There are two different alcohol related offenses that can result from driving after you have consumed alcohol. Whether you are charged with one or the other depends on the amount of alcohol in your system. The charges are: “Driving While Ability Impaired” – DWAI and “Driving Under the Influence” – DUI.
Under Colorado law DWAI is defined as: “driving a motor vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”
Colorado law states that if a driver’s BAC was in excess of 0.05 but less than 0.08, then there is a permissible inference the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol. If a driver’s BAC was .05 or less then it is presumed they were not under the influence of alcohol and their ability to operate a motor vehicle was not impaired. In addition to using objective tests (i.e. blood or breath) the State can also use subjective evidence (i.e. slurred speech, smell of alcohol, blood shot eyes, etc.) to prove its case.
Colorado law defines DUI as: “driving a motor vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. If a driver’s BAC is .08 or greater, then they are presumed to be under the influence of alcohol to a degree that they were not capable of safely operating their vehicle. Just as in a DWAI case the state can also use subjective evidence to prove its case.
Driving While Ability Impaired is considered to be a lesser offense than DUI. However, because it is an alcohol offense DWAI cannot be expunged nor the record sealed. In order for an alcohol offense to be reduced to a non-alcohol offense, the district attorney must be able to provide specific reasons to the Court for why the State would be unable to prove their case for DWAI.
The biggest difference between DUI and DWAI is related to your driver's license. A DUI conviction will result in the DMV suspending your license to drive for a period of one year, but a DWAI conviction will not suspend your license at the DMV at all. However, your license can still be suspended as a criminal penalty through the Court system.
The punishment for a first time DUI in Colorado ranges from 5 days in jail and/or a $600 fine, to one year in jail and/or a $1,000 fine. The punishment for a first time DWAI in Colorado ranges from 2 day in jail and/or a $200 fine, to 180 days in jail and/or a $500 fine.