In a recent unpublished Arizona DUI decision, the defendant was convicted of second-degree murder, DUI, and extreme DUI. He was sentenced to 12 years’ imprisonment for the murder charge. His DUI sentence was suspended, and he was put on two five-year probation terms set to start after he served his prison sentence.
The case arose shortly after 2:00 a.m. in 2014 when the defendant drove his car at between 73 mph and 93 mph into the back of the victim’s car at an intersection where the speed limit was 35 mph and there was a stop sign, which caused the victim to die of multiple blunt force injuries. The defendant had been drinking vodka at his friend’s apartment about a mile from the accident, and he couldn’t remember what happened between drinking the first drink and sitting at the accident scene.
The officer who was dispatched saw that the defendant was flushed with watery eyes and that his breath smelled like alcohol. Several officers saw six out of six cues on a field sobriety test, and when they told the defendant he would be charged with second-degree murder, he laughed and said okay. His alcohol level was tested three times and averaged .223.
The defendant argued that probation terms for his DUI convictions that were consecutive to his prison term for second-degree murder violated double jeopardy rules under the Constitution and A.R.S. § 13-116. The trial court isn’t supposed to impose consecutive sentences if the conduct at issue is only a single act.
The appellate court reviewed the trial court’s imposition of consecutive sentences by considering the facts of each crime separately and subtracting evidence necessary to convict on the most serious or ultimate charge. When there’s enough evidence left to fulfill the elements of the secondary crime, it is appropriate to impose consecutive sentences. The court then looks at the whole transaction to decide whether it was not factually possible to commit the most serious crime without also committing the other crime. The court is also supposed to look at whether the defendant’s actions with regard to the other crime caused the victim to experience another risk of harm beyond what was integral to the most serious crime. If it did cause further harm, consecutive sentences are appropriate.
In this case, the second-degree murder conviction counted as the ultimate charge. The defendant argued that his drunkenness was necessary to establish the extreme recklessness required for the murder conviction. He also argued that the prosecution didn’t allege he drove while impaired at any time other than the accident.
The appellate court explained that a second-degree murder conviction is appropriate when a defendant recklessly engaged in actions that created a serious risk of death and then caused the death of someone else under circumstances that showed an extreme indifference to human life. The defendant must have been aware of an unjustifiable risk of death and have grossly deviated from the standard of behavior that a reasonable person would follow in the situation.
The court explained that subtracting evidence needed to support the murder conviction left enough facts to support the DUI conviction charge. The DUI offenses were complete when the defendant got into the car and started operating it while drunk. The defendant claimed it was factually not possible to commit second-degree murder without also committing less serious DUI offenses, reasoning he wouldn’t have driven as he did if he hadn’t been drunk. Recklessly causing the death could have been supported just by his driving at an excessive speed through a stop sign without being drunk while doing so. For these and other reasons, his convictions and sentences were affirmed.
If someone is injured or killed because of your DUI in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak. It is likely that prosecutors will take the charges very seriously. Mr. Novak is a former Maricopa County Prosecutor who will use insights obtained as a prosecutor to determine whether any of your constitutional rights were violated or whether other defenses apply to your case. He offers a free initial consultation for those facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.
- A.R.S. § 28-1321
- A.R.S. § 28-1381
- A.R.S. 28- 1382
- A.R.S.§ 28- 1383
- Arizona Department of Public Safety | DUI Prevention
- Maricopa County Sheriff’s Office | Jail Information for Families
- Mothers Against Drunk Driving | Latest from MADD
- National Institute of Alcohol Abuse and Alcoholism
- WalletHub | Strictest and Most Lenient States on DUI
- National Centers for Disease Control | Alcohol and DUI Facts
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