What's the difference between DUI and DWAI in Colorado?

Posted by Neil Shouse | Dec 28, 2018 | 0 Comments

Drunk driving (or drugged driving) can be prosecuted as either a violation of Colorado DUI laws or Colorado DWAI laws depending on the circumstances. DUI is a more serious offense than DWAI.

Definition of DUI and DWAI

DUI is short for "driving under the influence" of alcohol or drugs. DWAI is short while "driving while ability impaired" from alcohol or drugs.

Drivers with a blood alcohol content (BAC) of .08% or higher are typically charged with DUI, whether or not they are driving safely. Driving with a BAC of at least .08% is per se illegal in Colorado.

Meanwhile, drivers pulled over with a BAC of less than .08% but at least .05% are typically charged with DWAI. Police have sufficient grounds for arrest as long as the driver's ability to drive was at least slightly impaired by drugs or alcohol.

Penalties for DUI and DWAI

A first-time offense of DUI or DWAI is a misdemeanor in Colorado, but a DUI carries harsher penalties than DWAI.

A first-time DUI carries:

  • 5 days to 1 year in jail,
  • Fines of $600 to $1,000,
  • 48 to 96 hours of community service, and
  • Driver's license suspension of up to 9 months

Note that people with a BAC of at least 0.15% get designated as a Colorado persistent drunk driver (“PDD”) and sentenced as a repeat-DUI offender.

Meanwhile, a first-time DWAI carries the lesser punishment of:

  • 2 days to 180 days in jail,
  • Fines of $200 to $500,
  • 24 to 48 hours of community service, and
  • 8 demerit points on their driver's license

Note that a first-time DWAI does not carry automatic license suspension.

Even though a first-time DWAI carries lesser penalties than a first-time DUI, the punishments for any subsequent DUIs or DWAIs are identical. It does not matter if the prior drunk driving conviction was from several years ago or another state: Any subsequent conviction will carry a harsher penalty than the first.

A second-time or third-time DUI or DWAI carries:

  • fines of $600 to $1,500,
  • 10 days to 1 year in jail for a 2nd offense, 60 days to 1 year in jail for a 3rd offense, and
  • 48 to 120 hours of community service,

A fourth-time DUI or DWAI conviction is a class 4 felony, carrying:

Defenses to DUI or DWAI charges

Common defenses to DWAI charges in Colorado include: 

  • the defendant's BAC was less than .05%, or
  • the defendant was not driving impaired at all

Common defenses to DUI charges in Colorado include:

  • the defendant's BAC was less than .08%, or
  • the defendant had a medical condition that caused a falsely high BAC reading

Common defenses to either DUI or DWAI charges include:

  • The officer lacked probable cause for pulling the defendant over,
  • The defendant was not lawfully arrested,
  • The DUI breath or blood test was not carried out in accordance with Colorado laws, or
  • The defendant had a physical condition that caused him/her to fail the field sobriety tests

As long as the prosecution has insufficient evidence to prove guilt beyond a reasonable doubt, the defendant should not be convicted of DUI or DWAI.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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