DWAI – Driving While Ability Impaired – Colorado Law

Updated February 19, 2021

Driving while ability impaired (DWAI) in Colorado is operating an automobile with a blood alcohol content (BAC) of greater than 0.05% but less than 0.08%. A misdemeanor, a first-time DWAI carries 2 days to 180 days in jail, $200 to $500 in fines, 24 to 48 hours of community service, and 8 DMV points. Unlike a DUI per se charge, a DWAI-first by itself does not trigger a license suspension.

Below our Colorado DUI / DWAI defense lawyers discuss the following, below:

• 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?
  • 4.1. First offense
  • 4.2. Second offense
  • 4.3. Third offense
  • 4.4. Felony DWAI
• 5. How do you fight the charges?

Colorado makes it a crime to drive if you are impaired by alcohol or drugs “in the slightest degree.”

1. What is DWAI in Colorado?

Under Colorado Revised Statutes 42-4-1301 (1)(g), C.R.S., 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 safely operate a vehicle than you ordinarily would have been.

Generally, you are considered ability impaired in Colorado when your blood alcohol concentration (“BAC”) is over .05%, but less than Colorado’s “legal limit” of .08% for a DUI per se.

2. Is DWAI different from DUI?

Yes, DWAI is a less serious drunk driving charge than DUI in Colorado. DUI is typically charged when the defendant’s BAC is at least 0.08% or higher. DWAI charges are usually reserved for cases where the defendant’s 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. And the fines and community service requirements that a DUI conviction carries are about twice those than for a DWAI conviction.

DWAI charges are usually reserved for suspects with a blood alcohol level between 0.05% and 0.08%.

3. How does the prosecutor prove DWAI?

Unlike DUI, there is no set BAC level at which you are automatically guilty of DWAI. DWAI requires actual impairment. So if your BAC was less than .08% and your driving was not impaired, you did not commit DWAI.

However, if your BAC is greater than .05% (but less than .08%), it is strong evidence that your driving was impaired.¹ Usually this will be shown with results from a DUI breath or blood test.

You may be tempted to refuse to take a chemical test in order to avoid this result. Be advised, however, that there are significant penalties for a DUI test refusal in Colorado. These include automatic suspension of your Colorado driving privilege, as well as a fine and possible jail time. Your refusal may also be introduced as evidence that you were, in fact, guilty of DWAI.²

4. What are the penalties for DWAI in Colorado?

The “number” of your offense includes convictions for both DUI and/or DWAI in any U.S. state or territory. Consequences of Colorado DWAI can include:

4.1. First offense

• 2 days-180 days in jail,
• A fine of $200-500,
• 24-48 hours of community service, and
• 8 DMV points on your DMV driving record.

4.2. Second offense

• 10 days-one year in jail (with10 days mandatory),
• A fine of $600-$1,500,
• 48-120 hours of community service,
• 1-year license revocation, and
• 8 points on your DMV driving record.

4.3. Third offense

• 60 days-one year in jail (with 60 days mandatory),
• A fine of $600-$1,500,
• 48-120 hours of community service,
• 2-year license revocation, and
• 8 points on your DMV driving record.

DWAI is typically charged as a misdemeanor in Colorado.

4.4. Felony DWAI

DWAI becomes a Colorado class 4 felony when the violation occurs after three or more prior convictions for:

• DUI or DUI per se,
• DWAI,
• vehicular homicide, and/or
• vehicular assault.

Consequences of a Colorado felony DUI conviction can include:

• A fine of $2,000-$500,000,
• 2 to 6 years in Colorado state prison,
• 3 years of mandatory parole, and
• 2-year license suspension

Learn more about DUI fourths.

5. How do you fight the charges?

A skilled Colorado DUI attorney has numerous ways to defend you against DWAI charges. Common defenses to DWAI include (but are not limited to):

• Your BAC was less than .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 rights.
• You were not lawfully arrested.
• You were suspected of DWAI solely because you carried a medical marijuana I.D. card.³
• Your DUI breath or blood test was not conducted in accordance with Colorado regulations as set forth in 5 CCR 1005-2.

Call us for help…

Call our law firm for help

If you or someone you know has been charged with DWAI, our Denver Colorado criminal defense lawyers can help. We defend people accused of drunk or drugged driving throughout the state of Colorado.

Contact us for a free consultation using the form on this page. Or call us at our Denver home office. We will respond promptly to discuss your case and your best DWAI defenses.

Our Denver DUI / DWAI office is located at:

Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211

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