A DUI in Arizona is what a jury says it is. All DUI defendants have either a constitutional (Felony) or statutory (Misdemeanor) right to a jury trial.  By looking at appeals from convictions we can see the facts that lead to that jury unanimously deciding, beyond a reasonable doubt, the defendant was guilty. We can also see any legal arguments the defendant may have that he was wrongly found guilty, either because there was not enough evidence to convict or that the trial judge made some error which denied him the right to a fair trial.

These appeals are only from convictions based on guilty verdicts. The State cannot appeal from a not guilty verdict and so these appeals do not show what juries thought was not enough evident to convict a defendant.

In Arizona it is a Class 4 Felony to Drive the Wrong Way on a Highway While Impaired (28 A.R.S. § 1383.A.5).  Although as of the date of this blog (12/4/25) there is a legal question as to what roadways are included in the definition of “highway”, a controlled access road, such as I-17 and Loop 303, is clearly a “highway.”  In State v. Reyes, a jury decided what is a Wrong Way Felony DUI.

FACTS

Around 4:30 a.m. on September 16, 2023, a "wrong-way detection alarm went off," alerting a traffic operations specialist that a vehicle had entered the Loop 303.

Through a live camera feed, the specialist identified the vehicle as a white pickup truck, reported the situation to law enforcement, and relayed the truck's movements to the dispatcher.

The specialist only lost sight of the truck for a few seconds as he switched between different camera systems and did not observe any other white pickup trucks in that section of Loop 303.The truck continued southbound in the northbound lanes, migrated to the right (the northbound "fast lane"), slowed down, and eventually stopped and completed a U-turn.  The truck then exited Loop 303 from the same exit ramp where it originally entered, proceeded straight across the intersection, and rejoined the northbound lanes of Loop 303.

911 calls from two motorists reported a wrong-way driver who observed a pickup truck going southbound in the northbound lanes. At trial the State used the call recordings but did not have the callers testify in court.  A DPS trooper located the white truck, observed it swerving and weaving, and performed a traffic stop at 4:35 a.m.  The driver who was the defendant had bloodshot eyes, slurred speech, and an unsteady gait. He also offered his passport when asked to provide his driver's license.  2 breath samples showed blood alcohol content ("BAC") was 0.148% and 0.149%.

The jury found the defendant guilty. The judge then sentenced the defendant to the mandatory minimum sentence of probation with 4 months in state prison.

TRIAL ISSUE

The defendant appealed from the conviction. He contended that by permitting the State to use the 911 calls at trial, the judge violated his right to a fair trial as protected by the Fourteenth Amendment Due Process.

The State only disclosed the contents of the 911 calls 2 weeks before trial and so the defendant had insufficient "time before trial to try and locate these witnesses. Possible exculpatory evidence is now unavailable." Over the defendant’s objections the judge allowed the State to present the 911 calls to the jury.

COURT OF APPEALS DECISION

The court of appeals denied the defendant’s appeal.  In doing so the appellate court held the 911 call recordings did not provide "crucial" or "critical" evidence against Reyes; instead, the recordings merely supported the other evidence presented by the State and cannot reasonably be considered foundational, "critical", evidence.

The court also said, “The State presented video evidence of Reyes entering the exit ramp and testimony from the specialist who observed the white truck driving the wrong way on the freeway. Neither the specialist nor the trooper observed any other white trucks on the freeway, and the trooper told the jury about his observations of Reyes' impairment, as well as the BAC results.”  Also, the 911 recordings were disclosed 12 days before trial, which gave the defense enough time to pursue any possible leads from the 911 for possible defenses.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website:  https://www.GordonThompsonAttorney.net

In 2018 the Legislature added a new felony DUI offense, 28 A.R.S.§ 1383.A.5, Driving the Wrong Way on a Highway While Impaired. The mandatory minimum sentence includes 4 months in State Prison. If an impaired driver is driving the right way the minimum penalty could be 1 day. If the same impaired driver drove the wrong way the minimum penalty is 4 months. The only difference between a day in jail and 4 months in prison is the direction of travel.

