Click to Call: (303) 725-0017

Drug DUI

Driving under the influence of drugs in Colorado is treated with the same seriousness as alcohol-related offenses, but the legal issues are often far more complex. Unlike alcohol, where a single blood alcohol content threshold is widely understood, drug DUI cases involve varied substances, uncertain testing standards, and evidence that may be open to interpretation. A driver can face criminal charges for impairment caused by prescription medication, marijuana, or controlled substances, even if the use was lawful. The consequences are substantial, ranging from mandatory treatment programs and license revocation to felony-level punishment if the offense causes injury or death.

Colorado Drug DUI Lawyer

For those accused, the process can feel overwhelming, particularly when the state’s evidence relies on toxicology results that may not accurately reflect impairment at the time of driving. Understanding how Colorado law defines drug-related impairment, how penalties escalate, and what defenses may apply is essential before making decisions in the case. Below, Law Office of Matthew A. Martin, P.C. provides a detailed explanation of the statutes that govern drug DUI, the penalties that may follow, the defenses available, the key stages of the legal process, and the critical role of a Colorado drug DUI lawyer in protecting the rights of the accused.

If you have been charged with Drug DUI in Colorado, then you need a strong criminal defense attorney. The Law Office of Matthew Martin is prepared to provide full-service legal representation for clients accused of any Drug Crime or DUI Offense.

Call (303) 725-0017 to set up your first consultation free of charge.

Information Center

Back to top

Colorado Drug DUI Laws

Definition of Driving Under the Influence — Colorado Revised Statutes (C.R.S.) § 42-4-1301(1)(a) and (f) prohibit driving a motor vehicle while under the influence of one or more drugs, or a combination of drugs and alcohol, when the substances render the individual significantly unable to use clear judgment, maintaining adequate physical control, or acting carefully in the safe operation of a vehicle. Substantial incapacity means that the driver’s mental or physical faculties are significantly impaired, and the impairment prevents safe driving.

Definition of Driving While Ability Impaired — C.R.S. § 42-4-1301(1)(b) and (g) establish the offense of driving while ability impaired (DWAI) by drugs. This occurs when the consumption of drugs, either alone or in combination with alcohol, affects the person “to the slightest degree” so that they are less capable than they normally would be to make sound decisions, exercise physical control, or operate a vehicle with due care. The standard for DWAI is lower than DUI because it requires only minimal evidence of impairment rather than substantial incapacity.

Lawful Use of Drugs Not a Defense — According to C.R.S. § 42-4-1301(1)(e), it is not a valid defense for a driver to argue that marijuana was lawfully used under state law or that a drug was taken under a valid prescription. The statute makes clear that the legality of obtaining or using a controlled substance does not excuse impaired driving, and the law applies equally to prescription medications, over-the-counter drugs, and legalized marijuana.

THC Blood Levels and Inferences — Under C.R.S. § 42-4-1301(6)(a)(IV), if a chemical test shows a driver’s blood contains five nanograms or more of THC per milliliter, a jury could infer that the individual was under the influence of drugs. This is referred to as a “permissible inference” rather than an automatic determination. The inference allows prosecutors to argue impairment based on the test result, but defendants may present evidence to rebut the inference, such as testimony about behavior or tolerance levels.

Misdemeanor and Felony Classifications — A first, second, or third conviction for drug DUI or DWAI is treated as a misdemeanor. C.R.S. § 42-4-1301(1)(a)–(b) provides that a fourth or subsequent impaired driving conviction, whether classified as DUI, DUI per se, or DWAI, constitutes a class 4 felony. This felony classification significantly increases sentencing ranges and consequences, including possible prison time, mandatory parole, and large fines.

Back to top

Colorado Express Consent Law for Drug DUI

Implied Consent to Chemical Testing — C.R.S. § 42-4-1301.1(1) requires all drivers in Colorado to submit to chemical testing if law enforcement has probable cause to believe they are impaired by drugs, alcohol, or both. This provision is commonly known as the state’s “express consent” law. A driver’s operation of a vehicle in the state is considered consent to testing for blood, urine, or saliva to determine the presence of drugs.

Two-Hour Requirement for Testing — Pursuant to C.R.S. § 42-4-1301.1(2)(b)(II), testing must occur within two hours of driving. This time frame is designed to ensure accuracy in measuring drug concentrations, particularly for substances such as THC that dissipate rapidly in the bloodstream. Delays in collecting samples can raise questions about the reliability of the results and may provide grounds for defense challenges in court.

