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What exactly is the difference between a DUI and a DWAI?

Unlike many other states, Colorado actually has a tiered system when it comes to impaired driving. In fact, depending on a driver’s blood-alcohol-content (BAC) level, they may face very different charges — and different penalties.

For example, if a driver in Colorado registers a BAC of only .05 percent, they may face charges of “driving while ability impaired” (DWAI). Colorado law even states that if a driver’s BAC is above .05 percent, but less than .08 percent, there is the “permissible inference that the [driver’s] ability to operate a motor vehicle […] [is] impaired by the consumption of alcohol.”

However, if the driver’s BAC is above .08 percent, they may face the more serious charge of “driving under the influence” (DUI). Similar to the DWAI law, Colorado’s DUI law states that there is a permissible inference that a driver is under the influence of alcohol if their BAC is .08 percent of more — meaning they may face charges of DUI per se.

Therefore, in most cases, Colorado’s drunk driving laws boil down to this:

  • Driver BAC .05-.08 percent: DWAI charges
  • Driver BAC .08 percent or more: DUI per se charges

It is important to remember, however, that a driver can still technically face a DUI charge even if their BAC is not .08 percent. This is because Colorado law also defines DUI to include situations in which a person’s alcohol consumption impacts them to such a degree that they are “substantially incapable” of safely operating a vehicle or exercising clear judgment or control.

As you can see, there is no set BAC level in this definition, meaning a driver can still be charged with DUI if the police believe they were “substantially incapable” of safety operating a vehicle, no matter their BAC level (even if it is under .08 percent). However, it is far more likely that a driver with a BAC below .08 percent (but above .05 percent) would face DWAI charges.

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