What Is the Difference Between DUI, DUI per se, and DWAI?
DUI stands for Driving Under the Influence of Alcohol. It says that a driver was substantially incapable of driving a vehicle safely. If a driver has a blood alcohol content of 0.080 or higher, the jury may infer that the driver was substantially incapable of operating a vehicle safely. This is a permissive inference. Colorado does not permit presumptions of guilt in criminal cases.
DUI per se, says that a driver had a blood alcohol content of 0.080 or higher within two hours of driving. It says nothing about the individual driver’s degree of impairment, just that the blood alcohol was a particular level within two hours of “actual physical control” of a vehicle.
DWAI stands for Driving While Ability Impaired. It states that a driver’s ability to operate the vehicle was impaired, by drugs, or alcohol, or any combination of drugs and alcohol, so that his ability to operate the vehicle was impaired, even to the slightest degree. If a driver has a blood alcohol content of over 0.050, then the jury may infer that the driver was impaired.
Is There Such a Thing as DWAI per se, Like for DUI?
No. There is no DWAI per se in Colorado. For the offense of DWAI, the blood alcohol level alone is not a crime. There should be some evidence of subjective impairment of the individual, not just that they had a blood alcohol level of 0.050 to 0.079.
Is There a DUI per se for Marijuana Like for DUI?
No. There is no per se rule for 5ng of marijuana. The Colorado legislature in previous years tried to pass a 5ng per se statute, but extensive testimony from Scientists demonstrated a lack of uniformity of impairment, so no per se law was passed.
What if My Blood Alcohol Was Lower Than 0.050?
If your blood alcohol level is less than 0.050 then you are presumed not impaired. The presumption of innocence contained in the United States and Colorado Constitutions does permit a presumption of non-impairment; however, we are now seeing prosecutions based on small amounts of alcohol combined with some amount of drugs for an allegation that the combined substances resulted in impairment.
Does the Prosecution Have to Elect Whether They Believe Impairment Was From Drugs or Alcohol?
No. The statute in Colorado includes drugs, alcohol, or a combination of drugs and alcohol.
What Is an Express Consent Hearing?
Express Consent is the Statute which prohibits driving with a blood alcohol content of 0.080 or higher within two hours of actual physical control of a vehicle. An express consent hearing is held by the Colorado Department of Revenue, Motor Vehicle Division. The issue (and only issue) at the Express Consent Hearing is whether the driver’s license will be revoked or not.
How Is the Express Consent Hearing (Also Called a Motor Vehicle Hearing) Different Than What Happens in Court?
The Express Consent Hearing/Motor Vehicle hearing addresses only whether an individual’s drivers license will be revoked. It is a civil rather than criminal proceeding, so there is no right to a jury trial, the proof is by a preponderance of the evidence, rather than beyond a reasonable doubt as for criminal, there is no Sixth Amendment right to confront your accusers, there is a different set of procedural rules including for issuance of subpoenas to compel the attendance of witnesses, there is no Prosecutor, and it is held much quicker than criminal court.
If I Refuse a Chemical Test, Will I Be Subject to an Express Consent Revocation?
Yes. An Express Consent Revocation is held when the Driver’s blood alcohol level is 0.080 or higher or there is a refusal.
Is the Express Consent Revocation Different for a Refusal?
Yes. In order to punish drivers who refuse chemical testing more harshly, if you refuse a chemical test, then you are subject to a longer revocation.
What Is the Ignition Interlock Device?
The ignition interlock device is often referred to as an “Interlock”. It is a device which a driver blows into while driving. It measures the presence and amount of alcohol in the sample breath. If alcohol is detected, the driver may be “locked out” of the vehicle.
What Does “Early Reinstatement With the Interlock” Mean?
When a driver is revoked for an express consent violation, early reinstatement with the interlock is available. Even with a high blood alcohol level, a first time offender who took a chemical test, will be subject to a nine month revocation. Early reinstatement with an interlock device is permitted after thirty days of no driving. In order to reinstate early with the interlock, the driver will need an interlock lease, SR-22 insurance, documentation of enrollment in level II alcohol education, a completed application for early reinstatement with the interlock, and payment of the reinstatement fee.
A second or subsequent offense will still be eligible for early reinstatement with an interlock device after 30 days, provided the driver submitted to chemical testing.
If a driver refused chemical testing, then early reinstatement with the interlock is not available until after two months of no-driving AND the driver will be required to have an interlock for two years even if early reinstatement is not sought.
Can a Driver Wait Out the Two Years of Required Interlock?
No. If a driver is required to maintain an interlock for two years as a result of a repeat violation or as a result of a refusal, if the Driver continues to reside in Colorado, then the interlock is required in order to reinstate.
What if I Wait Two Years and Then Seek Regular Reinstatement?
You still have to have the interlock for two years.
What if I Live Out of State?
If you no longer live in the State of Colorado, you will still have to clear up any holds Colorado has on your driver’s license in order to obtain a driver’s license in another state. Also, most State’s application for a driver’s license ask the driver, “Are you under suspension or revocation in this or any other State?” The information provided in a driver’s license application is usually required to be sworn to under penalty of perjury. Prosecutions have occurred for individuals who failed to disclose revocations or suspension in another State.
If you live out of State, there are specific forms you can provide to the DMV in Colorado in which you swear under penalty of perjury, that you no longer live in Colorado, etc. You will still need to provide documentation that you completed Level II alcohol education and still need to complete the application for reinstatement and pay the reinstatement fee.
What if I Am Caught Driving Under Revocation?
If you are caught driving under revocation and the revocation was for an Express Consent Violation, then there is a mandatory minimum 30 days in the county jail with additional mandatory jail time for subsequent offenses.
Prosecutors will usually offer a plea bargain that will not cause an extension of a revocation if the driver has reinstated.
Am I Subject to an Express Consent Revocation for Marijuana or Drugs?
If you refuse the chemical test, then you will be subject to an express consent revocation for driving under the influence of drugs. If you take the test, then no matter how high you were, or what you had consumed, you will not be subject to an express consent revocation. You could still be subject to a revocation if you are convicted of DUI (a 12 point offense) or if your driving history gives you a total of 12 points.
Is There Mandatory Jail for DUI?
Yes, if your blood alcohol level is 0.20 or above. For a first offense, blood alcohol content of 0.20 or above there is minimum 10 days in the county jail. This can be served on home detention pursuant to statute, but it is up to the individual judge whether they will grant home detention. On a second offense, if the first offense was within five years of the second (based on date of offense, not date of conviction) then there is a mandatory 10 days which must be served in jail. Home detention is not permitted, although work release is permitted if the judge will authorize it. On a third offense, there is a mandatory minimum of 60 days which must be served in the county jail. Home detention is not allowed. Work release is permitted by the statute. In 2022 there was a change to the law to authorize home detention in some narrow circumstances.