Consequences of Refusal to Test — If a driver refuses to cooperate with chemical testing, C.R.S. § 42-2-126 provides for an automatic revocation of the driver’s license. Refusal also results in classification as a “persistent drunk driver,” mandatory ignition interlock device installation upon reinstatement, and enhanced penalties if later convicted of DUI or DWAI. Additionally, evidence of refusal can be admitted at trial to support the prosecution’s argument that the driver was aware of impairment.

Authority for Involuntary Blood Draws — Under C.R.S. § 42-4-1301.1(3), law enforcement may compel a blood draw without consent when there is probable cause that a driver committed serious offenses such as vehicular homicide (C.R.S. § 18-3-106), vehicular assault (C.R.S. § 18-3-205), or criminally negligent homicide (C.R.S. § 18-3-105) while impaired. This exception allows the collection of evidence in cases involving severe injury or death.

Special Provisions for Commercial Drivers — C.R.S. § 42-4-1301.1(4) states that commercial drivers who refuse chemical testing face an immediate 24-hour out-of-service order and a one-year revocation of commercial driving privileges. These penalties are in addition to other administrative and criminal consequences that may apply.

Use of Test Results in Court — Test results obtained under the express consent law are admissible to show impairment by drugs. While exact compliance with testing protocols is not always required for admissibility, deviations may affect the weight the jury or judge gives the evidence. Defense attorneys often raise these issues when challenging the prosecution’s case.

Back to top

Colorado Drug DUI and DWAI Penalties

First Offense Drug DUI — A first conviction for driving under the influence of drugs is a misdemeanor under C.R.S. § 42-4-1307. The court must impose a minimum of five days in jail, with a maximum possible sentence of one year. The statute also requires a fine between $600 and $1,000, 48 to 96 hours of community service, and up to two years of probation. An alcohol and drug evaluation is mandatory, and the individual must complete any treatment program ordered by the court. In some cases, part of the jail sentence may be suspended if the defendant complies with treatment requirements.

First Offense DWAI Drugs — A first offense for driving while ability impaired by drugs is also a misdemeanor. C.R.S. § 42-4-1307(3) prescribes a minimum of two days and a maximum of 180 days in jail. Fines range from $200 to $500, and the sentence includes 24 to 48 hours of community service, probation, and mandatory treatment. Although the penalties are lighter than those for a DUI conviction, a DWAI still creates a permanent criminal record and counts as a prior offense if the individual reoffends.

Second Offense Drug DUI or DWAI — A second conviction for either drug DUI or DWAI, regardless of whether the first conviction involved alcohol or drugs, carries a mandatory minimum of 10 days in jail. The maximum penalty is one year of incarceration, fines between $600 and $1,500, and 48 to 120 hours of community service. Courts may impose up to four years of probation and require completion of an approved substance abuse treatment program. These penalties are established under C.R.S. § 42-4-1307(6).

Third Offense Drug DUI or DWAI — A third impaired driving offense results in harsher mandatory minimum penalties. C.R.S. § 42-4-1307(7) sets the minimum sentence at 60 days in jail, with the same one-year maximum. The fine remains between $600 and $1,500, and the defendant must complete 48 to 120 hours of community service. Probation of up to four years is possible, and courts treat repeat offenders as high risk, often ordering intensive supervision and long-term treatment.

Felony Drug DUI or DWAI — Under C.R.S. § 42-4-1301(1)(a)–(b), a fourth or subsequent conviction for DUI, DUI per se, or DWAI is classified as a class 4 felony. Sentencing for this felony includes two to six years in the Colorado Department of Corrections, three years of parole, and fines ranging from $2,000 to $500,000. If probation is granted in place of prison, the court must still impose a minimum of 90 days in jail or 120 days in jail served on work release. A felony conviction carries lasting consequences, such as loss of firearm rights, restricted employment opportunities, and significant limitations on personal and professional activities.

Back to top

Colorado Mandatory Drug and Alcohol Programs After a Drug DUI Conviction

Court-Ordered Evaluations — C.R.S. § 42-4-1301.3(1) requires every individual convicted of DUI or DWAI, including drug-related offenses, to undergo an alcohol and drug evaluation. This evaluation examines the defendant’s history of substance use, prior driving record, risk of reoffending, and potential responsiveness to treatment. Courts typically review the evaluation before sentencing, although in certain circumstances it may occur afterward. Regardless of timing, compliance with the evaluation and its recommendations is mandatory.

