Colorado DWAI of marijuana charges are typically brought when both:
- marijuana impaired your driving “in the slightest degree” but not to a “substantial” degree, and
- your THC levels were below 5 ng/mL.
DWAI stands for “driving while ability impaired,” which is a less serious Colorado charge than DUI, which stands for “driving under the influence.” In my experience, you will likely face charges of DUI of marijuana – rather than DWAI of marijuana – if:
- marijuana made you substantially incapable, mentally and/or physically, to safely operate a vehicle, and/or
- your THC levels were 5 ng/mL or higher.
Therefore, even if your THC levels were below 5 ng/mL, prosecutors could still charge you with DUI of marijuana – rather than DWAI of marijuana – if you were “substantially incapable” of driving safely:1
Example: The Colorado Highway Patrol pulls over Debra for failing to signal. The officer arrests her when she admits to smoking pot. Her blood test shows a low THC level of 2 ng/mL.
Prosecutors decide to charge Debra with DWAI rather than DUI because of her low THC levels and her only traffic violation was failing to signal. Had Debra been swerving erratically, then prosecutors might choose to charge her with DUI rather than DWAI despite her low THC levels.
Penalties for DWAI of Marijuana
Similar to DUI, the Colorado punishments for DWAI of marijuana get harsher with each successive offense.
DWAI of marijuana | Colorado sentence |
First offense |
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Second offense |
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Third offense |
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Fourth offense |
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DWAI penalties are the same in Colorado whether you were impaired by marijuana, other drugs, or alcohol.2
Fighting DWAI of Marijuana Charges
Here at Colorado Legal Defense Group, I have represented literally thousands of people charged with impaired driving crimes such as DWAI of marijuana. In my experience, the following seven defenses have been very effective with prosecutors and judges at getting these charges dismissed or reduced.
- The police lacked reasonable suspicion for pulling you over.
- The police did not give you proper instructions for the field sobriety tests.
- The police did not have sufficient probable cause to arrest you.
- Your blood test results were contaminated.
- The person who performed your blood test let their certification lapse.
- You were having a medical episode (such as a diabetic coma or seizure) which the officer misinterpreted as being high on marijuana.
- Your impaired driving was due to be tired or distracted, not marijuana impairment.
Note that having a medical marijuana registry card is not a defense to DWAI charges.
DWAI of weed is typically a misdemeanor in Colorado.
Getting DUI reduced to DWAI
It is always a win when I can get a DUI of marijuana charge reduced down to a DWAI of marijuana charge in Colorado. DWAI carries lesser penalties than DUI. Plus a first-time DWAI does not trigger an automatic driver’s license revocation like a first-time DUI does.
If your blood test shows a THC level of 5 ng/mL or higher, the court can “presume” you were DUI.3 However, I can “rebut” this presumption if I can show that mistakes may have been made in the lab that tested or stored your blood.
To show that your impairment did not reach DUI levels of “substantially impaired,” I may be able to present such evidence as:
- eyewitness accounts,
- the police’s own dashcam and body cam footage, and
- video surveillance footage.
I also may be able to introduce your medical records to show that your bloodshot or glassy eyes had to do with a medical condition entirely unrelated to marijuana intoxication.
In short, if I can get the D.A. to see there is a “reasonable doubt” as to your THC levels and your degree of impairment, they may be willing to lessen your DUI charge to DWAI or even a full dismissal.
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.