The Colorado crime of DWAI is driving with a blood alcohol content (BAC) above 0.05% but below 0.08%. Short for “driving while ability impaired,” DWAI is a less serious offense than DUI per se, which is driving with a BAC of at least 0.08%.
DWAI also comprises driving while impaired by drugs (“DWAID”). This includes unlawful narcotics as well as recreational marijuana and even prescription or over-the-counter medications.
DWAI is usually a misdemeanor under C.R.S. 42-4-1301(1)(b), but it can be a felony if you have at least three prior DUI or DWAI convictions. Unlike a first-time DUI, a first-time DWAI alone does not cause you to lose your license.
Typical penalties for a first-time DWAI in Colorado include:
- 2 to 180 days in jail,
- 24 to 48 hours of community service,
- 2 years of probation,
- $200 to $500, and
- 8 DMV points.
In our experience, having a BAC of below 0.08% does not affect most motorists. In fact, many of our DWAI clients are pulled over not for impaired driving but rather for minor traffic violations such as forgetting to signal.
Only during the ensuing traffic stop do the police detect the smell of alcohol and commence a DWAI/DUI investigation. In any event, there are many effective ways to fight drunk/drugged allegations that may result in the charge being reduced or even dismissed.
In this article, our Colorado DUI and DWAI defense lawyers discuss the following topics:
- 1. DWAI vs. DUI
- 2. Proving DWAI
- 3. Penalty Chart
- 4. Defenses
- Frequently Asked Questions
- Additional Reading
1. DWAI vs. DUI
In Colorado, DWAI is a less serious drunk driving charge than DUI per se. Prosecutors bring DUI per se charges whenever your BAC is at least 0.08%, whether you are impaired or not. In contrast, prosecutors bring DWAI charges only when:
- your BAC is less than 0.08%, and
- you appear impaired.
Unlike a DUI conviction, a first-time Colorado DWAI conviction does not trigger a driver’s license suspension. Plus, the fines and community service requirements that a DUI carries are about twice those of a DWAI.1
Our goal in every DUI case is to try to get it dismissed. However, it is still a victory when we can persuade prosecutors to reduce DUI charges down to DWAI.
2. Proving DWAI
Under Colorado law, you drive while ability impaired (DWAI) when you are affected by alcohol and/or drugs in “the slightest degree.” In short, your mental or physical ability to operate a vehicle safely is compromised.
Because DWAI requires actual impairment, there is no set BAC level at which you are automatically guilty of DWAI. However, Colorado courts and juries may infer that your “ability is impaired” when your BAC is:
- more than 0.05% but
- less than 0.08%.
Fortunately, we can rebut this inference with other evidence. We typically rely on eyewitness testimony and traffic surveillance footage that shows you were driving safely.
Note that if you refuse to submit to a breath or blood test following your DWAI arrest, prosecutors can use your refusal as evidence that you committed DWAI.
In addition, a refusal triggers a requirement to complete Level II DUI School, and the Colorado DMV will suspend your license even if your criminal case is eventually dismissed.2
3. Penalty Chart
DWAI punishments in Colorado increase with each drunk/drugged driving conviction.3 The chart below summarizes the standard sentences.
| Colorado Penalties | First DWAI | Second DWAI | Third DWAI | Fourth 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 |
All your past drunk/drugged driving convictions count as “priors” no matter:
- whether your past convictions were for DWAI or for DUI, or
- whether they occurred in Colorado or a different U.S. state or territory, or
- how long ago your past convictions occurred.4
Our clients are always surprised to learn that repeat DWAIs carry mandatory minimum jail sentences even though they are less serious than full-fledged DUIs. That is why we fight so hard to convince the D.A. to lessen or drop the DWAI charge: Once you are convicted of a repeat DWAI, the judge is statutorily required to impose some incarceration.
See our related article, When can DUI be a felony in Colorado?
4. Defenses
Here at Colorado Legal Defense Group, we have defended literally thousands of clients facing drunk driving allegations. In our experience, the following seven defenses can be very effective in persuading prosecutors to reduce or drop DWAI charges.
- Your BAC was less than 0.05% when you drove.
- Your driving was not impaired by alcohol and/or drugs.
- The officer had no reasonable suspicion for pulling you over.
- Following your arrest, the officer interrogated you without reading your Miranda rights.
- The police lacked probable cause to arrest you.
- You were suspected of DWAI solely because you carried a medical marijuana I.D. card.5
- Your DUI breath test or blood test was done in violation of 5 CCR 1005-2 regulations.
Ultimately, prosecutors have the burden to prove beyond a reasonable doubt that you committed DWAI. Therefore, we work to show them that their evidence is too unreliable, inconsistent, or insufficient to sustain a conviction.
When we succeed in convincing the prosecutors that they would probably lose should we go to trial, they usually then agree to lessen or drop the case.
Frequently Asked Questions
What is the difference between DWAI and DUI in Colorado?
DWAI (Driving While Ability Impaired) occurs when your BAC is between 0.05% and 0.08% and you show signs of impairment. DUI requires a BAC of 0.08% or higher. DWAI is generally a less serious offense, and a first-time DWAI does not trigger automatic license suspension like a DUI does.
In reality, very few people get arrested for DWAI as compared to DUI. Most people who would otherwise be guilty of DWAI are never pulled over because their low BAC has no effect on their driving.
Will I lose my license for a first DWAI in Colorado?
No, a first-time DWAI conviction alone does not result in license suspension. However, if you refuse a breath or blood test during your arrest, your license will be suspended regardless of the case outcome.
