A blood alcohol content (BAC) reading below .08 percent does not guarantee you will avoid a drunk driving charge in Colorado. Many drivers assume the .08 threshold is a clear line between legal and illegal, but the reality is more complex. Colorado law allows officers to charge you with driving under the influence (DUI) based on observed impairment alone, regardless of the number on a breathalyzer. If alcohol, drugs, or a combination of substances affect your ability to safely operate a vehicle, you could face serious criminal charges even if your BAC falls well under the legal limit.
When you are facing DUI charges in Denver or anywhere across Colorado, Shazam Kianpour & Associates, P.C. can provide the strong defense you need. With over 22 years of experience handling DUI, DWAI, and traffic defense cases throughout Colorado, our team has the knowledge and courtroom skill to challenge the evidence against you and protect your driving privileges, your record, and your future.
How Colorado Defines DUI Versus DUI Per Se
Colorado recognizes two distinct types of drunk driving charges, and the difference between them matters more than most people realize. A standard DUI charge applies when a driver operates a vehicle after consuming alcohol or drugs to such a degree they are substantially incapable of exercising clear judgment or maintaining physical control. This definition does not mention a specific BAC number, which means prosecutors can pursue this charge at any BAC level if they can demonstrate impairment.
DUI per se, on the other hand, is strictly tied to a BAC reading. Under Colorado law, a driver commits DUI per se when they operate a vehicle with a BAC of .08 percent or more. The key distinction is a BAC at or above .08 creates what the law calls a “permissible inference” of intoxication, meaning you are presumed to be under the influence. However, the absence of a .08 reading does not create an automatic presumption of sobriety or prevent prosecutors from moving forward with a standard DUI charge.
What This Means for Drivers
Think of it this way: a BAC of .08 or higher gives prosecutors an easier path to conviction, but a lower BAC simply means they must rely on other evidence of impairment. An officer’s observations, field sobriety test results, dashcam footage, and your behavior during the traffic stop can all serve as evidence that alcohol affected your ability to drive safely. Understanding the difference between a DUI and a DWAI in Colorado is an important first step toward building an effective defense strategy.
DWAI Charges and the .05 Percent Threshold
Unlike many other states, Colorado has a separate criminal offense called driving while ability impaired (DWAI). This charge applies to drivers whose alcohol consumption affects their ability to drive to even the slightest degree. In practice, DWAI charges most commonly apply to drivers with a BAC between .05 and .08 percent, though the charge is not limited to this range.
According to the Colorado State Patrol, the average first-time cost of a DUI in Colorado reaches approximately $13,530 when accounting for fines, legal fees, and increased insurance costs. DWAI carries lighter penalties than a DUI for a first offense, but it is still a criminal charge that can result in fines, jail time, community service, and points on your driving record. A DWAI conviction does not trigger an automatic license suspension for a first offense, which differs from the consequences of a DUI conviction. However, repeat DWAI offenses carry increasingly severe penalties.
If you are stopped and blow below .08 but above .05, a DWAI charge is a very real possibility. Even a reading below .05 does not necessarily protect you if officers observe signs of impairment during the stop.
What to Do if You Are Pulled Over After Drinking
A traffic stop can quickly escalate into a DUI investigation, and how you handle the situation matters. Officers need probable cause to initiate a traffic stop, which could be anything from a broken taillight to swerving between lanes. Once stopped, an officer who suspects impairment may ask you to perform field sobriety tests and submit to chemical testing.
There are several important things to keep in mind during a DUI stop:
- Stay calm and cooperative: being polite and following basic instructions helps avoid escalating the situation, though cooperation does not mean you must answer every question
- Exercise your right to remain silent: beyond providing your license, registration, and insurance, you are not required to discuss whether you have been drinking or how much you consumed
- Ask to speak with an attorney: requesting legal counsel before answering detailed questions or making decisions about testing is within your rights
- Know the consequences of refusing a test: under Colorado’s express consent law, refusing a chemical test after a lawful arrest carries automatic license suspension, even if you are never convicted of DUI
The lack of a .08 BAC reading does not guarantee you will walk away without charges. Whether police pursue a DUI or DWAI charge depends on the totality of the evidence they gather during the stop and any subsequent testing. Challenging the validity of faulty DUI tests and improper procedures is one of the most effective ways to fight back against these charges.
Contact Shazam Kianpour & Associates for Help With Your DUI Defense
A DUI or DWAI charge does not automatically lead to a conviction. Depending on the circumstances of your arrest, there may be strong defenses available to challenge the evidence, question the legality of the traffic stop, or dispute the accuracy of chemical test results. From handling first-offense DUI cases to defending against felony charges, we have the trial experience and knowledge of Colorado’s criminal justice system to fight for the outcome you deserve.
Shazam Kianpour & Associates, P.C. has been recognized by the National Trial Lawyers and Super Lawyers, and our team is ready to stand by your side as a fearless fighter in your corner. To discuss your case and learn more about your legal options, reach out to our team today.