I'm wondering if they can still charge him with that violation?
If the DWI is dropped, so will the other charge. If not, they'll go after him with both. I was not aware that DWI was solely dependent on BAL. You're BAL can be zero while high on drugs--legal or illegal, and DWI will stick with other evidence. Colorado DWAI (driving while ability impaired) is similar to Colorado DUI, except that to be convicted of Colorado DWAI, the prosecution is only required to prove that the defendant was affected to the slightest degree, so that the person is less able than he or she ordinarily would have been to exercise clear judgment. DWAI is considered a lesser charge than DUI, but is also easier to prove.
42-4-1301. Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties - repeal.
(6) (a) In any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:
(I) If at such time the defendant's BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.
(II) If at such time the defendant's BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.
(III) If at such time the defendant's BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.
(b) The limitations of this subsection (6) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.
C.R.S. 18-12-106. Prohibited use of weapons.
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(d) The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or of a controlled substance, as defined in section 12-22-303 (7), C.R.S.
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I'm wondering if they can still charge him with that violation? Does having the weapon in possession mean literally on him or close to him where he could reach it? Also since his BAC was below 0.05 the DWAI would be dropped, that makes it ok for the weapon to be there correct? Any insight will be appreciated. Thanks
DWAI is a BAC of .06 to .07 and DUI is .08+....but if I'm reading the law right, Gunslinger is correct that other factors, aside from BAC, can be presented in court to prove that the driver was too impaired to drive (or not).