second the statute is regulatory in nature and therefore is not a crime involving moral turpitude and third this statute does not involve an intent by a defendant to inflict injury upon another nor an intent to use turpitude but that a combined could be but on the other hand sometimes far be it for me to find reason in the law i do you know i mean i mean i will go to my grave saying that multiple correct him probably whatever we do here will go on bond and then everything will be up for grabs but that you know this is this is sort of where we are with the board has always held and what the ninth circuit has always held that if individually a crime does not involve moral turpitude the second the third in amalgamation of those individual crimes lumped together don't because if they don't individually if you add them up they don't either but this one that's different crimes you've seen three different crimes committed at three different times whereas driving drunk on a suspended license is two crimes committed at the same time there is a difference don't you think i think the difference is if you look at the arizona statute there's no comparable mental state the state of arizona does not have to prove any willful action any intentional action and no knowing action  not overrule lopez makes that and therefore the modified categorical approach can be looked at and in the case and in in all of these cases they're driv your president and that's the one principled way that i would be able to see that you would lose well we were in arizona very disappointed that you're now mr cheney's court didn't reach the issue they found the statute divisible and they found the evidence deficient so it left the martinez never reached the issue itself which is before the court today i believe in at least my two cases and probably all three if they do show operation of the vehicle on a suspended license whether that i the ninth circuit case law in the state of arizona and i will get into this in some detail if you look at the elements of the statute it is not turpitude interest and there is no absolutely no support for that position  represent i believe yes your honor they were both suspended and when the had their license suspended isn't a standard part of the practice there by the risk to others on the road by driving and drinking there to there is a notification process in arizona that they are told their licenses revoked cancel suspended that is correct so then how is this not a crime where you're disregarding the law in being deliberately indifferent to the safety of others because it's a strict liability offense it's a regulatory offense and that's how the state of arizona has always held it to be and there's a lack of a mental state don't treat driving drunk on a suspended license like a parking violation or moving take is that what you're telling me in fact your honor i could cite the arizona court of public driving under the influence correct i believe it's mandatory four years in the state prison that is correct however the arizona courts have consistently viewed a violation of that statute as a public safety statute it's regulatory statute and therefore not a crime involving moral  e well if you get your license suspended for being dui you know by the time that happens you've had a dui you've gotten a court you know what the alcohol limit is they make you do a program  advise you of all the dangers and then you know your license is suspended so then you have you know knowledge and then you well fully go and drive so why is that not complying together a w act to separate statutes there's no willful in this in the driving drunk there is no mental state there's no intention to go out and drive drunk it's not a willful act it's not an intentional act it's notification that your license is suspended it's an administrative directive the intent to be proved in abstaining a conviction under aggravated driving and the influence of influence is the intent to ignore a state administrative directive there is not one case that ever found in the case law that the intent to ignore an administrative directive is sufficient to find moral turpitude i would characterize this level intent as the annoying violation of a statutory mandate that an individual may not drive when the status of his or her license has been revoked or suspended this intent is based on an actor's knowledge of a regulatory obligation and a breach of that obligation it's not the level of intent been found in cases involving fraudulent conduct in cases involving basis or to or depravity even though they have no element of fraud for example and spouse abuse child abuse first degree incest cases however when it act is only statutorily prohibited rather than inherently wrong the act will generally not involve moral turpitude i think that's what we have here again it's a state regulatory offense there is no evil intent there's no evil mo there's no intent to be proven by the prosecution of this case by the state of arizona and that is extremely important when the court would look at leo pal when the court would look at the mental state that generally required in order for a crime to be classified as one involving moral turpitude there is no requirement to be proven by the state of arizona in order to obtain a conviction for aggravated u i even though the minor fifteen years or younger originally to be i seem to suggest that the three convictions within five years would be a moral turpitude crime but then backed off from that and reversed themselves in the tourist court when they looked at individually what try differences in between simple an aggravated or isn't there in arizona extreme influence yes but i think if i read her opinion and i think it also touches on aggravated duis i think she meant  priors or without a combination of something else yes right i think that's pretty clear from her from her decision but from the majority opinion i think it's also implicit that they also believe that and maybe that's why she concurred instead of  mental state a culpable mental state it wasn't just a plain when you what you i that he was just drunk on the road it was the fact that what the board found those especially aggravating here was that this gentleman talking our cases you're not talking and yet they're still drinking and driving is this is the level above i guess that's the sense you're in we're trying to make it so it's a further aggravation of a certain violation of societal rules where it's just becomes immoral or you know you you know the that decision has not been overruled by the board the board has said that it was decided only when it was addressed by the board it was decided on different issue you know so that's still good wall and  satisfied a uniform federal definition of whether or not a crime involved moral turpitude thus the label aggravated under arizona statute does not necessarily indicate that the character of the offense for which the petitioner was convicted is one not arise from some undefined synergism by which prior offenses may combine to create one crime of moral turpitude the court brought up a matter of short in matter short of war determined that in order for assault to be a crime of moral driver intends to use his vehicle to harm another person even though this kind of conduct certainly presents a risk that in the endanger safety indeed the i won't be able to get to the third circuit holding but because arizona's aggravated drunk driving statute does not involve the infliction of on a very difficult issue and i think i can speak for the whole court that we really appreciate both of your arguments and to the extent that anything could be helpful i think you've both been very helpful on the on your specific case you know maybe you want to assume the worst and then speak to the facts of why that your client still c offense the board in its decision spoke and i think in the last paragraph and said well regardless of the deal wise in any case the fact is also a cia empty offense so you know we can make a finding using that of course you need to a regulation that permits that however it must be coupled with a new offense it just can't be brought up it is rest you get caught it was decided and it was waived so there have to be new conduct which would make the responded to portable assuming that the worst evidence submitted by the government here the transcripts are not sufficient i think very much importantly there is not sufficient proof that the respondent was driving while intoxicated if you go through the the transcript which cited in the brief it just says that he was driving that day and that he was given a blood alcohol test and there's no result that that blood alcohol test was over the legal limit or that he was driving the vehicle at the time he was intoxicated that's missing secondly mr compos testifies that he never had a valid license to be convicted under the statute license must be cancelled revoked or suspended which is difficult to have done to you if you've never had a license i don't think i think you can suspend the privilege can you not i don't know i started out traffic a long time ago it's a little foggy that it's well it would be possible to do that there has been no evidence introduced by the government that in fact his license or that any order was issued by the state of arizona in immigration court that his license was suspended revoked cancel or anything else of any other conduct it could be inferred since in fact he was convicted of that very very difficult looking at plead transcripts and in this particular case points out the potential errors the potential holes in the government's case where there is not sufficient proof in immigration under the divisibility argument that if the government can quickly respond in control of the vehicle with this is bennett license and intoxicated that's not been proven by the evidence submitted to the court to the immigration judge the b i a should have over found that the two thousand and two transcript was sufficient and that's contained on the guilty plea court quickly on page one twenty six of the record which edition was asked basically all the elements of the was drinking were his driving privileges dispended was he driving at the time did he want a red light and then he was asked to do you agree with the facts that the so at that point he has pretty much admitted all the relevant factual elements of that offense he's providence that offense so it's far as the theft offense itself that's also contained in the judgment of the that took place between the judge it's contained on page one forty six of the record one forty seven which is what basically the counsel argue about in their brief in this particular instance the judge could have done a better job of eliciting the factual basis for petitioners conviction he could have asked the specific questions were you driving we control the vehicle when you're when you were drunk yes were  day he didn't it that he did not have a license so even though he was with me asked whether or not all these things took place at exactly the same time that is where you driving while you were drinking under the influence he was t