Driving While Ability Impaired (DWAI) in Colorado

Driving while ability impaired is a criminal impaired-driving offense under Colorado law. Although DWAI is considered less severe than driving under the influence, it is not merely a traffic ticket. A conviction can result in jail, probation, fines, community service, alcohol or drug treatment, eight points against a driver’s license, increased insurance costs, and enhanced penalties for any future impaired-driving charge.

Colorado’s DWAI law applies when alcohol, one or more drugs, or a combination of substances affects a person to the slightest degree so that the person is less able than they ordinarily would be to exercise clear judgment, maintain physical control, or drive safely. A person can therefore be convicted of DWAI even when their blood alcohol concentration is below 0.08.

If you have been arrested for DWAI, you should not assume that the reduced impairment standard makes conviction unavoidable. The prosecution must still establish that you drove or exercised actual physical control over a vehicle and that alcohol or drugs impaired your ability to operate it safely. An experienced Colorado DWAI defense attorney can investigate the traffic stop, officer observations, chemical testing, field sobriety exercises, and other evidence used against you.

Denver DWAI Defense Attorney

A DWAI conviction can affect your freedom, driving privileges, finances, employment, and future criminal exposure. Because Colorado counts prior DWAI convictions when sentencing later DUI or DWAI offenses, accepting a conviction without examining the evidence can have consequences extending far beyond the immediate case.

Attorney Matthew Martin can investigate whether police had a lawful reason to stop your vehicle, whether the officer properly administered field sobriety exercises, whether a breath or blood test was reliable, and whether the prosecution can prove impairment beyond a reasonable doubt. He can also identify constitutional, procedural, or scientific issues that may support suppression, dismissal, reduction, or an acquittal.

Call The Law Office of Matthew Martin at 303.725.0017 or fill out our online consultation form to schedule a free initial consultation. The Law Office of Matthew Martin represents clients throughout Denver and surrounding areas, including Douglas County, Adams County, Boulder County, Arapahoe County, Jefferson County, and Broomfield County.

Overview of DWAI Charges in Denver, Colorado

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What Is DWAI in Colorado?

Colorado Revised Statutes § 42-4-1301 defines driving while ability impaired as driving a motor vehicle or vehicle when alcohol, drugs, or a combination of substances has affected the person to the slightest degree. The impairment must make the person less able than they ordinarily would be to exercise clear judgment, maintain sufficient physical control, or operate the vehicle with due care.

The phrase “to the slightest degree” creates a lower impairment threshold than the one used for DUI. The prosecution does not need to prove that the person was substantially incapable of driving safely. It must nevertheless prove actual impairment rather than merely showing that the person consumed alcohol or used a drug.

DWAI can involve:

  • Alcohol;
  • Marijuana or THC;
  • Illegal controlled substances;
  • Prescription medications;
  • Over-the-counter medications;
  • Toxic vapors or inhalants; or
  • A combination of alcohol and drugs.

A valid prescription does not automatically prevent prosecution. Colorado law generally does not excuse impaired driving merely because the person was legally entitled to possess or use the medication involved. Colorado’s impaired-driving statutes apply to alcohol, controlled substances, and combinations of those substances.

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What Must Prosecutors Prove in a DWAI Case?

To obtain a DWAI conviction, the prosecution generally must prove beyond a reasonable doubt that:

  1. The defendant drove a motor vehicle or vehicle in Colorado;
  2. Alcohol, drugs, or both affected the defendant; and
  3. The effect made the defendant less able than usual to exercise clear judgment, maintain physical control, or drive with due care.

The prosecution may rely on direct and circumstantial evidence. Common evidence includes:

  • Erratic or unsafe driving;
  • An odor of alcohol or marijuana;
  • Red or watery eyes;
  • Slurred speech;
  • Difficulty locating documents;
  • Balance or coordination problems;
  • Performance on field sobriety exercises;
  • Admissions about drinking or drug use;
  • Breath- or blood-test results;
  • Prescription bottles or suspected drugs;
  • Body-camera footage;
  • Witness testimony; and
  • A drug-recognition evaluation.

None of these facts necessarily proves impairment by itself. Medical conditions, fatigue, anxiety, injuries, weather, road conditions, footwear, and improper testing procedures may provide alternative explanations for what officers observed.

