In Colorado, DWAI is operating a motor vehicle with a blood alcohol content (BAC) above 0.05% but below 0.08%. Short for “Driving While Ability Impaired,” DWAI is a less serious crime than DUI per se.
DWAI is usually a misdemeanor according to C.R.S. 42-4-1301 (1)(b), but it can be a felony if you have at least three prior DUI or DWAI convictions. Unlike a first-time DUI, a first-time DWAI alone does not cause you to lose your license.
Below, our Colorado DUI defense lawyers and DWAI lawyers discuss the following topics:
Also listen to our informative podcast on Colorado DWAI charges:
1. What is DWAI?
You drive while ability impaired (DWAI) when you are affected by alcohol and/or drugs in “the slightest degree.” In short, your mental or physical ability to operate a vehicle safely is compromised.
Colorado courts and juries may infer that your “ability is impaired” when your BAC is:
- more than 0.05% but
- less than 0.08%.
However, we can rebut this inference with other evidence, such as eyewitness testimony that you were driving safely.
Prosecutors can press DWAI charges if you are driving impaired with a BAC of 0.05% or less. In reality, though, such a low BAC rarely affects your driving.
DWAI is a “lesser included offense” of DUI of alcohol or DUI of drugs (DUID).
2. DWAI vs. DUI
DWAI is a less serious drunk driving charge than DUI per se in Colorado.
Prosecutors bring DUI per se charges whenever your BAC is at least 0.08%, whether you are impaired or not. In contrast, prosecutors bring DWAI charges only when:
- your BAC is less than 0.08% and
- you appear impaired.
Unlike a DUI conviction, a first-time DWAI conviction does not trigger a driver’s license suspension. Plus, the fines and community service requirements that a DUI carries are about twice those of a DWAI.
DWAI charges are reserved for suspects with a blood alcohol level between 0.05% and 0.08%.
3. Proving DWAI
Following your arrest, Colorado law requires you to take a chemical breath test or blood test to check your BAC.
Because DWAI requires actual impairment, there is no set BAC level at which you are automatically guilty of DWAI. However, having a BAC greater than 0.05% (but less than 0.08%) is strong evidence that your driving was impaired.1
Note that if you refuse to submit to a breath or blood test, prosecutors can use your refusal as evidence that you committed DWAI. In addition, a refusal triggers a requirement to complete Level II DUI School, and the DMV will suspend your license even if your criminal case is eventually dismissed.2
4. Penalty Chart
DWAI punishments in Colorado increase with each DWAI or DUI conviction.3 The chart below summarizes the standard sentences.
| Penalties | First DWAI | Second DWAI | Third DWAI | Fourth DWAI |
| Crime class | Misdemeanor | Misdemeanor | Misdemeanor | Class 4 felony |
| Incarceration | 2 to 180 days | 10 days to 1 year | 60 days to 1 year | 2 to 6 years (plus 3 years of parole) |
| Fines | $200 to $500 | $600 to $1,500 | $600 to $1,500 | $2,000 to $500,000 |
| Community service | 24 to 48 hours | 48 to 120 hours | 48 to 120 hours | n/a |
| Probation | Up to 2 years | 2 years | 2 to 4 years (includes 90 days of alcohol monitoring) | Depends (includes 90 days of alcohol monitoring) |
| Suspended sentence | n/a | 1 year | 1 year | Depends |
| DMV points | 8 points | 8 points | 8 points | 8 points |
| License revocation | none | 1 year | 2 years | 2 years |
All your past drunk/drugged driving convictions count as “priors” no matter:
- whether your past convictions were for DWAI or for DUI, or
- whether they occurred in Colorado or a different U.S. state or territory, or
- how long ago your past convictions occurred.4
DWAI is typically charged as a misdemeanor in Colorado.
5. Defenses
Here at Colorado Legal Defense Group, we have defended literally thousands of clients facing drunk driving allegations. In our experience, the following seven defenses can be very effective in persuading prosecutors to reduce or drop DWAI charges.
- Your BAC was less than 0.05% when you drove.
- Your driving was not impaired by alcohol and/or drugs.
- The officer had no reasonable suspicion for pulling you over.
- Following your arrest, the officer interrogated you without reading your Miranda rights.
- The police lacked probable cause to arrest you.
- You were suspected of DWAI solely because you carried a medical marijuana I.D. card.5
- Your DUI breath or blood test was done in violation of 5 CCR 1005-2 regulations.
Additional Reading
For more information about Colorado DUI laws, see our informational articles:
- How long does a DWAI stay on your record in Colorado? – A discussion of how drunk/drugged driving convictions are unsealable from your background check
- What’s the difference between DUI and DWAI in Colorado? – A side-by-side comparison of the two most common drunk driving crimes
- What does DWAI stand for in Colorado? – An in-depth look into the laws behind driving while ability impaired
- How many points is a DUI in Colorado? – An examination of how driving under the influence affects your driving record in addition to your criminal record
- Habitual traffic offender in Colorado – Five things to know – Explanation of how serious traffic offenses including DWAI count as an HTO “strike”
Also see NO DUI Colorado, a government website dedicated to educating the public about drunk driving laws and what to do if you get arrested.
Legal References:
- See CRS 42-4-1301 (6)(a)(II). See also People v. Ambrose (Colo. App. 2021) 506 P.3d 57.
- CRS 42-4-1301 (6)(d). People v. Swain (1998) (no movement of the vehicle is required to be guilty of DWAI). Riley v. People (2004) .
- CRS 42-4-1307. CRS 42-2-127. See also People v. Woodside (Colo. 2023) 529 P.3d 1233.
- CRS 42-4-1307. See also People v. Burdette (Col.App. 2024) 552 P.3d 1108.
- CRS 42-4-1301 (6)(k).