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FREQUENTLY ASKED QUESTIONS
1. What is the difference between DUI and DWAI? 2. What about my driver's license?
3.What kind of sentence can I expect? 4.How do I get my driver's license back?
If you are stopped and arrested for a drinking and driving violation and you take either a blood or breath test, those results will normally dictate whether you will initially be charged with a DUI or a DWAI. A DUI, driving under the influence, means you were driving a vehicle when you had consumed alcohol or drugs or both and you were affected to a degree that you were substantially incapable of safely operating the vehicle. Normally, a person initially charged with DUI has a BAC of over 0.08. This is a 12-point driving offense. If you accumulate 12 or more points against your driver’s license in a 12-month period, the DMV will likely suspend your license. There are some exceptions, which is why you should discuss the particular facts of your case with an attorney.
A DWAI, driving while ability impaired, means you were driving a vehicle when you had consumed alcohol or drugs or both, in which you were affected to the slightest degree so that you were less able than a sober person would be to operate a vehicle. Normally, a person initially charged with DWAI has a BAC of over 0.05, but less than 0.08. This is an 8-point driving offense. If you have no other points against your license when you receive a ticket for a DWAI, you will likely not lose your driver’s license.
In many cases, during negotiations with the district attorney, or “DA”, (the initial step in representing you in court), the DA may offer to drop the DUI charge down to a DWAI charge. The primary benefit to having your DUI dropped to a DWAI is to prevent further action against your driver’s license by the Department of Motor Vehicles (DMV). Often, but not always, the DA will offer to drop all other charges against you, such as speeding, weaving, driving too fast for conditions, failure to provide proof of insurance, etc. However, many factors can affect whether the DA will drop these other charges or reduce your DUI to a DWAI. Your attorney can explain these factors.
Many people are confused about the driver’s license revocation process. The criminal courts do not revoke your driver’s license. Only the DMV has that authority. During the life of your DUI case, this will be your first stop.
Breath test providers and refusals to provide a test: If you took a breath test when asked by police, you will likely be served with an Express Consent Affidavit and surrender your driver’s license to the police officer before you are released. This piece of paper tells you that you have only 7 days to request a hearing in front of a DMV hearing officer. If you fail to request your hearing, your license will be revoked and only under extreme circumstances can you ask the DMV to reconsider.
Blood test providers: If you submitted to a blood test after being arrested for DUI and your BAC is .08 or more, the DMV will notify you within a few weeks of your arrest that your license has been temporarily suspended and that you have a right to request a hearing to refute this action. From the time you receive notice from the DMV about your license, you have only 7 days to request a hearing in front of a DMV hearing officer. If you fail to request your hearing, your license will be revoked and only under extreme circumstances can you ask the DMV to reconsider.
Once you have requested a hearing, the DMV will set a date for your hearing within 3 to 4 weeks of your request. If you have hired an attorney, they typically handle this hearing for you and your attendance is not required.
If you have never been arrested for a DUI in Colorado before, the DMV will usually seek to revoke your license for 90 days. If you have a previous arrest (even if you weren’t convicted) for DUI, the DMV will usually seek to revoke your license for one year. If you refused to give either a blood or breath test and this is your first arrest, the DMV will seek to revoke your license for one year. If you refuse to take a test and you have refused once before, the DMV will seek to revoke your license for two years.
Back to topIf you are a first-time offender, whether you plead guilty to a DUI or a DWAI, you can expect your sentence to consist of the following elements: Useful Public Service (UPS), Alcohol Education and Therapy, Probation, Fines and Costs. Incarceration can also be imposed depending on your circumstances. For example, if your BAC exceeded 0.20, there is a mandatory minimum jail sentence of 10 days. Depending on the judge, he or she may allow you serve this time on In Home Detention (IHD) or work release.
Useful public service: The judge will determine the number of hours of public service you must complete. You can complete your service in your own community. It need not be completed in the county where you were arrested. By law, the following minimum and maximum hours apply to first time and repeat offenders:
First Offense: DWAI 24 to 48 hours
DUI 48 to 96 hours
Subsequent Offenses:
Alcohol education and therapy: There are three reasons for taking alcohol education and therapy. (1) If your BAC exceeded 0.20, the DMV will require you to enroll in Level II alcohol education before they will reinstate your driver’s license. (2) When it comes to sentencing, judges often look favorably on defendant’s who are proactive about stopping or modifying the behavior that led to their arrest. (3) The probation department will almost always recommend some level of alcohol education for anyone convicted of a drinking and driving violation. If you need additional information about alcohol education classes in your area, please review this nation-wide link. Alcohol Education
Probation: How long you will be on probation and the level of supervision while on probation are decisions made by the judge at the time you are sentenced. This factor is completely unpredictable. In some jurisdictions, judges prefer to place defendants on supervised probation, even if they have no prior drinking and driving violations. But it is more common to require supervised probation if a defendant has previous drinking and driving convictions.
Supervised probation can range from checking in periodically with your probation officer, to completing random breath tests. And, you get to pay more for supervised probation! Terms of probation can vary from as little as 6 months to a couple of years. Again, the judge has complete discretion.
Incarceration: Incarceration can take the form of jail time, in-home detention, and work-release. Even first time offenders can be given incarceration as part of their sentence. By law, the following minimum and maximum incarceration levels apply to drinking and driving convictions:
First Offense: DWAI 24 to 48 hours
DUI 48 to 96 hours
Subsequent Offenses:
