ARS 5-395.01: Operating or in actual physical control

A. A person who is convicted of a violation of section 5-395 is guilty of a class 1 misdemeanor. The person:

1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.

2. Shall pay a fine of not less than two hundred fifty dollars.

3. May be ordered by a court to perform community restitution.

4. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

5. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the law enforcement and boating safety fund established by section 5-383. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

B. In addition to any other penalties under this section, the judge shall order the person to complete alcohol or other drug screening that is provided by a facility approved by the department of health services, the United States department of veterans affairs or a probation department. If a judge determines that the person requires further alcohol or other drug education or treatment, the person may be required pursuant to court order to obtain alcohol or other drug education or treatment under the court’s supervision from an approved facility. The judge may review an education or treatment determination at the request of the state or the defendant or on the judge’s own initiative. The person shall pay the costs of the screening, education or treatment unless the court waives part or all of the costs. If a person is referred to a screening, education or treatment facility, the facility shall report to the court whether the person has successfully completed the screening, education or treatment program.

C. Notwithstanding subsection A, paragraph 1 of this section and except as provided in section 5-398.01, the judge may either:

1. Suspend any imposed sentence for a first violation of section 5-395 if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.

2. Suspend all but twenty-four consecutive hours of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program and if the court determines the person recklessly endangered another person with a substantial risk of physical injury. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.

D. If within a period of eighty-four months a person is convicted of a second violation of section 5-395 or is convicted of a violation of section 5-395 and has previously been convicted of an act in another jurisdiction that if committed in this state would be a violation of section 5-395, the person:

1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.

2. Shall pay a fine of not less than five hundred dollars.

3. Shall be ordered by the court to perform at least thirty hours of community restitution. If the person fails to complete the community restitution ordered pursuant to this paragraph, the court may order alternative sanctions if the court determines that alternative sanctions are more appropriate.

4. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

5. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the law enforcement and boating safety fund established by section 5-383. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

E. Notwithstanding subsection D, paragraph 1 of this section, at the time of sentencing, except if the court determines the person recklessly endangered another person with a substantial risk of physical injury, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.

F. In applying the eighty-four month provision of subsection D of this section, the dates of the commission of the offense shall be the determining factor irrespective of the sequence in which the offenses were committed.

G. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.

H. Any political subdivision processing or utilizing the services of a person ordered to perform community restitution pursuant to this section does not incur any civil liability to the person ordered to perform community restitution as a result of these activities unless the political subdivision or its agent or employee acts with gross negligence.

I. After a person who is sentenced pursuant to subsection A of this section has served twenty-four consecutive hours in jail or after a person who is sentenced pursuant to subsection D of this section has served forty-eight consecutive hours in jail and after receiving confirmation that the person is employed or is a student, the court, on pronouncement of any jail sentence under this section, may provide in the sentence that the person may be permitted, if the person is employed or is a student and can continue the person’s employment or studies, to continue such employment or studies for not more than twelve hours per day nor more than five days per week, and the remaining day, days or parts of days shall be spent in jail until the sentence is served. The person shall be allowed out of jail only long enough to complete the actual hours of employment or studies and no longer.

J. A person who is sentenced pursuant to this section is eligible for a home detention program pursuant to section 9-499.07, subsections L through R or section 11-459, subsections K through Q.

K. The court shall allow the allegation of a prior conviction or other pending charge of a violation of section 5-395 filed twenty or more days before the date the case is actually tried and may allow the allegation of a prior conviction or other pending charge of a violation of section 5-395 filed any time before the date the case is actually tried, provided that when the allegation is filed this state must make available to the defendant a copy of any information obtained concerning the prior conviction or other pending charge. Any conviction may be used to enhance another conviction irrespective of the dates on which the offenses occurred within the eighty-four month provision.

L. If a person is placed on probation for violating section 5-395, the probation shall be supervised unless the court finds that supervised probation is not necessary or the court does not have supervisory probation services.