In Colorado, DWAI (short for Driving While Ability Impaired) is the criminal charge you face for driving a motor vehicle with a blood alcohol content (BAC) higher than 0.05% but under 0.08%. DWAI is a less serious offense than DUI or DUI per se.
DWAI is usually a misdemeanor, 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 trigger a license suspension.
The chart below summarizes Colorado’s DWAI penalties.
| DWAI | First | Second | Third | Fourth |
| 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 |
Below, our Colorado DUI defense lawyers and DWAI lawyers discuss the following:
- 1. What is DWAI?
- 2. Is DWAI different from DUI?
- 3. How does the prosecutor prove DWAI?
- 4. Do penalties get worse with each conviction?
- 5. How do I fight the charges?
- Additional Reading
DWAI is a “lesser included offense” of DUI of alcohol or DUI of drugs (DUID).
1. What is DWAI?
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.
Colorado courts and juries may infer that your “ability is impaired” when your BAC is:
- over 0.05%, but
- less than 0.08%.
However, we can rebut this legal inference with other evidence, such as eyewitness testimony that you were driving safely.
Prosecutors can press DWAI charges if you are driving impaired and your BAC is 0.05% or lower. In practice, though, it is rare for such a low BAC to cause impaired driving.
2. Is DWAI different from DUI?
Yes, DWAI is a less serious drunk driving charge than DUI in Colorado.
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 DWAI conviction does not trigger a driver’s license suspension. Plus, the fines and community service requirements that a DUI conviction carries are about twice those for a DWAI conviction.
DWAI charges are reserved for suspects with a blood alcohol level between 0.05% and 0.08%.
3. How does the prosecutor prove DWAI?
Following your arrest, Colorado law requires you to take a chemical breath test or blood test to check your BAC.
Because DWAI requires actual impairment, there is no set BAC level at which you are automatically guilty of DWAI. However, having a BAC greater than 0.05% (but less than 0.08%) is strong evidence that your driving was impaired.1
Refusing to submit to a breath or blood test triggers an automatic license suspension (even if your criminal case is eventually dismissed). Plus you have to complete Level II DUI School, and prosecutors may argue that your refusal is proof that you are guilty of DWAI.2
4. Do penalties get worse with each conviction?
Yes. DWAI penalties in Colorado increase with each drunk driving or drugged driving conviction .3 It does not matter:
- whether these 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 the past convictions occurred.4
5. How do I fight the charges?
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 at all impaired by alcohol and/or drugs.
- The officer had no reasonable suspicion for pulling you over.
- The officer interrogated you after arresting you without reading your Miranda rights.
- You were not lawfully arrested because the police lacked probable cause.
- You were suspected of DWAI solely because you carried a medical marijuana I.D. card.5
- Your DUI breath or blood test was not conducted in accordance with Colorado regulations as set forth in 5 CCR 1005-2.
DWAI is typically charged as a misdemeanor in Colorado.
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:
- See CRS 42-4-1301 (6)(a)(II). See also People v. Ambrose (Colo. App. 2021) 506 P.3d 57.
- CRS 42-4-1301 (6)(d). People v. Swain (1998) (no movement of the vehicle is required to be guilty of DWAI). Riley v. People (2004) .
- CRS 42-4-1307. CRS 42-2-127. See also People v. Woodside (Colo. 2023) 529 P.3d 1233.
- CRS 42-4-1307.
- CRS 42-4-1301 (6)(k).