Driving under the influence (DUI) or driving while ability impaired (DWAI) are the offenses of operating a vehicle while affected by alcohol, drugs, or a combination of both, and this prevents safe operation of a vehicle. It’s important to know the difference between being charged with DUI vs. DWAI in Denver, and how that affects your options for a defense.
The Difference Between DWAI and DUI Charges
Both DWAI and DUI offenses can be charged when drugs or alcohol impact someone’s mental and/or physical ability to have physical control, good judgment, and due care to drive a vehicle safely.
The primary difference is that a DUI is charged when this effect makes someone substantially incapable of driving safely, while a DWAI is charged when the effect is slight but makes a person less capable than they normally would be.
A DUI per se is charged when a person has a blood alcohol concentration (BAC) of 0.08% or higher, either at a traffic stop or within two hours of driving.
DUI and DWAI Penalties for a First Offense
A DUI, a DUI per se, and a DWAI offense are misdemeanors for a first offense. However, these misdemeanors do not carry the same penalties.
A DWAI conviction can result in:
- Up to 180 days in jail
- A mandatory minimum of two days in jail, suspended if an alcohol or drug evaluation is completed and any financial obligations are met
- A fine of $200 to $500
- Between 24 hours and 48 hours of public service
- Up to two years of probation
A DUI or DUI per se conviction can result in:
- Up to one year in jail
- A mandatory minimum of five days in jail, suspended only for drug evaluation and met financial obligations
- A fine of $600 to $1,000
- Between 48 hours and 96 hours of public service
- Up to two years of probation
If you were charged for a DWAI or DUI offense with a BAC of 0.20% or higher, there is a mandatory minimum sentence of 10 days in jail.
DUI and DWAI Subsequent Offenses
A DUI or DWAI offense can be charged more harshly when you have a prior conviction of any of the following:
- DWAI
- DUI or DUI per se
- Aggravated driving on a revoked license
- Driving with a restrained license
- Vehicular homicide
- Vehicular assault
Conviction of a second or third offense of a DUI or DWAI results in the same penalties. A second offense can result in ten days to one year in jail, while a third offense can lead to 60 days to a year in jail. Both offenses can also result in $600 to $1,500 in fines and probation for a minimum of two years.
DUI and DWAI Felony Penalties
Both DUI and DWAI offenses become felonies when you have three or more prior convictions, or when you have a prior conviction for vehicular homicide or vehicular assault. It is charged as a Class 4 felony, which carries between two and six years of imprisonment and a fine of between $2,000 and $500,000. The offense also requires two years of probation, and for DUI or DWAI offenses, the court can require time in jail as part of probation conditions.
What Is the Difference Between a DUI and DWAI Defense?
Whether you are charged with a DUI or DWAI affects not only your penalties but your options for a criminal defense. There are several defense options that apply to both DUI and DWAI offenses, like challenging the traffic stop or determining if there were errors during the chemical test. However, a DWAI defense can argue whether there was actually slight impairment that affected your driving.
Colorado courts are not allowed to accept guilty pleas for charges unrelated to drugs or alcohol in most cases after a person has been charged with a DUI or DUI per se offense, but this requirement is not placed on DWAI offenses.
FAQs
Is a DWAI Offense Better Than a DUI Offense in Colorado?
A DWAI offense is generally better than a DUI offense in Colorado, particularly for a first offense. Although both are serious criminal offenses, a DWAI has less serious penalties associated with a non-aggravated first offense. For example, a DUI offense carries five days to one year in jail, while a DWAI offense carries two days to 180 days in jail. However, for repeat or aggravated offenses, penalties for a DUI or DWAI offense are the same.
How Often Do DUI Cases Get Dismissed?
DUI cases can get dismissed, but it depends on your specific case. You are more likely to get a DUI case dismissed when you work with an experienced DUI defense attorney. Dismissal may be possible by challenging the traffic stop’s probable cause, the blood or breath test results, and other factors of the arrest. If the prosecution cannot meet the burden of proof, the case may be dismissed.
Is DWAI in Colorado a Felony?
In general, DWAI in Colorado is a misdemeanor. However, it can become a felony in aggravating circumstances. This includes if there have been at least three prior DWAI or DUI convictions from separate offenses. It also includes if the offense is charged as vehicular homicide or vehicular assault. Both felony and misdemeanor charges can have serious consequences on your ability to drive, your freedom, and your future.
When Should You Hire a DUI Lawyer in Denver?
You should hire a skilled DUI lawyer in Denver as soon as possible after you are arrested for or charged with a DUI or DWAI offense. With early action, an attorney can begin protecting your rights immediately throughout the arrest and investigation. They may also be able to protect your license. You should not assume a DUI arrest means you will be convicted. An attorney could help you avoid conviction and protect your driving privileges.
Blackley & Wingad: Dedicated Denver DUI Attorney
There were 838 people arrested for DUI offenses in Denver County in 2025. Three hundred fourteen of these arrestees were ages 25 to 34. There were 160 people arrested for a DUI offense in the same year in vehicle crashes in the city of Denver.
If you have been charged with a DUI or DWAI offense in Denver, the attorneys at Blackley & Wingad offer aggressive, trial-ready defense based on decades of experience. We have experience in the 2nd Judicial District. Contact our firm today.
