Unless a person is under 21, there are three DUI-type charges in Colorado: DUI, DUI per se, and the lesser-included DWAI. A person under 21 will be charged with these as well, but also would be charged with UDD with a BAC of .02 to .05.
Driving Under the Influence (DUI)
It is illegal to operate a vehicle when you are substantially incapable of safely doing to, either mentally or physically, due to the consumption of alcohol, drugs, or both. This includes marijuana and prescription medications, regardless of whether they are prescribed. Driving is defined as “actual physical control,” and can include situations where a person did not actually drive a car on a road.
Driving While Ability Impaired (DWAI)
is a lesser included offense to DUI. DWAI is defined by Colorado law as “driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able then the person ordinarily would have been, either mentally, or physically, or both mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a motor vehicle.” While a blood or breath test is not required to prove DUI or DWAI, the legal inference for DWAI is a breath or blood alcohol concentration of .051 to .079.
DUI per se
or otherwise called Driving With Excessive Alcohol Content, is charged when a person takes a breath or blood test with a result of .08 or more at the time of driving, or within 2-hours after driving. A person cannot be charged with DUI per se if he or she refused a test, and a person can be convicted of both DUI and DUI per se, or DWAI and DUI per se.
Underage Drinking and Driving (UDD)
is charged when a person under 21 years of age drives a vehicle with a BAC of .02 to .05. if a person under 21 has a BAC of .051 or more, he or she would be charged with DUI (.08 or more) or DWAI (.051 or more), instead of UDD.
In order to be convicted of DUI, a person must be driving a vehicle or in “actual physical control” of a vehicle. Colorado DUI law says that “actual physical control” exists when a person exercises “bodily influence or direction over a motor vehicle.” Case law provides that factors that may be considered would be: (1) where the vehicle was found; (2) where in the vehicle the person was found; (3) whether or not the keys were in the ignition; (4) whether or not the motor was running; and (5) any other factor that tends to indicate that the expression exercised bodily influence or direction over the vehicle.