Facing a DUI charge in Colorado can be stressful and uncertain, but you don’t have to go through the process of defending your case alone. The DUI/DWAI lawyers at The Moorhead Law Group are well-versed in Colorado DUI laws and have a proven track record of effective defense. Our experienced attorneys are here to help protect your rights and guide you through this challenging process. Don’t let a DUI charge derail your life. Contact us now at (303) 447-1400 or send us a message via our contact page to discuss your case.

Topics Included in This Article:

  1. What Is The Colorado DUI Law?
  2. Understanding Colorado DUI Penalties: What You Need To Know
  3. Defenses To Colorado Drunk Driving Charges
  4. Implied Consent Laws
  5. How Law Enforcement Can Stop You For DUI
  6. Alcohol And Drug Driving Safety Program
  7. FAQ

What Is The Colorado DUI Law?

There are two main charges you may face when driving under the influence in Colorado: DUI and DWAI.

  • A DUI, or “Driving Under the Influence,” is defined as operating a motor vehicle while substantially unable to use sufficiently clear judgment, adequate physical control, or appropriate care due to the consumption of alcohol, drugs, or both alcohol and drugs.
  • A DWAI, or “Driving While Ability Impaired,” is charged when a person’s ability to drive is affected to the slightest degree due to the consumption of alcohol, drugs, or both alcohol and drugs.

For both DUI and DWAI offenses, an impaired driving charge can be summarized as driving “a vehicle under the influence of alcohol, drugs or both” or driving “a vehicle while impaired by alcohol or drugs or both,” respectively.

What Constitutes “Drugs” Under This Law?

Under CO Code § 42-4-1301, “one or more drugs” can mean controlled substances outlined in Colorado Controlled Substances Act. Even inhaled substances, like glues, aerosols, or other toxic vapors, fall into this category. Keep in mind that even if a person is allowed to use drugs, including medical marijuana, it does not serve as a defense against charges that someone has committed an impaired driving crime or other Colorado drug related driving offenses.

The Role Of Blood Alcohol Concentration (BAC) In Identifying Impairment

  • If you are 21+ and your BAC is 0.05% or less: not under the influence.
  • If you are 21+ and your BAC is between 0.05% and 0.08%: DWAI.
  • If you are 21+ and your BAC is higher than 0.08%: DUI.
  • If you are under 21 and your BAC is higher than 0.02%: DUI.

Understanding Colorado DUI Penalties: What You Need To Know

CO Code § 42-4-1307 outlines the penalties for traffic offenses involving alcohol and drugs. We have summarized the key points to give you a clear understanding of what you might face if charged with DUI under this statute.

Basically, each sentence for a conviction of a violation of section 42-4-1301 (related to DUI) has to include a period of imprisonment and, for repeat offenders, a mandatory minimum period of imprisonment and probation.

Penalties For First Offenses

For a first-time DUI or DUI per se conviction:

  • Imprisonment in the county jail for at least five days (mandatory minimum), but not more than one year.
  • A fine of at least $600 but no more than $1,000, with the court’s discretion to suspend the fine.
  • At least 48 hours but not more than 96 hours of useful public service (community service).
  • Ignition interlock device requirement.

For a first-time DWAI conviction:

  • Imprisonment in the county jail for at least two days (mandatory minimum), but not more than 180 days.
  • A fine of at least $200 but no more than $500, with the court’s discretion to suspend the fine.
  • At least 24 hours but not more than 48 hours of useful public service (community service).

Penalties For Second Offenses

A person convicted of a second DUI, DUI per se, or DWAI within five years of a previous conviction will face increased penalties. The court has to impose a fine of at least $600 but no more than $1,500, a minimum of 48 hours of useful public service, and probation of at least two years, along with a suspended one-year jail sentence.

Penalties For Third And Subsequent Offenses

For third and subsequent offenses, a person will face increased fines, public service hours, and probation periods. Felony DUI offenses will be treated even more severely, with possible imprisonment in the state department of corrections.

DUI Diversion In Colorado

Pre-trial Adult Diversion Programs in Colorado are an alternative to the usual courtroom procedures, like being tried or sentenced for alcohol related driving violations. The goal is to prevent them from committing more crimes and to keep the community safe. If someone joins this program, they agree to certain conditions, like attending therapy or staying away from drugs. This helps address the root causes of their criminal behavior. If they stick to the agreement, their charges get dropped. But if they don’t, they could face legal consequences. There are currently twelve adult diversion programs throughout Colorado.

