Filed: Mar. 20, 2014
Latest Update: Mar. 20, 2014
Summary: NOT FOR PUBLICATION THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24. MEMORANDUM DECISION HOWARD, Chief Judge. 1 Henry Tavel appeals from his convictions for two counts of aggravated driving under the influence of an intoxicant (DUI), both based on his having two previous DUI convictions within the preceding eighty-four months. He argues his convictions violate double jeopa
Summary: NOT FOR PUBLICATION THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24. MEMORANDUM DECISION HOWARD, Chief Judge. 1 Henry Tavel appeals from his convictions for two counts of aggravated driving under the influence of an intoxicant (DUI), both based on his having two previous DUI convictions within the preceding eighty-four months. He argues his convictions violate double jeopar..
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NOT FOR PUBLICATION
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
MEMORANDUM DECISION
HOWARD, Chief Judge.
¶1 Henry Tavel appeals from his convictions for two counts of aggravated driving under the influence of an intoxicant (DUI), both based on his having two previous DUI convictions within the preceding eighty-four months. He argues his convictions violate double jeopardy "because the prior DUI convictions are elements of the offense and [he] was previously punished for them." Finding no error, we affirm.
¶2 A recitation of the underlying facts is not necessary to our resolution of this appeal. Tavel was convicted after a jury trial of four counts of aggravated DUI, specifically: DUI with a suspended license, A.R.S. §§ 28-1381(A)(1), 28-1383(A)(1), driving with an alcohol concentration (BAC) at or above .08 with a suspended license, §§ 28-1381(A)(2), 28-1383(A)(1), DUI with two prior DUI convictions within eighty-four months, §§ 28-1381(A)(1), 28-1383(A)(2), and driving with a BAC at or above .08 with two prior DUI convictions within eighty-four months, §§ 28-1381(A)(2), 28-1383(A)(2). The trial court sentenced Tavel to concurrent four-month prison terms for each offense, to be followed by a five-year term of probation. See § 28-1383(D), (H)(1).
¶3 Tavel's sole argument on appeal2 is that his convictions for aggravated DUI pursuant to § 28-1383(A)(2), based on his previous DUI convictions, violate the constitutional prohibition against double jeopardy. He reasons that the previous DUI convictions constitute elements of the current offenses and therefore are "functionally identical" to lesser-included offenses of a violation of § 28-1383(A)(2). He concludes that, because he "was already convicted and punished for those prior DUIs," and because "a subsequent prosecution for the greater offense[]," following conviction or acquittal of the lesser offense is barred by double jeopardy, his prosecution is barred by double jeopardy principles.3
¶4 As the state points out, we recently rejected an identical argument in State v. Cooney, 233 Ariz. 335, ¶¶ 10-17, 312 P.3d 134, 138-40 (App. 2013). We found no double jeopardy violation because "a prior adjudicated offense cannot be a lesser-included offense of a current charge," id. ¶ 13, and "the effect of § 28-1383(A)(2) is to punish a defendant more severely for a recent crime based on his having committed previous crimes, which is precisely what courts have long held is constitutionally permissible," id. ¶ 15. The circumstances in Cooney are not distinguishable from those presented here. Accordingly, Cooney is dispositive and we need not address Tavel's argument further.
¶5 We affirm Tavel's convictions and sentences.