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Does the Vehicle Have to Be Moving?

Not necessarily. Colorado’s impaired-driving laws apply when a person drives or is in “actual physical control” of a vehicle. Police may therefore arrest someone found in a parked vehicle when the surrounding circumstances indicate that the person had the present ability to operate it.

Courts may consider facts such as:

  • Whether the person was in the driver’s seat;
  • Whether the engine was running;
  • Where the keys were located;
  • Whether the vehicle was operable;
  • Where the vehicle was parked;
  • Whether the person had recently driven; and
  • Whether the person intended or was positioned to begin driving.

A person sleeping in a vehicle is not automatically guilty of DWAI. Whether actual physical control existed depends on the complete circumstances.

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What Is the Difference Between DWAI and DUI?

DWAI and DUI are separate offenses based on different levels of impairment.

Driving While Ability Impaired – DWAI applies when alcohol or drugs affect a person to the slightest degree, making the person less able than usual to drive safely.

Driving Under the Influence – DUI applies when alcohol or drugs affect the person so substantially that they are incapable of safely operating a vehicle.

DUI Per Se – DUI per se generally applies when a driver has a blood alcohol concentration of at least 0.08 within the legally relevant period, regardless of whether the prosecution separately proves visible impairment.

A first DWAI carries lower statutory penalties than a first DUI. However, both are criminal convictions, and both can count as prior impaired-driving offenses when determining penalties in a future case. Colorado’s official drunk-driving summary distinguishes DWAI’s “slightest degree” standard from the greater impairment required for DUI.

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Can You Be Charged With DWAI With a BAC Below 0.08?

Yes. A BAC of 0.08 is not required for a DWAI conviction. Colorado permits the prosecution to use a BAC above 0.05 but below 0.08 as evidence supporting an inference that the person’s ability to drive was impaired.

A BAC at or below 0.05 generally creates a statutory presumption that the person was not under the influence and that their ability was not impaired by alcohol. That presumption does not necessarily end the case. The prosecution may attempt to rebut it with other evidence, particularly when drugs, unusual driving, admissions, or observable impairment are involved.

A driver may also be charged when:

  • No chemical test was completed;
  • The test was taken too long after driving to establish the earlier concentration reliably;
  • The alleged impairment involved drugs rather than alcohol;
  • Alcohol and drugs allegedly combined to impair the driver; or
  • The person refused chemical testing.

Chemical-test results are evidence, but the totality of the circumstances determines whether the prosecution can prove DWAI.

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Penalties for a First DWAI in Colorado

A first DWAI is ordinarily a misdemeanor. The statutory sentence may include:

  • Two to 180 days in county jail;
  • A fine of $200 to $500;
  • Twenty-four to forty-eight hours of useful public service;
  • Eight driver’s-license points;
  • Probation;
  • An alcohol and drug evaluation;
  • Alcohol or drug education and treatment;
  • Victim-assistance and other statutory surcharges; and
  • Court and probation costs.

The court may suspend the minimum jail sentence when the defendant completes an evaluation and complies with the required treatment program. Jail is therefore not inevitable in every first-offense case, but it remains legally available.

The total financial cost may substantially exceed the statutory fine. Additional expenses can include treatment, probation supervision, community-service administration, chemical monitoring, towing, vehicle storage, increased automobile-insurance premiums, and attorney or expert fees. Colorado’s official law summary identifies the two-to-180-day jail range, $200-to-$500 fine, community service, and eight-point assessment for a first DWAI.

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Penalties for a Second DWAI or DUI-Related Offense

Colorado counts prior DWAI, DUI, DUI-per-se, and comparable out-of-state convictions when determining whether a case is a repeat offense. A second impaired-driving conviction generally carries:

  • Ten days to one year in jail;
  • A fine of $600 to $1,500;
  • Forty-eight to 120 hours of useful public service;
  • Probation;
  • Level II alcohol and drug education or treatment; and
  • More serious driver’s-license consequences.

The mandatory minimum jail term for a second offense is subject to specific sentencing rules. Courts may sometimes authorize work release, home detention, or another qualifying alternative program, but a defendant should not assume that the sentence will be handled the same way as a first DWAI.