License Suspension

In addition to the standard criminal penalties, a first DUI conviction carries a nine-month license suspension; a second DUI conviction carries a one-year suspension; and a third or subsequent conviction carries a two-year suspension. However, you could apply for a restricted license during the term of your suspension. Additional state requirements relating to ignition interlock devices apply.

Additional Costs And Surcharges

In addition to the penalties described above, persons convicted of DUI, DUI per se, DWAI, and other offenses will be subject to various costs and surcharges, including those for crime victim compensation, programs to reduce drunk driving, alcohol and substance abuse treatment programs, and data-analysis surcharges.

Defenses To Colorado Drunk Driving Charges

Defenses to Colorado’s DUI and DWAI charges can be complicated and must be tailored to the specific circumstances of each case. However, there are several potential defenses arising from Colorado law that might serve well as part of the defense strategy that you and our DUI lawyers construct on your behalf. These are a few that we may feel are worth considering.

Challenging The Initial Traffic Stop

Law enforcement must have reasonable suspicion or probable cause to make a traffic stop. If your attorney can prove that there was no valid reason for the traffic stop, all evidence obtained after the stop may be suppressed.

Challenging The Accuracy And Reliability Of BAC Tests

The statute permits defendants to present evidence questioning the accuracy and reliability of breath, blood, or urine tests. This could involve disputing the calibration of testing devices, the training and competency of the person conducting a chemical test, or the handling and storage of samples. It’s worth noting that both false positives and false negatives are possible outcomes of such tests.

Challenging Observations Of Impairment

Law enforcement officers often rely on observations of a driver’s behavior (such as slurred speech, red or glassy eyes, or a lack of coordination) to establish impairment. However, these observations can be influenced by factors unrelated to substance use, such as fatigue, allergies, or medical conditions.

Questioning The “Driving” Element

If law enforcement did not actually observe you driving or in control of the vehicle, it may be possible to challenge whether you were actually “driving” under the definitions provided in the statute.

Questioning The Impairment Standard For DWAI

The DWAI charge is applied when an individual’s ability to drive is impaired to the “slightest degree” because they consumed alcohol, drugs, or a combination of both. This is a subjective standard and leaves room for defense. Your attorney might argue that the evidence does not establish that your driving ability was impaired to even the “slightest degree.”

Medical Marijuana Or Prescribed Medications Defense

If you’re legally using medical marijuana or other prescribed medications, while it does not give you a defense against DUI or DWAI charges, it could potentially influence the court’s perspective on your knowledge and intentions, particularly in relation to the strict liability aspect of these charges.

Lack Of Knowledge

If you unknowingly consumed a substance – for instance, if someone spiked your drink or you took a medication without understanding its effects – this could potentially be used as a defense.

Challenging DUI Per Se Charges And The Role Of Blood Alcohol Content

When charged with DUI per se, which means driving with an excessive alcohol content, you have the right to present evidence to challenge the accuracy of any tests showing your Blood Alcohol Content (BAC). For instance, if the tests showed high BAC but there were no visible signs of intoxication, such facts can be used to suggest the tests may have been defective or inaccurate.

BAC plays a significant role in DUI and DWAI cases.

  • If you’re under 21, driving with a BAC of 0.02 to 0.05 can lead to a Class A traffic infraction, with penalties potentially including public service and an alcohol education program.
  • Any additional violation escalates to a Class 2 traffic misdemeanor.
  • If your BAC is 0.08 or higher, it is inferred that you were under the influence of alcohol.
  • Similarly, if your blood contains five nanograms or more of delta 9-tetrahydrocannabinol (THC, the active component of marijuana) per milliliter, it is inferred that you were under the influence of drugs.

Understanding Strict Liability Offenses And Plea Restrictions

DUI and DWAI are considered offenses subject to strict liability, meaning you can be convicted based solely on the act of driving under the influence, regardless of your intentions or knowledge about your level of impairment. If you’re charged with DUI or BAC-related DUI per se, the court typically will not accept a guilty plea to a traffic offense that is not related to the consumption of alcohol or drugs, unless the prosecutor believes they cannot establish a DUI case at trial.

How Multiple Charges And Sentences Work

If you’re charged with both DUI generally and DUI per se specifically, the court will not require the prosecutor to choose one or the other. You could potentially be convicted of both, although any sentences would run concurrently, not consecutively. As a result of the truly high stakes of this situation, you’ll want to consult with a skilled DUI attorney as soon as you possibly can after being arrested to better ensure that your interests remain protected as you move forward.

