Arielle Cruz
In the state of Colorado, a driver is considered to be driving while ability impaired (DWAI) when their blood alcohol concentration (BAC) is above 0.05% but below 0.08%. A DWAI charge is less serious than a DUI, which is given when a driver's BAC is 0.08% or higher.
| Characteristics | Values |
|---|---|
| Legal alcohol limit for DWAI in Colorado | 0.05% - 0.08% BAC |
| DUI alcohol limit | 0.08% BAC |
| Underage drinking and driving limit | 0.02% - 0.05% BAC |
| First DWAI offence penalties | 2-180 days in jail, $200-$500 fine, 24-48 hours of community service, 8 points on driving record |
| Second DWAI offence penalties | 10 days-1 year in jail, license revoked for 1 year, 48-120 hours of community service, $600-$1,500 fine, 8 points on driving record |
| Third DWAI offence penalties | 60 days-1 year in jail, license revoked for 2 years, 8 points on driving record |
| Fourth DWAI offence penalties | Class 4 felony, 2-6 years in state prison, $2,000-$5,000 fine, 2-year license suspension, 3 years of parole |
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What You'll Learn
DWAI is a traffic misdemeanor
In the state of Colorado, a person is considered to have their abilities impaired if their BAC (blood alcohol content) is greater than 0.05% but less than the legal limit of 0.08%. Driving with a BAC in this range is known as DWAI (driving while ability impaired). A first-time DWAI is a traffic misdemeanor and carries penalties including jail time of between two and 180 days, fines of $200 to $500, 24 to 48 hours of community service, and eight DMV points added to the offender's license.
DWAI charges are not as serious as DUI (driving under the influence) charges, which are considered misdemeanors in Colorado. A DUI per se charge is given when a person's BAC is 0.08% or higher, and the driver is automatically deemed guilty by law enforcement. However, it is important to note that even if a person's BAC is lower than 0.08%, they can still be convicted of a drunk driving crime if it can be shown that they were unable to drive safely.
The consequences of a DWAI conviction in Colorado can vary depending on the number of prior offenses. For a first offense, in addition to the penalties mentioned above, the offender will face a license suspension of one year for the first offense and longer for subsequent offenses. They may also be required to complete an alcohol treatment program and undergo alcohol monitoring as part of their probation. Refusal to take the BAC test can be used as evidence of guilt and may result in similar punishments, including license suspension, mandatory drug and alcohol counseling, and other consequences.
For a second DWAI offense, the penalties increase, including eight points on the driving record, 10 days to a year in jail, a one-year license revocation, 48 to 120 hours of community service, and fines ranging from $600 to $1,500. The penalties continue to escalate for third and subsequent offenses, with the possibility of a DWAI being classified as a class 4 felony in Colorado if it is the offender's fourth conviction.
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DUI per se charge vs DWAI charge
In the state of Colorado, the term DWAI (Driving While Ability Impaired) refers to a specific offence under Denver DUI laws. A DWAI charge applies when a driver's blood alcohol content (BAC) is greater than 0.05% but under 0.08%. A first-time DWAI conviction can result in jail time, fines, community service, and points added to your license. Importantly, a DWAI charge does not lead to an automatic driver's license suspension, unlike a first-time DUI conviction.
The key difference between a DUI per se charge and a DWAI charge is the blood alcohol concentration (BAC) level. A DUI per se charge is applied when a driver's BAC is 0.08% or higher, whereas a DWAI charge is given for BACs between 0.05% and 0.08%. A DUI per se charge means that you are automatically deemed guilty by law enforcement.
While a DWAI charge does not carry the same immediate consequences as a DUI per se charge, it is still a serious offence. A first-time DWAI is considered a traffic misdemeanor and can result in jail time, fines, community service, and points added to your license. The specific penalties for a DWAI conviction can vary depending on the number of previous offences and the specific circumstances of the case.
It is important to note that even if your BAC is lower than 0.08%, you can still be convicted of a drunk driving crime in Colorado. The prosecution may argue that you were substantially incapable of operating a motor vehicle safely, and other factors may be considered in addition to BAC levels.
In summary, the main distinction between DUI per se and DWAI charges in Colorado lies in the BAC thresholds and the associated penalties. A DUI per se charge applies to higher BAC levels and carries more severe consequences, including an automatic license suspension for a first offence. On the other hand, a DWAI charge is given for lower BAC levels and is generally considered a less serious offence, but still carries significant penalties and can impact your driving record and privileges.
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DWAI and license suspension
In Colorado, a driver of a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher is prohibited from driving and can be charged with driving under the influence (DUI). A BAC of 0.05% to less than 0.08% can lead to a driving while ability impaired (DWAI) charge.
A DWAI charge in Colorado is considered a traffic misdemeanor and carries penalties such as jail time, fines, community service, and points added to your license. While a first-time DWAI conviction in Colorado will not result in an automatic license suspension, subsequent offenses can lead to license revocation for a fixed period.
