DUI vs. DWAI in Colorado: What’s the Difference?

DUI vs. DWAI in Colorado: What’s the Difference? Colorado law recognizes both Driving Under the Influence, commonly called DUI, and Driving While Ability Impaired, or DWAI. Although the charges are related, they are not interchangeable, and the legal distinction can significantly affect the penalties a person faces. We often speak with people who assume that DWAI is simply another name for DUI or that a DWAI charge is too minor to take seriously. That is not the case. Both offenses can lead to jail, fines, alcohol or drug treatment requirements, public service, insurance consequences, and problems with a Colorado driver’s license. The most important difference is the degree of impairment the prosecution must prove, but blood alcohol concentration, prior convictions, and the evidence gathered during the traffic stop can also play major roles.

How Colorado Law Defines DUI

Colorado Revised Statutes § 42-4-1301 makes it unlawful to drive while under the influence of alcohol, drugs, or a combination of the two. Under C.R.S. § 42-4-1307(2)(c), a person is considered under the influence when alcohol or drugs affect that person to the point that the person is substantially incapable, mentally or physically, of exercising clear judgment, sufficient physical control, or due care in safely operating a vehicle.  Colorado also recognizes DUI per se. Under C.R.S. § 42-4-1301(2)(a), a driver commits DUI per se when the driver’s blood alcohol concentration is 0.08 or higher at the time of driving or within two hours after driving, subject to statutory evidentiary rules. This means prosecutors may pursue a DUI per se charge based on the qualifying BAC even when there is a dispute about how impaired the person appeared. We examine both sides of a DUI case. A chemical test does not eliminate questions about how the sample was collected, handled, tested, or interpreted, and observations of alleged impairment can also be challenged depending on the circumstances.

How Colorado Law Defines DWAI

DWAI involves a lower degree of impairment than DUI. C.R.S. § 42-4-1307(2)(d) defines DWAI as driving after alcohol or drugs have affected a person “to the slightest degree” so that the person is less able than ordinarily to exercise clear judgment, physical control, or due care while driving.  That distinction is critical. Prosecutors do not have to establish that a person was substantially incapable of driving safely to prove DWAI. They can attempt to show that alcohol or drugs impaired the person’s abilities even slightly. This is why a driver should not assume that a BAC below 0.08 automatically prevents a criminal alcohol-related driving charge.

What Does BAC Mean in a DUI or DWAI Case?

Colorado law provides specific evidentiary rules for blood alcohol concentrations. Under C.R.S. § 42-4-1301(6), a BAC of 0.05 or less creates a presumption that the driver was not under the influence of alcohol and that the person’s ability was not impaired by alcohol. A BAC greater than 0.05 but below 0.08 creates a permissible inference that the driver’s ability was impaired. A BAC of 0.08 or higher provides evidence supporting DUI and may separately support DUI per se.  The 0.05 to 0.08 range is therefore important in many DWAI cases. However, BAC does not exist in isolation. We may also need to examine driving behavior, body-camera footage, field sobriety exercises, officer observations, statements, medications, drug allegations, timing of alcohol consumption, and chemical-testing procedures.

Penalties for a First DUI in Colorado

The sentencing consequences are another significant difference between DUI and DWAI. Under C.R.S. § 42-4-1307(3), a first DUI or DUI per se conviction generally carries five days to one year in county jail, a fine between $600 and $1,000, and 48 to 96 hours of useful public service. The statute permits the court to suspend the mandatory minimum jail period under certain conditions involving an alcohol and drug evaluation and completion of an appropriate education or treatment program. A BAC of 0.20 or higher can trigger a minimum 10-day jail provision.  A DUI conviction also carries 12 driver’s-license points under C.R.S. § 42-2-127, while a qualifying BAC or chemical-test refusal can create separate administrative driver’s-license consequences through the Colorado Division of Motor Vehicles. 

Penalties for a First DWAI in Colorado

A first DWAI generally carries lower sentencing ranges, but the consequences remain substantial. Under C.R.S. § 42-4-1307(4), a first DWAI conviction may result in two to 180 days in jail, a $200 to $500 fine, and 24 to 48 hours of useful public service. As with a first DUI, Colorado law permits the mandatory minimum jail portion to be suspended in certain circumstances when the defendant completes required evaluation and education or treatment conditions.  A DWAI conviction is assessed eight driver’s-license points under C.R.S. § 42-2-127. Depending on a person’s existing driving record, those points can create additional licensing problems.  A DWAI conviction can also matter greatly in the future because Colorado sentencing law considers prior DUI, DUI per se, and DWAI convictions when determining penalties for subsequent impaired-driving offenses. 

Can a DUI Be Reduced to DWAI?

In some cases, a DUI charge may ultimately be resolved as a DWAI, but no reduction is automatic. Whether that is possible depends on the evidence, prior history, chemical-test results, alleged driving behavior, legal issues surrounding the stop or arrest, and the prosecutor’s assessment of the case. When we review a case, we do not look only at the BAC number. We examine whether police had a lawful basis for the traffic stop, what the officer actually observed, whether body-camera evidence supports the written police report, how field sobriety exercises were administered, whether statements were legally obtained, and whether blood or breath evidence can be challenged.

