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Introduction
Most people associate DUI charges with reaching or exceeding a Blood Alcohol Content (BAC) of 0.08%. While that is the legal limit for standard DUI charges in Colorado, it doesn’t mean drivers are always in the clear if their BAC is below that threshold. In fact, under certain conditions, you can still face impaired driving charges—even if your BAC is under the legal limit.
Colorado law allows for the enforcement of impaired driving offenses based not only on chemical test results but also on observed behavior and driving patterns. This means that even a BAC below 0.08% can lead to legal consequences if law enforcement believes alcohol has affected your ability to drive safely.
In this article, we’ll break down how Colorado law handles DUI charges below the legal limit, including the distinction between DUI and DWAI (Driving While Ability Impaired), how impairment is determined, and why BAC alone doesn’t guarantee immunity from arrest. All content is informational and does not constitute legal advice.
Understanding the Legal BAC Threshold in Colorado
In Colorado, the standard legal BAC limit for adult drivers is 0.08%. If a breath or blood test shows a BAC at or above this level, you are presumed legally impaired, and law enforcement can charge you with Driving Under the Influence (DUI) without needing further evidence of impairment.
However, this legal threshold is not the only factor that determines whether someone can be arrested or charged. Colorado law also recognizes a lower-tier offense called Driving While Ability Impaired (DWAI), which applies to drivers with a BAC between 0.05% and 0.079%.
This structure means that Colorado does not rely solely on the 0.08% number. Instead, the state allows for judgment-based enforcement when a driver’s behavior or physical condition shows signs of impairment—even if chemical test results fall below the DUI threshold.
So, while 0.08% is the legal limit for DUI, it is not a guarantee that you are “safe” from all charges.
What Is DWAI and How Does It Work?
DWAI stands for Driving While Ability Impaired, and it is a specific offense under Colorado law that applies when alcohol or drugs impair a person’s ability to drive—even slightly. If your BAC is 0.05% or higher, and law enforcement determines that your driving ability is affected “to the slightest degree,” you may be charged with DWAI.
Here’s how the classifications break down:
- 0.05% to 0.079% BAC: Eligible for DWAI charges
- 0.08%+ BAC: Eligible for DUI charges
- 0.17%+ BAC: Considered a High BAC DUI with enhanced penalties
A DWAI is a less severe charge than DUI, but it still comes with consequences. Penalties may include:
- Fines and court fees
- Points on your driving record
- Possible jail time (especially for repeat offenses)
- Alcohol education programs
- Increased insurance rates
The key distinction is that DWAI focuses more on observed impairment than a specific BAC number. Officers may cite behaviors such as swerving, slurred speech, poor coordination, or failing field sobriety tests as evidence of impairment—even when the BAC is below 0.08%.
Can You Be Arrested for DUI with a BAC Below 0.08%?
Yes. While DUI charges are usually tied to a BAC of 0.08% or higher, you can still be arrested and charged with DUI in Colorado if your BAC is below that level, depending on other factors. Officers may use field sobriety tests, behavior, and driving patterns to support a charge if they believe you are impaired.
It’s important to understand that DUI charges do not always require a specific BAC number. For example:
- If a driver is impaired by drugs or a combination of alcohol and drugs, the BAC may not reflect full impairment, but DUI charges may still apply.
- If a driver refuses a chemical test but shows obvious signs of intoxication, a DUI charge may be filed based on observational evidence.
- In rare cases, a particularly poor driving performance combined with a borderline BAC (e.g., 0.075%) may still result in a DUI charge, particularly if aggravating circumstances are present.
Colorado law provides flexibility to law enforcement and prosecutors in determining whether a driver was too impaired to operate a vehicle safely, regardless of exact BAC.
What Happens if You’re Charged with DWAI in Colorado?
If you’re charged with DWAI, the legal process is similar to a DUI, but the penalties are typically less severe. That said, DWAI is still a criminal offense, and a conviction can lead to serious consequences.
