On This Page
- DWAI and DUI: The Short Version
- Three Offenses Under One Statute
- BAC Levels and What They Mean in Court
- Penalties Side by Side
- License Consequences
- Why a DWAI Still Counts as a Prior
- Reducing a DUI to DWAI
- Drugs, Marijuana, and DWAI
- How These Charges Are Defended
- Working With a Colorado Springs DUI Lawyer
- Frequently Asked Questions
- Sources
DWAI and DUI: The Short Version
DUI and DWAI are both criminal impaired driving offenses in Colorado, and both come from the same statute. The difference is the level of impairment the prosecution has to prove. DUI requires that alcohol or drugs left you substantially incapable of driving safely. DWAI requires only that you were impaired to the slightest degree.
That difference shapes the penalties, the points, and the license consequences. DWAI carries lower fines, a shorter minimum jail term, fewer public service hours, and 8 points instead of 12. It is still a criminal conviction, it is excluded from regular record sealing, and it counts as a prior offense if you are ever charged again.
This article compares DUI, DUI per se, and DWAI side by side, and explains when a DUI charge is reduced to DWAI and what that reduction does and does not change.
Three Offenses Under One Statute
All three offenses are defined in C.R.S. 42-4-1301. Officers and prosecutors often file more than one of them for the same stop.
| Offense | What the Prosecution Must Prove |
|---|---|
| DUI (driving under the influence) | Alcohol, one or more drugs, or a combination affected you so that you were substantially incapable, mentally or physically, of exercising clear judgment, sufficient physical control, or due care in driving safely. |
| DUI per se | Your breath or blood alcohol concentration was 0.08 or more at the time of driving or within two hours after driving. |
| DWAI (driving while ability impaired) | Alcohol, one or more drugs, or a combination affected you to the slightest degree, so that you were less able than you ordinarily would have been to exercise clear judgment, physical control, or due care in driving safely. |
DUI and DWAI are judged on your condition. DUI per se is judged on a number. A driver with a BAC of 0.09 who seemed sober on video can still be convicted of DUI per se. A driver who refused testing can still be convicted of DUI or DWAI based on driving behavior, roadside observations, and statements.
BAC Levels and What They Mean in Court
Colorado law attaches different evidentiary rules to different BAC ranges, based on a test taken within two hours of driving:
| BAC | Legal Effect |
|---|---|
| 0.05 or less | A presumption that the driver was not under the influence of alcohol |
| More than 0.05 but less than 0.08 | A permissible inference that the driver’s ability was impaired (DWAI), considered with other evidence |
| 0.08 or more | A permissible inference that the driver was under the influence (DUI), and the basis for DUI per se |
| 0.15 or more | The driver is treated as a persistent drunk driver for license purposes |
| 0.20 or more | A higher mandatory minimum jail term for a first DUI or DWAI |
An inference is not an automatic conviction. A jury may accept it or reject it after weighing the rest of the evidence, including video, the officer’s observations, and testimony about the timing of drinking.
The 0.05 presumption does not make a lower BAC a free pass. Prosecutors can still pursue DWAI with other evidence, particularly when drugs or medications may also be involved.
Persistent Drunk Driver
Under C.R.S. 42-1-102(68.5), a driver with a BAC of 0.15 or more, a driver who refuses testing, and a driver with two or more alcohol-related driving violations are persistent drunk drivers. That label applies whether the conviction is DUI or DWAI, and it brings Level II treatment and a longer interlock requirement before reinstatement.
Penalties Side by Side
Penalties come from C.R.S. 42-4-1307. DUI and DUI per se carry the same penalties. For a first offense:
| Penalty | First DUI or DUI Per Se | First DWAI |
|---|---|---|
| Jail | 5 days to 1 year | 2 to 180 days |
| Minimum jail with BAC 0.20 or more | 10 days | 10 days |
| Fine | $600 to $1,000 | $200 to $500 |
| Useful public service | 48 to 96 hours | 24 to 48 hours |
| Probation | Up to 2 years | Up to 2 years |
| Alcohol and drug evaluation and classes | Required | Required |
| Points | 12 | 8 |
| Can the conviction be sealed? | Generally no | Generally no |
For both offenses, the court can suspend the mandatory minimum jail term on a first offense if you complete the education or treatment program your evaluation recommends, unless the BAC was 0.20 or more. Both also carry the same surcharges, including the persistent drunk driver surcharge of $100 to $500 and a $25 brain injury surcharge. Our article on how much a DUI costs breaks down those amounts.
Repeat offenses erase most of the difference. A second offense of any combination carries 10 days to 1 year in jail and a fine of $600 to $1,500, whether the new charge is DUI or DWAI.
License Consequences
The license side is where DUI and DWAI differ most, and where the rules are easiest to misunderstand.
The Administrative Revocation Depends on the Test, Not the Charge
The DMV’s administrative revocation under C.R.S. 42-2-126 is based on a BAC of 0.08 or more, or a refusal. It does not depend on what you are later convicted of.
If your breath test was 0.10 and your case is later reduced to DWAI, the 9-month revocation for a first offense can still stand unless you win the DMV hearing. Our DMV hearing page explains the 7-day deadline.
