A blood result near the legal limit after a stop in Silverthorne or on the way down from Copper Mountain can make a DUI case feel decided before you reach court. It is not. If your BAC came back at .08 or higher after a Colorado DUI arrest, you may be wondering whether the charge can be reduced to DWAI.
It may be possible to have a DUI reduced to DWAI in Colorado through plea negotiations or motions hearings when the evidence, your record, and the surrounding circumstances give the defense meaningful room to negotiate.
For many first-time defendants, the more practical question is whether a DWAI resolution would actually reduce the criminal, financial, and driver’s license consequences they are facing.
When Can a Colorado DUI Be Reduced to DWAI?
A prosecutor may agree to resolve a DUI as a DWAI when the evidence supports a lesser level of impairment or when other weaknesses make the original charge harder to prove.
Colorado distinguishes the two offenses by degree of impairment. DUI applies when alcohol or drugs make a driver substantially incapable of exercising clear judgment, physical control, or due care. DWAI applies when alcohol or drugs affect the driver “to the slightest degree” so that they are less able than usual to drive safely.
Plea agreements that reduce DUI or DUI per se to an unrelated, non-alcohol or non-drug traffic offense are usually prohibited, unless the prosecutor represents in good faith that the original impaired-driving charge could not be established. Because DWAI remains an alcohol- or drug-related driving offense, that restriction does not prevent a DUI-to-DWAI resolution.
What Does DWAI vs. DUI in Colorado Mean for a First Offense?
A first-offense DWAI in Colorado typically carries lower statutory penalties than a first DUI. For repeat offenses, the penalty differences decrease because subsequent DUI and DWAI convictions often fall within similar sentencing ranges.
| First Offense | DUI | DWAI |
|---|---|---|
| Jail | 5 days to 1 year | 2 to 180 days |
| Fine | $600 to $1,500 | $200 to $500 |
| Public service | 48 to 96 hours | 24 to 48 hours |
| DMV points | 12 | 8 |
These penalty ranges illustrate why trying to have a DUI reduced to a DWAI in Colorado can be beneficial. It may reduce potential jail time, fines, public service hours, and DMV points.
Colorado allows the court to suspend the minimum jail term in some first-offense cases if the defendant completes an alcohol and drug evaluation and treatment program. However, a BAC of .20 or higher triggers enhanced sentencing requirements, including a mandatory minimum jail sentence for a first DUI, DUI per se, or DWAI conviction, though sentencing alternatives may be available.
The value of the plea depends on which consequences it actually changes in your case.
What Makes a Prosecutor Take a Reduction Seriously?
No single fact entitles someone to a DUI plea bargain. A reduction becomes more realistic when the defense can identify a reason the People may have difficulty proving DUI or show that the evidence fits DWAI more closely.
Common factors influencing negotiations include:
- A borderline evidence profile. A BAC near .08 may become more significant when the driving, speech, balance, and other physical signs do not strongly show substantial impairment.
- Problems with the stop or investigation. Body-camera footage, dispatch records, roadside-test instructions, and the officer’s stated reasons for the stop may reveal factual inconsistencies or constitutional issues.
- Questions about chemical testing. Timing, collection procedures, equipment operation, sample handling (chain of custody), or conflicts between the test result and other evidence may weaken the People’s reliance on the number.
- History and aggravating circumstances. A first offense without a crash or injury presents differently from a repeat offense involving a refusal, a very high BAC, a collision, or dangerous driving.
These facts are most relevant to the People’s burden of proof. For instance, an argument for a DWAI reduction may be stronger when a BAC is near .08, and the video evidence shows normal coordination and speech or if driving itself does not strongly indicate impairment. Your attorney can challenge the accuracy or reliability of the chemical test when the evidence provides a basis to do so and present other evidence relevant to demonstrating you were not impaired.
A defense attorney’s job is not simply to ask for a lesser charge. It is to give the prosecutor a legally and factually defensible reason to agree to one.
Why Does a .08 BAC Not Guarantee a DWAI Deal?
A BAC of .08 or higher may provide grounds for argument, but prosecutors are not required to reduce a DUI.
A .08 test result may still support DUI per se. The defense may question whether the result accurately reflects BAC at the time of driving, challenge the testing process, or argue that other evidence does not prove substantial impairment. Poor driving, admissions, or other evidence can outweigh a lower BAC.
“My BAC was close” is a fact to consider, not a negotiation strategy.
Can the DMV Still Act After a DWAI Plea?
Yes. The DMV and criminal cases are separate. A DWAI plea does not automatically reverse an administrative revocation for a BAC of .08 or higher or a chemical test refusal.
The DMV can restrict driving privileges even if the criminal case is dismissed. Hearing deadlines are often short, typically within days of a breath-test arrest, refusal, or receipt of blood-test results.
How Is a DUI-to-DWAI Plea Actually Negotiated?
A strong DUI plea negotiation usually starts with the evidence, not with mitigation or a request for leniency.
The defense may compare the officer’s report with body-camera footage, review the reason for the traffic stop, examine chemical-test records, evaluate roadside tests, and identify inconsistencies in the People’s account. The attorney can then analyze whether the evidence supports the DUI standard of substantial impairment or a lower DWAI standard of slight impairment.
Mitigation can still matter, especially when supported by case-specific factors such as a limited criminal and/or traffic history, no crash or injury, or a completed alcohol evaluation, but it is more persuasive when the prosecution’s evidence has weaknesses or uncertainties.
The point is not simply to ask the prosecutor to “knock the charge down.” Effective negotiation gives the prosecutor a reason, grounded in the evidence and the risks of continued litigation, to consider the lesser offense.
When Is a DWAI Plea Actually a Better Outcome?
Before agreeing to a reduced charge, understand what the agreement changes. Review the criminal charge, jail time, fines, community service, probation, treatment, DMV points, and license restrictions.
A Colorado DWAI plea can be beneficial, but only if you understand both the advantages and the remaining consequences.
We Can Help Assess Your Options Before You Accept a Plea
The Law Offices of Susan Deschler evaluates both legal weaknesses and practical aspects of negotiation. Susan Deschler brings over 25 years of legal experience, has served as a Deputy District Attorney and Court Commissioner, and handles criminal and traffic matters in Summit, Clear Creek, Grand, Gilpin, and Eagle Counties.
You work directly with Susan. She reviews the stop, testing, video, prior history, DMV status, and available mitigation before advising whether to pursue a DWAI reduction, challenge the DUI, or prepare for trial. We provide an individualized strategy and direct attorney guidance rather than a one-size-fits-all approach.
If you are facing a DUI in Colorado, contact our firm to discuss the evidence, the possibility of a DWAI resolution, and the consequences of your options before making a plea decision.
Legal References Used to Inform This Page:
To ensure the accuracy and clarity of this page, we referenced official legal and other authoritative resources during the content development process:
- Colo. Rev. Stat. § 42-4-1301 (2025). Driving under the influence—driving while impaired—driving with excessive alcoholic content—definitions—penalties.
- Colorado General Assembly. Colorado Law Summary: Colorado Drunk Driving Laws.
- Colorado Division of Motor Vehicles. The DUI Administrative Process.
- Colorado Office of Legislative Legal Services. Colorado Revised Statutes 2025, Title 42, Vehicles and Traffic.
- Colo. Rev. Stat. § 42-4-1307 (2025). Penalties for traffic offenses involving alcohol and drugs—legislative declaration—definitions—repeal.
