from the Superior Court in Maricopa County. No. CR
2013-428962-001. The Honorable Brian D. Kaiser, Commissioner.
Attorney General's Office, Phoenix, By Chris DeRose,
Counsel for Appellee.
County Public Defender's Office, Phoenix, By Louise
Stark, Counsel for Appellant.
Patricia A. Orozco delivered the opinion of the Court, in
which Presiding Judge Diane M. Johnsen and Judge Kenton D.
Reggie Gable James appeals his convictions and resulting
sentences for six counts of aggravated driving or actual
physical control while under the influence of intoxicating
liquor or drugs (aggravated DUI), all class 4 felonies. James
asserts he cannot be convicted of aggravated driving while
impaired under both Arizona Revised Statutes (A.R.S.) section
28-1383.A.1 (driving intoxicated while license is restricted)
and § 28-1381.A.4 (driving intoxicated when an Ignition
Interlock Device (IID) is required) because an order
requiring an IID under § 28-1383.A.4 is a "
restriction" on his license under § 28-1383.A.1.
For the following reasons, we vacate the judgment in part and
affirm the judgment in part, as modified.
AND PROCEDURAL BACKGROUND
Scottsdale Police arrested James for aggravated driving under
the influence. At the time of the arrest, James's
driver's license and privileges had been suspended and
revoked. In connection with a prior proceeding, the Arizona
Motor Vehicle Division (MVD) had also ordered James to have
an IID installed either before reinstatement of his license
or the MVD receiving a copy of his conviction, whichever
James was charged with six counts of aggravated DUI: 1)
aggravated DUI while the license or privilege to drive is
suspended, cancelled, revoked, refused, or restricted; 2)
aggravated DUI with a BAC of .08 or more while the license or
privilege to drive is suspended, cancelled, revoked, refused,
or restricted; 3) aggravated DUI while subject to an IID; 4)
aggravated DUI with a BAC of .08 or more while subject to an
IID; 5) aggravated DUI while under the influence of
intoxicating liquor with two prior convictions within
eighty-four months; and 6) aggravated DUI with a BAC of .08
or more with two prior convictions within eighty-four months.
James was convicted of all counts. The trial court sentenced
James to concurrent prison sentences, the longest of which
was four and a half years. James timely appealed and we have
jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. § § 12-120.21.A.1, 13-4031
and -4033.A.1 (West 2016).
Ignition Interlock Device Convictions
James argues Counts 1 and 2 and Counts 3 and 4 were
multiplicitous and that " convictions for both pairs . .
. violate his protection against double jeopardy." We
have previously held a defendant may be convicted of both
A.R.S. § 28-1381.A.1 (impaired to the slightest degree)
and § 28-1381.A.2 (BAC of .08 or more) without "
offending the principles of double jeopardy." State
v. Nereim, 234 Ariz. 105, 112, ¶ 24, 317 P.3d 646
(App. 2014); see also Anderjeski v. City
Court, 135 Ariz. 549, 550-51, 663 P.2d 233 (1983)
(interpreting the statutory predecessor to A.R.S. §
28-1381). James, however, asserts a defendant may not be
convicted of aggravated driving while impaired under both
A.R.S. § 28-1383.A.1 (driving intoxicated while license
is restricted) and § 28-1381.A.4 (driving intoxicated
when an IID is required). The premise of his argument is that
an order requiring an IID under A.R.S. § 28-1383.A.4 is
the same as a " restriction" on his license under
§ 28-1383.A.1. He argues, therefore, that "
[e]ither Counts 1 and 2, or Counts 3 and 4 must be
vacated." Thus, the question James's appeal presents
is whether the convictions of Counts 1 and 3 and Counts 2 and
4, respectively, violated his double jeopardy rights.
At the time James was stopped, his license had been suspended
and revoked. The MVD order issued in the prior proceeding
required him to have an IID " installed on any motor
vehicle that you operate for 12 [m]onths from the date that
your driving privilege is reinstated or from the date we
receive the report of conviction, whichever occurs
later." Therefore, by its own terms, the IID order had
not become effective because his license had not yet been
reinstated. Because James's license had not been
reinstated, there was not yet a requirement that he install
an IID on any vehicle he operated. Consequently, while he
could be charged with aggravated DUI for driving while his
license was suspended and revoked pursuant to A.R.S. §
28-1383.A.1, James could not also be charged with, nor
convicted of, a requirement that he had failed to obtain and
operate his vehicle with an IID for a year ...