DUI Defense

What is a DUI?

According to the law, no person under the influence of any kind of intoxicant is allowed to drive or be in control of any kind of vehicle. The prohibited intoxicants are substances that affect the working of nervous system of the body and hamper the ability of a driver to operate a motor vehicle safely.

Colorado statute 42-4-1301 C.R.S. defines the crime of driving under the influence in Colorado. You commit DUI when you drive and:

  1. due to the consumption of alcohol and/or drugs,
  2. you are substantially incapable, either mentally and/or physically,
  3. to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

In other words, you are actually too drunk or drugged to drive.

A DUI conviction is generally a misdemeanor. Since a DUI is its own kind of misdemeanor, it has its own penalties.

To drill down on your specific consequences, you could read the various statutes pertaining to the penalties, or meet with an attorney who focuses on these cases.

What is a DUI “Per Se” Charge

Colorado statute CRS 42-4-1301 (2)(a) gives the prosecutor an alternative basis for a DUI conviction. There is a permissible inference of driving under the influence in Colorado when your blood alcohol concentration (“BAC”) is .08% or higher. This is known as a DUI per se.

So, if you are pulled over, and you give a breath or blood test, you very will may end up with BOTH a DUI charge and a DUI per se charge.  They can try to charge you with either one or both! If later convicted on both, you will only be sentenced on one. They merge for sentencing.

A BAC of .08% is the “legal limit” in Colorado. This means if you have a BAC of .08% or above, you can be convicted of Colorado DUI per se even if you were actually capable of safely operating a vehicle.

Generally speaking, the criminal penalties for a Colorado DUI per se are the same as for Colorado DUI. A misdemeanor typically. It is less a separate crime than an alternative basis for establishing a DUI.

A chemical test, meaning breath test or blood test is used to determine your BAC level.  Refusal to take the test still may become part of evidence.

Navigating the dual charge prosecution requires an understanding of methods and proof. It is like managing two chess boards at the same time. This office handles DUI and DUI per se charged cases all the time.

Marijuana THC DUI

Colorado statute CRS 42-4-1301 says when you can be charged with DUI if you drive under the influence of drugs. Really this is the catchall for all drugs and medications, including prescription and over-the-counter drugs like Ambien and marijuana.

There is no “per se” legal limit for most drugs in Colorado. An exception, however, is marijuana. Under CRS 42-4-1301 (6)(a)(IV), if a DUI blood test shows that your blood contained five nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter, a jury may infer that you were driving under the influence of drugs.

Proving intoxication is not as easy as a numerical test, however.

Like with alcohol, the prosecution will charge DUI-D (drug based DUI) and DUI per se. The DUI charge is merely the officer’s statements, like “I smelled the odor of burnt marijuana emanating for the car.”  The DUI per se is the chemical test which is based on a numerical “permissible inference” standard; not the officer’s suspicions or observations.    A DUI per se charge will almost always have a DUI charge alongside.

DRIVING – DUI – Actual Physical Control

Have you ever sat in your car to keep warm or listen to the radio?  Colorado courts have interpreted the “driving” element of DUI statute CRS 42-4-1301 so broadly that it is can mean whatever the prosecution wants to assert it means. This is why we have juries. Juries filter the facts to decide what is “driving” under the circumstances and serve as a check on government.

Courts look to actual physical control of the vehicle.  This often gets boiled down to ability to make the vehicle operable, where the accused is located, whether the keys were in the ignition, whether the keys were in the cab, whether lights or the radio were on, and more.   These become questions for a jury to decide whether one sitting in a car is actually “driving.”


DWAI – Driving While Ability Impaired

Colorado statute CRS 42-4-1301(2)(a) has a lesser version of the DUI called DWAI.  A DWAI is still an alcohol based driving offense, but the statutory consequences are a bit less harsh.

  1. due to the consumption of alcohol and/or drugs,
  2. you are affected to the slightest degree,
  3. so that you are less able than you ordinarily would have been (mentally and/or physically),
  4. to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.


Usually, this will occur when your BAC is at least .05%, but still less than Colorado’s legal limit of .08% BAC for a DUI per se.

DWAI can be charged on observation alone. If the officer says that your driving was negatively affected by drugs and/or alcohol, you can still be charged with DWAI.  For example, in some Counties like Weld County, Colorado, the prosecution may charge that a stop for a non-illuminated “tail-light stop” with a .041 BAC is driving while ability impaired and reckless driving. These cases should be challenged.

If the BAC is close to .05% BAC, many Counties will negotiate a wet reckless (reckless driving) or careless driving under the circumstances.   For those with immigration issues, reckless driving might be just as problematic.

Due to variances in the breath or blood test, one who is near .05% BAC, can argue statistical variances to have the DWAI dropped.  The variance differs county to county.

If your charged with DWAI alone, you need to consult with an attorney. A huge number of these cases can result in the DWAI being negotiated away.

DUI? You need a lawyer right away. Call us -We’ll get back to you promptly.

(303) 589-1869