Prior Convictions And Their Influence On Current Charges

If you have prior convictions for DUI, DUI per se, or DWAI, it can affect your current case. This applies to not just convictions under Colorado law, but also those in other states, those prosecuted at the federal level, and those prosecuted in U.S. territories. Prior convictions can even include offenses such as vehicular homicide or vehicular assault.

The Significance Of Testing Procedures And Admissibility Of Results

The court takes notice of the methods of testing a person’s alcohol or drug level and the design and operation of testing devices. If you refuse to take or complete any test, that refusal is admissible evidence at trial, and could potentially harm your defense. Involuntary blood tests can also be used as evidence, as can the results of a preliminary alcohol screening test if you were given the opportunity to refuse.

However, noncompliance with statutory and regulatory testing protocols does not automatically make the results inadmissible. The court assesses the extent of the noncompliance, the reasons behind it, and the potential effects on the results’ reliability, accuracy, and fairness.

Colorado’s legal framework concerning implied consent is encapsulated in the CO Code § 42-4-1301.1.

Consent For Tests

By driving in Colorado, you’re considered to have given your consent for breath or blood tests if a law enforcement officer suspects you of DUI. These tests determine your blood or breath alcohol content.

Choosing Breath Or Blood Test

If you’re 21 or older and accused of DUI, you can choose whether to take a blood or breath test. If you’re under 21, you’re entitled to request a blood test, unless the alleged violation is Underage Drinking and Driving (UDD), in which case a breath test is mandatory.

Change Of Test Type And Test Timing

Once you’ve elected either a blood or breath test, you can’t change your choice unless extraordinary circumstances exist – like weather-related delays or malfunctioning breath test equipment. These tests must be completed within two hours of driving.

Failing To Cooperate Is Considered Refusal

If you don’t cooperate in completing the selected test, it’s considered a refusal to submit to testing. Refusing the test can lead to legal consequences.

Tests In Case Of Injuries Or Illness

If you’re unable to complete a breath test due to injuries, illness, or receiving treatment at a location without certified breath testing equipment, a blood test will be administered.

Drug Content Testing

If a law enforcement officer has probable cause to believe you were driving under the influence of drugs, you must submit to blood, saliva, or urine tests.

Consent For Specimen Withdrawal

You’re required to cooperate with the person obtaining the specimens, including signing any necessary consent forms. Failure to do so is considered a refusal to submit to testing.

Testing Unconscious Or Deceased Drivers

Unconscious or deceased individuals will be tested to determine their blood alcohol or drug content.

Commercial Drivers

If you’re a commercial driver, refusing to submit to a test can lead to a 24-hour out-of-service order and a one-year revocation of your commercial driving privileges.

How Law Enforcement Can Stop You For DUI

When navigating through the complicated language of legal statutes, it can be challenging to understand your rights and obligations. Let’s break down CO Code § 42-4-1302 into everyday language, so you know what it means, particularly if you are facing a DUI charge.

Reasonable Suspicion

Under this Colorado law, a police officer has the authority to stop you if they reasonably suspect that you’re violating the state’s DUI laws. This suspicion could be based on anything from erratic driving behavior to the smell of alcohol. During this stop, the officer can ask for your name and address, and you’re obligated to give an explanation of your actions.

However, it’s essential to note that this “stop” by law enforcement does not automatically mean you are under arrest. The stop is a way for the officer to gather more information and make a judgment call about whether a violation has occurred.

Alcohol And Drug Driving Safety Program

If you’ve been charged with a DUI in Colorado under CO Code § 42-4-1301, the law requires a court to consider an alcohol and drug evaluation prior to sentencing, unless there are no prior convictions, charges pending, or if there’s an agreement between the prosecution and the defendant. This means the court might sentence you immediately, without considering this evaluation.

If sentenced immediately, the evaluation happens afterwards. The court then orders you to follow the recommended treatment or educational program based on the evaluation’s results. If you disagree with the recommendation, you can request a hearing to discuss the appropriate program for you.

Every district in Colorado has a program that offers both presentence and post-sentence alcohol and drug evaluations for those convicted of a DUI. These evaluations are conducted by trained professionals and provide detailed reports on your previous traffic records, alcohol or drug history, potential for rehabilitation, and suitable alcohol and drug safety education or treatment recommendations.

