A Tucson man sentenced to prison in May for his involvement in a 2017 accident with a blood alcohol concentration of .237 will be back in court in a few weeks to be resentenced, after the Arizona Court of Appeals ruled this week that the sentencing judge committed a fundamental error in designating two of the convictions as felonies.
Daniel Benjamin Luque drove through a stop sign and struck a vehicle with two occupants on Dec. 9, 2017 while under the influence. He failed to appear for trial in 2018, so a jury found him guilty in absentia of two counts of aggravated DUI, two counts of endangerment, and one count of criminal damage.
On taken into custody, Luque was sentenced earlier this year by Judge James Marner to seven years in prison for the DUIs and 2.5 years for the endangerment counts, which the judge designated as Class 6 felonies. However, the court of appeals ruled the endangerment convictions should have been classified as misdemeanors, something the Arizona Attorney General’s Office conceded after Luque filed his appeal.
According to the Dec. 15 appellate decision, the judge’s mistake was due to the fact the jurors were never asked to determine whether Luque’s conduct created “a substantial risk of imminent death” or simply a “substantial risk of physical injury.” A finding of substantial risk of imminent death is required to prove felony endangerment, otherwise the offense is a Class 1 misdemeanor.
“Thus, we affirm Luque’s convictions and sentences for DUI and criminal damage, designate his convictions for endangerment as class one misdemeanors, vacate the sentences imposed for those counts, and remand the case for resentencing,” the decision states.
The case will be referred back to Marner in 30 days to schedule a new sentencing hearing. Class 1 misdemeanors are subject to a sentence of up to six months in jail, but Luque can be given credit toward that sentence while serving his seven year term for the DUI.