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DUI, What Should Be a Lesser Included Offense, and a Common Trial Defense

I previously wrote about the fact that, in Arizona, you do not have to be driving to get a DUI. I’ve also written quite a few times in the past about lesser-included offenses and Arizona courts’ unwillingness to give juries the option of finding defendants guilty of less serious but potentially more appropriate offenses at trial. A fairly old opinion from the Court of Appeals of Arizona, Division One, combines those two things in a way that might be pretty amusing if it weren’t so scary.

In the opinion, the court said that aggravated DUI, which means DUI with a suspended license, does not contain the lesser offense of driving on a suspended license. The court’s reasoning was that aggravated DUI does not require proof of actual driving and can be committed anywhere within the state, but driving on a suspended license requires driving and has to occur on a public highway. I have no clue how anyone can put that on paper without developing serious concerns about the abominable DUI laws in this state and the obvious impending push toward prohibition through them, but they do always seem to figure out some way to surprise me. The absurdity of the situation speaks for itself just reading the opinion.

What is also interesting is the fact I didn’t know about the opinion until last weekend. It’s because of a phenomenon most people would not expect. I’ve handled plenty aggravated DUI cases, but I’ve never really met anyone who agrees his license was suspended but denies driving drunk. On the other hand, I regularly have clients who want to fight their aggravated DUI cases with the argument that they committed DUI but had no clue their license was suspended. It’s the opposite of what I would have expected, and it was pretty funny hearing it from a client the first time: “oh yeah, I was totally cruisin’ around wasted, but dammit my license was totally valid.”

Oddly enough, it can be a pretty solid defense. Juries tend to think they’re just throwing the defendant a tiny little bone by finding him not guilty of the suspended license DUI count. They don’t realize that, in many cases, that’s the count that is a pretty serious felony and carries four months of actual prison. The similarly scary sounding regular DUI count is often just a misdemeanor carrying a penalty of one day of jail.

That defense also led to one of the best defense-lawyer questions I’ve heard of in a trial. After lengthy testimony from the state’s expert about gas chromatography-mass spectometry and the testing equipment, the defense lawyer stood up an asked a single question, “so does that thingamawhatsit tell you if my client knew his license was suspended?”

I suppose it’s good we can laugh a little. With the laws we have, otherwise, we’d be doing a whole lot of crying.

H/T Andrew (the other one)

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One Response to "DUI, What Should Be a Lesser Included Offense, and a Common Trial Defense"

  1. Andrew (the other one) says:

    I can’t help but be impressed by the legal hair-splitting in the decision. It’s up there with the reasoning that sex offender registration isn’t a punishment that triggers the ex post facto clause. It takes a special kind of authoritarian to be that clever.

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