Treatment And Education Programs

The Alcohol and Drug Driving Safety Program offers Level I and Level II education or treatment programs. Level I programs focus on education, while Level II programs provide therapeutic education, long-term outpatient, and residential treatment.

What If I’m Not A Colorado Resident?

If you’re not a Colorado resident at the time of sentencing, the requirements of the Alcohol and Drug Driving Safety Program don’t apply. However, the program can offer services to you if you live in a different judicial district or closer to another district’s program.

Note On Diversion Or Deferred Sentencing

If you receive a diversion or deferred sentence, you’re still subject to these procedures. The court will order the completion of an alcohol evaluation or a Level I or Level II program as per the conditions of your agreement with the prosecution.

Understanding Colorado’s Open Container Laws: What You Need To Know

In Colorado, according to CO Code § 42-4-1305 (2022), you are not allowed to have an open container of alcohol in the passenger area of your vehicle while on public roads. The passenger area is where the driver and any passengers sit, or any space that’s easily reachable from these seats. The law defines an open container as a bottle, can, or any other type of container that’s either open or has a broken seal, or from which some of the alcohol has been removed.

However, there are certain exceptions to this rule. If you’re a passenger (but not the driver or a passenger in the front seat) in a vehicle that is primarily used to transport people for pay, you can have an open alcoholic beverage container. This exception also applies if you’re in the living area of a motorhome or trailer, behind the last upright seat in a vehicle without a trunk, or in a space that isn’t normally occupied by the driver or passengers in a vehicle without a trunk.

Breaking this law is considered a Class A traffic infraction. The penalty for this infraction is a $50 fine. Moreover, those under 21 who get caught with alcohol in their car can have their license revoked.


What’s The Difference Between DUI And DWAI In Colorado?

DUI stands for Driving Under the Influence and DWAI stands for Driving While Ability Impaired. A DUI is charged when a driver’s blood alcohol content (BAC) is 0.08% or higher or if one’s mental or physical abilities are substantially incapable due to alcohol, drugs, or both. DWAI is charged when a driver’s BAC is more than 0.05% but less than 0.08% or if one’s mental or physical abilities are impaired in any way due to alcohol, drugs, or both.

Is There A Legal Limit For Drug Impairment In Colorado?

Yes, for marijuana, there’s a legal limit of 5 nanograms of delta 9-tetrahydrocannabinol (THC) per milliliter of blood. For other drugs, impairment is determined based on the arresting officer’s observations and possibly the results of a blood or urine test.

Can I Refuse To Take A BAC Test In Colorado?

Yes, you can refuse to take a BAC test in Colorado, but refusal carries immediate penalties such as the suspension of your driver’s license, and it can be used against you in court.

What Are The Penalties For DUI And DWAI In Colorado?

Penalties can vary depending on whether it’s your first offense or a repeat offense, and the specifics of the case. Generally, penalties can include fines, license suspension, mandatory public service, alcohol education classes, and possibly jail time.

What If I Have A Prescription For The Drugs In My System?

Having a valid prescription does not necessarily exempt you from a DUI or DWAI charge. If the drugs in your system impaired your ability to drive, you could still potentially face charges.

What If I Was Sitting In A Parked Car While Intoxicated? Can I Still Be Charged With DUI Or DWAI?

Yes, you can still be charged if you are in actual physical control of a vehicle while impaired, even if the vehicle is not moving. The court will consider factors such as whether the keys were in the ignition, whether the vehicle was running, and your location in the vehicle.

Can A DUI Or DWAI Charge Be Dismissed Or Reduced?

Depending on the circumstances, it may be possible to have a DUI or DWAI charge dismissed or reduced. Our DUI attorneys can review your case and advise you on possible defenses or plea options.

Colorado DUI Lawyers

Facing a DUI charge or other alcohol-related driving offenses in Boulder or elsewhere in Colorado can be daunting. Don’t navigate this complex legal landscape alone. The Moorhead Law Group, with our deep knowledge of criminal defense law, is here to help you. Our committed team is dedicated to ensuring your rights are protected and your case is handled with the care and precision it deserves. Don’t wait, every moment matters. Contact our reputable criminal defense lawyers at (303) 447-1400 or reach out to us online immediately. You are not alone in this fight. Let us stand with you, advocate for you, and pursue the best possible outcome for your case. Trust in our experience and let us guide you through these challenging times.

Learn more about criminal laws in Colorado.