DWAI stands for the Colorado crime of “driving while ability impaired” (42-4-1301 (1)(g)). In Colorado, people commit DWAI if they are operating a motor vehicle while they are impaired by drugs or alcohol in “the slightest degree.”
DUI per se versus DWAI
The Colorado crime of DUI per se (42-4-1301(2)(a)) occurs when a person drives with a blood alcohol content of at least .08%. It makes no difference if the driver did not feel drunk or was driving as safely as a person does with no BAC.
In contrast, a person can be guilty of DWAI even if his/her BAC is very low. As long as a driver is exhibiting the slightest degree of impairment from alcohol (or drugs), he/she can be convicted of DWAI.
Example: Tommy drinks half a glass of champagne at dinner. But since he is a lightweight, he has trouble keeping control of the car while driving home in Las Vegas. A policeman pulls him over for crossing the median and administers a preliminary breath test, which reads .06%.
In the above example, the policeman will probably arrest Tommy for DWAI. His BAC was less than .08%, so he could not be guilty of DUI per se. But since he was seemingly impaired by champagne and had a BAC not far from the legal limit, there may be sufficient evidence to convict him of DWAI.
In general, a person’s ability to drive is compromised when their BAC exceeds .05%.
DWAI penalties
Colorado’s DWAI punishments increase with each successive offense. The first three times are prosecuted as misdemeanors. The fourth or successive offense is a Colorado class 4 felony.
First-time offense
- 2 days to 180 days in jail,
- A fine of $200 to 500,
- 24 to 48 hours of community service, and
- 8 points on the DMV driving record.
Second-time offense
- 10 days to 1 year in jail (10 days are mandatory),
- A fine of $600 to $1,500,
- 48 to 120 hours of community service, and
- 8 points on the DMV driving record
Third-time offense
- 60 days to 1 year in jail (60 days are mandatory),
- A fine of $600 to $1,500,
- 48 to 120 hours of community service, and
- 8 points on the DMV driving record
Fourth-time or successive offense
- A fine of $2,000 to $500,000,
- 2 to 6 years in Colorado State Prison, and
- 3 years of mandatory parole
DWAI defenses
There are many possible ways to fight Colorado DWAI charges depending on the unique facts of the case. Typical defenses include:
- The defendant’s BAC was less than .05% when he/she was driving, which suggests that he/she was not impaired;
- The officer had no probable cause for pulling the defendant over;
- The police failed to administer the field sobriety tests correctly;
- The defendant was arrested solely because he/she was carrying a medical marijuana I.D. card;
- The state committed misconduct while administering the breath or blood test;
- The defendant suffered from a medical condition that caused him/her to appear impaired when he/she was not or caused an inaccurately high BAC reading
