Most drivers in Colorado know that a DUI — driving under the influence — is a serious criminal charge. But DWAI, driving while ability impaired, is less understood. Many people assume it is simply a lesser version of a DUI, or that it is not worth fighting because the penalties seem lighter. That assumption is often a costly mistake.
How DWAI Differs from DUI Under Colorado Law
Colorado law draws a specific line between these two offenses based on blood alcohol concentration (BAC) and the degree of impairment:
- DUI (CRS 42-4-1301(1)(a)): A driver is DUI when their BAC is 0.08% or higher, or when alcohol, drugs, or a combination of both has substantially impaired their ability to safely operate a vehicle.
- DWAI (CRS 42-4-1301(1)(b)): A driver is DWAI when their BAC is between 0.05% and 0.079%, or when a substance has impaired their ability to safely drive to the slightest degree — even slightly less than they would be unimpaired.
The “slightest degree” standard in DWAI is intentionally broad. A driver can be below the per se DUI threshold and still face a DWAI charge based entirely on an officer’s observation of impaired behavior. Field sobriety test results, driving pattern observations, and officer testimony all play a significant role in these cases.
DWAI Penalties in Colorado
A first DWAI offense is not a minor infraction. Penalties include:
- 2 to 180 days in county jail (no mandatory minimum on a first offense, but jail is still possible)
- $200 to $500 in fines, plus court costs and surcharges
- 24 to 48 hours of useful public service
- 8 points assessed against your driving record
- Possible license suspension if points accumulate
For a second DWAI, or when combined with a prior DUI from any state, mandatory minimums apply. The penalties scale significantly with each additional offense, and by the fourth offense, a DWAI-related conviction becomes a Class 4 felony under Colorado’s persistent drunk driver statute.
DMV and License Consequences
Unlike a per se DUI (BAC 0.08% or higher), a DWAI at 0.05%–0.079% does not automatically trigger DMV license revocation proceedings — because the DMV’s Express Consent Law kicks in at 0.08% and above. This is often cited as a benefit of a DWAI vs. a DUI. However, the 8-point assessment can still accumulate toward a suspension, and refusing a chemical test triggers its own separate consequences regardless of the ultimate charge level.
Fighting a DWAI Charge
Just because the BAC was below 0.08% does not mean there is no defense. DWAI cases frequently turn on:
- Field sobriety test reliability: Standardized field sobriety tests have documented error rates and are easily affected by conditions unrelated to impairment — nervousness, medical conditions, uneven surfaces, improper administration.
- Breathalyzer accuracy: Breath testing equipment must be properly calibrated and operated. Chain of custody and maintenance records are discoverable and often reveal problems.
- Blood test procedures: Blood draws must follow specific protocols. Improper collection, handling, or storage can compromise the reliability of the result.
- Reasonable doubt on the “slightest degree” standard: Challenging whether the officer’s subjective observations actually established impairment to the degree required by law.
Don’t Treat a DWAI as a Minor Matter
A DWAI conviction creates a permanent criminal record in Colorado. Even a first offense can affect your employment, professional licensing, and insurance rates. Prior DWAI convictions count as prior offenses for any future DUI or DWAI — there is no expiration. If you have been charged with DWAI in the Denver area, contact Shazam Kianpour & Associates, P.C. for a free consultation. Call 303-825-1075 or reach us online.
Written by
Shazam KianpourDenver Criminal Defense Attorney & Founder, Shazam Kianpour & Associates, P.C. — Over 10,000 criminal and traffic cases handled across Colorado.