- Practice Areas
Driving While Ability Impaired is considered to be a lesser offense than DUI. However, the sentence that the judge will impose upon a conviction for DWAI is usually the same as that for DUI. For example, the maximum sentence for a DUI conviction is the same as it is for a second or subsequent DWAI conviction — one year in jail. Only on first offenses is the maximum sentence different for the two offenses.
The difference between DUI and DWAI based on alcohol in Colorado relates to the Blood Alcohol Level, which is determined by a blood or breath test. When the blood or breath test result is between 0.05 and 0.08, then a person is likely to be charged with DWAI. When the result is over 0.08, the driver will be charged with DUI. The police must obtain this result within 2 hours of the last known moment of the suspect’s driving, otherwise the judge should exclude the evidence from the trial against the defendant.
The more important difference between DUI and DWAI is related to your driver’s license. If you take a DUI conviction in court, the DMV will revoke your license to drive for a period of 9 months on a first offense. On the other hand, a conviction for DWAI will not revoke your license at the DMV at all. Please note, however, that this is a different type of license suspension than the administrative license revocation for which you must request a hearing. For more information about the Express Consent Revocation Hearing, please visit our driver’s license section.
The standard the jury must use in determining guilt or innocence in a DWAI case is whether your ability to drive was impaired “to the slightest degree.” Contrary to common belief, a BAC of over 0.05 does not, by itself, make you guilty of DWAI. A result of 0.05 creates an “inference” of guilt that the jury may consider along with other evidence. Therefore, if your driving itself wasn’t all that bad, a result over 0.05 may not be enough to convict you.
You should get good advice before you plead guilty to a DWAI charge if your breath test result was between 0.05 and 0.08. This is because breath testing is simply not accurate enough to reliably distinguish between such small numbers. The difference between 0.05 and 0.08 can always be challenged at trial. One of many examples of why this is true is that the machine that tested you assumes that you have the same “blood partition ratio” as everyone else does. Blood partition ratio refers to how much alcohol comes out of your breath – relative to how much alcohol is in your blood. Some people can have a lot of alcohol in their blood, but very little of it is present in their breath — and vice versa. Therefore, the prosecutor may not be able to prove beyond a reasonable doubt that the breath test results accurately reflect your true BAC, given how small the difference is between 0.05 and 0.08.
It is actually better in some cases to have a BAC between 0.05 and 0.08 than to have no BAC result at all. This is because the Denver District Attorney is not required to introduce any BAC evidence in order to prosecute you for DWAI, and can simply introduce other evidence to the jury that makes it look like your driving ability was slightly impaired. A BAC result that is close to 0.05 can actually help you, since your attorney can show the jury that because of problems like your unknown blood partition ratio — you may well have had a legal blood alcohol content.
If the person’s BAC is below 0.08, and there is no indication of drug use, the DMV should not take any action to revoke the driver’s license. Only in cases involving a BAC at or above 0.08, or where there is a conviction in court for DUI, will the DMV initiate driver’s license revocation proceedings.
Penalties for second or subsequent DUI offenses increase dramatically with the number of priors that the defendant has. It is not necessary that the prior offenses be in the State of Colorado, and any prior offense will greatly enhance the penalties. Both DUI and DWAI convictions are considered “priors” in Colorado. For more information regarding the possible penalties for drunk driving, please visit our DUI Penalties page. Both DUI and DWAI carry a possible one-year jail sentence if it is a second offense (or more).