Most of us have heard of DUI charges and understand them to mean “driving under the influence” of drugs or alcohol. Most drivers know that when an officer suspects a driver of DUI, they request a breath test and look for a blood alcohol content (BAC) of .08% or higher. In Colorado, if a driver scores .08% BAC or higher, they are considered guilty of DUI per se. But what is that, exactly?
Alcohol affects people differently. Depending on your size and how accustomed your body is to handling alcohol, you might become impaired at .05% BAC or not be actually impaired until your BAC is far higher. The Colorado legislature decided to draw a bright line in the sand to compensate for this discrepancy. Therefore, if your BAC is over .08%, you can be charged and convicted of DUI even if that level of alcohol did not impair your driving ability.
But what about the flip side of that argument? That is where DUI slightest degree, or driving while ability impaired (DWAI), enters the picture.
What Is DUI Slightest Degree?
Essentially, Colorado Revised Statute 42-4-1301 (1)(g) makes it illegal to drive while even slightly impaired. So if you drive when your BAC is between .05% and .08%, and this causes even minor impairment, you may be guilty of DUI in the slightest degree.
Unlike DUI charges that do not require actual impairment, but only a BAC of over .08%, DWAI charges do require proof of actual impairment. Therefore, if your BAC is above .05% but below .08%, that fact allows a judge or jury to infer you drove while slightly impaired. However, when you combine this with other competent evidence, it can either strengthen or weaken that presumption. In other words, you can present evidence that tends to show no impairment at the time. Just as the prosecution will attempt to introduce evidence that supports impairment, you can present evidence that supports lack of actual impairment in such cases.
Breath Test Refusals
Since even a small increase in your BAC can result in charges of DWAI, some people may think that refusing the breath test is a smart move. But that line of thinking is extremely unwise. When the government issues you a driver license in Colorado, it assumes that you will honor your driving privilege by submitting to a breath test if requested by law enforcement. If you refuse a breath test, there are significant repercussions, including:
- An automatic one-year suspension of driving privileges;
- Classification as a “persistent drunk driver,” even if this is your first DUI, DWAI, or related charge;
- Mandatory use of an interlock device for one year after the reinstatement of driving privileges;
- Mandatory participation in an alcohol and drug education and treatment program; and
- Increased insurance requirements.
Usually, the law reserves this designation for repeat DUI offenders, but a refusal to submit to a breath test gets the same result.
Penalties for Being Impaired to the Slightest Degree
A DWAI charge is indeed less serious than a DUI. That is the good news. However, there are still consequences you should be aware of. The first thing to know is that when classifying the number of offenses, the law treats DWAIs and DUIs equally. In other words, if you have one DWAI and one DUI, the law considers you a two-time offender. As you can see from the list below, racking up impairment-related driving offenses can dramatically affect your life.
A first-time offender can receive any or all of the following penalties: from 2-180 days in jail, a fine ranging from $200-$500, 24-48 hours of community service, and up to eight points on your driving record.
A second offense carries a 10-day mandatory jail sentence that the judge can increase to up to one year. The fine for a second offense becomes $600-$1,500, and community service increases to 48-120 hours. You also receive a one-year license revocation and eight points on your driving record.
Your third offense carries a 60-day mandatory jail sentence which the judge can increase up to a full year. It also carries some of the same penalties as a second offense: a $600-$1,500 fine, 48-120 hours of community service, and eight more points on your driving record. However, the license revocation increases to two years.
Your fourth offense is the time where a DUI or a DWAI can become a class four felony. So after three or more convictions for any impairment-related driving offense, you can receive a fine of $2,000-$500,000, two to six years in state prison, three years mandatory parole, and a two-year suspension of your driving privileges.
Fighting the Charges
It’s hard to imagine that such harsh penalties can result from an officer suspecting you of being impaired to the slightest degree. But this is the law in Colorado. So how do you fight such charges?
There are a variety of strategies available if the state has charged you with DWAI. Here are just a few:
- You were on a medication that did not cause impairment but did cause an elevated BAC reading;
- The state made errors in giving the breath or blood test;
- The breath or blood test was inaccurate or unreliable for some reason;
- The officer had no probable cause to stop you;
- Your BAC was lower than .05%; or
- The officer arrested you based solely on possession of a medical marijuana card.
These and other defenses may be available to you.
We’re Here to Fight for You!
Only an experienced DUI or DWAI legal practitioner can look at the facts and make an accurate assessment of the strengths and weaknesses of your case. The lawyer at Mark S. Rubinstein, P.C., are highly seasoned professionals who have seen it all when it comes to DUI and DWAI charges in Colorado. We know how to fight, and our number one priority is protecting your rights every step of the way. So if you are arrested for DUI, give our attorney at our office a call or contact us online today.