There are two main DUI charges in Colorado, as well as one lesser-included offense of DUI. All are misdemeanors, and all are serious and could include sentencing options such as jail, probation, and large court fines.
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. C.R.S. § 42-4-1301(1)(a), (1)(f). (emphasis added).
A prosecutor is not required to prove your BAC for you to be found guilty of DUI.
Driving While Ability Impaired means: driving a motor vehicle or 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 than the person ordinarily would have been, 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. C.R.S. § 42-4-1301(1)(b), (1)(g) (emphasis added).
DWAI is a “lesser-included offense” of DUI. This means that if your case goes to trial, and the jury finds you not guilty of DUI, they may then consider this lesser included offense of DWAI. You cannot be convicted of both DUI and DWAI.
Driving with Excessive Alcohol Content (DUI per se) occurs when a person drives with a blood alcohol content (BAC) at or above 0.08 at the time of driving or within two hours after driving. C.R.S. § 42-4-1301(2)(a). This is a completely separate and independent charge from DUI and DWAI. To win a DUI per se trial, the district attorney must prove that your breath or blood alcohol content (BAC) result was .08 grams or more of alcohol per one hundred milliliters of blood or 210 liters of breath within two hours of driving. This is distinctive from DUI, where the government must prove that the alcohol consumption made you less safe than you would have been otherwise been to drive due to alcohol or drug consumption. If you refused the chemical test, the prosecutor cannot charge you with DUI per se.
Because DUI and DUI per se have different elements, you can be charged with both. For instance, if you took a breath test after you were arrested, and your BAC result was .081, you will be charged with both DUI and DUI per se. If the results of your blood test are .08 or more, the district attorney’s office will file a motion to add the DUI per se charge before trial.
The sentences for both DUI and DUI per se must run concurrently. Being convicted of both DUI and DUI per se would equate to one DUI conviction, except that you will be assessed 12 points for each conviction on your driving record. There is no difference in the possible sentences for being convicted of one or both DUI charges.
As you can see, DUI charges in Colorado are complicated, which is why DUI lawyers specialize in this area. If you have been charged with driving under the influence or one of the other DUI crimes discussed above, contact an experienced DUI defense attorney today.