A Colorado DWAI charge may not be quite as severe as a DUI, but it is still very serious. If convicted, you could face jail time, fines, and the suspension of your license. You will also be left with a criminal record that compromises future employment, housing and child custody prospects.

How do you defend against a DWAI charge, though? You know that it’s different than a DUI, but how?

All states, Colorado included, prohibit the operation of a motor vehicle while impaired by or under the influence of drugs and alcohol. In our state, these crimes are charged as a DUI or DWAI. A DUI consists of driving while under the influence of drugs or alcohol, while a DWAI consists of driving while the ability to drive is impaired by alcohol or drugs.

So what’s the difference? Basically, you can be charged with a DWAI for having a lower level of alcohol in your system than you need to qualify for a DUI. Because of this, penalties for a first DWAI are not as severe. That’s it. The end.

That means that the same defenses that work in DUI cases pretty much work to fight DWAI charges as well. They tend to be focused on the circumstances of the traffic stop or arrest, or the administration of tests and validity of their results. Let’s take a look.

Lack of probable cause

In order to stop you for suspected driving under the influence, an officer must have probable cause to do so. If the officer does not have sufficient cause, any evidence obtained at the time of the arrest is not admissible in court. Probable cause includes erratic driving or the appearance of intoxication, such as slumping over the steering wheel.

If you are stopped on suspicion of a DUI, it is important to know what to do ahead of time. Do not admit that you have been drinking alcohol, submit to field sobriety tests you know you’ll fail, resist arrest, or allow the officer to search your car.

Miranda violations

If you are arrested for driving under the influence, the officer does not necessarily need to read you your Miranda Rights. However, if you are not read your rights, nothing that you say at the time of the arrest or during interrogation can be used against you.

Officer’s testimony of your behavior

The officer’s testimony of your behavior at the time of the traffic stop and arrest is typically an important component of the prosecution’s case. This usually includes the way that you were driving prior to the stop, your appearance or behavior after you were stopped, and the results of field sobriety tests.

If you offer reasonable explanations for these factors, such as distracted driving, fatigue, legal medications you take, or certain medical conditions, you may be able to cast doubt on the officer’s testimony that you were intoxicated.

Witnesses who saw things differently (such as passengers in your vehicle) may also be able to testify that the officer’s observations were inconsistent with their own. Witnesses may also be able to testify that you had not consumed alcohol prior to driving, or to offer alternative explanations for your erratic driving.

Accuracy of test results

Chemical testing of blood alcohol content is far from foolproof. You may be able to bring the accuracy or validity of tests results under question, although this generally requires expert testimony.

Improper administration of breathalyzer testing, instrument inaccuracies, foods or medications that can lead to false positives, or administration of testing during the absorption phase can all lead to inaccurate test results.

Further, any blood, urine, or saliva samples collected must be handled properly, including proper documentation through a chain of custody form. Any mishandling or improper documentation of samples makes test results from these samples inadmissible.

If you or a loved one are facing a DWAI or DUI charge, it is imperative to involve a criminal defense attorney with a successful track record in DUI cases as early in the process as possible. He or she can make sure your rights are protected, and potentially even get your charges dropped before the case goes to court.

About the Author:

Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.