An old prior conviction may still count. Colorado does not apply a simple limited lookback period that automatically disregards older DUI or DWAI convictions.

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Penalties for a Third DWAI or DUI-Related Offense

A third impaired-driving conviction generally remains a misdemeanor but carries substantially greater mandatory penalties, including:

  • Sixty days to one year in jail;
  • A fine of $600 to $1,500;
  • Forty-eight to 120 hours of useful public service;
  • Probation;
  • Level II education and treatment; and
  • Continuous alcohol monitoring in many cases.

Colorado law requires at least ninety days of continuous alcohol monitoring for a person placed on probation following a third or subsequent impaired-driving offense, unless a statutory exception applies.

The mandatory jail term, treatment requirements, monitoring, and licensing consequences make a third DWAI significantly more serious than a first offense.

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Can DWAI Become a Felony?

A fourth or subsequent qualifying impaired-driving offense can be prosecuted as a class 4 felony. Prior convictions for DUI, DUI per se, DWAI, and comparable offenses may be counted regardless of whether they occurred in Colorado or another jurisdiction.

A felony conviction can expose the person to imprisonment, lengthy probation, mandatory treatment, alcohol monitoring, community service, and substantial collateral consequences. When a court grants probation for felony impaired driving, Colorado law generally requires a significant county-jail or alternative-sentencing term as a condition of probation.

A DWAI-related incident can also lead to separate felony charges when impaired driving causes serious bodily injury or death. Depending on the circumstances, prosecutors may pursue vehicular assault or vehicular homicide in addition to or instead of an ordinary DWAI charge.

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Will a First DWAI Cause a License Suspension?

For a driver who is at least 21, a first DWAI conviction does not ordinarily create the automatic nine-month alcohol-related revocation associated with a first DUI conviction. It does, however, add eight points to the person’s driving record. Those points can trigger a suspension when combined with existing points or when the driver falls within a stricter age-based point limit.

A separate DMV revocation can still occur if:

  • A breath or blood test showed a BAC of at least 0.08;
  • The driver refused a lawfully requested chemical test;
  • The person was under 21;
  • The person had another active licensing restraint; or
  • Another statutory basis for suspension or revocation applies.

This means a person may be convicted of DWAI in court while also facing a DMV revocation based on the chemical test. Conversely, a person may avoid conviction but still lose driving privileges through the administrative process. The DMV proceeding is legally separate from the criminal case.

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DWAI and Driver’s-License Points

Colorado assigns eight points for a DWAI conviction. Whether those points suspend a license depends on the driver’s age and the number of other points accumulated within the applicable period.

For an adult driver, eight points alone will not always trigger an immediate point suspension. However, a person who already has points from speeding, careless driving, or another violation may cross the suspension threshold after the DWAI conviction.

Younger drivers are subject to lower point limits. A DWAI conviction can therefore create more immediate licensing consequences for a driver under 21.

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Consequences for Drivers Under 21

A driver under 21 can face separate and more serious licensing consequences after an alcohol-related DWAI conviction. The Colorado DMV states that an under-21 driver may receive a one-year revocation following a conviction for DUI or DWAI. Reinstatement may require alcohol education, proof of insurance, fees, and retesting.

Colorado also has a separate underage drinking and driving offense for drivers with a BAC of at least 0.02 but not more than 0.05. A driver under 21 may still face ordinary DWAI or DUI charges when the evidence supports those more serious offenses.

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What Happens If the Driver’s BAC Was at Least 0.08?

A driver may ultimately plead guilty to or be convicted of DWAI even though the original chemical test was at least 0.08. In that situation, the reduced court conviction does not automatically cancel the separate DMV revocation.

The DMV can impose an alcohol-related revocation based on the test result independently of the criminal case. The driver may need to request a hearing promptly to challenge that administrative action and satisfy reinstatement requirements even if the criminal charge is reduced to DWAI.

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What Happens If You Refuse a Breath or Blood Test?

Colorado’s express-consent law generally requires a driver to cooperate with a lawfully requested chemical test when an officer has reasonable grounds to believe the person drove while under the influence or while their ability was impaired by alcohol or drugs.