In criminal law most crimes require the defendant to know all of the crime’s elements. This means the defendant must know he is committing the crime. Knowledge can be from actually knowing or “should have known”. An example of “should have known” comes from the crime of driving on a suspended license. The state can prove “should have known” by showing the MVD mailed a suspension notice to the address the defendant gave to the MVD.

An exception to this rule is what are strict liability crimes. These are acts which are so obvious and dangerous that the defendant need not know he is committing the crime. One example is DUI. The DUI does not require proof that the defendant knew he was impaired.

On August 6, 2025 the court of appeals issued an opinion on this issue in Franz and Schlemmer vs. State. The court held the defendant did not need to know he was driving the wrong way on the highway. The court said all the State need do is show the particular stretch of roadway was properly marked with signs showing the correct flow of travel. The court went on to say the defendant could also present evidence that the direction of travel was correctly shown by signs. If the defendant presented such evidence, then he could get a jury instruction saying the jury could consider if the roadway was properly marked.

What is not clear from the decision is, does the defendant have to have knowledge he is driving the wrong way or not. The court said the defendant does not have to know that he is driving the wrong way. The defendant’s knowledge of the right and wrong way could come from the roadway signs. If the defendant does not have to know he is driving the wrong way, then what difference would the signs make? By leaving open the possibility of arguing the roadway signs did not properly show the wrong way it would seem the court is saying the defendant could be not guilty because the source of his knowledge, the signs, were not proper.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

In 2018 the Arizona Legislature enacted a new DUI felony which made it a Class 4 Felony to drive the wrong way on a “highway” while in violation of Arizona’s DUI laws. The mandatory minimum sentence includes 4 months in the Arizona State Prison, which in no way can be waived. The reason offered by the sponsors for the law is the fact that wrong way DUI driving on high-speed roads like freeways frequently causes very serious accidents.

The sponsors of this 2018 Wrong Way DUI Felony Law made very clear they intended “highway” to mean a controlled access highway or freeway. Unfortunately, the sponsors did not explicitly say that and under Arizona law the term “highway” can mean any public street, and so a County Attorney could prosecute a wrong way DUI driver who is on any street including a residential street with a posted speed limit of 25 mph.

Also left unaddressed is the fact that someone can be in violation of Arizona’s DUI laws even if they are not impaired. A person is in violation of the DUI laws if they have a valid prescription but are not taking that drug as prescribed, even though they are not impaired.

Putting these two factors together the current Wrong Way DUI Felony could apply to this woman:

A Disabled Vietnam Veteran has a prescription for Percocet which provides she is to take two pills a day to relieve pain for a war related leg injury. Because she has built up a tolerance over the years, she takes 3 Percocet pills a day instead of the 2. Because her body has gotten use to the Percocet, the 3 pills do not impair her. Because of the injury to her leg, she can only work at a part time job delivering newspapers. Because it is painful for her to get out in and out of her vehicle to deliver the papers, she does so by throwing the papers out of her driver’s side door and to get them in the proper driveway she drives down the wrong side of residential streets. This Disabled Vietnam Veteran has never been convicted of DUI. Under the Wrong Way DUI Driver law this Disabled Vietnam Veteran is guilty of a Class 4 felony because the residential street legally could be a “highway” and because by taking 3 pills a day and not the prescribed 2, she is in violation of the DUI laws even though she is not impaired. If guilty the judge will have no choice, this Disabled Vietnam Veteran must be sentenced to 4 months in State Prison.

