DUI – short for “driving under the influence” – is a more serious Colorado crime than DWAI – short for “driving while ability impaired.”

DUI is driving while “substantially” impaired by drugs and/or alcohol OR with a blood alcohol content (BAC) of at least .08%. Driving with a .08%+ BAC is per se illegal, even if you are not impaired.

Colorado law infers you are DUI of drugs (DUID) if you have at least 5 nanograms of THC per milliliter in your blood, though you can disprove this inference in court. There is no per se limit for cannabis or any other controlled substances like there is with alcohol.

Meanwhile, DWAI is a “lesser included offense” of DUI. If you are not DUI, you could still be convicted of DWAI by driving “slightly” impaired by drugs and/or alcohol.

Colorado law infers you are committing DWAI by driving with a BAC of above .05% and less than .08%, but you can disprove this inference in court. DWAI has no per se BAC limit like DUI does.¹

Are the penalties for DUI and DWAI different?

First-time DUIs and DWAIs are both misdemeanors in Colorado, but DUIs carry harsher penalties than DWAIs. The sentence is the same no matter whether your case involved drugs, alcohol, or both.

	DUI 1st	DWAI 1st
Jail	5 days – 1 year	2 – 180 days
Fines	$600 – $1,000	$200 – $500
Community service	48 – 96 hours	24 – 48 hours
Probation	Up to 2 years	Up to 2 years
Alcohol education & monitored sobriety	Yes	Yes
License suspension	9 months	None (8 DMV points)

(If your BAC was at least 0.15%, you get designated as a Colorado persistent drunk driver (“PDD”) and sentenced as a repeat-DUI offender.)

If you pick up another drunk driving incident (whether for a DWAI or a DUI), the penalties are:

• fines of $600 to $1,500,
• 10 days to 1 year in jail for a 2nd offense, or 60 days to 1 year in jail for a 3rd offense, and
• 48 to 120 hours of community service,
• Level II alcohol education and treatment, and
• 2 years of probation (with a one-year suspended sentence)

The only difference is that DUIs trigger a license revocation, whereas DWAIs just add 8 points to your license.

Finally, a fourth-time DUI or DWAI is a class 4 felony. This carries two to six years in Colorado State Prison (plus three years of parole) and fines of $2,000 to $500,000.

Note that subsequent DUIs and DWAIs in Colorado always carry harsher penalties than prior ones. It does not matter if your prior conviction was from several years ago or occurred in another state.²

Are the defenses for DUI and DWAI different?

Here at Colorado Legal Defense Group, I have represented literally thousands of people charged with DUI or DWAI. In my experience, you can successfully fight DUI and DWAI charges with the same defenses. Common ones include:

• the officer lacked “reasonable suspicion” for pulling you over,
• the officer lacked “probable cause” to arrest you,
• you had a physical or medical condition that caused you to fail the field sobriety tests, or the police administered the tests incorrectly or
• your breath test or blood test was not carried out in accordance with Colorado laws.

One defense specific to DUI charges is that your BAC was legal (lower than .08%). Though you would still be charged with DWAI if you were at all impaired or if your BAC was higher than .05%.

The best defense to DWAI charges is that your BAC was .05% or lower. In that case, the only way you could be convicted is if the D.A. can prove beyond a reasonable doubt that you were impaired despite your low BAC.

In every case, I pore over the police report in search of all the places where they made mistakes or cut corners. I also rely on forensic experts to show how your blood- or breath-test results may be unreliable. Depending on the case, I may be able to get the state’s evidence suppressed, which in turn could prevent prosecutors from proving their case beyond a reasonable doubt.

What if I am under 21?

Due to Colorado’s “zero tolerance” policy for underage drinking, you can be charged with underage drinking and driving (UDD) if your BAC is .02% to .05%. (If your BAC is more than .05%, then you would face regular DWAI and DUI charges like an adult 21-and-older would.)

A first-time UDD is a class A traffic infraction, carrying:

• a 3-month license revocation,
• 24 hours of useful public service,
• $100 in fines, and
• alcohol/drug classes.

Any successive UDDs are class 2 traffic misdemeanors carrying 10 to 90 days in jail and/or up to $300 in fines. A second UDD offense triggers a six-month license revocation, while a third UDD offense carries a year-long license revocation.³

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