Level I and Level II Programs — Colorado law establishes two categories of programs under C.R.S. § 42-4-1301.3(3)(c)(IV). Level I programs consist of shorter, education-based classes often assigned to first-time offenders with low risk factors. Level II programs are more intensive and may include extended classroom sessions, outpatient counseling, or even residential treatment. Courts rely on the evaluation to determine whether a defendant must complete Level I education or Level II treatment.

Mandatory Compliance and Costs — Completion of the recommended program is a condition of sentencing or probation. C.R.S. § 42-4-1301.3(3)(c)(IV) requires defendants to pay program costs, which include education and treatment fees. If a defendant fails to meet financial obligations, program providers must notify the court, which may enforce compliance or modify the sentence.

Supervision and Monitoring — The Colorado Judicial Department oversees alcohol and drug driving safety programs in each judicial district under C.R.S. § 42-4-1301.3(3)(c)(III). Evaluators may be required to appear in court to explain their recommendations, track attendance and progress, and report noncompliance.

Application to Diversion and Deferred Sentences — C.R.S. § 42-4-1301.3(5) applies these requirements not only to convictions but also to cases resolved through diversion or deferred sentencing. Even when an individual avoids a formal conviction, completion of Level I or Level II programs becomes a mandatory condition of the diversion agreement or deferred judgment.

Back to top

Key Elements Juries Consider in Drug DUI Cases

Evidence of Impairment — Prosecutors must prove either substantial incapacity (for DUI) or slight impairment (for DWAI). Jurors consider officer observations such as erratic driving, slurred speech, glassy eyes, or poor performance on field sobriety tests.

Chemical Test Results — For marijuana, a blood THC level of five nanograms or more supports an inference of impairment (C.R.S. § 42-4-1301(6)(a)(IV)). For other drugs, no numeric per se standard exists, so prosecutors rely on toxicology reports and expert testimony.

Timing of the Test — Express consent law requires that chemical tests be performed within two hours of driving (C.R.S. § 42-4-1301.1(2)). Delays may weaken the prosecution’s case because many drugs metabolize quickly.

Other Competent Evidence — Jurors can also consider circumstantial or direct evidence, including testimony from non-expert witnesses, video recordings, or alternative explanations for observed behavior.

Back to top

Defenses to Drug DUI in Colorado

Unreliable Chemical Test Results — Defense attorneys often challenge the accuracy of blood, urine, or saliva testing. Problems may include mishandled samples, faulty equipment, or delays in testing that distorted results.

Improper Traffic Stop or Lack of Probable Cause — A valid traffic stop requires reasonable suspicion of a traffic violation or criminal activity. If an officer lacked probable cause to arrest or collect a sample, evidence may be suppressed.

Lawful Drug Use Does Not Equal Impairment — While a medical marijuana card or valid prescription is not a defense under C.R.S. § 42-4-1301(1)(e), it can be used to argue that the presence of a drug in the bloodstream does not mean impairment. For example, THC metabolites may linger long after use without affecting driving ability.

Alternative Explanations for Behavior — Physical conditions such as fatigue, diabetes, neurological disorders, or anxiety can mimic signs of impairment. Defendants may present medical evidence to explain officer observations.

Violations of Express Consent Law — If law enforcement fails to follow the express consent statute—such as not offering the correct type of test, failing to conduct the test within two hours, or using unqualified personnel—defendants may challenge admissibility or reliability of the results.

Back to top

Role of a Denver Drug DUI Attorney

Challenging Chemical Tests — A drug DUI case often hinges on blood or urine results. The attorney carefully reviews how the sample was collected, whether the two-hour rule was followed, and whether the lab handled the evidence correctly. Any error may open the door to excluding or discrediting test results.

Exposing Weaknesses in Police Procedures — The lawyer investigates whether the officer had probable cause for the stop, whether field sobriety tests were administered properly, and whether the client’s rights under Colorado’s express consent law were respected. Failures by police can be grounds to suppress evidence or reduce charges.

Protecting Against Harsh Penalties — The attorney fights to prevent unnecessary jail, loss of license, and costly treatment obligations. In cases involving repeat charges or allegations of serious injury, the lawyer works aggressively to avoid felony consequences.

Standing Beside the Client at Every Step — From arraignment through trial or negotiations, the attorney provides both tough advocacy and steady guidance. The client is never left to navigate complex drug DUI laws alone.

Back to top

Frequently Asked Questions About Drug DUI in Colorado

Can someone get a drug DUI in Colorado for marijuana use?
Yes, a person can be charged with a drug DUI in Colorado if marijuana impairs driving ability, even with a medical card. Lawful use is not a defense under C.R.S. § 42-4-1301(1)(e), and prosecutors often rely on test results.