A first refusal generally results in:

  • A one-year driver’s-license revocation;
  • A persistent drunk driver designation;
  • Level II alcohol and drug education and treatment;
  • SR-22 insurance requirements; and
  • An ignition-interlock requirement following early reinstatement.

The refusal penalty is administrative and can apply even if the person is later charged only with DWAI or the criminal case is dismissed. The prosecution may also seek to introduce evidence of the refusal in the criminal case. Colorado DMV identifies a one-year revocation and persistent-drunk-driver designation for a first refusal.

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Is a Roadside Breath Test the Same as the Official Test?

No. A portable roadside breath test is generally a preliminary screening device. It is different from the evidential breath or blood test requested under Colorado’s express-consent law.

Refusing a roadside portable breath test does not ordinarily create the same automatic refusal revocation as refusing the official chemical test. However, refusing or failing to cooperate with the later evidential test can trigger serious DMV consequences. The DMV specifically distinguishes roadside testing from the breath or blood testing required to satisfy express consent.

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Can You Request a DMV Hearing?

You can request a DMV hearing after a DWAI. When an officer issues a notice of revocation based on an excessive BAC or refusal, the driver generally must request a hearing within the deadline stated in the notice. In many officer-issued cases, that deadline is seven days.

The hearing may address:

  • Whether the officer had reasonable grounds;
  • Whether the person drove or controlled a vehicle;
  • Whether the chemical test met statutory requirements;
  • Whether the reported BAC was reliable;
  • Whether the driver refused testing; and
  • Whether law enforcement followed required procedures.

The DMV may impose a license restraint even when the court case is dismissed. A favorable DMV ruling likewise does not automatically dismiss the criminal charge.

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Can Alcohol Cause DWAI Without Causing DUI?

DWAI is specifically intended to address impairment that does not rise to the level required for DUI. A person may appear capable of performing many ordinary tasks but still be considered less able than usual to drive safely.

Evidence supporting a DWAI allegation may include mild coordination problems, divided-attention difficulties, delayed responses, improper lane use, or a BAC between 0.05 and 0.08. The defense can challenge whether those observations actually demonstrate alcohol-related impairment or instead resulted from innocent factors.

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Marijuana DWAI in Colorado

Legal marijuana use can still lead to a DWAI charge. Colorado law does not permit driving while marijuana impairs a person’s abilities, even when the marijuana was purchased and possessed lawfully.

A blood result showing at least five nanograms of delta-9 THC per milliliter permits the prosecution to argue that the driver was affected by marijuana, but the number does not create an automatic conviction. THC concentrations do not correspond to impairment as predictably as alcohol concentrations, and regular users may retain measurable THC after the most noticeable effects have diminished.

A marijuana DWAI defense may examine:

  • When marijuana was consumed;
  • The method of consumption;
  • Whether the person was a regular user;
  • The time between driving and blood collection;
  • The driver’s actual behavior;
  • The reliability of the laboratory analysis;
  • Whether inactive metabolites were confused with active THC; and
  • Whether officer observations had alternative explanations.

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Prescription-Drug DWAI

A person can be charged with DWAI after taking a medication exactly as prescribed. The relevant issue is generally whether the medication impaired the person’s driving, not whether possession or use was lawful.

Commonly investigated substances include:

  • Opioid pain medications;
  • Benzodiazepines;
  • Sleep medications;
  • Muscle relaxants;
  • Stimulants;
  • Antidepressants;
  • Antihistamines; and
  • Anti-seizure medications.

Warnings on a medication label can become relevant, but they do not independently prove that the medication impaired the person at the time of driving. Dosage, tolerance, timing, interactions, medical conditions, and laboratory evidence may all matter.

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Can a Combination of Substances Support DWAI?

Yes. Colorado law permits a DWAI charge based on alcohol, drugs, or a combination of both. A driver may therefore face prosecution even when no single substance appears sufficient to explain the alleged impairment.

For example, a relatively low BAC combined with a prescription sedative or marijuana may form the basis of the prosecution’s case. The defense may challenge whether the substances were active, whether they interacted as alleged, and whether the observed driving actually showed impairment.

