When can DWAI be a felony in Colorado?

The Colorado crime of driving while ability impaired (“DWAI”) is typically a misdemeanor. However, DWAI becomes a class 4 felony if you already have three prior convictions for driving under the influence of alcohol or drugs As a felony, DWAI carries:

• 2 to 6 years in state prison (plus 3 years of parole),
• $2,000 to $500,000, and
• A 2-year driver’s license revocation.

In this article I discuss what you need to know about felony DWAI charges in Colorado and how to fight them.

What counts as “priors” convictions?

Any conviction you have related to driving under the influence of drugs or alcohol counts as a “prior” in Colorado. It makes no difference whether these prior convictions were for:

• DWAI,
• DUI (which is a more serious crime than DWAI), and/or
• UDD (underage drinking and driving).

As long as you have three convictions of any combination of the above crimes, you face felony charges if you pick up a new DWAI case in Colorado.¹

Does it matter whether my prior occurred in Colorado?

No. Any drunk- or drugged driving conviction you have counts as a prior in Colorado, irrespective of where in the U.S. it occurred. Note that other states may have their own names for driving under the influence, such as:

• DWI – driving while intoxicated,
• OUI – operating under the influence,
• OVI – operating a vehicle while intoxicated,
• OMVI – operating a motor vehicle while impaired,
• DUII – driving under the influence of intoxicants, or
• ADWI – aggravated driving while intoxicated.²

Does it matter how long ago my prior drunk driving convictions were?

No, there is no “washout” or “lookback” period in Colorado. Any prior conviction you have for driving under the influence of drugs or alcohol counts as a “prior” no matter how long ago it occurred.³

How is DWAI different from DUI?

DWAI is not as serious a drunk driving charge as DUI in Colorado. Prosecutors charge you with DUI whenever your blood alcohol concentration (BAC) is 0.08% or higher, whether you are impaired or not. In contrast, prosecutors bring DWAI charges only when:

1. your BAC is lower than 0.08% and
2. you appear impaired by alcohol or drugs.

If your BAC is 0.05% or lower, you typically will not face DWAI charges because such a low BAC rarely causes impairment.³ Note that commercial drivers face DUI charges for operating a commercial vehicle with a BAC of as low as 0.04%.⁴ Meanwhile, drivers under 21 face UDD (underage drinking and driving) charges for driving with a BAC of only 0.02%.⁵

How do I fight felony DWAI charges?

Here at Colorado Legal Defense Group, I have represented literally thousands of people charged with drunk driving. In my experience, the following ten defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.

1. The police lacked reasonable suspicion to pull you over.
2. The police did not administer the field sobriety tests correctly.
3. The police did not have probable cause to arrest you.
4. You suffered from a medical condition such as GERD that caused falsely high breathalyzer results.
5. You were suffering from a medical episode such as a diabetic coma that mimicked intoxication.
6. The only reason the police suspected you were impaired is because you carried a medical marijuana card.
7. The breathalyzer was defective or not calibrated correctly, or the person who last calibrated the breathalyzer let their certification lapse.
8. The police did not observe you for 15 minutes prior to administering the breathalyzer to make sure you did not burp or cough.
9. Your blood test results were contaminated, or there was a gap in the chain of custody in the laboratory.
10. Your blood alcohol content was .05% or below.

Another possible defense to felony DWAI charges is to show that you do not have three prior drunk/driving crimes. If we can show that the prosecutors made a mistake when reviewing your court records – or that the court records were inaccurate – your felony charges should at least be lessened to a misdemeanor.

When is DWAI a misdemeanor?

DWAI is prosecuted as a misdemeanor in Colorado if you have two or fewer past convictions of drunk- or drugged driving. The following table summarizes the penalties, which grow harsher with each successive conviction.

Colorado Penalties	1st DWAI	2nd DWAI	3rd DWAI	4th DWAI
Crime class	Misdemeanor	Misdemeanor	Misdemeanor	Class 4 felony
Incarceration	2 to 180 days	10 days to 1 year	60 days to 1 year	2 to 6 years (plus 3 years of parole)
Fines	$200 to $500	$600 to $1,500	$600 to $1,500	$2,000 to $500,000
Community service	24 to 48 hours	48 to 120 hours	48 to 120 hours	n/a
Probation	Up to 2 years	2 years	2 to 4 years (includes 90 days of alcohol monitoring)	Depends (includes 90 days of alcohol monitoring)
Suspended sentence	n/a	1 year	1 year	Depends
DMV points	8 points	8 points	8 points	8 points
License revocation	none	1 year	2 years	2 years

Additional Reading

For more information about Colorado DUI laws, see our informational articles:

• How long does a DWAI stay on your record in Colorado? – A discussion of how drunk/drugged driving convictions are unsealable from your background check
• What’s the difference between DUI and DWAI in Colorado? – A side-by-side comparison of the two most common drunk driving crimes
• What does DWAI stand for in Colorado? – An in-depth look into the laws behind driving while ability impaired
• How many points is a DUI in Colorado? – An examination of how driving under the influence affects your driving record in addition to your criminal record
• Habitual traffic offender in Colorado – Five things to know – Explanation of how serious traffic offenses including DWAI count as an HTO “strike”

Also see NO DUI Colorado, a government website dedicated to educating the public about drunk driving laws and what to do if you get arrested.

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Legal References