Colorado DUI Per Se: Driving with a BAC of .08% or Higher
(42-4-1301 C.R.S.)

man blowing into handheld breath analyzer reading .08

What is Colorado DUI per se?

In Colorado, you drive under the influence when, due to alcohol and/or drugs, you are substantially incapable, mentally and/or physically, to safely operate a vehicle.

But different people become impaired at different levels of alcohol consumption. For one person, a blood alcohol concentration (BAC) of .05% might be enough to cause unsafe driving. For others, it might take much more before impaired driving occurs.

For this reason, Colorado imposes a strict legal limit at which you are automatically deemed too drunk to drive.

Colorado's “legal limit” for drinking and driving -- .08%

Like most states, Colorado sets an arbitrary threshold over which you are deemed to drive drunk. In Colorado, the “legal limit” for alcohol is a BAC of .08%.

This means that if you drive with a BAC of .08% or higher, you are considered under the influence even if your driving was not unsafe. This is known as Colorado's DUI “per se” law. “Per se” is a Latin term meaning “in and of itself.”

Colorado DUI per se penalties

Consequences of a first DUI per se conviction can include:

  • A misdemeanor criminal record,
  • Five days - one (1) year in jail,
  • A fine of up to $1,000,
  • 12 points on your Colorado DMV driving record,
  • A 9-month DMV revocation of your driving privilege,
  • Up to 96 hours of community service,
  • Mandatory alcohol education classes, and
  • Increased insurance costs.

In a worst-case scenario, you could end up being designated a Colorado persistent drunk driver (“PDD”) (see below). A PDD designation will result in a longer suspension of your driving privilege and an ignition interlock restricted license once your license is restored.

Defending Colorado DUI per se charges

Because the penalties for DUI are so severe, we recommend that you retain the best Colorado DUI defense lawyer you can as soon as possible. In addition to the risks of a criminal conviction, a DUI arrest will trigger an automatic suspension or revocation of your Colorado driver's license.

You have just 7 days to request a Colorado DMV license hearing to contest the suspension. If you do not request a hearing within 7 days – or if you ultimately lose the hearing – you will lose your right to drive.

The best DUI defense attorneys in Denver

An experienced DUI lawyer has many tools to fight DUI charges – including, without limitation, challenging your Colorado DUI breath test or DUI blood test.
The caring Colorado DUI lawyers at the Colorado Legal Defense Group have decades of experience defending clients on drunk driving charges.

If you have been arrested for DUI in Denver or elsewhere in Colorado, we invite you to contact us for a free consultation.

And to help you better understand the consequences of DUI per se charges, our Colorado DUI defense lawyers discuss the following, below.

man behind wheel of car with bottle of alcohol

1. The definition of DUI per se

The usual standard for DUI is that you are too drunk or drugged to drive an automobile safely. But Colorado also sets an arbitrary maximum blood alcohol concentration (BAC) at which you can legally drive.

In Colorado, the legal limit for blood alcohol is .08%.1

If you drive with a BAC of .08% or higher, you can be found guilty of DUI – even if you showed no other signs of being drunk.

1.1. The difference between Colorado DUI and DWAI

Section 42-4-1301 of the Colorado Revised Statutes (C.R.S.) defines "driving under the influence" (DUI) and "driving while ability impaired."

"Driving under the influence" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.2

"Driving while ability impaired" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.3

DWAI is a bit like DUI “light.” It is an intermediate step between driving sober and driving under the influence.

1.2. Presumptions based on BAC level

Your BAC is the amount of alcohol present in your bloodstream as measured by a DUI blood test or DUI breath test. As the percentage of alcohol in your bloodstream goes up, so does your BAC.

If you are at least 21 years old and your BAC as measured by a Colorado DUI test is 0.05% or less, it will be presumed that your ability to drive was not impaired.4Accordingly, if you choose to take a preliminary DUI breath test and you “blow” less than .05%, the officer will usually not arrest you.

Regardless of your age, however, if your BAC is at least .05% but less than .08%, it is a permissible inference that you drove while ability impaired by alcohol.5 This is sometimes erroneously referred to as a DWAI “per se.” Unlike DUI, however you are not automatically deemed guilty of DWAI based on your BAC level. You can fight a DWAI charge based on a BAC of less than .08% with evidence that your driving was not, in fact, impaired.