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Field Sobriety Exercises in a DWAI Case

Officers frequently ask drivers to perform standardized field sobriety exercises, such as:

  • Horizontal gaze nystagmus;
  • Walk-and-turn; and
  • One-leg stand.

These exercises are investigative tools rather than pass-or-fail scientific tests. Their reliability may be affected by:

  • Poor lighting;
  • Uneven pavement;
  • Snow, rain, or wind;
  • Improper footwear;
  • Age or weight;
  • Injuries or neurological conditions;
  • Anxiety;
  • Fatigue;
  • Confusing instructions; or
  • Improper administration by the officer.

Colorado generally does not require a driver to perform roadside field sobriety exercises. Refusing them may influence the officer’s decisions, but it is different from refusing the official chemical test required under express consent.

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Common Defenses to DWAI Charges

The appropriate defense depends on the facts, substance involved, and evidence collected.

Unlawful Traffic Stop – Police generally need reasonable suspicion of a traffic violation or criminal activity to stop a vehicle. Evidence obtained through an unconstitutional stop may be suppressed.

No Proof of Driving or Actual Physical Control – The prosecution may be unable to prove who drove the vehicle or whether a person found in a parked car exercised actual physical control.

Lack of Impairment – Drinking alcohol or using a medication does not automatically establish that the person was less able than usual to drive safely.

BAC at or Below 0.05 – A low alcohol result may support the defense, particularly when the prosecution lacks credible evidence of drug impairment or unsafe driving.

Rising Blood Alcohol – Alcohol may continue entering the bloodstream after driving stops. A later test can therefore overstate the person’s BAC at the time they were operating the vehicle.

Unreliable Breath Testing – Instrument maintenance, calibration, observation periods, operator error, mouth alcohol, and medical conditions may affect a breath result.

Problems With Blood Collection or Testing – Mislabeling, contamination, improper storage, fermentation, chain-of-custody issues, or laboratory errors may undermine blood evidence.

Alternative Medical Explanations – Diabetes, neurological conditions, fatigue, anxiety, injuries, allergies, and other medical issues can resemble signs officers associate with impairment.

Improper Field Sobriety Testing – Exercises administered incorrectly or under unsuitable conditions may have little evidentiary value.

Insufficient Drug Evidence – The presence of a drug or metabolite does not necessarily prove active impairment at the time of driving.

Violation of Constitutional Rights – Statements, test results, or physical evidence may be challenged when police violated constitutional or statutory requirements.

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Can a DWAI Charge Be Reduced or Dismissed?

Potentially. A charge may be reduced or dismissed when the stop was unlawful, the prosecution cannot prove driving, the evidence does not establish impairment, or the chemical testing is unreliable.

Possible resolutions may include:

  • Dismissal;
  • Acquittal at trial;
  • Reduction to a non-alcohol-related traffic offense;
  • A deferred disposition when legally available;
  • A negotiated DWAI plea when the original charge was DUI; or
  • Another plea agreement based on weaknesses in the evidence.

Colorado restricts plea bargaining in impaired-driving cases. A prosecutor generally needs a good-faith evidentiary basis for reducing an impaired-driving charge. A favorable resolution is therefore not guaranteed merely because the defendant has no prior record.

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Is DWAI Commonly Offered as a Reduction From DUI?

Yes. DWAI is sometimes offered as a reduced charge in a DUI case when the evidence does not strongly establish the higher DUI standard. A DWAI plea may reduce jail, fines, community service, points, and some licensing consequences.

However, a DWAI conviction still counts as a prior impaired-driving offense. It is not equivalent to a dismissal and should not be accepted without considering its long-term effect.

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Does DWAI Require Alcohol or Drug Treatment?

A DWAI conviction commonly requires an alcohol and drug evaluation. Based on the evaluation, prior history, test result, and court order, the defendant may need to complete education or treatment.

Programs may include:

  • Level I education;
  • Level II education;
  • Level II therapy;
  • Substance-use treatment;
  • Random alcohol or drug testing; or
  • Continuous alcohol monitoring.

Treatment requirements can also arise through the DMV, particularly after a refusal, persistent-drunk-driver designation, repeat offense, or license-reinstatement application. The DMV maintains separate alcohol and drug education and treatment requirements for DUI and DWAI matters.