Revocation After a Conviction
- DUI or DUI per se, 21 or older: a conviction brings a 9-month revocation under C.R.S. 42-2-125, unless the license was already revoked administratively for a first offense from the same incident.
- First DWAI, 21 or older: no revocation from the conviction alone. The 8 points can still cause a suspension if you already have points.
- Two convictions within five years: any combination of DUI, DUI per se, or DWAI for acts within five years brings a revocation of at least one year.
- Three convictions: an indefinite revocation of at least two years.
- Drivers under 21: a DUI, DUI per se, or DWAI conviction for an offense committed under 21 brings a mandatory revocation, and the lower point thresholds for young drivers also apply.
Why a DWAI Still Counts as a Prior
A DWAI conviction counts as a prior offense in exactly the same way as a DUI. Colorado has no time limit on prior impaired driving convictions for criminal sentencing. A DWAI from 15 years ago turns a new DUI into a second offense with a 10-day mandatory minimum.
A DUI, DUI per se, or DWAI becomes a class 4 felony after three or more prior convictions from separate incidents, with no look-back period. Prior DWAIs count toward that total. Convictions from other states count if the conduct would have been one of these offenses in Colorado.
Reducing a DUI to DWAI
A plea from DUI to DWAI is one of the most common resolutions in impaired driving cases in El Paso County. Whether it is offered depends on the evidence, the BAC, the driving behavior, and the person’s record.
Colorado limits pleas that go further. Under C.R.S. 42-4-1301(4), a court cannot accept a plea from DUI or DUI per se to a traffic offense that is not alcohol- or drug-related unless the prosecutor represents in good faith that the prosecution could not establish a prima facie case on the original charge. DWAI is still an alcohol-related offense, so that restriction does not apply to it.
What a DWAI Reduction Gets You
- lower fine and jail ranges and fewer public service hours;
- 8 points instead of 12;
- no conviction-based revocation on a first offense for an adult; and
- a conviction that sounds less serious to some employers and insurers.
What It Does Not Change
- the conviction is still excluded from regular sealing;
- it still counts as a prior for any future case;
- the evaluation, classes, surcharges, and probation still apply; and
- an administrative revocation based on a BAC of 0.08 or more can still stand.
Our article on how long a DUI stays on your record explains the long-term record issues.
Drugs, Marijuana, and DWAI
DUI and DWAI cover drugs as well as alcohol. For marijuana, a blood result of 5 nanograms or more of active THC per milliliter of whole blood allows a permissible inference that the driver was under the influence.
Because the DWAI standard is “the slightest degree,” drug cases are often charged or resolved as DWAI. A combination of a low BAC and a medication is one of the most common fact patterns. Our DUID page covers drugged driving cases.
How These Charges Are Defended
The defenses overlap, but the focus differs. No lawyer can promise a particular result, and every case turns on its own evidence.
- The stop and arrest. If the officer lacked reasonable suspicion for the stop or probable cause for the arrest, evidence can be suppressed.
- The test. Breath machine maintenance, the observation period, blood handling, and the two-hour window all matter, especially near the 0.05 and 0.08 lines.
- Impairment. Video often shows steady speech and coordination that weakens a DUI theory and sometimes a DWAI theory as well.
- Timing of drinking. Drinking after driving, or a rising BAC, can undercut the test result.
Our Colorado Springs DUI lawyer page covers these defenses in more detail.
Working With a Colorado Springs DUI Lawyer
Attorney Michael W. Moran has been licensed to practice law in Colorado since 1995 and is a former municipal court judge. He represents people charged with DUI, DUI per se, and DWAI in El Paso County Court at 270 S. Tejon Street, the Teller County Combined Court in Cripple Creek, and the courts of Pueblo and Fremont counties.
A first meeting covers the evidence, your BAC, your license deadline, and whether a DWAI reduction or a dismissal is realistic in your case.
Criminal Defense Colorado Springs, P.C. offers free, confidential consultations.
Frequently Asked Questions
Is DWAI better than DUI in Colorado?
A DWAI conviction carries lower penalties and fewer points than a DUI. It is still a criminal conviction that is generally excluded from sealing and that counts as a prior offense.
What BAC is DWAI in Colorado?
A BAC above 0.05 but below 0.08 allows an inference of DWAI. DWAI can also be charged at other levels if the evidence shows impairment to the slightest degree.
Does a DWAI suspend your license in Colorado?
A first DWAI conviction does not cause a revocation by itself for a driver 21 or older, but it adds 8 points. A BAC of 0.08 or more or a refusal can still lead to an administrative revocation.
Is DWAI a misdemeanor in Colorado?
Yes. A first, second, or third DWAI is a misdemeanor. It becomes a class 4 felony after three or more prior impaired driving convictions.
Can a DUI be reduced to DWAI?
Often, depending on the evidence and your record. Reductions to non-alcohol offenses are more limited and require the prosecutor to represent that the prosecution could not establish a prima facie case of DUI.
What is DUI per se?
DUI per se means driving with a BAC of 0.08 or more at the time of driving or within two hours after. It carries the same penalties as DUI.
Does a DWAI count as a prior DUI?
Yes. A prior DWAI counts the same as a prior DUI for repeat-offense penalties, with no time limit.
