Like all states, Colorado prohibits driving while under the influence of drugs or alcohol. Colorado has two classifications of intoxicated driving—"driving under the influence" (DUI) and "driving while ability impaired" (DWAI)—that carry slightly different penalties.
This article outlines how these two violations differ, the penalties a convicted driver might face, and some options a driver might have to avoid certain penalties or avoid a conviction altogether.
To get a DUI or DWAI conviction in court, prosecutors must prove the driver was:
The first part the prosecution must prove—vehicle operation—is the same for a DUI and DWAI. However, the second element—intoxication—is where the two offenses differ.
Obviously, you can be convicted of a DUI or DWAI if you were actually driving a vehicle. But Colorado law defines the term "driving" broadly to also include being in "actual physical control" of a motor vehicle.
A driver can be in actual physical control of a vehicle even if the vehicle isn't actually in motion. Colorado courts have explained that a person who "exercises bodily influence or direction over a motor vehicle" is in actual physical control and can be convicted of a DUI or DWAI.
In determining whether a driver was in actual physical control of a vehicle, judges and juries will generally look to factors like:
Basically, the closer the driver was to being able to start up the vehicle and drive away, the more likely it is that the judge or jury will find that the driver was in actual physical control of the vehicle.
Generally, a driver is considered "under the influence" and can be convicted of a DUI offense if he or she:
In other words, a DUI conviction can be based on actual impairment or the amount of alcohol or THC in the driver's system.
DWAI is a less serious offense than a DUI. To get a DWAI conviction, the prosecution just needs to prove the driver's ability to safely operate a vehicle is affected to the slightest degree by drugs or alcohol.
A driver with a BAC of .05% or more is presumed to be DWAI. However, where the prosecution relies on BAC to prove a DWAI offense, the driver can present evidence and try to convince the court that the amount of alcohol did not affect his or her ability to drive. In other words, the BAC presumption is rebuttable.
Colorado DUI and DWAI penalties are generally the same except for a first-offense conviction. In either case, the judge generally has a fair amount of discretion in deciding the severity of the penalties.
The range of penalties is established by statute and generally depends on how many prior DUI and DWAI convictions the driver has. When calculating prior offenses for a DUI or DWAI, prior convictions include DUI, DWAI, vehicular assault, and aggravated driving while revoked convictions.
The chart below outlines the range of jail time, fines, and community service hours for a first, second, and third DWAI and DUI conviction in Colorado.
1st Offense DWAI
1st Offense DUI
2nd Offense DUI and DWAI
3rd Offense DUI and DWAI
5 days to 1 year (10 days if BAC .20% or more)
10 days to 1 year
60 days to 1 year
$200 to $500
$600 to $1,000
$600 to $1,500
$600 to $1,500
24 to 48 hours
48 to 120 hours
48 to 96 hours
48 to 120 hours
Generally, first, second, and third DUI/DWAI convictions are misdemeanors.
Prior to sentencing for a DUI or DWAI conviction, the driver must complete a drug and alcohol evaluation. Depending on the results of the evaluation, the judge might include some type of treatment or educational program in the driver's sentence.
For first-offense DUIs and DWAIs, the judge can waive the jail requirements for offenders who complete treatment programs.
For other cases, the judge can generally order house arrest or work release in lieu of regular jail time.
Repeat offenders are required to complete at least two years of probation. During probation, offenders are often required to submit to random testing and complete substance education.
In Colorado, a DUI or DWAI can be charged as a felony if:
Repeat offenses and injuries. Fourth offenses and offenses involving serious injuries are class 4 felonies. Convictions generally carry two to six years in prison and at least $2,000 in fines.
Deaths. DUIs and DWAIs involving deaths are class 3 felonies. A conviction generally carries four to 12 years in prison and at least $3,000 in fines.
A DUI or DWAI arrest will often lead to license-related penalties. These penalties vary depending on the driver's BAC and the number of prior DUI-related incidents (qualifying priors include DUI/DWAI convictions, test failure, and test refusals).
License-related penalties can result from a DUI/DWAI arrest and/or conviction.
Colorado's "express consent" law generally requires all drivers who are lawfully arrested for driving under the influence to submit to breath, blood, saliva, or urine testing when requested to do so by an officer. Drivers who fail a test or refuse to test altogether face license-related penalties
When a driver refuses to take an alcohol or drug test as required by the express consent law, the officer will send notice of the refusal to the Division of Motor Vehicles (DMV). Generally, a refusal will result in the DMV revoking the driver's license for:
Refusal revocations are administratively imposed by the DMV and don't require a DUI or DWAI conviction.
Failing a DUI/DWAI will generally result in the DMV revoking the driver's license for:
Revocations based on test failures are administrate imposed by the DMV and can occur even without a criminal conviction.
A first DWAI conviction doesn't result in license revocation. However, any other DUI or DWAI conviction does carry a period of license revocation. A DUI or DWAI conviction will generally result in the DMV revoking the driver's license for:
Third-time offenders must complete a treatment program to be eligible for license reinstatement.
Some DUI/DWAI offenders may also be required to install and maintain an ignition interlock device on any driven vehicles for a period of time.
A first-offense DUI or DWAI carries a one-year IID requirement only if it involved certain aggravating factors such as a test refusal or a BAC of at least .15%. For repeat offenders, the judge can order an ignition interlock device restriction for two to five years.
Suspended and revoked drivers can generally apply to the DMV for a restricted IID license. This license requires the offender to install and maintain an IID but does permit operation during the DUI/DWAI revocation period.
A driver with a prior DUI or DWAI conviction who refuses testing or drives while revoked can be designated as a "persistent drunk driver." Persistent drunk drivers must maintain an IID for at least two years after completing the revocation period and complete treatment and SR-22 verification prior to license reinstatement.
In Colorado, drivers who are under 21 years of age are prohibited from driving with a BAC of .02% or more.
An underage drinking and driving (UDD) violation generally carries:
If the underage driver has a BAC of .05% or more or is noticeably intoxicated, he or she can instead be charged with a standard DUI or DWAI violation.
Accused drivers with no prior DUI or DWAI convictions can typically apply for "diversion." Diversion requires the accused to admit to wrongdoing and agree to take steps to better themselves. Generally, diversion participants must complete substance abuse treatment, do community service, and pay a fine.
However, successful completion of the program will result in the dismissal of the criminal charges and a clean criminal record.