If your BAC falls within this gray zone, however, a jury may consider a BAC of .05% or higher with other evidence to determine and conclude that you were not just impaired, but actually under the influence. In short, you can be guilty of DUI when your BAC is less than .08% if you were unable to drive safely.

Conversely, if your BAC is .08% or more, you are guilty of DUI per se, even if your driving was perfectly fine. Safe driving is not a defense to a charge of DUI per se.6

1.3. DUI of drugs / DUI of marijuana

In Colorado, there is no such thing as DUI per se of drugs or DUI per se of marijuana.

It is, however, a permissible inference that you were driving under the influence of drugs if your blood contained five nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter.7 THC is the primary active ingredient in marijuana. For more information, please see our article on Colorado DUI of marijuana.

judge's hands bringing down gavel

2. Penalties for Colorado DUI per se

DUI per se is a misdemeanor in Colorado unless:

In either of these cases, DUI becomes a felony.

2.1. Colorado misdemeanor DUI penalties

2.1.1. First offense

Consequences of first-time DUI per se can include:

  • Five days - one (1) year in jail,
  • A fine of up to $1,000,
  • A 9-month DMV revocation of your driving privilege,
  • Up to 96 hours of community service, and
  • Alcohol education classes.

Additionally, if your BAC was 0.15% or higher, you will be designated a Colorado persistent drunk driver and sentenced as a repeat-DUI offender, even if it is your first offense.

2.1.2. Second offense

Consequences of a second Colorado DUI per se conviction can include:

  • 10 days – 1 year in jail,
  • A fine of $600-$1,500,
  • Driver's license revoked for up to one year,
  • Ignition interlock restricted license for two years following reinstatement of your driving privilege,
  • Mandatory alcohol education, and
  • 48-120 hours of community service.

2.1.3. Third offense

Consequences of a third Colorado DUI per se conviction often include:

  • 10 days – 1 year in jail,
  • A fine of $600-1,500,
  • Driver's license revoked for two years,
  • Ignition interlock device for two years following license reinstatement of your license,
  • Mandatory alcohol education and treatment, and
  • 48-120 hours of community service.

2.2. Colorado felony DUI penalties

As of 2015, DUI is a felony if:

  • You have three prior DUI and/or DWAI convictions in any U.S. state or territory, or
  • At the time of your arrest, you were designated a Colorado persistent drunk driver (PDD).

Consequences of a Colorado felony DUI conviction can include increased criminal penalties of:

  • Two to six years in prison,
  • A fine of $2,000 to $500,000, and
  • Three years mandatory parole.

3. Colorado DUI per se defenses

Defending against a charge of DUI per se is not as easy as defending simple Colorado DUI or DWAI charges.

However, a skilled Colorado DUI lawyer knows that defending DUI charges is not impossible. Defenses to Colorado DUI per se often include (without limitation):

  • The officer had no probable cause to pull you over,
  • Your arrest wasn't legal,
  • You weren't properly advised of your rights, or
  • Your DUI chemical test was not conducted with in accordance with the rules and regulations set forth by the Colorado Department of Health.8

Call us for help…

call center receptionist

If you or a loved one has been charged with Colorado DUI, DUI per se, DWAI or another Colorado drunk driving offense, we invite you to contact us for a free consultation.

Our compassionate Colorado DUI attorneys have had great success defending drivers accused of drunk or drugged driving. Call us today to find out why were are considered some of the best DUI lawyers in Denver.

We offer consultations by phone or at our Denver DUI office, located at:

Colorado Legal Defense Group
1400 16th Street
16 Market Square
Denver CO 80202
720-955-6112


Legal references:

  1. 42-4-1301 (2)(a), C.R.S.
  2. 42-4-1301 (1)(f), C.R.S.
  3. 42-4-1301 (1)(g), C.R.S.
  4. 42-4-1301(6)(a)(I), C.R.S.
  5. 42-4-1301(6)(a)(II), C.R.S.
  6. 42-4-1301(6)(a)(III), C.R.S.
  7. 42-4-1301(6)(a)(IV), C.R.S.
  8. Colorado Code of Regulations, CR 1005-2.

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