DUI vs. DWAI in Colorado: Key Differences That Can Impact Your Case

Why the charge you face matters

Colorado has two common alcohol or drug related driving charges: DUI and DWAI. They sound similar, but the legal standards and consequences are not the same.


If you were stopped in Denver or a nearby community like Lakewood, Aurora, or Littleton, knowing which charge applies can shape your options, your DMV status, and the best way to defend your case.

What DUI means in Colorado

DUI is driving under the influence of alcohol, drugs, or a combination. Under C.R.S. 42-4-1301, prosecutors can prove DUI in two ways.

  • DUI per se: a blood or breath alcohol level of 0.08 or higher within 2 hours of driving.
  • Impairment DUI: your ability to drive was substantially affected by alcohol or drugs, even without a per se result.


Marijuana cases are handled similarly. A whole blood THC level of 5 ng or more creates a permissible inference of impairment under Colorado law.

What DWAI means in Colorado

DWAI stands for driving while ability impaired. It is a lesser offense than DUI, but it still carries criminal penalties and DMV consequences.


The legal standard is lower than DUI. If alcohol or drugs affected you to the slightest degree so that you were less able to operate safely, that can support a DWAI under C.R.S. 42-4-1301. A BAC of 0.05 to 0.079 permits an inference of DWAI.

How prosecutors prove each charge

In Denver and across Arapahoe, Jefferson, Adams, and Douglas Counties, DUI per se cases often turn on the test result. A number at or above 0.08 is powerful evidence at trial.


DWAI cases rely more on what the officer saw. Typical evidence includes driving pattern, speech, balance, field sobriety tests, and body cam footage. Even a BAC below 0.08 can support a DWAI if the observations suggest impairment.

Penalties: DUI vs. DWAI

Both charges are usually misdemeanors for a first offense, but the ranges are different. Prior convictions for DUI, DUI per se, DWAI, or vehicular assault or homicide will increase penalties. C.R.S. 42-4-1307 governs sentencing.

  • First DWAI
  • Jail: 2 to 180 days
  • Fine: 200 to 500 dollars
  • Public service: 24 to 48 hours
  • Points: 8 points on your license
  • First DUI
  • Jail: 5 days to 1 year
  • Fine: 600 to 1,000 dollars
  • Public service: 48 to 96 hours
  • Points: 12 points on your license


Judges can suspend jail for many first-time cases if you complete treatment and stay law abiding. Every case is fact specific, and Denver courts vary by division and judge.

High BAC and repeat offenses

A BAC of 0.15 or higher is treated as a persistent drunk driver designation. That status triggers longer ignition interlock and Level II education and therapy, even on a first case.


Penalties increase sharply on a second or third offense, and a fourth or subsequent alcohol-related driving conviction can be charged as a Class 4 felony punishable by prison. This applies whether the prior cases were DUI or DWAI.

License consequences separate from court

Colorado’s DMV process runs on a separate track from the criminal court case under C.R.S. 42-2-126. You can win one and lose the other if you do not act quickly.

  • Per se BAC of 0.08 or higher
  • First revocation is typically 9 months
  • Early reinstatement may be available with ignition interlock after a short waiting period
  • Refusal to take a breath or blood test
  • Longer revocation than a per se case
  • Ignition interlock for an extended period upon early reinstatement

You usually have 7 days from notice to request a DMV hearing. If you miss that window, the revocation often starts automatically, even while the court case is pending in Denver County Court or a nearby county court.

What this means for your defense

The difference between DUI and DWAI can drive everything from plea options to trial strategy. In a per se DUI, challenging the stop, the 2-hour window, machine maintenance, and blood draw protocols can be critical.


In a DWAI, the focus often shifts to the officer’s observations, video, SFST administration, and alternative causes for any claimed signs of impairment. Medical conditions, fatigue, injuries, and roadside conditions can all matter.

Common evidence issues we evaluate

  • The reason for the traffic stop and whether it holds up in court
  • Body cam and dash cam recordings that do not match the report
  • Breath machine logs, certifications, and maintenance records
  • Blood draw chain of custody and lab analysis procedures
  • How field sobriety tests were instructed and scored
  • Whether statements were taken after a clear Miranda warning

Practical steps after a DUI or DWAI stop

Mark your calendar for the DMV deadline and request the hearing. That preserves your chance to fight the license revocation and to subpoena the officer’s testimony.


Get a consultation with a local defense lawyer before you appear in court. Early guidance can protect discovery rights, preserve video, and avoid common pitfalls that hurt both court and DMV outcomes.

Why local knowledge helps in Denver and the suburbs

Courthouse practices differ across Denver, Arapahoe, Jefferson, Adams, and Douglas County courts. So do probation office expectations, treatment provider options, and ignition interlock vendors.


A defense built around the exact charge, the BAC range, and the specific court can reduce stress and improve outcomes. The right plan can be the difference between a DUI and a DWAI disposition, or between a conviction and a dismissal.

Frequently asked questions

Will a DWAI go on my record? Yes. DWAI is a criminal offense and counts as a prior if you are charged again later. It also puts 8 points on your license.


Does a first DUI mean mandatory jail? Not necessarily. Many first-time cases resolve without serving jail if you complete education or treatment, public service, and remain law abiding. Special rules can apply for high BAC or refusal cases.


Can I drive to work with an interlock? If you qualify for early reinstatement, an ignition interlock restricted license can allow driving for work and daily needs. Requirements depend on BAC level, priors, and whether there was a refusal.

Talk to Smith & Weidinger PLLC

If you are facing DUI or DWAI in Denver, CO or nearby areas, the lawyers at Smith & Weidinger PLLC can help you understand your options and build a plan that fits your goals. We handle cases across the metro area and know how local courts approach these charges.

Call (720) 996-2600 or visit duiattorneyindenver.com to schedule a free, confidential case review. One call can protect your license, your record, and your peace of mind.