Colorado is one of the relatively few states with two separate impaired driving offenses. Most states have a single threshold: you are over it, or you are not. Colorado has DUI, and it has DWAI, and the distance between them can be three hundredths of a percent.
That small distance changes the penalties, the licensing consequences, and the room available for negotiation. If you have been charged, establishing which offense you are actually facing is the first thing that matters.
The Two Thresholds
DUI — driving under the influence — applies when alcohol or drugs render a driver substantially incapable of safely operating a vehicle. It is commonly charged at a blood alcohol content of 0.08 or above, where the law permits an inference of impairment.
DWAI, or driving while ability impaired, is lower. It applies when alcohol or drugs affect a driver to the slightest degree, meaning less impairment than DUI requires. It generally covers the band from 0.05 up to 0.08.
The practical consequence is worth stating plainly: a blood alcohol content that would be entirely legal to drive on in most states can still support a criminal charge in Colorado. A driver with a 0.06 BAC who would face no consequences elsewhere can be arrested, charged, and convicted here.
Neither threshold is a safe harbor in the other direction, either. A driver below 0.05 can still be charged if the evidence of impairment is strong enough, and drivers impaired by drugs rather than alcohol are evaluated on observations rather than a number.
DWAI Is Still a Criminal Conviction
DWAI is routinely described as the lesser charge, and relative to DUI it is. That framing leads people to treat it as something akin to a traffic ticket.
A DWAI conviction is a criminal conviction. A first offense carries a jail term of two to one hundred eighty days, a fine of roughly two hundred to five hundred dollars before costs, twenty-four to forty-eight hours of useful public service, and probation with alcohol education and treatment conditions.
It appears on background checks run by employers, landlords, and licensing boards. It cannot be sealed from your Colorado record. And it counts as a prior offense if there is ever a second charge.
Points and Your License
The two offenses carry different point values against your driving record. A DUI conviction adds twelve points. A DWAI adds eight.
Colorado suspends the license of a driver aged twenty-one or older who accumulates twelve points within twelve months or eighteen points within twenty-four months. Younger drivers face lower thresholds: drivers aged eighteen to twenty are subject to suspension at nine points in twelve months, and drivers under eighteen at six points in twelve months.
For a driver with a clean record, twelve points from a DUI conviction hits the suspension threshold on its own. For a driver who already has points from speeding or other moving violations, the eight-point DWAI can be the difference between keeping a license and losing it.
Repeat Offenses and Felony DUI
Colorado treats prior impaired driving convictions seriously, and DWAI counts as a prior for this purpose.
A second offense carries mandatory jail that cannot be suspended, a longer probation period, more extensive treatment requirements, and a longer interlock obligation. A third offense escalates further.
A fourth impaired driving offense in Colorado is a felony, punishable by a prison sentence. Critically, there is no lookback window that wipes prior offenses off the count. A conviction from twenty years ago still counts toward the total. People who accepted a quick DWAI plea in their twenties to make a case go away are sometimes shocked to learn it is still on the board decades later.
The Persistent Drunk Driver Designation
Separate from the DUI and DWAI distinction, Colorado applies a Persistent Drunk Driver designation in several circumstances, including a blood alcohol content of 0.15 or higher, a refusal to submit to testing, and a repeat offense.
The designation brings its own requirements regardless of which offense was charged: a mandatory ignition interlock period, continuous alcohol monitoring in some cases, higher insurance filing obligations,s and a Level II alcohol education and therapy program. A driver can be convicted of the lesser DWAI and still carry the designation and everything that comes with it.
Drugs, Marijuana and Prescriptions
Impaired driving law in Colorado is not limited to alcohol. Marijuana, prescription medication taken exactly as prescribed, and over-the-counter drugs can all support a charge if they affect the driver’s ability.
Marijuana cases are particularly contested. Colorado law permits an inference of impairment at five nanograms of active THC per milliliter of blood, but that inference is permissive rather than conclusive, and the science behind it is genuinely disputed. THC can remain detectable in regular users long after any impairing effect has ended, which means chemical evidence and actual impairment can point in opposite directions.
Those cases often turn on the arresting officer’s observations rather than a laboratory number. Observations are considerably more open to challenge than a lab result.
Drivers Under Twenty-One Face a Third Threshold
Colorado applies a separate and much lower standard to drivers under twenty-one. Underage drinking and driving covers a blood alcohol content from 0.02 up to 0.05, a level that can be reached with a single drink.
A first underage offense is generally a traffic offense rather than a misdemeanor, carrying fines, public service, and alcohol education, along with points and a license consequence. A second offense escalates, and a third is treated even more seriously.
An underage driver with a BAC above 0.05 is not subject to the underage drinking statute. They can be charged with DWAI, and above 0.08 with DUI, exactly as an adult would be. The lower threshold adds exposure; it does not replace what already existed.
For a young driver, the consequences of a license issue are often the most damaging part. The point thresholds for suspension are lower for drivers under 21, which means a single impaired-driving conviction can end driving privileges during the years when getting to school or work depends on them.
What Happens at Your First Court Appearance
Both charges begin the same way. Your first appearance is an arraignment, where the charges are formally read, and a plea is entered. Nothing is decided that day, and pleading not guilty at arraignment costs you nothing and preserves every option.
What follows is a period during which your attorney obtains discovery — the police report, body camera and dash camera footage, the chemical test result, the instrument’s calibration and maintenance records, and the officer’s certification. That material determines whether the case is defensible, whether a suppression motion is viable, and what a realistic negotiation looks like.
People who plead guilty at arraignment to get the matter over with are pleading before anyone has looked at the evidence. It is the single most common avoidable mistake in these cases.
Where the Distinction Earns Its Keep
The most valuable difference between the two charges is not in the sentencing ranges. It is in the negotiating room.
In cases where the evidence supporting a DUI is contestable — a borderline test result, a problem with the basis for the stop, a defect in how a blood sample was collected or stored, a gap in the instrument’s calibration records — a reduction from DUI to DWAI is a realistic outcome. It is one of the most common resolutions in Colorado impaired driving practice.
That reduction cuts the point value from 12 to 8, lowers the mandatory minimums, and,d in many cases,s preserves a license that a DUI conviction would have cost. It is one of the outcomes that the Law Offices of Steven J. Pisani most often pursues in first-offense cases.
The charge on your arrest paperwork is a starting position, not a verdict. If you are facing DUI or DWAI charges in Denver, call the Law Offices of Steven J. Pisani, and we will tell you honestly what your case looks like.