Driving While Ability Impaired (DWAI) essentially means that a person drove a motor vehicle when he/she was impaired by alcohol or drugs or both, even to the slightest degree. As a result of the impairment, the driver was not able to safely operate the vehicle. This is what a prosecutor has to prove to a jury before someone can be convicted of DWAI.
Unfortunately, it’s a common misconception that the legal limit for drinking and driving in Colorado is 0.08 BAC. It’s not. It’s really 0.05 BAC, as is indicated in the following presumptions. Many people are charged with DWAI or even DUI with a BAC lower than 0.08. A conviction for DWAI carries some of the same penalties and consequences as a conviction for DUI.
The following presumptions regarding a person’s BAC (blood alcohol or breath alcohol content) are applicable in a prosecution for either DUI or DWAI:
If a driver’s BAC was 0.05 or less, it is presumed that he/she was not DUI or DWAI.
If a person’s BAC was 0.05 but less than 0.08, there is a “permissible inference” that the driver was DWAI. A BAC in this range may also be considered with other evidence to determine if a driver was DUI.
If a driver has a BAC of 0.08 or greater, there is a “permissible inference” that the driver was DUI.
It’s important to note that the above-referenced presumptions do not limit the introduction of evidence to show that a driver was not impaired or under the influence of alcohol or drugs. An experienced DUI attorney can assist a client in presenting this evidence.
“DWAI” or Driving While Ability Impaired is also a lesser-included offense of DUI. What this means is that someone can be prosecuted for conduct that establishes more than one offense when one offense is included in the other, but a person cannot be convicted of both a greater and lesser-included offense.
In other words, a person who is convicted of DUI, cannot also be convicted of DWAI. However, a person who is found not guilty of DUI can still be found guilty of the lesser-included offense of DWAI. Typically, when a case goes to a jury, a defense attorney will argue against the lesser-included instruction being given to the jury and ask just for the DUI instruction (an all-or-nothing approach). However, if the prosecutor has requested a lesser-included instruction and there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense, then the lesser-included instruction should be given.
If you or a loved one have been charged with DWAI or DUI, get professional help right away and contact Attorney Monte J. Robbins at his Denver office at 303-355-5148, or at his Greeley office at 970-301-5541, or toll-free at 1-888-384-2656 for a free case evaluation.