DRIVING ON A SUSPENDED LICENSE IN ARIZONA
Arizona’s ARS 28-3473 makes driving without a valid and current license a class 1 misdemeanor. The statute states that it’s illegal to knowingly drive on a public roadway while your privilege is suspended, revoked, canceled, or refused. In simplest terms, if your license isn’t valid when you’re pulled over, police can arrest you; and under Arizona’s vehicle impound law (ARS 28-3511), they can take your vehicle for thirty days.
In Arizona, your driver’s license can be suspended or revoked for several reasons. Alcohol crimes, license points, unpaid fines (ARS 28-1601), delinquent child support, failing to appear at Court (ARS 28-3308), and criminal convictions can all lead to a suspension. When this happens, the Arizona Department of Transportation will mail a suspension or revocation notice to the driver’s last known address. The notice will also contain instructions on how and when a license can be reinstated.
Far too often, drivers fail to receive suspension notices. We hear this story often: a driver gets stopped for a traffic violation; the officer notices a red flag for a suspended license; the driver is arrested; and, the driver’s vehicle is impounded for thirty days.
POTENTIAL PENALTIES FOR A DRIVING ON A SUSPENDED LICENSE.
Driving on a Suspended License is a class 1 misdemeanor. As such, it carries up to 180 days jail, 3 years probation, and $4,574 in fines and surcharges. Refer to ARS 28-3473, ARS 13-802, and ARS 13-707. While jail is unlikely for first time offenders, if you have a significant driving record, the prosecutor might seek jail. The lengthier your motor vehicle record, the more jail a prosecutor might seek.
IN CERTAIN CIRCUMSTANCES, THE JUDGE CAN DISMISS THE CHARGE.
If your license was suspended due to unpaid traffic fines (ARS 28-1601), but you’ve since paid those fines and reinstated your license, the Judge has the discretion to dismiss the criminal license charge. While this motion can be made orally, we recommend filing a written motion with exhibits and information that outlines the reasons for dismissal. A copy of the motion should be provided to the prosecutor’s office.
COMMON DEFENSES TO DRIVING ON A SUSPENDED LICENSE.
No Criminal Intent
This is the most common and effective defense in suspended license cases. The suspended license statute requires proof that you knowingly drove on a suspended license. The prosecutor must prove this by showing that you knew, or should have known, about the suspension. The Judge can determine you didn’t knowingly drive on a suspended license when you testify that you didn’t see the notice and the State fails to establish that your lack of knowledge was the result of deliberate ignorance. A criminal defense lawyer can present evidence and argument to convince the judge that you neither knew, nor should have known, about the suspension. This is an important defense that deserves careful analysis, detail, and background. As such, the following is a legal summary of this defense.
Driving on a suspended license is NOT a strict liability crime; the prosecutor must prove criminal intent. The prosecutor must prove that you knew, or should have known, that your license was suspended or revoked. State v. Yazzie. The court explained that mistakes and errors can occur in any administrative office the size of the Department of Transportation; and as such, the danger of unknown or mistaken suspensions is too great to allow a conviction to be based upon suspensions without knowledge. State v. Williams.
The State’s best weapon in these cases is the statutory presumption that a driver has constructive notice of a suspension when MVD complies with notice requirements under A.R.S. § 28–3318 (C), which states: “The department shall send the notice by mail to the address provided to the department on the licensee’s application or provided to the department pursuant to section 28-448. If an address has not been provided to the department as provided in this subsection, the department shall send the notice to any address known to the department, including the address listed on a traffic citation received by the department.”
This presumption of knowledge is triggered under A.R.S. § 28–3318 (E), which states: “Compliance with the mailing provisions of this section constitutes notice… for purposes of prosecution under section… 28-3473… The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancelation…”
Despite a presumption of constructive notice to drivers when MVD mails a letter, this doesn’t, by itself, prove criminal intent. As the Court held in State v. Jennings, a statutory presumption doesn’t convert the crime into one of strict liability. The presumption is rebuttable and a defendant may demonstrate that he didn’t receive the notice. State v. Jennings. “[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 didn’t receive the notice.” State v. Church. The defendant must testify that he didn’t get the letter from MVD. Once this is done, the State must prove that the defendant nonetheless knew or should have known about the suspension. State v. Cifelli.
In the past, prosecutors have tried to argue that a defendant has reason to know of a suspension based solely on evidence that he failed to timely notify the Department of a change of address. The court rejected this argument in State v. Cifelli, ruling that such neglect, standing alone, doesn’t satisfy the Williams/Jennings intent requirement that a defendant has reason to know his license was suspended. State v. McCallum, (Chasanow, J., concurring) (“Deliberate ignorance requires a conscious purpose to avoid enlightenment; a showing of mere negligence or mistake is not sufficient.”). Instead, there must be additional evidence to infer that defendant had reason to know that his license was suspended. Cf. Allen.
In sum, there MUST be evidence, outside of MVD’s proper mailing, that a defendant had reason to know his license was suspended. The evidence must reflect more than just neglect; there must be a demonstration of deliberate ignorance of a license status; deliberate ignorance is the substantial equivalent of having reason to know a license is suspended. State v. Cifelli.
Improper Notification by MVD
The State needs to show that the law was followed in MVD’s suspension notification. If they failed to give proper notice, you have an excellent case for dismissal. That’s because there’s no evidence that you should have been aware of the suspension.
Not Driving on a Public Road or Highway
You cannot be found guilty if the area you’re found driving is not a public roadway. This is in contrast to Arizona’s DUI law; DUI is illegal on any property.
No Evidence of Driving
Unlike Arizona’s DUI law, which merely requires that you be in actual physical control of a motor vehicle, Arizona’s suspended license law requires that you actually be found “driving” a motor vehicle. If you weren’t seen driving, you have an excellent defense.
Lack of reasonable suspicion for a stop, lack of probable cause, illegally obtained statements, right to counsel violations, and involuntary statements can provide for the suppression of evidence and/or dismissal.
CALL or TEXT Tobin Law Office for a Free and Friendly Consultation about Your Suspended or Revoked License Case.
When facing a criminal license charge, TEXT or CALL 480-447-4837. We can explain how might avoid a conviction, reduce the charge, and protect your future.
Our consultations are free and confidential. There’s never a sales pitch. Prospective clients are often surprised by how affordable it can be to have us handle their license case for them. Suspended license cases are one of are more affordable services due to the consistency in outcomes and criminal procedure.
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Tobin Law Office
1910 S. Stapley Dr.
Mesa, AZ 85204