Here are some of the potential penalties for a first-time DWAI conviction:
- Up to 180 days in jail
- A fine of up to $500
- 8 points on your driving record
- Possible license suspension
- Mandatory alcohol education classes
- Increased insurance premiums
While DWAI carries fewer penalties than DUI, the conviction still goes on your criminal record and cannot be sealed or expunged in Colorado. Additionally, if you are charged with DUI in the future, the DWAI will count as a prior offense, increasing the severity of penalties.
Because DWAI charges are based on observed impairment rather than a single BAC number, they serve as a legal reminder that being under 0.08% does not make driving after drinking risk-free or without consequences.
The Role of Field Sobriety Tests and Officer Discretion
In cases where a driver’s BAC is below 0.08%, law enforcement officers rely heavily on field sobriety tests and personal observation to assess impairment. These tests may include:
- Horizontal Gaze Nystagmus (eye movement test)
- Walk-and-Turn
- One-Leg Stand
Officers also take note of behavior during the stop, such as slurred speech, unsteady movements, confusion, or the smell of alcohol. If the driver performs poorly on these assessments or exhibits signs of being under the influence, the officer may still make an arrest—especially if the driver admits to consuming alcohol.
In Colorado, this discretion allows officers to charge someone with DWAI even if the chemical test does not show a high BAC. The law supports enforcement based on any impairment that affects a person’s ability to drive—even slightly.
How to Stay Safe and Avoid Charges
Because Colorado enforces impaired driving laws even below the standard legal limit, drivers should be cautious when consuming alcohol before getting behind the wheel. Even small amounts of alcohol can impair judgment and reaction time—especially depending on body weight, metabolism, and other individual factors.
Tips to avoid DUI or DWAI charges include:
- Use a designated driver or ride-share service
- Wait several hours after drinking before driving
- Eat before consuming alcohol to slow absorption
- Use personal breathalyzers as a rough guide (though not legally binding)
- Avoid “just one drink” if you plan to drive
The safest approach is to avoid driving if you’ve consumed any alcohol, especially since DUI and DWAI enforcement in Colorado considers behavior, not just BAC numbers.
FAQ Section
Can I be arrested for DUI with a BAC under 0.08% in Colorado?
Yes. Officers may still arrest you based on observed impairment or other factors.
What is DWAI in Colorado?
DWAI stands for Driving While Ability Impaired and applies to drivers with a BAC of 0.05% to 0.079%, or who show signs of slight impairment.
Is DWAI less serious than DUI?
Yes, DWAI carries lighter penalties, but it is still a criminal offense and becomes part of your permanent record.
Can a DWAI affect my license or insurance?
Yes. DWAI convictions can lead to license points, potential suspension, and higher insurance rates.
Does DWAI show up on background checks?
Yes. Like a DUI, a DWAI conviction will appear on criminal background checks.
How do police determine impairment below 0.08%?
Officers use field sobriety tests, driving behavior, and other signs like slurred speech or the smell of alcohol.
Can I refuse a BAC test in Colorado?
You can refuse, but doing so triggers automatic penalties, including license suspension under the state’s express consent law.
Conclusion
In Colorado, you can get a DUI or DWAI even if your BAC is below 0.08%. The law focuses on whether your ability to drive is impaired—not just on test results. A BAC of 0.05% may lead to DWAI charges, and observable signs of impairment can support an arrest, even with borderline or missing chemical evidence.
Understanding how Colorado enforces DUI laws below the legal limit is essential for anyone who drinks and drives—even occasionally. The best way to avoid charges is to avoid driving after consuming any amount of alcohol.
For a broader look at how BAC is defined and used in DUI enforcement, visit the Blood Alcohol Content And Legal Limits page. You can also explore the mini-hub post What Blood Alcohol Content (BAC) Means Under DUI Laws to understand how BAC levels influence impaired driving charges.