This year's legislative bill HB2296 contained a common-sense modification of the Wrong Way DUI felony law. Consistent with the 2018 sponsors’ intent, “highway” would mean a State Highway with a posted speed limit of 50 mph and the law would no longer apply to residential streets and those portions of State Highways which are like city streets (for example Ash Street in Globe, with a posted speed limit of 30 mph) and would more closely apply to those highways the 2018 law’s sponsors had intended it to apply to. HB2296 passed the State House of Representatives on a vote of 59-0 and so the modification looked very likely to pass. However, county attorneys managed to convince Senators to drop this proposed modification and so the law will not be changed this year. Hopefully this common-sense modification will pass next year so that someone like the Disabled Vietnam Veteran in my example will not have to face 4 months in State Prison.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website: https://www.GordonThompsonAttorney.net

Does Arizona law require a driver to be sentenced to a mandatory minimum of 4 months in the Department of Corrections for a 1st offense, non-accident, regular DUI occurring on a city street, when aggravating factors such as a minor child in the vehicle or the driver’s having a suspended license are not present, and even when the driver was not impaired?  The current answer is, Maybe.

 A driver who drives the wrong way on a freeway while impaired creates a dangerous hazard for themselves and others.  In 2018 the Arizona Legislature enacted 28 A.R.S. § 1383.A.5, which makes it a Class 4 Felony with a mandatory minimum sentence of 4 months in State Prison to drive on the wrong side of a “Highway” while impaired.  Arizona Department of Public Safety (DPS) Director Colonel Milstead testified before the Legislature in support of the proposed law.  The DPS primarily patrols Arizona Freeways and high-speed highways.  Colonel Milstead said that in 2017 the DPS made 72 arrests for DUI when the driver was driving the wrong way on a highway.  53 of those arrests were as a result of an accident and 18 people were killed in those accidents.  The average Blood Alcohol levels for the 72 arrests was .160%, and for the accident cases, .189%.  47% of the 72 arrested had a prior conviction for DUI.[1]  Driving the wrong way on a freeway while highly impaired is clearly a danger.

 This new law is a dramatic escalation in penalties because it changes the penalties for conduct which could otherwise be classified as a Class 1 misdemeanor with as little as 1 day in jail to a Class 4 Felony with a minimum of 4 months in the Department of Corrections.  The only difference between the misdemeanor and the felony is that the impaired driver drove on the wrong side of a “highway”. To rephrase, if the roadway was not a “highway” then the penalty could be 1 day in jail, if the roadway was a “highway” then the penalty would be 4 months in State Prison.

 Unfortunately the Legislature made a serious mistake when it passed this legislation, because it never made clear what roadways are to be considered a “highway” and which are not.  Are all roadways “highways”, and so the law applies to impaired wrong way driving on all roadways or does the law only apply to driving on some roadways?  In the absence of a definition what roadways are “highways” judges and juries have no clear guidance which roadways are “highways” and which are not. Since this distinction alone makes the difference between a misdemeanor conviction with 1 day in jail and a felony conviction with 4 months in State Prison, this oversight by the Legislature was a big mistake.

 Exactly which roadways are “highways” is not always clear in law.  The word “highway” is used 441 times in the Title 28, Arizona Transportation Code, yet nowhere in Title 28 is there a definition of “highway” which would apply to this new law.  For example, in 28 A.R.S. § 621, which makes moving violations and crimes applicable to all public roadways, the word “highway” has been held to mean all public roadways.   In contrast, 28 A.R.S. § 101.64 defines the width of the right of way for a "Street" or “highway” and by using the disjunctive word ‘or’ implies there is a difference between what is a “street” and what is a “highway” but that distinction is not made clear.

 The ordinary common language meaning of the term “highway” is also confusing because it can mean a “main roadway” or “any roadway”, as can be seen from these three dictionary definitions:

 1. “A main public road, especially one connecting towns and cities.” American Heritage Dictionary, Fifth Edition, 2020[2], or

2. “1. Main road, esp. one between towns or cities: the highway between Los Angeles and Seattle. 2. any public road or waterway. 3. Main or ordinary route, track, or course.” Random House Learner's Dictionary of American English, 2020[3]. or

3. “A public way, especially a main direct road.” Merriam-Webster, 2020[4].

