In Colorado, driving under the influence of drugs (commonly referred to as “DUID“) is prosecuted as either DUI or the less serious crime of DWAI. The penalties are generally the same as with a DUI of alcohol.
DUID suspects are required to submit to a blood test because breath tests are designed to detect alcohol rather than drugs. First-time offenses are usually misdemeanors and carry a mandatory license suspension.
To help you better understand Colorado’s laws against using drugs and driving, our top Colorado DUI defense lawyers discuss the following:
- 1. What is DUID?
- 2. What is DWAI?
- 3. What is considered a “drug”?
- 4. Do I have to take a blood test?
- 5. What if I have a prescription?
- 6. Can I drive while on medical marijuana?
- 7. Is DUID a misdemeanor or a felony?
- 8. What are the penalties?
- 9. What are the best defenses to DUID charges?
1. What is DUID?
You drive under the influence of drugs in Colorado when:
- You have consumed one or more drugs or a combination of alcohol and drugs; and
- The drugs and/or alcohol make you substantially incapable, either mentally and/or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a motor vehicle.1
CRS 42-4-1301(1)(a) prohibits driving under the influence of alcohol and drugs.
2. What is DWAI?
You drive while ability impaired by drugs in Colorado when:
- You have consumed one or more drugs or a combination of alcohol and drugs; and
- The drugs and/or alcohol affect you “to the slightest degree.”
You are affected to the slightest degree if you are less able than you ordinarily would have been, either mentally and/or physically, to exercise
- clear judgment,
- sufficient physical control, or
- due care in the safe operation of a vehicle.2
3. What is considered a “drug”?
For purposes of Colorado DUI and DWAI laws, drugs include:
- all drugs (including prescription and over-the-counter),
- controlled substances, and
- any inhaled glue, aerosol, or other toxic vapor or vapors.3
“Drugs” include any substance (other than food) that is:
- Recognized as a drug in the official United States pharmacopeia, national formulary, or the official homeopathic pharmacopeia of the United States, or a supplement thereof;
- Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals;
- Intended to affect the structure or any function of the body of individuals or animals; or
- Intended for use as a component of any such substance.4
DUI of drugs is frequently charged along with a violation of:
4. Do I have to take a blood test?
Typically, if you are arrested for DUI or DWAI, you must be given your choice of a
- DUI blood test or
- DUI breath test.
However, if the officer has probable cause to believe you were under the influence of, or impaired by, drugs or a combination of drugs and alcohol, you can be required to take a DUI blood test.5
Penalties for refusing to take a blood test include:
- Revocation of your Colorado driver’s license,
- Designation as a Colorado “persistent drunk driver” (PDD),
- Mandatory drug education before your license can be reinstated,
- An ignition interlock device on your vehicle before you can drive again, and
- Mandatory SR-22 insurance.
DUID is a crime even if the driver has a lawful prescription.
5. What if I have a prescription?
Having a valid prescription is not a defense against DUI or DWAI involving drugs. In Colorado, it is against the law to drive if your ability to drive is impaired to the slightest degree, even by a seemingly innocuous medication. This includes over-the-counter medicines for
- pain,
- allergies, or
- anything else.
6. Can I drive while on medical marijuana?
Marijuana is a drug under Colorado law, even when you have a prescription for medical marijuana.6
There is no strict “legal limit” for DUI of marijuana in Colorado. But a jury may infer that you drove under the influence of marijuana if a blood test showed
- 5 nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter in your blood when you drive.7
However, the fact that you possess a medical marijuana registry card does not, by itself, constitute probable cause for an officer to require you to submit to a Colorado DUI blood test for drugs if you are arrested.8 Nor can possessing a medical marijuana registry card be used as evidence to convict you of DUID or DWAI.9
7. Is DUID a misdemeanor or a felony?
Drugged driving is usually a misdemeanor in Colorado. It becomes a Colorado felony, however, if you have three or more separate prior convictions (in any U.S. state or territory) for:
- DUI,
- DUI per se (BAC of .08% or higher),
- DWAI,
- vehicular homicide, and/or
- vehicular assault.
8. What are the penalties?
8.1. Misdemeanor penalties
The punishment for misdemeanor DUI increases with each successive conviction:
| Misdemeanor DUI offense | Punishment |
| First-time DUI |
|
| Second-time DUI |
|
| Third-time DUI |
|
The punishment for misdemeanor DWAI also increases with each successive conviction:
| Misdemeanor DWAI offense | Punishment |
| First-time DWAI |
|
| Second-time DWAI |
|
| Third-time DWAI |
|
8.2. Felony penalties
Consequences of a Colorado felony DUI / DWAI conviction can include:
- A fine of $2,000 to $500,000,
- Two to six years in Colorado state prison, and
- Three years of mandatory parole.
9. What are the best defenses to DUID charges?
The best Colorado DUI attorneys can present many legal defenses to Colorado DUI of drugs. Some of the more common include:
- Your DUI blood test showed less than five nanograms of THC per milliliter.
- There was zero impairment caused by drugs.
- The law enforcement officer had no reasonable suspicion to pull you over.
- The police officer failed to advise you of your Miranda rights prior to custodial interrogation.
- You were not lawfully arrested.
- You were suspected of DUID or DWAI solely because you carried a medical marijuana I.D. card.
- Your blood test was not conducted in accordance with Colorado regulations as set forth in 5 CCR 1005-2.
- There were errors in your DUI blood test.
Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
Learn more about Colorado DUI laws.
Arrested in Nevada? Go to our article on DUI of prescription drugs in Nevada.
Legal references:
- 42-4-1301 CRS (1)(f). See Halter v. Department of Revenue, Motor Vehicle Div., (Court of Appeals of Colorado, Division Four, 1993) 857 P.2d 535; People v. Tuthill (2007) 158 P.3d 275.
- 42-4-1301(1)(g), C.R.S.
- 42-4-1301(1)(d), C.R.S.
- 27-80-203(13) and 18-18-102(5), C.R.S.
- 42-4-1301.1(2)(b)(I), C.R.S.
- 42-4-1301(1)(e), C.R.S.
- 42-4-1301(6)(a)(IV), C.R.S.
- 42-4-1301(6)(k), C.R.S.
- 42-4-1301(6)(j), C.R.S.