DWAI vs. DUI in Colorado: Differences, Penalties, and Defense Strategies

Getting pulled over for drinking and driving in Colorado can be a terrifying experience. Unlike many other states, Colorado has two distinct levels of drunk driving offenses: Driving Under the Influence (DUI) and Driving While Ability Impaired (DWAI). The distinction can mean the difference between keeping your job and losing your driver's license. If you are facing charges in Denver, Colorado Springs, or Pueblo, understanding the nuances of C.R.S. § 42-4-1301 is critical to building a strong defense.

Step-by-Step Process to Defend a DWAI or DUI in Colorado

Fighting an impaired driving charge involves battling on two fronts: the criminal case in County Court and the civil case with the Department of Motor Vehicles (DMV). Here are the steps your local lawyer will typically take.

Step 1: Requesting an Express Consent Hearing

After an arrest, the police will confiscate your license. Under C.R.S. § 42-2-126(7)(b), you have seven days to request an administrative hearing to protect your driving privileges (or ten days from the postmark date if notice is mailed following a blood test). You or your lawyer must submit a written hearing request online through the myDMV portal or by presenting your citation copy of Form DR 2576, Colorado, Department of Revenue, Express Consent Affidavit and Notice of Revocation to the Colorado Department of Revenue, Denver. If you miss this deadline, your license will be automatically revoked.

Step 2: The Arraignment in County Court

Your first criminal court date is the arraignment. Whether you are in Arapahoe County Court, Littleton or Boulder County Court, Boulder, this is where you officially hear the charges and enter a plea of "Not Guilty." Your defense attorney will also file a motion for discovery to get the police reports and body camera footage.

Step 3: Challenging the Subjective Impairment Observations

For a DWAI, prosecutors often rely heavily on the officer's subjective observations, such as bloodshot eyes or slurred speech. Your attorney will review the footage to see if the officer exaggerated your behavior or administered the roadside gymnastics (Standardized Field Sobriety Tests) incorrectly.

Step 4: Plea Bargaining a DUI Down to a DWAI

If you were charged with a standard DUI (0.08 BAC or higher), a common defense strategy is negotiating with the District Attorney to drop the charge down to a DWAI. A DWAI looks slightly less severe on a background check and carries lighter mandatory penalties.

Can You Get a DWAI with a 0.04 BAC?

Yes, it is possible. Under Colorado law, if your Blood Alcohol Content (BAC) is greater than 0.05 but less than 0.08, there is a legal presumption that your ability to drive was impaired (DWAI). However, if your BAC is 0.05 or lower, the law presumes you were not impaired. If your BAC was 0.04, the prosecution must present overwhelming additional evidence of bad driving to overcome that presumption, making it much easier for a skilled lawyer to defend.

How Chemical Test Refusals Impact DWAI Charges

Colorado's Express Consent Law requires you to submit to a breath or blood test if an officer has probable cause. If you refuse the test, the Colorado Department of Revenue, Denver will penalize you with an automatic one-year license revocation, which is often harsher than a first-time DWAI conviction. Furthermore, prosecutors can use your refusal against you in court, arguing that you refused because you knew you were guilty.

Penalties for a First-Time DWAI vs DUI

While a DWAI is the lesser of the two offenses, it is still a serious misdemeanor that can impact your life.

How Much Does it Cost in Colorado?

Defending a DWAI or DUI is not cheap. Court fees and fines can quickly reach $1,000 to $2,000. Additionally, mandatory alcohol education classes, probation supervision fees, and increased car insurance rates can add thousands more. Hiring an experienced private defense attorney from our US Lawyers Directory typically costs between $2,500 and $5,000 for a misdemeanor case, depending on whether it goes to trial.

How Long Does the Process Take?

A standard DWAI or DUI case in Colorado usually takes between 3 and 6 months to resolve. If your attorney decides to take the case all the way to a jury trial to fight the charges, the process can stretch out to 9 months or more due to court backlogs.

Frequently Asked Questions (FAQ)