To add to the confusion, the Legislature’s staff gave conflicting descriptions of what they thought the Legislators meant by the word “highway.” The State Senate Staff’s end-of-session Legislative Summary describes the bill as, “Classifies wrong-way driving on a “controlled access highway” as aggravated driving... [5].  The Senate Staff failed to say people can look at the law and are able to tell that the word “highway” means only a “controlled access highway.”  The House Staff’s Legislative Summary is even worse.  Its summary states, “’highway’ as is defined in 28 A.R.S § 101,”[6] but in 28 A.R.S. § 101 the only definition of “highway” is, “.64…the entire width between the boundary lines of every way if a part of the way is open to the use of the public for purposes of vehicular travel…”, which does not help in determining what roadways are “highways” and which are only “streets.”

 Although the Legislature did not include a clear definition of “highway” in the law, in their discussion about the proposed law the Legislators were very clear about what roadways they intended wanted to be classified as “highways” for this new law. The legislators repeatedly stated the new law was meant to apply to “controlled access highways”, and so when they said “highway” they meant “controlled access highways.”  In the Legislature’s deliberations the term “highway” was repeatedly described as meaning a “freeway” or a “controlled access highway”.  House Representative Eddie Farnsworth was the Bill’s main sponsor.[7] Rep. Farnsworth repeatedly stated the bill applied to a “freeway.”   On January 31, 2018, Rep. Farnsworth told the House Transportation and Infrastructure Committee the bill, “creates a new aggravating circumstance of driving under the influence and entering a freeway driving the wrong way”. He also said, “the intent of the bill is to discourage people from driving under the influence but a severe enough penalty that if they enter onto a freeway driving the wrong way that they will think about driving under the influence.”[8] At the same hearing Rep. Cook said,

I too had concerns about what happens to Grandma and Grandpa that maybe off their medication that you know turns down the wrong way…  I've been convinced by the amendments that the change in this bill with those are addressed for instance in rural Arizona where you have two lanes one going one way one going the other what happens if you were to swerve on the wrong side of the road and cross the yellow line could you be charged with something higher or a civil penalty those have all been addressed to my satisfaction that that would not be the case and this is specifically designed for the on-ramps and off-ramps.[9]

 On February 27, 2018, Rep. Farnsworth told the Senate Transportation and Technology the bill addresses “entering a freeway going the wrong way.”[10]  He also stated the bill addressed to drink to the point you enter a freeway going the wrong way with the potential of killing people[11]. On March 1, 2018, Rep. Farnsworth told the Senate Judiciary Committee the bill created, “…Two crimes, driving the wrong way on a freeway and driving under the influence”.[12]  At the same hearing Senator Worsley said, “…this problem it is horrendously fatal and the accidents were there hurt their dramatically hurt if they live and this is an effort on the enforcement side to make sure that these people are back on the road if they've been so wasted that they've been driving on the wrong side of the freeway”[13].  On February 27, 2018,[14] a Senate Staff Intern told the Senate Transportation and Technology Committee and on March 1, 2018,[15] the Senate Judiciary Committee the bill, “classified wrong way driving on a controlled access highway as a Class 4 Felony.”

 Therefore, legislators made clear they thought they were passing a law which applied only to a “controlled access highway,” commonly known as a “freeway” and so for them “highway” meant “controlled access highway.” That idea makes sense because Colonel Milstead’s testimony was primarily about impaired wrong way drivers on “controlled access highways.” No testimony was presented about why driving on city streets was such a problem that they needed to dramatically increase the penalties from 1 day to 4 months for driving impaired the wrong way on city streets.  

 The problem now with this law is because the Legislature passed the law using the general term “highway” instead of the specific term the legislators intended, “controlled access highways” and because “highway” can also mean “any public road,” county attorneys are free to try to get courts and juries to believe this law applies to all public roadways.

