quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
82. Unlawful Flight, ARS § 28-622.01
A driver of a motor vehicle who wilfully flees or attempts to elude a pursuing official law enforcement
vehicle that is being operated in the manner described in section 28-624, subsection C is guilty of a class
5 felony.
Crime Involving Moral Turpitude (CMT): Probably not. The BIA has held that the offense of
driving a vehicle in a manner indicating a wanton or willful disregard for the lives or property of others
while attempting to elude a pursuing police vehicle is a crime involving moral turpitude. Matter of Ruiz-
Lopez, 25 I&N Dec. 551 (BIA 2011). While § 28-622.01 includes only the element of flight, the statute at
issue in Ruiz-Lopez required both fleeing from law enforcement and reckless disregard for the lives or
property of others. Therefore, defense counsel should try to avoid any mention of injury or damage to
property that could suggest a “wanton or willful disregard for the lives or property of others.”
Aggravated Felony: This should not be held an aggravated felony as a crime of violence, since
there is no use, attempted use, or threatened use of physical force as required by 18 U.S.C. § 16.
83. Driving or actual physical control while under the influence, ARS § 28-1381.
Crime Involving Moral Turpitude (CMT): A simple DUI does not constitute a CMT. Matter
of Torres-Varela, 23 I. & N. Dec 78 (BIA 2001) (en banc).
Aggravated Felony: A simple DUI will not be considered an aggravated felony as a crime of
violence, even if a sentence of 365 days or more is imposed, because it can be committed with a mens rea
of mere negligence. See, e.g., Leocal v. Ashcroft, 125 S.Ct. 377 (2004) (felony driving under the influence
under Florida law, with no mens rea requirement, is not an aggravated felony as a crime of violence); U.S.
v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001) (Cal. conviction for DUI with injury Cal. Veh. Code §
23153 is not a COV); U.S. v. Portillo-Mendoza, 273 F.3d 1224, 1226 (9th Cir. 2001) (DUI conviction
with priors in violation of Cal. Veh. Code §§ 23152 and 23550 was not an aggravated felony).
Legislation passed the Senate, but did not become law, that would make a third DUI a crime of
violence and hence an aggravated felony if a sentence of a year or more is imposed. Because of this risk,
counsel should attempt to avoid a sentence of a year for a third DUI.
84. Driving or actual physical control while under the extreme influence of intoxicating liquor,
ARS § 28-1382.
Crime Involving Moral Turpitude (CMT): No, see ARS § 28-1381.
Aggravated Felony: Not under current law, but counsel should try to obtain 364 days or less
because of a risk of future legislation. See § 28-1381.
85. Aggravated DUI, ARS § 28-1383.
A. A person is guilty of aggravated driving or actual physical control while under the influence of
intoxicating liquor or drugs if the person does any of the following:
1. Commits a violation of section 28-1381, section 28-1382 or this section while the person's driver
license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on
Arizona Criminal Chart with Explanatory Endnote – August 2012
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