A DWAI adds eight points to your driving record in Colorado. This is regardless of whether it is your first offense or a subsequent conviction.
So if you already have points on your driving record, getting a DWAI may put you over the 12-point limit and trigger a license suspension. We find that for many clients, keeping their driving privileges is their most important goal. Since we handle both the criminal and DMV aspects of DWAI cases, we employ “global strategies” in attempt to get both charges and DMV points reduced or dismissed.
What are the penalties for a first DWAI offense in Colorado?
A first DWAI offense is a misdemeanor that carries two to 180 days in jail, fines of $200 to $500, 24 to 48 hours of community service, and up to two years of probation. A successive DUI or DWAI will carry harsher penalties.
In our experience, jail is exceptionally rare for a first-time DWAI. Colorado judges are usually satisfied with fines and community service.
What are my rights during a DWAI stop and interrogation?
You have the right to remain silent and the right to refuse the preliminary breath test (if you are at least 21) and the field sobriety tests. In Colorado, you do have to show your ID, but you are not required to tell an officer if you have consumed alcohol or drugs, nor are you required to disclose when you last drove.
Crucially, if an officer interrogates you while you are in custody without reading your Miranda Rights, any statements you make may be inadmissible in court. This procedural error is a powerful defense that can often lead to a reduction or dismissal of charges.
One of the most common refrains we hear from new clients is that, “The police never read me my Miranda rights!” Despite what TV shows suggest, police do not have to read you your rights unless you are in a state of “custodial interrogation.”
If the police are questioning you while you are free to leave, Miranda does not kick in. We find that in DWAI cases, police complete all their questioning before arresting you, thereby dispensing with the need to Mirandize you.
What should I do after a DWAI arrest?
Immediately contact a Colorado DUI defense attorney to protect your driving privileges and build your defense.
When we are retained on DWAI cases, first we request a DMV Express Consent hearing within seven days of your arrest (or of receiving blood test results) if your license is at stake.
We also begin gathering any evidence, such as receipts or witness contact information, that could prove you were not impaired at the time of the stop.
In the meantime, you should exercise your right to remain silent and avoid discussing the case with anyone. As your attorney, we talk to the police and prosecutors on your behalf so you do not mistakenly incriminate yourself.
Will a DWAI affect getting housing or loans?
Possibly. A DWAI is a criminal conviction that appears on background checks. This can negatively impact housing applications, as many landlords screen for criminal history.
Additionally, certain loan approvals and financial background checks may be affected, as a criminal record can be viewed as a “red flag” regarding personal responsibility or future financial stability.
This is why when we fight criminal cases, we are seeking the best outcome both for the short term and the long term. By getting a DWAI charge reduced or dismissed, we are reducing the likelihood of it coming back to haunt you in other areas of your life.
Can I get a DWAI if I was only using prescription drugs or marijuana?
Yes. This is often referred to as DWAID (driving while ability impaired by drugs).
In Colorado, it is unlawful to drive if your ability is impaired to “the slightest degree” by any substance. This includes legal marijuana, prescription medications, and even over-the-counter cold medicines in addition to illegal narcotics.
Unlike alcohol, there is no “automatic” legal limit for most drugs; instead, the state relies on observations from Drug Recognition Experts (DREs) to prove impairment.
We have won several DWAID cases by arguing that the police mistook our clients’ medical conditions for drug intoxication. For example, a diabetic coma or seizure can mimic being high on certain drugs.
Does a DWAI impact my professional license or current job?
A DWAI can have significant “collateral consequences” for your career. If your job involves driving, your employer’s insurance may no longer cover you, leading to termination.
Our clients who hold a professional license (such as in nursing, law, or education) are often required to report any convictions to their licensing board, which could result in disciplinary action or the suspension of credentials. This is another reason why we fight criminal charges so aggressively: We aim to minimize the ripple effect of these cases on your life and livelihood.
Do DWAI penalties vary by locale?
State law regulates DWAI penalties, so you should expect to receive generally the same penalties whether your case is in Denver, Colorado Springs, Loveland, Aspen, or anywhere else in the state.
That being said, we find that some jurisdictions are stricter than others and favor the harsher side of fine- and jail term ranges. By knowing these local customs ahead of time, we can meet the prosecutors where they are and more effectively negotiate favorable plea bargains for our clients.
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.
Legal References:
- C.R.S. 42-4-1301(1)(g).
“Driving while ability impaired” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
C.R.S. 42-4-1307(2)(d).“Driving while ability impaired” or “DWAI” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
- C.R.S. 42-4-1301. People v. Swain (1998) (no movement of the vehicle is required to be guilty of DWAI). Riley v. People (2004) . See also People v. Ambrose (Colo. App. 2021) 506 P.3d 57.
- C.R.S. 42-4-1307. C.R.S. 42-2-127. See also People v. Woodside (Colo. 2023) 529 P.3d 1233. C.R.S. 42-4-1301(1)(b).
A person who drives a motor vehicle or vehicle while impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, commits driving while ability impaired. Driving while ability impaired is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b); vehicular assault, as described in section 18-3-205 (1)(b); or any combination thereof.
- C.R.S. 42-4-1307. See also People v. Burdette (Col.App. 2024) 552 P.3d 1108. See also People v. Schlehuber (Colo.App. 2025) No. 23CA1576 (prior convictions are “intrinsic elements” of a felony DUI/DWAI charge).
- C.R.S. 42-4-1301 (6)(k).