 Moreover, if this law applies to wrong way driving on all roadways including residential city streets, a defendant may be sentenced to 4 months in State Prison, even if they are not impaired to the slightest degree. A common myth is a driver must be impaired before they can be found guilty of DUI, however that is not true.  A person is also guilty of DUI if they have any controlled substance within their body and are not taking that controlled substance in accordance with the medical provider’s instructions, even if they are not impaired.  That controlled substance does not even have to be one which can cause impairment.  For example, a person who is prescribed 2 tablets a day of Vicodin for pain and has built up a tolerance to it and so takes 3 tablets on a day.  Because taking 3 tablets is not as prescribed the person was not taking the Vicodin as prescribed and is therefore guilty of DUI even if they are not impaired by the Vicodin.  So if “highway” includes all roadways including residential city streets, then it would apply in this situation: A disabled Vietnam veteran has been taking Vicodin for pain in her left shoulder for many years and has built up a tolerance, and so takes she takes 3 tablets a day and not the 2 tablets as prescribed.  She has a part-time job delivering newspapers in the early morning and to do so drives on the wrong side of residential side streets so she can throw the papers onto the driveway while still seated in the driver’s seat.  By not taking the Vicodin as prescribed she is guilty of DUI even though she is not impaired. If “highway” means all roadways then this law applies to the residential street she is driving on and so she is guilty of Aggravated DUI and must serve 4 months in State Prison. Clearly this is not what the Legislators had in mind but if “highway” means all roadways then that is what the law would require.

 A criminal law must clearly give people notice of what is the prohibited conduct, which for this law means it must inform people which roadways it applies to.  Rep. Cook said this offense does not apply to driving on some roadways but how do we clearly know what roadways the law does apply to and which it does not?  The easiest way to make that distinction clear is to listen to the Legislators who said this law applies to “controlled access highways.”  The reason this distinction can be made is because what is a “controlled access highways” is clearly defined in the Transportation Code.  That definition is “…a highway, street or roadway to or from which owners or occupants of abutting lands and other persons have no legal right of access except at such points only and in the manner determined by the public authority that has jurisdiction over the highway, street or roadway.”[16]  Therefore by limiting “highways” to “controlled access highways” people can look at the definition and clearly know what roadways the law applies to and which it does not.

 So, is it possible for a driver guilty in Arizona of a 1st offense, non-accident regular DUI occurring on a city street, when aggravating factors such as a minor child in the vehicle or the driver’s having a suspended license are not present, and even when the driver was not impaired, be required to serve 4 months in State Prison?  Currently the answer is, Maybe. Until either the Legislature amends the law to conform to what they intended it to say or an appellate court rules the law is limited to “controlled access highways,” county attorneys are free to attempt to convince judges and juries that “highway” can mean all roadways so that a DUI driver driving the wrong way on any roadway is guilty of a felony and has to serve 4 months in State Prison.

 [1] Testimony of Colonel Milstead at a hearing of the Arizona House of Representatives Judiciary and Public Safety Committee, January 24, 2018, http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20183 times, *;45 to 17:35.

[2] https://ahdictionary.com/word/search.html?q=highway

[3] https://www.wordreference.com/definition/highway

[4] https://www.merriam-webster.com/dictionary/highway#examples

[5] https://www.azleg.gov/legtext/53leg/2R/summary/S.2243TRANSIT-JUD.pdf

[6] https://apps.azleg.gov/BillStatus/BillOverview/69987

[7] https://apps.azleg.gov/BillStatus/BillOverview/69987

[8] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20293, at 24:20

[9] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20293 at 29:40- 30:45

[10] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20738  at 1:17

[11] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20698 at 16:30- 16:50

[12] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20738 at 1:36:55

[13] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20738 at 1:19:04 to 1:20:26

[14] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20698, at 15:40

[15] http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20738 at 1:14:30

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