DUI Charge in Colorado If BAC Is Under 0.08 Percent?

Categories: DUI Defense


As a licensed driver in the state of Colorado, you know that it is illegal to drive with a blood alcohol content (BAC) of more than 0.08 percent. But, did you also know that you may be arrested for and successfully convicted of a DUI, even if your BAC is below that threshold?

Colorado law prohibits anyone from driving while under the influence. This, however, also implies that a driver cannot be impaired in the slightest. If, at the time of the commission of your alleged DUI event, or within a reasonable time after you have been arrested, your BAC exceeds the cut off of 0.05 percent, but is less than 0.08 percent, law enforcement can assume that you were reasonably impaired.

So, yes. A person can be charged with Driving While Abilities are Impaired (DWAI) if his or her BAC is under 0.08 percent.

Appearance of Impairment Rules

At the 0.05 percent BAC mark, the law presumes that you are impaired, while at 0.08 percent, you are considered under the influence. This doesn’t mean, however, that you aren’t going to be arrested. Even if you have a lower BAC, the police can place you under arrest as long as they have probable cause to suspect that you are driving while impaired.

In this case, the prosecutor wouldn’t rely on the BAC as evidence. Instead, he or she would rely on the arresting officer’s testimony about your level of impairment and ability to drive safely. This testimony could include statements about your:

  • Eyes – Were they bloodshot or reddened?
  • Speech – Was it slurred?
  • Odor – Did you smell like alcohol?
  • Behavior – Was it erratic? Could you not control your temper?
  • Performance on Sobriety Tests – Did you fail the field sobriety test?

Administrative Penalties

Even if you are not convicted for a DUI with a BAC under 0.08 percent, you may face administrative penalties in accordance with Colorado Revised Statute Section 42-2-125. The Department of Motor Vehicles is allowed to suspend the driver’s license of any motorist under the age of 21 who has a BAC of 0.02 to 0.05 percent. The suspension includes three months for a first-time offender, six months for the second offense, and one year for the third offense. Also, four points will be added to the driver’s license for each offense.

Speak With an Attorney Regarding Your Potential DUI

If you have been arrested for a DUI and your BAC is under the legal limit of 0.08 percent, you have options. Your attorney may be able to create a strategy that disproves the officer’s testimony, since the prosecution is relying solely on their reports.

To avoid the administrative penalties and potential jail time, contact attorney Mark S. Rubinstein, P.C. now to discuss your case. Schedule a consultation at 970-704-0888 or request more information online.

Mark Rubinstein

Attorney Mark S. Rubinstein has been practicing law for more than 30 years, including 25 years in Colorado. He founded Mark S. Rubinstein, P.C., in Carbondale after working for law firms in Denver and earlier in his career in San Diego. He focuses his practice in the areas of criminal defense and personal injury representation, and he is well known throughout western Colorado as an effective and unwavering advocate for his clients.