In Colorado, DWAI (short for Driving While Ability Impaired) is the criminal charge you face for driving a motor vehicle with a blood alcohol content (BAC) higher than 0.05% but under 0.08%. DWAI is a less serious drunk driving charge than DUI or DUI per se.
Here are three key things to know:
- DWAIs are misdemeanors, although they become felonies if you have at least 3 prior drunk driving convictions.
- Unlike a first-time DUI, a first-time DWAI alone does not trigger a license suspension.
- A common defense is that you were not impaired, and the police had no probable cause to arrest you.
Below our Colorado DUI defense lawyers and DWAI lawyers discuss the following:
- 1. What is DWAI in Colorado?
- 2. Is DWAI different from DUI?
- 3. How does the prosecutor prove DWAI?
- 4. What are the penalties for DWAI in Colorado?
- 5. How do I fight the charges?
- Additional reading
Under Colorado Revised Statutes 42-4-1301 (1)(g) CRS, you drive while ability impaired when you are affected by alcohol and/or drugs in “the slightest degree.” For purposes of Colorado’s DWAI law, this means that you are less able mentally and/or physically to operate a vehicle than you ordinarily would have been safely.
Colorado courts and juries may infer that your ability is impaired when your BAC is
- over 0.05%, but
- less than Colorado’s “legal limit” of 0.08% for a DUI per se.
However, we can rebut this legal inference with other evidence, such as eyewitness testimony that you were unimpaired.
DWAI of drugs
Like DUI, DWAI applies to driving impaired by alcohol, drugs, or a combination of both.
DWAI of marijuana is typically charged when your blood content is lower than 5 nanograms of delta 9-tetrahydrocannabinol (THC) per milliliter, but you are exhibiting signs of impairment.
Yes, DWAI is a less serious drunk driving charge than DUI in Colorado.
Prosecutors bring DUI charges whenever your BAC is at least 0.08%, whether you are impaired or not. In contrast, prosecutors bring DWAI charges when you appear impaired and your BAC is less than 0.08% but above 0.05%.
Unlike a DUI conviction, a first-time DWAI conviction does not trigger a driver’s license suspension. Plus, the fines and community service requirements that a DUI conviction carries are about twice those for a DWAI conviction.
Because DWAI requires actual impairment, there is no set BAC level at which you are automatically guilty of DWAI. However, having a BAC greater than 0.05% (but less than 0.08%) is strong evidence that your driving was impaired.1
Refusing to submit to a chemical test of your breath or blood carries significant penalties, including:
- an automatic suspension of your Colorado driving privilege (even if your criminal case is eventually dismissed), and
- Level II DUI School.
Also, prosecutors may introduce your refusal as evidence that you were, in fact, guilty of DWAI.2
DWAI penalties in Colorado turn on your number of prior drunk- or drugged driving convictions. It does not matter whether these past convictions were for DWAI or for DUI or whether they occurred in Colorado or a different U.S. state or territory.
A first DWAI is a misdemeanor, carrying:
- 2 days-180 days in jail,
- A fine of $200-500,
- 24-48 hours of community service,
- Up to 2 years of probation, and
- 8 DMV points on your DMV driving record.
If you already have four or more points on your driving record when you get the DWAI – bringing your total points to at least 12 – the DMV will revoke your license based on excessive points.
A second DWAI is a misdemeanor, carrying:
- 10 days-1 year in jail (with 10 days mandatory),
- A fine of $600-$1,500,
- 48-120 hours of community service,
- 1-year license revocation,
- 2 years of probation,
- 1-year suspended sentence, and
- 8 points on your DMV driving record.
A third DWAI is a misdemeanor, carrying:
- 60 days-1 year in jail (with 60 days mandatory),
- A fine of $600-$1,500,
- 48-120 hours of community service,
- 2-year license revocation,
- 2-4 years of probation,
- 1-year suspended sentence,
- 8 points on your DMV driving record, and
- 90 days of continuous alcohol monitoring if you are granted probation.3
DWAI becomes a Colorado class 4 felony when it occurs after three or more prior drunk/drugged driving convictions. Consequences include:
- A fine of $2,000-$500,000,
- 2-6 years in Colorado State Prison,
- 3 years of mandatory parole,
- 2-year license suspension, and
- 90 days of continuous alcohol monitoring if granted probation.4
Learn more about DUI fourths.
Here at Colorado Legal Defense Group, we have defended literally thousands of clients facing drunk driving allegations. In our experience, the following seven defenses can be very effective in persuading prosecutors to reduce or drop DWAI charges.
- Your BAC was less than 0.05% when you drove.
- Your driving was not at all impaired by alcohol and/or drugs.
- The officer had no probable cause for pulling you over.
- The officer failed to advise you of your Miranda rights.
- You were not lawfully arrested.
- You were suspected of DWAI solely because you carried a medical marijuana I.D. card.5
- Your DUI breath or blood test was not conducted in accordance with Colorado regulations as set forth in 5 CCR 1005-2.
Common evidence we rely on in these cases includes the arresting officers’ own bodycam and dashcam footage. Often this video shows vital procedural errors and omissions the police committed during your traffic stop.
Note that if you were originally charged with DUI, we may be able to use some of these defenses to persuade the D.A. to lessen the charge down to DWAI.
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.
- See CRS 42-4-1301 (6)(a)(II). See also People v. Ambrose (Colo. App. 2021) 506 P.3d 57.
- CRS 42-4-1301 (6)(d). People v. Swain (1998) (no movement of the vehicle is required to be guilty of DWAI). Riley v. People (2004) .
- CRS 42-4-1307. CRS 42-2-127. See also People v. Woodside (Colo. 2023) 529 P.3d 1233.
- CRS 42-4-1307.
- CRS 42-4-1301 (6)(k).