Our Blogs

In most states, being charged with driving under the influence (DUI) is a serious offense – and Colorado is no different. There have been changes to the DUI laws in the state over the years, but the outcome remains as harsh as ever if you are found guilty.

It is completely understandable why. According to the Colorado State Patrol, one of the top causes of auto accidents involving injuries and fatalities is impaired driving. On top of this, our state ranks near the top in the U.S. for states with the highest drunk driving rates. Worst of all, the problem is one that seems to be getting worse — even as much of the rest of the country improves:

Alcohol-Impaired Driving Fatality Data Source: NHTSA/FARS, 11/2019

Understanding DUI laws in Colorado is essential to help you understand how to navigate them, as well as what your rights are and what you can do if you’re arrested.

Here is your comprehensive guide to DUI laws in Colorado.

DUI and DWAI Laws in Colorado

The offense of driving under the influence in Colorado isn’t simply one type of charge. The state divides impaired driving offenses into two separate categories: DUI and DWAI.

DWAI stands for driving while ability impaired. DUI, driving under the influence, is further separated into two distinct categories, a DUI and a DUI Per Se.

DUI

A DUI is simply driving “a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs.”

As defined in the same statute:

“(f) ’Driving under the influence’ means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”

Nowhere in there does it say that you need to have a specific blood alcohol level to be charged with this crime.

DUI Per Se

In order to be charged with a DUI per se, you need to have a test that shows your blood alcohol content (BAC) is above the legal limit of 0.08. This is regardless of whether you were displaying impaired driving or not.

If you are charged with a DUI per se, then prosecutors will have to prove in court that your blood alcohol levels exceeded the legal limit while you were driving or within two hours after driving. This means that breath and blood tests become incredibly important.

DWAI

A DWAI occurs in Colorado when someone over age 21 has a minimum blood alcohol level of 0.05 percent but is less than 0.08 percent. If under 21, a blood alcohol level of 0.02 percent qualifies as a DWAI.

It’s important to note that under the law, you can also be charged with and convicted of a DUI or DWAI if you are under the influence of drugs. The law defines drugs as “controlled substances,” and includes things such as prescription drugs, illegal drugs, toxic vapors, inhaled glue, and aerosol.

What About Marijuana?

In Colorado, marijuana is legal. However, it is still a crime to operate a vehicle when you are under the influence of marijuana. The penalties for a marijuana DUI are basically the same as an alcohol DUI.

The regular DUI and DWAI laws apply for marijuana — it does not have a separate code under the law. The only significant difference lies in the fact that there is no legal limit for marijuana consumption while operating a vehicle. However:

“(IV) If at such time the driver’s blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant’s blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.”

Because of this, if an officer suspects you are high on marijuana, they can request you take a DUI blood, urine, or saliva test instead of the traditional DUI breath test.

Colorado Drinking and Driving Laws

There are a few laws on the books in Colorado that specifically outline driving under the influence. They are:

Zero Tolerance Law

This is a rule that applies to drivers who are not yet of legal drinking age (21). Those under 21 with blood alcohol levels of between 0.02 percent and 0.08 percent who are operating a vehicle will have their license revoked.

Express Consent Law

In Colorado, choosing to operate a motor vehicle means that you are automatically giving your consent to be tested by blood, breath, or urine by the police if you are pulled over. Anyone who refuses to take one of these tests will have their driver’s license revoked for a period of one year.

Buy and Possess Law

Anyone under the age of 21 who buys alcohol or has it under their possession will have their driver’s license revoked, even if they are not driving when they are caught with the alcohol.

What If You Get Arrested?

If you are pulled over while operating a vehicle and the police suspect you are under the influence of drugs or alcohol, typically this is what happens:

• You will be asked to take a chemical test, usually a breath test, to determine if you are over the legal limit. If you refuse, you can have your license revoked.
• If you are taken into custody, your car will be impounded.
• The police will take you to jail.

Generally speaking, it is a good idea to always follow the instructions of the police officer who pulls you over. Resisting them will likely only make the situation worse for you — and potentially add more criminal charges to the situation.

That being said, you do have rights, and it is important to be aware of them. Two very important things to remember:

You have the right to remain silent

While you are required to hand over your license and registration and tell the officer your name and contact information, that’s it. You are not required to tell them where you are coming from, what you did in the hours leading up to them pulling you over, or anything else.

This is important, because it is quite possible to incriminate yourself by offering information that you do not have to.

You do not have to submit to Field Sobriety Tests

These are the tests that you commonly see in movies and TV shows where people are made to do things like walk in a straight line, count backwards, and so on. In Colorado, you are not required to submit to them — and you shouldn’t.

Why? Because Field Sobriety Tests are completely subjective, meaning the officer administering them is in total control of whether you pass or fail. In other words, there is little incentive to do them, but taking and “failing” the tests can and will be used as evidence against you. It simply isn’t worth it.

If You’re Charged

If you are arrested, you should contact a DUI attorney as soon as possible to help. Once you are taken into police custody, you may be charged with a DUI or DWAI.

If you refuse a chemical test, then your driver’s license is automatically suspended. However, you can request an express consent hearing. These hearings are conducted at the DMV and must be requested within seven days of your arrest. The hearing itself will take place within 60 days and offers you the chance to get your driver’s license back.

If you are charged with a DUI due to the results of a chemical test, then you will receive a citation or summons for an arraignment hearing. At this hearing, the judge will explain the charges against you and the punishments you may face if convicted. This hearing should not be missed. Otherwise, a warrant will be issued for your arrest.

