DUI Overview

Colorado takes driving under the influence of alcohol and/or drugs (DUI) and driving while ability is impaired (DWAI) very seriously. Those convicted of DUI/DWAI face fines, loss of license (leading sometimes to loss of employment) and even jail time. And for those facing charges of subsequent DUI/DWAI, the consequences can be severe. To obtain the best possible outcome when facing a DUI/DWAI charge, representation from an experienced and skilled attorney is absolutely essential.

What’s the Difference Between DUI and DWAI?

Driving under the influence (DUI) is charged when the driver has a blood alcohol content (BAC) of 0.08% or higher – regardless of how well the person is driving. DWAI is charged when the person’s BAC is between 0.05% and 0.08%
Offense DUI DWAI
1st Jail (5 days to 1 year) Fee ($600 to $1000) Suspension (9 month) DMV Points (12) Public Service (48-96 hours) Probation (up to 2 years) Education classes (possible) Jail (2 to 180 days) Fee ($200 to $500) DMV Points (8) Public Service (24-48 hours) Probation (up to 2 years)
2nd Jail (60 days to 1 year) Fee ($600 to $1500) Suspension (2 year) Ignition interlock (2 years) DMV Points (12) Public Service (48-120 hours) Probation (at least 2 years) Education classes (required) Jail (10 days to 1 year) Fee ($600-$1,500) Suspension (1 year) DMV Points (8) Public Service (48-120 hours) Probation (at least 2 years)
3rd Jail (10 days to 1 year) Fee ($600 to $1500) Suspension (1 year) Ignition interlock (2 years) DMV Points (12) Public Service (48-120 hours) Probation (at least 2 years) Education classes (required) Jail (60 days to 1 year) Fee ($600-$1,500) Suspension (2 year) DMV Points (8) Public Service (48-120 hours) Probation (at least 2 years)

DUI/DWAI and Probable Cause

Before you can be tested for DUI/DWAI, the police officer must have had probable cause to both stop your vehicle and then examine you for insobriety.


To make the vehicle stop, the police officer does not have to suspect DUI/DWAI. Any violation of traffic laws is sufficient – including speeding, failing to obey a traffic signal, expired vehicle license or even a missing tail light. Of course, if the vehicle is crossing lanes and moving erratically, these are also probable cause to make the stop.


If the officer has no reasonable basis for the stop, or the arrest was unlawful, this is an effective defense to DUI/DWAI.


As for investigating sobriety, the police officer must observe something that leads him to suspect it is lacking, such as the smell of alcohol, drunken behavior or slurred speech. At this point, the officer will likely suggest a field sobriety test, which can include examining eye movement or having the driver walk and turn or stand on one leg.


Under Colorado law, a driver may refuse a field sobriety test without penalty, and most attorneys recommend against submitting to one.


However, if the officer has probable cause to suspect DUI/DWAI, he will almost certainly proceed with a DUI/DWAI chemical test.

DUI/DWAI Tests - Colorado’s Express Consent Law

Poorly named, under Colorado law, if a driver refuses to provide “express consent” to a DUI/DWAI test, the driver will suffer serious consequences, including being treated as a habitual DUI offender (called a persistent drunk driver or PDD) and having his license revoked. Subsequently, reinstatement will only occur after the driver receives drug and alcohol treatment, provides proof of financial responsibility, and has an ignition interlock device on his vehicle for two years.

While a person who has no need to drive might think a refusal is a viable option, drivers should be aware that they may still be prosecuted for DUI/DWAI and the prosecutor is free to argue to the jury that the driver refused because he knew he was guilty.

Laboratory Tests to Determine the Influence of Alcohol or Drugs

In most situation, the officer will allow the driver to choose between a breath test and a blood test. However, there are exceptions, including:


  • There is probable cause to suspect drug use.
  • The driver is under age 21.
  •  The driver is unable to take a breath test (he is unconscious or dead).
  • There is probable cause that some type of serious assault, vehicular assault, or vehicular homicide is suspected.


If the officer did not offer a choice of test and/or had no probable cause to suspect drug use but insisted upon a blood test, these can be effective defenses to a DUI/DWAI charge.


Should I Choose a Breath Test or Blood Test?


There are advantages to each type of test.


For the blood test, it is much more accurate. And, since the blood sample is retained, it will be available for the defendant to have an independent person test it and provide evidence later in court.


In addition, the rules for testing blood for alcohol and drugs are stringent, and if they are not followed, the test may not be admissible or its results can be shown to be not credible to the jury. As Colorado’s law enforcement blood labs have had problems historically, this can be a serious advantage at trial.


Among the exacting requirements for blood tests that may create pitfalls for the prosecution are:

  • The blood must be collected within two hours of the stop by a trained medical professional in the presence of the arresting officer or a supervisor.
  • The blood must be drawn and kept in sterile equipment and stored at the appropriate temperature.
  •  The blood must be sent to the lab within 7 days of collection and tested twice by a certified lab.

If any of these requirements were not met, or there were failings in record-keeping or the chain of evidence, these can be effective defenses against a DUI/DWAI charge.

 On the other hand, breath tests have their own weaknesses, including personnel training and machine maintenance.

If the person administering the test was not properly trained, or the machine not maintained according to set protocols, this can be an effective defense against a DUI/DWAI charge. 

In addition, the nature of breath testing – which doesn’t directly measure alcohol in the blood – can create room for doubt in the jury’s mind. In a nutshell, the test assumes that the presence of 2100 ml of alcohol in breath means 1 ml of alcohol is in the blood (this is called a partition ratio). But this ratio (2100:1) is just an average, and individuals’ partition ratios differ – with the range spanning from 1600:1 to 3200:1. What this means is if the driver is on the high end of the scale, he would have 1/3 less alcohol in his blood than what is suggested by the test.

For those defendants whose BAC was close to the limit, evidence of a different partition ratio can be an effective defense to a DUI/DWAI charge.

 The Rising BAC Defense.

Another effective defense for drivers whose BACs were close to the legal limit is that their BAC was within the legal limit while they were driving, but that it rose by the time the test was taken. And, if they had been left to complete their journey, they would have arrived prior to reaching the legal limit. This defense will require the testimony of an expert who can give evidence on the person’s characteristics (such as metabolism and food intake) and how that would have affected their sobriety while driving and after.

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 Questions about a DUI/DWAI charge? Contact us for a free and confidential consultation.