For instance, a second DWAI offense in Colorado will result in a one-year license revocation, while a third offense will lead to a two-year license revocation. If you are charged with a fourth DWAI, it is considered a class 4 felony, which can result in a two-year license suspension, in addition to other severe penalties.
It is important to note that refusing to take a BAC test in Colorado may be treated as evidence of guilt and can also result in license suspension, even if you are not convicted of a DWAI. The length of the suspension for a first offense is typically one year, with longer periods for subsequent refusals.
Additionally, if you are a commercial driver in Colorado, a BAC of 0.04% or higher is considered "Excess BAC CDL", and the DMV will suspend your commercial driver's license (CDL) for one year. Transporting hazardous materials at the time of the offense extends the revocation to three years, and a subsequent offense will result in permanent CDL revocation.
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Defenses against DWAI charges
In Colorado, a driver of a motor vehicle who is believed to be under the influence of alcohol or drugs can be charged with DUI (Driving Under the Influence) or DWAI (Driving While Ability Impaired). DWAI charges are typically misdemeanors, but they can escalate to felonies if the driver has at least three prior drunk driving convictions. A fourth DWAI is considered a felony under Colorado law.
Challenging Probable Cause
You can challenge the probable cause for the stop. The police must have a valid reason to pull you over, such as a traffic violation or reasonable suspicion that you are driving under the influence.
Challenging the Arrest
You can also challenge the legality of the arrest itself. For an arrest to be lawful, the police must have probable cause to believe that you have committed a crime. If the police lacked probable cause to arrest you for DWAI, your attorney can argue that the charges should be dismissed.
Challenging BAC Testing
You can also challenge the accuracy of breathalyzer or blood tests. Various factors, including rising blood alcohol levels, contaminated blood samples, or errors in the testing procedure, can affect the results. An experienced attorney can help you review the specific circumstances of your case and determine if there are grounds to challenge the BAC test results.
Challenging Officer Observations
Your defense may also question the validity of the officer's observations of impairment, particularly for DWAI charges, where the degree of impairment is a critical factor.
Lack of Impairment
Even if your BAC is above the legal limit, you can argue that your driving ability was not impaired at the level suggested by the charges. This is especially relevant for DWAI charges, which require some type of true impairment to the "slightest degree," affecting your ability to operate a vehicle safely.
Refusal to Take the Test
Refusing to take a BAC test can be a complicated decision. While it may deny the prosecution a key piece of evidence, it can also be used as evidence of your guilt and result in license suspension and other consequences. Consult an attorney to understand the implications and potential strategies in your specific case.
It is important to note that the information provided here is not legal advice and that the specific defenses applicable to your case will depend on the unique circumstances surrounding your charges. If you are facing DWAI charges, it is crucial to consult with an experienced DUI defense attorney who can review your case, advise you on your rights, and develop a tailored defense strategy.
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DWAI and felony charges
In the state of Colorado, a driver is considered to have blood alcohol concentration (BAC) above the legal limit when it reaches 0.08%. A driver with a BAC level of 0.05% to under 0.08% can be charged with DWAI (driving while ability impaired). A first-time DWAI in Denver is considered a traffic misdemeanor and can carry a jail sentence of two to 180 days, a fine of $200 to $500, and 24 to 48 hours of community service. Eight DMV points will also be added to the offender's license.
While DWAI charges are typically misdemeanors, they can escalate to felonies if the driver has at least three prior drunk driving convictions. A fourth DWAI is considered a class 4 felony in Colorado, with potential consequences including a two-year license suspension, three years of parole, two to six years in state prison, and a fine ranging from $2,000 to $500,000.
The consequences of a DWAI conviction can be severe, and they become more severe with repeat offenses. For a second offense, offenders can expect eight points on their driving record, 10 days to a year in jail, a one-year license revocation, 48 to 120 hours of community service, and fines ranging from $600 to $1,500. For a third offense, another eight points will be added to the driving record, with a jail sentence of 60 days to one year and a two-year license revocation.
It is important to note that DWAI charges are not the same as DUI (driving under the influence) per se charges. A DUI per se charge applies when a person's BAC level is 0.08% or higher, and it can result in an automatic license suspension, unlike a DWAI. The community service and fines for a DUI are also typically twice as severe as those for a DWAI.
In addition to alcohol-related offenses, DWAI charges can also be applied in cases where a person is driving under the influence of drugs. Colorado law sets an inference of impairment at 5 nanograms of delta-9 THC per milliliter of blood. However, this is not a strict "legal limit," and drivers can be charged with DWAI if evidence suggests impairment, even with THC levels below 5 nanograms.
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Frequently asked questions
In Colorado, a blood alcohol concentration (BAC) of 0.05% to under 0.08% is considered DWAI (driving while ability impaired).
DUI per se is when a person operates a vehicle with a BAC of 0.08% or more. A DWAI charge is less serious and does not result in a license suspension.
A first-time DWAI in Colorado is a traffic misdemeanor and carries between two and 180 days in jail and fines of $200 to $500, along with 24 to 48 hours of community service.