After the arraignment hearing, your lawyer will enter into pretrial negotiations on your behalf to go over your case. During these conferences, your attorney may be able to work out a plea deal with the prosecution. If not, then you will move on to the trial, where your case will be heard and a judge or jury will decide your innocence or guilt.

DUI Penalties in Colorado

The penalties for a DUI and a DUI per se are the same. They are broken down by the number of DUI offenses you have had.

First DUI or DUI Per Se Offense

A first-time DUI or DUI per se is considered a misdemeanor. It can be punished by:

• A minimum of five days or up to 12 months in jail
• As much as $1,000 in fines
• As much as 96 hours of community service
• Suspension of your license for nine months

If you had a blood-alcohol level of 0.15 percent, then even a first offense will label you as a persistent drunk driver. The sentencing for this offense is the same as for repeat DUI offenders.

Second DUI or DUI Per Se

A second DUI or DUI per se is also a misdemeanor offense, but it has more severe penalties associated with it than a first-time DUI. The penalties are:

• A minimum of 10 days or up to 12 months in jail
• Fines of as much as $1,500
• As much as 120 hours of community service
• Suspension of a driver’s license for one year
• The installation of an ignition interlock device for two years

Third DUI or DUI Per Se

This is another misdemeanor offense. It is punished by:

• A minimum of 60 days to 12 months in jail
• Fines of as much as $1,500
• Up to 120 hours of community service
• Suspension of your license for two years
• The installation of an ignition interlock device for two years

Fourth DUI or DUI Per Se (Or More)

For a fourth or more DUI, you are charged with a Class 4 felony. The penalties for this level of offense include:

• As many as six years in state prison with three years of parole
• Fines of as much as $500,000
• Suspension of driver’s license for two years

If there are aggravating circumstances involved, such as bodily injury to another due to the DUI, then the defendant can be sentenced to up to 12 years in prison.

It’s important to note that a fourth DUI or DUI per se is considered a felony even if no one was harmed as a result. You should also note that it doesn’t matter how long ago the previous convictions took place.

There is no period of time where those prior convictions are washed away and won’t come to bear on the fourth infraction. Furthermore, it doesn’t matter if your previous DUIs occurred in Colorado or not. They can occur in any other state and still be counted against you.

DWAI Penalties in Colorado

The DWAI penalties in Colorado follow the same format as DUI penalties. The severity of the penalties you face depends on how many times you’ve been convicted of a DWAI before.

First DWAI

This is a misdemeanor offense. It is punishable by:

• A minimum of two days in jail to up to six months in jail
• Fines of as much as $500
• Up to 48 hours of community service
• 8 DMV Points

Second DWAI

This is a misdemeanor. It is punishable by:

• A minimum of 10 days to as much as 12 months in jail
• Up to 120 hours of community service
• 8 DMV points
• Suspension of your driver’s license for up to 12 months

Third DWAI

This is a misdemeanor charge that is punishable by:

• A minimum of 60 days in jail to as much as 12 months in jail
• Fines of as much as $1,500
• Up to 120 hours of community service
• 8 DMV points
• License suspension for two years

Fourth DWAI

A Class 4 felony, this is punishable by:

• A minimum of two years and a maximum of six years in prison
• Fines of as much as $500,000
• License suspension for two years

Colorado DMV Point System

DMV points are a system used in Colorado to track demerits against your license. If you are over age 21, then 12 points or more accumulated against your license in one year or 18 or more points in a period of 24 months will result in a suspension of your license.

To have your license reinstated, you must go through a DMV point hearing. This hearing can occur in person or over the phone.

The presiding officer of the hearing will decide after evidence has been heard from both the defense and prosecution if your license is to be suspended or not. If you fail to attend your hearing, then your license is suspended automatically for one year.

DUI Penalties for Causing Serious Injury or Death

Two felonies can be charged if a DUI results in the serious injury or death of another:

Vehicular Assault

This occurs when someone drives recklessly or operates a vehicle while under the influence of drugs or alcohol. There does not need to be intent on the part of the defendant to hurt someone. All that matters is that their actions caused serious injury to another.

Vehicular assault is a Class 4 felony. It is punishable by as much as six years in prison and fines of as much as $500,000.

Vehicular Homicide

This occurs when someone operates a motor vehicle recklessly or while they are under the influence of drugs or alcohol and cause the death of another person.

Vehicular homicide is a Class 3 felony, punishable by as many as 12 years in prison and fines of as much as $750,000.

Can Colorado DUI / DWAI Convictions Be Sealed?

If you are found guilty of a DUI or DWAI in Colorado, these convictions can never be sealed under state law. If the charges against you are dismissed, however, they can be sealed. Moreover, your attorney may petition the court to do this right away. The only exception to this is if the case is dismissed due to a deferred judgment.

In any situation, DUI is a serious charge with severe consequences. A conviction can impact your life in a variety of ways for years to come. You must understand the charge against you so that you and your attorney can prepare the best defense possible against the charges and allow you to reclaim your life.

About the Author:

Andrew Bryant is a well-respected Colorado Springs criminal attorney who has been practicing in the area for years. A Colorado native, he returned to the home he loves after graduating from the University of Kentucky College of Law. Now, he uses the knowledge he gained as an El Paso County District Attorney to fight tirelessly for his clients’ rights. He is AV-Preeminent rated, has been recognized for his work by The National Trial Lawyers, and has been named to Best of the Springs lists by The Gazette for years.