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Can an Ignition Interlock Device Be Required After DWAI?

A first DWAI conviction by itself does not always produce an ignition-interlock requirement. However, interlock may be required when the case also involves:

  • A BAC-based DMV revocation;
  • A chemical-test refusal;
  • A persistent drunk driver designation;
  • A repeat impaired-driving history;
  • Early license reinstatement; or
  • Another qualifying restraint.

The Colorado DMV identifies DWAI as one of the qualifying alcohol-related offenses relevant to its ignition-interlock program.

A person required to use interlock must generally install an approved device in every vehicle they own or operate, report for regular servicing, and avoid attempts to bypass or circumvent the device. Noncompliance can result in additional suspension or an extension of the interlock period.

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Collateral Consequences of a DWAI Conviction

The sentence imposed by the court is not the only consequence. A DWAI conviction may also affect:

  • Automobile-insurance premiums;
  • Jobs involving driving;
  • Commercial driver’s licenses;
  • Professional licenses;
  • Security clearances;
  • College or university discipline;
  • Child-custody proceedings;
  • Immigration matters;
  • International travel;
  • Rental-car eligibility; and
  • Sentencing for future impaired-driving offenses.

A DWAI conviction may be particularly damaging to commercial drivers, delivery workers, rideshare drivers, healthcare professionals, pilots, military personnel, and others whose employment depends on driving or maintaining a professional license.

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Can a Colorado DWAI Conviction Be Sealed?

A Colorado DWAI conviction generally cannot be sealed through the ordinary criminal-record sealing process. The conviction may therefore remain publicly accessible even after the person completes jail, probation, treatment, and all other sentencing requirements.

A DWAI case that is dismissed or ends in an acquittal may qualify for sealing under Colorado’s non-conviction record-sealing laws. Eligibility depends on the complete disposition of the case, including whether the person was convicted of another charge arising from the same prosecution.

Because a DWAI conviction generally remains public and can enhance future impaired-driving penalties, challenging an unsupported charge before conviction is especially important.

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Should I Hire an Attorney for a DWAI?

A DWAI charge involves a lower impairment threshold than DUI, which can make officer observations and scientific evidence especially important. An attorney can evaluate whether the prosecution’s evidence actually establishes impairment to the slightest degree or merely shows alcohol or drug consumption.

A DWAI defense attorney may:

  • Challenge the legality of the traffic stop;
  • Determine whether the prosecution can prove driving or actual physical control;
  • Obtain body-camera and dashboard-camera recordings;
  • Review field sobriety exercises;
  • Examine breath-machine maintenance records;
  • Investigate blood collection and laboratory testing;
  • Consult a toxicology expert;
  • Challenge an alleged refusal;
  • Represent the driver at a DMV hearing;
  • Identify alternative medical explanations;
  • File motions to suppress evidence;
  • Negotiate for dismissal or reduction; and
  • Present the case at trial.

Early representation can also help preserve surveillance video, witness testimony, dispatch recordings, blood samples, and other evidence that may disappear over time.

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Additional Resources

Colorado Drunk Driving Laws | Colorado General Assembly – Review the Colorado General Assembly’s official summary of DUI, DUI per se, DWAI, chemical testing, sentencing, and related impaired-driving laws.

DUI Administrative Process | Colorado DMV – Learn how the separate DMV proceeding affects driving privileges and how administrative hearings differ from the criminal prosecution.

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Denver Attorney for DWAI Charges

A DWAI may carry lower penalties than DUI, but it remains a criminal conviction with possible jail, probation, treatment, license points, insurance increases, and lasting consequences. It can also be used to enhance a future impaired-driving charge, even many years later.

Attorney Matthew Martin can investigate the traffic stop, officer observations, chemical-test evidence, field sobriety exercises, and DMV proceedings involved in your case. He can challenge unreliable or unlawfully obtained evidence, negotiate with prosecutors, and defend you at trial when necessary.

Call The Law Office of Matthew Martin at 303.725.0017 or fill out our online consultation form to schedule a free initial consultation. The Law Office of Matthew Martin represents clients in Denver and throughout Douglas County, Jefferson County, Boulder County, Broomfield County, Arapahoe County, and Adams County.

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