Fighting a Colorado DUI After a .09 Breath Result
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed January 1, 2026
Legal Inquiry
Consumer Legal Issue
I blew a 0.09 And was arrested and given a dui. What are my chances of beating this? And how do I beat it?
Attorney Answer
No honest lawyer can quote you odds from a breath number. A .09 is not an automatic conviction, but it is over Colorado's per se line, so this case turns on how that number was obtained, not on the number itself.
Colo. Rev. Stat. § 42-4-1301 creates several separate offenses: DUI, the lesser offense of driving while ability impaired (DWAI), and the per se offense of driving with an excessive alcohol content of 0.08 or more. At .09 you are just over the per se threshold, which is why the reliability of the test carries the whole case.
Colorado's Express Consent statute, Colo. Rev. Stat. § 42-4-1301.1, is where the real challenges live. It governs the driver's election between blood and breath, provides that the election cannot be changed, sets the two-hour requirement for the evidentiary test, and defines when a failure to cooperate is deemed a refusal. Whether the officer complied with that section, whether the instrument was certified and correctly operated, and whether the stop and arrest were lawful in the first place are what decide whether the .09 is admitted at all.
Two separate cases are running right now. The criminal charge in court and the Division of Motor Vehicles revocation of your licence are different proceedings, with different decision-makers and different standards of proof. They can come out opposite ways on the same stop. Winning in court does not automatically give your licence back, and losing at the DMV does not convict you.
What you can do
1. Find the notice of revocation you were handed at the arrest and read the deadline printed on it for requesting a DMV hearing. 2. Request that hearing in writing inside that window and keep dated proof you did. 3. Write out now, while it is fresh, everything you remember about the stop: why the officer said he stopped you, what you were asked to do, what you were told about the test, and the times. 4. Have counsel demand the breath instrument's certification and calibration records, the operator's certification, and all video. 5. Do not drive if your privilege has been revoked; that is a separate new offense.
⏱ Time limits apply. The DMV hearing request window under Colorado's Express Consent scheme, Colo. Rev. Stat. § 42-4-1301.1, can be as short as about a week from the notice of revocation, and it expires long before your first real court date. The exact date depends on your notice and your facts, so read the paperwork you were given rather than counting from memory.
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Frequently Asked Questions
If I request the DMV hearing, can the officer's testimony there hurt my criminal case?
It can cut both ways. The hearing puts the officer under oath early and creates a record you would not otherwise have, which is often valuable. It also gives the state a preview of your position. That trade-off is worth a short conversation with counsel before the hearing, not a reason to let the deadline pass.
Is DWAI a lesser charge I could be convicted of even though I blew over .08?
Colo. Rev. Stat. § 42-4-1301 defines DWAI as a separate, lesser impaired-driving offense alongside DUI and the per se offense. Which offenses are charged and which the evidence supports is a question for your lawyer and, ultimately, the fact-finder. No one can tell you in advance what will happen with your case.
I was not read anything about blood versus breath. Does that matter?
It may. Section 42-4-1301.1 governs the election between blood and breath, provides the election cannot be changed once made, and sets a two-hour window for the evidentiary test. How the officer handled the advisement and the timing is exactly the kind of detail a defense lawyer checks first, so tell counsel precisely what you were and were not told.
