DWI Appela - Does a Colorado DWAI Constitute a Prior for Felony Enhancement?

In State of Texas v. Christensen, Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas), the defendant appealed his felony conviction, claiming that a Colorado DWAI did not count as a 'prior' for enhancement purposes. In Colorado, there are 2 forms of drunk driving charges - DWAI and DUI.

Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). COLO.REV.STAT. ANN., § 42–4–1301(1)(a)–(b), (2)(a) (West 2010).

DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Id. § 42–4–1301(1)(f).

DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Christensen argued on appeal that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. The Texas court found that the Colorado DWAI qualified as a prior:
"The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr.D.Colo.1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code). Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code."


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