What is the difference between a drug DUI and DWAI in Colorado?
A drug DUI requires proof that the driver was substantially incapable of safe vehicle operation, while a DWAI requires only slight impairment. DUI penalties are harsher, but both create permanent criminal records and count toward repeat offense enhancements.

How much THC is needed for a Colorado drug DUI charge?
Colorado law allows a permissible inference of impairment if blood tests show five nanograms or more of THC per milliliter. This is not automatic proof, and defendants may present other evidence, such as tolerance or behavior, to challenge impairment.

Can prescription medication lead to a Colorado drug DUI?
Yes, prescription medications can result in a drug DUI if they impair driving ability. Even legally prescribed drugs, like painkillers, sleep aids, or anxiety medication, can support charges when prosecutors show reduced physical control or judgment behind the wheel.

What happens if someone refuses a drug test in Colorado?
Refusal results in automatic license revocation, classification as a “persistent drunk driver,” and mandatory ignition interlock if reinstated. Courts also allow prosecutors to present refusal evidence at trial to suggest the driver avoided testing due to impairment.

Is a Colorado drug DUI considered a felony offense?
Most drug DUIs in Colorado are misdemeanors, but a fourth or subsequent conviction becomes a class 4 felony. Felony penalties include prison, parole, and steep fines. Cases involving injury or death may also trigger felony vehicular assault or homicide charges.

What are the penalties for a first offense drug DUI in Colorado?
A first conviction for drug DUI carries five days to one year in jail, fines of $600 to $1,000, probation, community service, and mandatory treatment. Judges may suspend some jail time if the defendant complies with treatment requirements.

How do police prove drug DUI impairment in Colorado?
Police rely on officer observations, field sobriety tests, toxicology reports, and chemical test results. For marijuana, five nanograms of THC can support an inference of impairment, though jurors also consider evidence like driving behavior, medical conditions, and witness testimony.

What defenses are available for a Colorado drug DUI case?
Defenses may challenge chemical test reliability, mishandling of evidence, or improper traffic stops. Lawyers can argue lawful drug use without impairment, medical conditions mimicking impairment, or violations of Colorado’s express consent law to suppress or weaken prosecution evidence.

Why should someone hire a Colorado drug DUI lawyer?
A skilled attorney challenges chemical testing, exposes police errors, and negotiates for reduced penalties. They protect clients from jail, license loss, and harsh treatment mandates, guiding them through the complex legal process with advocacy and strategic defense.

Back to top

Resources

Colorado DUI And DWAI Statute – C.R.S. § 42-4-1301 — This statute sets out Colorado’s offenses for driving under the influence of alcohol or drugs and driving while ability impaired. It defines key terms, includes the marijuana whole-blood 5-nanogram THC inference, and explains how prior convictions affect charging. It also addresses evidentiary presumptions, testing issues, and the ability to charge DUI and DUI per se together.

Colorado Law Summary: Colorado Drunk Driving Laws (Legislative Legal Services) — This official summary from the Office of Legislative Legal Services provides a plain-language overview of DUI, DWAI, and UDD. It explains alcohol and drug inferences, “DUI per se,” persistent drunk driver criteria, express consent, and separate administrative versus criminal penalties.

Colorado Judicial Branch – Criminal Jury Instructions, Chapter 42 (Motor Vehicles And Traffic) — This chapter compiles pattern jury instructions for driving offenses, including DUI of drugs and DWAI. It lists elements juries must find beyond a reasonable doubt, definitions, and notes on use. While not a statute, these instructions show how trial courts frame issues like impairment, inferences, and “actual physical control.”

Colorado DMV – Alcohol And Drug Education And Treatment —This DMV page explains Level I and Level II education and treatment requirements linked to DUI-related licensing actions. It outlines Level II Tracks A–D, Level II Four Plus, eligibility for affidavits of enrollment, and how to obtain a DUI/DWAI Referral Summary. The page clarifies how treatment ties to reinstatement and interlock restrictions.

Back to top

Hire a Drug DUI Criminal Defense Attorney in Denver, Colorado

If you have been charged with Drug DUI Offense in the state of Colorado, call (303) 725-0017 to set up your first consultation free of charge.

Matthew Martin accepts clients throughout the greater Denver area including Jefferson County, Douglas County, Arapahoe County, Broomfield County, Adams County, and Boulder County.