Repeat DUI and DWAI Charges Can Become Much More Serious

Colorado increases penalties when a person has prior alcohol-related driving convictions. C.R.S. § 42-4-1307 provides enhanced sentencing rules for second and third offenses, including mandatory periods of incarceration in specified circumstances. The stakes rise even further after multiple prior convictions. Under C.R.S. § 42-4-1301, DUI, DUI per se, or DWAI becomes a class 4 felony when the new offense occurs after three or more qualifying prior convictions arising from separate criminal episodes. For that reason, we take even a first DWAI seriously. What may appear to be the lesser charge today can affect how a future case is prosecuted and sentenced.

Colorado DUI and DWAI FAQs

Is DWAI Less Serious Than DUI in Colorado?

DWAI generally carries lower first-offense sentencing ranges than DUI, but we would not describe it as an insignificant charge. A first DWAI can result in jail, fines, public service, alcohol or drug evaluation and treatment requirements, court costs, and eight driver’s-license points. C.R.S. § 42-4-1307 establishes a potential jail sentence of two to 180 days and a fine of $200 to $500 for a first DWAI.  DWAI can also count as a prior alcohol-related driving conviction if there is another offense later. That can affect mandatory jail requirements and, after enough qualifying prior convictions, the possibility of a felony prosecution. We therefore evaluate a DWAI case with many of the same concerns we would examine in a DUI case.

Can We Be Charged With DWAI If Our BAC Is Below 0.08?

Yes. A BAC below 0.08 does not automatically prevent a DWAI prosecution. Under C.R.S. § 42-4-1301(6), a BAC greater than 0.05 but below 0.08 creates a permissible inference that alcohol impaired the driver’s ability to operate the vehicle.  Even BAC results at other levels must be considered with the full body of evidence. We look at the reason for the traffic stop, driving observations, field sobriety exercises, video recordings, statements, chemical-testing procedures, and other evidence before assessing what the prosecution can actually prove.

Does a 0.08 BAC Automatically Mean We Are Guilty of DUI?

A BAC of 0.08 or higher can support a DUI per se charge under C.R.S. § 42-4-1301(2)(a), but an arrest or test result is not the same thing as a final conviction. Colorado law specifically allows defendants in DUI per se cases to present evidence challenging whether testing was defective or inaccurate. We may investigate the testing instrument, calibration and maintenance records, collection procedures, timing of the test, chain of custody, laboratory documentation, and other circumstances depending on whether the case involves breath or blood evidence. The appropriate defense depends on the facts rather than the BAC number alone.

Can Prescription Medication or Marijuana Lead to DUI or DWAI?

Yes. Colorado’s DUI and DWAI statutes cover impairment caused by alcohol, one or more drugs, or a combination of alcohol and drugs. The Colorado Division of Motor Vehicles also explains that prescription medication, over-the-counter medication, marijuana, and other drugs can form the basis of an impaired-driving case when they affect a person’s ability to drive safely.  Drug cases can involve different scientific and evidentiary questions from alcohol cases. We may examine toxicology results, dosage, timing, officer observations, medical information where relevant, and whether the prosecution can connect the presence of a substance to legally sufficient proof of impairment.

Can a Fourth DUI or DWAI Be a Felony in Colorado?

Yes. Colorado law provides that DUI, DUI per se, or DWAI is a class 4 felony when the offense occurs after three or more qualifying prior convictions arising from separate and distinct criminal episodes. Qualifying prior offenses can include DUI, DUI per se, DWAI, and certain alcohol- or drug-related vehicular offenses.  Because prior convictions can change the classification and potential punishment substantially, we verify the alleged criminal history rather than assuming that every conviction listed by the prosecution satisfies the statutory requirements.

Speak With Our Denver DUI Defense Lawyer at Price Criminal Defense 

A DUI or DWAI arrest can affect your freedom, driver’s license, employment, finances, and future record. At Price Criminal Defense, we examine the prosecution’s evidence from the perspective of attorneys who understand how Colorado criminal cases are investigated, charged, and prosecuted. Our lead DUI defense attorney, Daniel Butler, has more than 15 years of experience practicing law in Colorado and spent nearly a decade working within the Colorado criminal justice system before defending people accused of crimes. His prior positions include Deputy District Attorney, County Court Supervisor, Assistant City Attorney, and Assistant Director of Prosecution and Code Enforcement. He has handled thousands of criminal matters and approximately 25 trials, primarily jury trials. That prosecution background gives our defense team practical insight into how the other side prepares DUI and DWAI cases. We use that experience to examine police reports, video evidence, chemical tests, field sobriety evidence, witness testimony, constitutional issues, and weaknesses in the prosecution’s theory before determining how we should defend the case. If you have been arrested or charged with DUI or DWAI in Denver or the surrounding area, we can review what happened, explain the difference between the criminal case and driver’s-license consequences, and discuss the defenses that may apply to your situation. Call Price Criminal Defense at (720) 615-7106 for a free consultation. Our calls are answered 24/7, and we represent clients throughout the Denver area from our office locations in Denver, Colorado.