Aggravated DUI for Driving on Suspended License Defenses

Appeals Court overturns conviction holding that the State must prove beyond a reasonable doubt that a defendant knew or should have known of the suspension.

mountain-road-1424189-m-1.jpgThere are several ways to get an aggravated DUI conviction in Arizona. Among the ways is driving while impaired by alcohol, drugs, medication, or illegal substances while having a suspended, cancelled, revoked, refused or restricted license. This is a class 4 felony.

However, you can also be charged with driving on a suspended license, which is a class 1 misdemeanor. Although the latter may not seem particularly important because it is a misdemeanor, it does give you a criminal record and can impact you in the future.

In a recent case, the defendant was charged with aggravated DUI while driving on a suspended license. The defendant did not appear for his trial and was tried without being present.


In this case, the State asked for a jury instruction for the DUI stating that the man’s license was suspended and that he either knew of the suspension or should have known of it. However, the State did not require any proof regarding the defendant’s mens rea for the suspended license count. In criminal law “mens rea” refers to a guilty mind or criminal intent. It is a crucial element in many crimes.

The State proposed that all that needed to be shown in this case was that the defendant had driven on a suspended license and his license was in fact suspended. It didn’t matter what he thought. The defense attorney asked for the same mens rea that was applied to the aggravated DUI charge to be applied to the suspended license count. A jury found the defendant guilty of driving on a suspended license, but acquitted him of the DUI. He was sentenced to 10 days in jail and fined. He appealed.

On appeal he argued that the court should have given a jury instruction that to convict of driving on a suspended license, it must be proved that the defendant knew or should have known that the license was suspended or revoked.

On appeal, the appellate court reviewed the issue of whether the jury instructions for the suspended license count were adequate. It explained that the pertinent statutory section (28-3473(A)) did not specify a mens rea at all. The statutory section regarding mens rea noted that if there was no mens rea expressly stated for culpability, none was required and the offense should be treated as one of strict liability unless the prohibited action intrinsically included a culpable mindset.

However, in Arizona, the courts have tended to disfavor strict liability offenses. A mens rea is preferred.

In the aggravated DUI cases cited by the defendant, there was absolutely the requirement that a defendant knew or should have known of a suspended license. However, one of the cases explained that a suspended license was difference because public policy supported the proposition that a driver must know of his lack of license in order to be punished for driving without one. There could be problems of mistaken identity or voiding of auto insurance at the Department of Transportation. The danger of unknown or mistaken suspensions was too serious to permit prosecution and conviction without a reasonable knowledge or reason to know.

The State had countered this excerpt of case law, claiming that a suspended license should be handled differently because it carried a small penalty, not the harsh consequences of a felony conviction. The court disagreed with the State, holding that the State had to prove beyond a reasonable doubt that a defendant knew or should have known of the suspension or other reasons for driving without a license.

The court vacated the conviction and sent it back to the lower court for a new trial. If you are charged or convicted with any type of DUI, you should consult with an experienced attorney to improve the outcome. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

Additional Resources:

Arizona Revised Statutes

Drug DUI and Super Extreme DUI laws

Arizona 2012 Statewide DUI Enforcement Statistics

Mothers Against Drunk Driving

More Blogs

Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013
Arizona Supreme Court: DUI Partition Ratios Evidence Admissible, Phoenix DUI Lawyer Blog, August 27, 2012

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