DUI / DWAI
C.R.S. § 42-4-1301
As experienced Denver DUI Defense Attorneys, our team at Mile High Legal is dedicated to protecting your rights when facing charges of Driving Under the Influence (DUI) or Driving While Ability Impaired (DWAI), also known as Driving While Intoxicated (DWI) in other states. Each year, almost 20,000 people are charged with DUI in Colorado, making them some of the most common criminal cases.
We understand that people make mistakes, but even first offenses carry serious consequences that can impact your freedom, your driver’s license, your job, and your future. Understanding the law and your rights is the first step in building a strong defense.
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Charged with a DUI? Now what?
When you’re charged with a crime, a thousand questions and concerns run through your mind. Below is a list of of some of the most frequently considered questions and answers surrounding a DUI / DWAI charge.
What is the definition of DUI/DWAI?
Driving Under the Influence (DUI): Occurs when a driver operates a motor vehicle while substantially incapable of safely doing so due to alcohol, drugs, or a combination of both. A blood alcohol concentration (BAC) of 0.08% or higher creates a presumption of DUI.
Driving While Ability Impaired (DWAI): Occurs when a driver operates a motor vehicle while their ability is impaired to the slightest degree due to alcohol, drugs, or a combination of both. A BAC of 0.05% to 0.079% may be used to prove DWAI.
Do you have the option of refusing testing?
Roadside Sobriety Tests (SFSTs): These are voluntary in Colorado. You can politely refuse to perform roadside tests like walking a straight line, standing on one leg, or following a pen with your eyes. Officers may not tell you these are optional.
Portable Breath Test (PBT): You may also refuse the handheld breath test at the roadside. PBT results are not admissible in court as evidence of guilt — they can only be used to establish probable cause for arrest.
Blood or Breath Test (Express Consent): Once you are arrested, Colorado’s Express Consent Law requires you to take either a blood or breath test. Refusal carries severe consequences, including an automatic driver’s license revocation.
- Refusing to take a test is not the end of the discussion these days in DUI investigations, however, given recent case law.
- In People v. Raider, the Colorado Supreme Court ruled that the state’s Express Consent Statute, which prohibits forced blood draws for DUI suspects, does not apply to blood draws conducted under a valid search warrant. Therefore, even if a driver refuses a chemical test after a DUI arrest, law enforcement can obtain a warrant and use reasonable force to collect a blood sample. This decision expanded law enforcement’s ability to obtain blood evidence from DUI suspects by clarifying the statute’s application only to warrantless scenarios
Are there consequences if I refuse the blood or breath test?
- Refusal results in an automatic 1-year license revocation for a first offense (longer for subsequent refusals).
- You will be classified as a “persistent drunk driver” (PDD) by law, even if this is your first offense.
- You must complete mandatory alcohol/drug education and treatment.
- You may be required to install an ignition interlock device (IID) on your vehicle for at least 2 years.
- Prosecutors can argue that refusal shows “consciousness of guilt” when you eventually get to trial. This can be very powerful evidence. District Attorney’s will set up this type of argument as early as jury selection by asking prospective jurors hypothetical questions. One such frequently used example is to ask the jury if they were at a retail store and the alarms went off when you passed through the scanners on your way out – would you let the cashiers look through your bag to see what you have? The idea is to get the jury to think that someone who would not allow them to look in must have stolen something or feel guilty about something. An innocent person would welcome a search because they have nothing to hide.
Can DUI charges be reduced or dismissed?
Yes. Depending on the evidence, your attorney may negotiate a plea, challenge test results, or expose flaws in the state’s case.
How long will a DUI stay on my record?
Colorado Statutory References (CRS Codes)
- DUI: C.R.S. § 42-4-1301(1)(f) – Driving Under the Influence
- DWAI: C.R.S. § 42-4-1301(1)(g) – Driving While Ability Impaired
- Express Consent (blood/breath testing): C.R.S. § 42-4-1301.1
- DUI Sentencing: C.R.S. § 42-4-1307
- DUI License Suspension: C.R.S. § 42-2-126
Penalties for DUI & DWAI in Colorado
Colorado Criminal DUI Penalties
Offense
Classification
Jail
Fine / Parole
Public Service
1st DWAI
Misdemeanor
2-180 days jail
$200-$500
24 hrs-48 hrs
1st DUI or DUI per se
Misdemeanor
5 days-1 year jail
$600-$1000
48 hrs-96 hrs
DWAI or DUI with 1 previous DWAI or DUI
Misdemeanor
10 days-1 year jail
$600-$1500
48 hrs-120 hrs
DWAI or DUI with 2 previous DWAI or DUI
Misdemeanor
60 days-1 year jail
$600-$1500 fine
48 hrs-120 hrs
DWAI or DUI with 3 or more previous DWAI or DUI
Class 4 Felony
2-6 years imprisonment
3 years parole
48 hrs-120 hrs
1st Under 21 drinking and driving (BAC for at least 0.02 but less than 0.05)
Class A traffic infraction OR Class 2 traffic misdemeanor for subsequent offenses
Colorado Administrative DUI Penalties
Violation
LIcense Suspension
Points
–
12 months
–
24 months
–
DWAI
None
8 points
1st DUI
9 months
12 points
2nd DUI or DWAI
12 months
DWAI 8 points DUI 12 points
24 months
DWAI 8 points DUI 12 points
1st Under 21 drinking and driving (BAC of at least 0.02 but less than 0.05)
3 months – 1st offense 6 months – 2nd offense 1 year – 3rd or subsequent offens
4 points
Strategies to Fight DUI & DWAI Charges
Every case is unique, but common defense strategies include:
- Challenging the legality of the traffic stop or arrest
- Attacking the reliability of roadside sobriety tests
- Contesting the accuracy of blood or breath testing equipment
- Exposing violations of Colorado’s Express Consent procedures
- Demonstrating lack of impairment despite BAC reading
- Cross-examining officers for mistakes or poor police work
- Arguing constitutional violations (unlawful search, Miranda issues, etc.)
Facing DUI or DWAI charges in Colorado is serious and can impact every part of your life. At Mile High Legal, we know the law, the courts, and the common mistakes police and prosecutors make. Whether through trial, negotiation, or challenging the evidence, we fight to protect your rights and your future.