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Can I still be charged with DUI even if my BAC is less than .08?

If police stop you on suspicion of driving under the influence (DUI), you might think that you are safe from charges if a breathalyzer test indicates your blood alcohol content (BAC) is less than .08 percent. Well, in Colorado you can still face a DUI charge even if you blow less than .08 -- in addition to other possible charges.

In fact, Colorado law states that driving under the influence simply means driving a vehicle when a person "has consumed alcohol [...] that affects the person to a degree that the person is substantially incapable [...] to exercise clear judgment, sufficient physical control or due care in the safe operation of a vehicle." As you can see, this particular definition says nothing about having a BAC of .08 percent.

The reason that some people get confused about this issue is because Colorado's DUI law says that if a person's BAC is .08 percent or more, there is the "permissible inference" that this driver is under the influence. This basically means you are presumed to be intoxicated if your BAC is at least .08 percent, but that you can still be charged with DUI if you are under that limit, depending on the circumstances.

Also, Colorado has a DUI offense specifically known as DUI "per se", which applies to anyone who drives a vehicle with a BAC of .08 or more at the time or driving, or within two hours after driving. The key difference between DUI and DUI per se is that DUI per se requires the driver have a BAC of .08 percent of more, and DUI does not -- meaning you can still be charged with DUI if you are under .08 or even refuse testing altogether.

What about DWAI?

Unlike many other states, Colorado also has a separate offense known as driving while ability impaired (DWAI). This offense applies to anyone who gets behind the wheel and has a BAC of more than .05 percent, but less than .08 percent. Therefore, if you blow less than .08, you can still face a DWAI even if you are not charged with DUI.

However, regardless of the charges you may be facing, it doesn't necessarily mean a conviction is guaranteed. Depending on the circumstances, there may be several legal arguments available that you can use to defend your rights

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