 days “if the prisoner is sentenced under . . . subsection (D) or (F)” (now (D) or (E)), and the trial court had suspended jail under what was subsection (E) (now (I)) at the time. As the court saw it, the issue was whether he was “sentenced” under the subsection requiring the full amount of time, or if it was under the subsection providing for the suspension of some of the time. The heart of the court’s ruling was that he was actually “sentenced” to the full amount, but a portion was available for suspension. The court in Oppido thought “the sentence” was the amount without the suspension. What a definition of “the sentence” has to do with the completely different and exceedingly clear language “the initial term of incarceration” is beyond me.
I was with the court when it said the sentence is the full amount. I was with the court when it said that suspension is simply an option available to the court. I even sort of appreciated how the court tailored the ruling in Oppido to the new situation with this:
“A person cannot be sentenced to  days’ jail under the statute; he may only be sentenced to  days’ jail under subsection (D) and then have [20 percent] of that sentence suspended pursuant to subsection [(I)] if he [equips any motor vehicle the person operates with a certified ignition interlock device for a period of 12 months].”
The problem is the jump from defining “the sentence” to defining “the initial term.” The statute doesn’t say “the sentence.” It says “the initial term.” That language can only realistically mean one thing, and the fact the law specifically doesn’t use the word “the sentence” strengthens that conclusion. The court completely lost me again with the very next sentence:
Based on Oppido, a trial court imposes sentence under A.R.S. § 28–1382(D)(1) and not under A.R.S. § 28–1382(I), thus “the initial term of incarceration in jail” is the sentence of “not less than 45 consecutive days in jail” under § 28–1382(D)(1).
That the “sentence” is imposed under one section or another but not under the one involving suspension is great, but who really cares? What does that have to do with anything? The “initial term of jail” is still the initial term of jail unless initial means something other than initial (“placed at the beginning”) and term means something other than term (“a limited or definite extent of time“). The unsuspended time you would actually have to serve sure seems like the initial term (the definite extent of time in custody placed at the beginning), but that’s somehow not enough for the court. Here is the only version of the statute that would apparently convince the court to go with the smaller numbers:
[I]f the prisoner is sentenced under § 28–1381, subsection K or 28–1382, subsection D or E, the prisoner first serves a minimum of 20 per cent of the initial term of incarceration in jail before being placed under home detention or continuous alcohol monitoring. [If the trial court, under § 28–1381, subsection L, or 28–1382, subsection I, suspends a portion of the sentence imposed, the prisoner first serves a minimum of 20 per cent of the portion of the sentence not suspended (rounded up to a full day) before being placed under home detention or continuous alcohol monitoring.]
Is anyone other than me amused that a court writing a non-binding ruling would propose statutory text as if the legislature might suddenly care? What do you want to bet the legislature doesn’t do anything? What do you want to bet that, even if it did, the court would later find some way to work around even its own supposed ironclad text if it meant some poor defendant had to do a little more time?
At least the ruling isn’t binding authority. If the issue makes it to a court capable of creating binding precedent, I shudder to think how much worse it might get. For now, I suppose I should just feel lucky that most lower court judges still follow the plain language and are presumably unaware they’re likely to get overturned if prosecutors grow tired of watching them logically apply the law as written.