In 2018 Arizona enacted legislation in an effort to combat wrong way driving. These are changes that everyone should be aware of. Specifically, a provision was added to the Aggravated Driving Under the Influence (Aggravated DUI) statute, A.R.S. §28-1383, that now makes it felony Aggravated DUI to drive a vehicle while under the influence of alcohol or drugs, “while driving the wrong way on a highway.” This crime is a class 4 felony and carries with it the extreme penalty of a mandatory sentence of at least 4 months in prison. These penalties can result even for a first offense and for low levels of impaired alcohol concentrations. In addition, other penalties can include probation, fines and fees of over $4,000, an ignition interlock device on a vehicle, license revocation, and substance abuse treatment. As we all have witnessed, wrong way driving incidents can cause accidents with severe injuries and fatalities, and an individual will be required to pay for any damage the accident caused in the form of restitution. Wrong-way impaired driving that results in a fatality can further result in potential vehicular manslaughter charges. These consequences for driving the wrong way on a highway while impaired are no small matter, and Arizona has chosen to prosecute and punish these types of driving offenses in an extremely harsh manner.
However, as with any new statute, criminal practitioners are working to evaluate what precise conduct the statute criminalizes, and what conduct may be outside of the scope of the statute. The Aggravated DUI statute falls under Title 28, which is the Transportation statute, not the general criminal code under Title 13. Any analysis must therefore take place under Title 28. While at first blush it might seem obvious what conduct would classify as a crime under this statute, nevertheless, statutory analysis must be precise and generalities are not enough. Notably, the Aggravated DUI statute explicitly provides that “wrong way means vehicular movement that is in a direction opposing the legal flow of traffic. Wrong way does not include median crossing or a collision where a motor vehicle comes to a stop facing the wrong way.” But the statutes do not define a “median.” So, based on the statute, we know that a conviction for Wrong Way Aggravated DUI cannot be predicated on a “median crossing.” But, then, under what set of facts could one be driving the “wrong way” but not cross some sort of median and therefore couldn’t be guilty of this statute? Would someone who crosses a double yellow line be crossing a median? A single yellow line? Or a strip of unpaved land? Does that mean that one can only be convicted of this statute when driving down an unmarked and undivided road because they drove against the flow of traffic, but did not cross a median? It seems that the language is at the very least vague, and quite possibly contradictory, and therefore ripe for a challenge. It is a foundational tenant of criminal law that a statute must make clear what conduct is prohibited, and this statute is not clear. Because of the newness of the statute, there is no caselaw directly on point, and it will be interesting to see how it is applied in the future. But for now, one thing is clear: extreme caution must be used when driving with any amount of alcohol, illegal drugs, or outside of your prescription recommendations, especially at night, to avoid any mistakes that may lead to ending up as an individual who is a test-case for this charge. Simply put, it is better to not to be impaired by any substance and drive.