In Arizona, a wobbler is a criminal charge that can be prosecuted or sentenced as either a felony or a misdemeanor. The decision can be in the hands of the judge or the prosecutor. If charged or sentenced as a misdemeanor, the penalties of a conviction are substantially lower.

1. What is a wobbler in Arizona?

A wobbler is a type of criminal offense in Arizona that can be either a Class 6 felony or a Class 1 misdemeanor. They “wobble” between these categories.

Like most other states, in Arizona there are 3 categories of crimes:

• felonies,
• misdemeanors, and
• petty offenses.

Felonies are the most severe. They are further divided into 6 classes, with Class 1 felonies being the most severe and Class 6 felonies being the least severe. Misdemeanors are also further divided, though only into 3 classes. Class 1 misdemeanors are the most severe, while Class 3 misdemeanors are the least severe. All felonies are more serious than misdemeanors.[1]

However, the space between felonies and misdemeanors – and between Class 6 felonies and Class 1 misdemeanors – can be blurry. Some offenses that would be a Class 6 felony do not seem to warrant the harsh punishments that would come with a felony conviction.

To remedy this, Arizona law allows judges to sentence Class 6 felony defendants as they would a defendant had committed a Class 1 misdemeanor, instead. The judge can do this if they think that a felony sentence would be unduly harsh to the defendant.[2]

The law also allows prosecutors to file misdemeanor charges against someone who is being accused of committing a Class 6 felony.[3]

While Arizona’s criminal law is similar to California’s penal code in recognizing wobblers as a middle ground between felonies and misdemeanors, most other states strictly differentiate between the two and do not have wobbler offenses.

2. What are some examples of wobblers?

To be a wobbler, the defendant cannot have 2 or more felony convictions on their record, and the criminal offense has to be for a non-dangerous Class 6 felony.[4]

This means that the incident cannot have involved either:

• the use, display, or discharge of a dangerous instrument or deadly weapon, or
• the knowing infliction of a serious physical injury.[5]

Some examples of criminal offenses that could potentially be wobblers are:

• theft of property valued at between $1,000 and $2,000,
• witness tampering,
• possession of drug paraphernalia,
• personal possession of less than 2 pounds of marijuana,
• driving under the influence (DUI),
• attempted aggravated assault of a police officer,
• forgery,
• child endangerment, and

3. What are the different penalties?

The penalties differ dramatically if the offense is sentenced as a felony or as a misdemeanor.

If treated as a Class 6 felony, the penalties include:

• between 4 months and 5 years and 9 months in state prison,[6] and
• fines of up to $150,000.[7]

If treated as a Class 1 misdemeanor, though, a first-time defendant can face the following penalties:

• a jail sentence of up to 6 months in county jail,
• up to 3 years of probation, and
• up to $2,500 in fines, plus assessments and surcharges.[8]

Additionally, the collateral consequences of a misdemeanor conviction are much less significant than for a felony conviction.

Prior criminal convictions are visible on a person’s criminal record. The blemish of a felony-level offense on someone’s criminal background will carry far greater repercussions than a misdemeanor-level offense. Some examples of these collateral consequences include:

• losing the right to own or possess a firearm,
• loss of immigration status,
• registration as a sex offender,
• becoming ineligible for certain professional licenses or certifications,
• sanctioning from professional boards,
• job loss,
• struggling to get hired for a new job due to job applications that ask about prior criminal convictions, and
• being seen as an increased risk on car insurance policies or loan applications.

In the state of Arizona, there are no expungement laws that will seal a prior conviction from public view. These negative repercussions can last for years or even decades.

4. How can I get a felony charge reduced to a misdemeanor?

Defendants may be able to have their Class 6 felony charge reduced to a Class 1 misdemeanor if they:

• can show that the penalties of a felony conviction are unduly harsh,
• convince the judge the suspend their sentence and convict them for a Class 6 undesignated felony, or
• accept a plea deal.

Additionally, prosecutors have the discretion to pursue a Class 6 felony offense as a misdemeanor, instead.^[9]

Because the penalties of a Class 1 misdemeanor are significantly lower, it is often enticing for defendants to pursue one of these options.

Many defendants choose to accept a plea deal with the prosecutors in which the defendant pleads guilty to a Class 6 undesignated felony. These are occasionally referred to as a Class 6 open-end felony.[10] An experienced criminal defense attorney can negotiate a plea deal that is in a defendant’s interests, and can advise defendants about whether to accept a plea bargain or fight for an acquittal.

An undesignated felony is a criminal conviction that has not been finalized by the court, yet. Instead, the judge convicts the defendant for a felony offense, but then issues a suspended sentence. The felony sentence is suspended, or delayed, to allow the defendant to complete the sentencing terms set out by the court. These often include:

• paying fines,
• making restitution payments,
• completing community service,
• staying out of legal trouble during the probationary period, and
• paying court costs and fees.

If these terms and conditions are successfully completed, then the defendant can request the court to designate the offense as a Class 1 misdemeanor, instead. The court will hold a designation hearing. If the defendant is successful, the conviction will appear as a misdemeanor on the defendant’s criminal background, rather than as a felony offense.

If the terms and conditions are not completed successfully, the suspended sentence will be imposed and the defendant will have to serve it. His or her criminal record will also show a felony offense.

While the defendant is completing these terms and conditions, the conviction is treated like a felony.[11]

[1] ARS 13-601.

[2] ARS 13-604(A).

[3] ARS 13-604(B).

[4] ARS 13-604(A).

[5] ARS 13-105(12)-(13).

[6] ARS 13-702 and 13-703.

[7] ARS 13-801.

[8] ARS 13-707, 13-802, and 13-902.

[9] ARS 13-604(B).

[10] See e.g., State v. Benson, 860 P.2d 1334 (App. 1993).

[11] State v. Holmes, No. 2 CA-CR 2019-0202 (App. 2020).