Getting arrested for DUI does not mean you will be convicted. Police misconduct, defective breathalyzers and crime lab mistakes may be enough to get your charges lessened or dismissed. Visit our page on Colorado DUI Laws to learn more.
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.
“Per se” of DUI per se is a Latin term meaning “in and of itself.”
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 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.7THC is the primary active ingredient in marijuana. For more information, please see our article on Colorado DUI of marijuana.
DUI per se becomes felony vehicular assault if someone gets seriously injured.
If you are granted probation, the judge may order 90 days of continuous alcohol monitoring.
3. What are defenses to fight the charges?
Defending against a charge of DUI per se is not as easy as defending simple DUI or DWAI charges.
However, a skilled DUI lawyer knows that defending DUI charges is not impossible. Defenses to 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 in accordance with the rules and regulations set forth by the Colorado Department of Health.8
Call our law firm for legal advice. We offer consultations.
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. Learn more about Colorado DUI laws.