The most common way that a person is charged with aggravated DUI (felony DUI), is at the time when they are allegedly driving under the influence, their drivers license was suspended. As odd as this may sound, it is very common that a person did not know their license was suspended. This is because the procedures of Department of Transportation's Motor Vehicle Division (MVD) are so complicated and confusing, that even most lawyers cannot figure them out. Thus, the difference between a felony DUI requiring a prison term, and a misdemeanor DUI requiring a short term of jail, can be the simple fact the person did not pay an $85.00 fee.
Most people think, "no problem, I will just explain that I didn't know my license was suspended." However, this explanation will not satisfy a prosecutor. This is because Arizona law does not require that you actually know your license is suspended to make the crime a felony. Thus, the strategy in defending these cases is to show the client did not deliberately ignore the status of his license.
Here is the basic law regarding aggravated DUI due to a suspended license. Aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734.
Pursuant to A.R.S. § 28-3318(A), the MVD must provide written notice to a licensee informing him when his license is suspended. The written notice must be sent by mail to the address provided to the Department on the licensee’s application, unless the licensee has notified the Department of a change in his address pursuant to § 28-448(A) (requiring licensees to “notify the department within ten days” of any change in address). § 28-3318(C). Moreover, pursuant to § 28-3318(D), “[s]ervice of the notice provided by this section is complete on mailing.” Furthermore, § 28-3318(E) provides:
Compliance with the mailing provisions of this section constitutes notice of the suspension, revocation, [or] cancellation . . . for purposes of prosecution under § 28-1383[.] The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancellation[.]
Although the law establishes a presumption that the licensee has received notice, and therefore has actual knowledge of his license suspension when the Department complies with the mailing requirement, this presumption is rebuttable and a person may demonstrate that he did not receive the notice. See State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986). “[O]nce the state proves mailing of the notice of suspension, the state no longer has the burden to prove receipt of the notice or actual knowledge of its contents. The burden then shifts to the defendant to show that he did not receive the notice.” State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App. 1993).
Therefore, it is not enough for an attorney to merely argue the person did not know his license was suspended. Rather this is just the first step in the defense. The defense must also show the person did not deliberately ignore the status of his license.
