Drivers who are accused of driving while high may face an uphill battle from the time of a traffic stop until talking to the judge, to try and show they were not impaired while driving. Without an experienced Texas DWI lawyer by your side, you may find the court is not willing to listen to your explanations. Fortunately, there are a number of valid defenses available to individuals accused of driving while intoxicated (DWI) by marijuana.
The penalties for a marijuana DWI can be serious, including possible jail time, a criminal record, and losing your license. Retaining an attorney as soon as possible may be your best chance at fighting a Texas DWI conviction. Contact Carl David Ceder Attorney at Law to learn more about how to deal with a marijuana DWI in Dallas/Fort Worth and the surrounding area.
Texas DWI Laws for Marijuana
Under Texas Penal Code § 49.04, driving while intoxicated as an offense committed when “the person is intoxicated while operating a motor vehicle in a public place.”
Under Texas Penal Code § 49.01, intoxication means, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”
Marijuana is a controlled substance under Texas law. Not having the normal use of mental or physical faculties by reason of the introduction of marijuana into the body while operating a motor vehicle is a marijuana DWI.
Marijuana as a Controlled Substance
Controlled substances include both legal and illegal drugs and substances. Controlled drugs are classified by schedule by the Texas Controlled Substances Act. Marijuana, or “marihuana,” is given its own classification in Texas but is still considered an illegal drug.
Over the past 20 years, marijuana treatment has changed drastically. Starting in 1996, California became the first state to legalize medical cannabis. Now, the majority of states have some form of medical marijuana and 1/5th of states now have legal recreational marijuana.
In Texas, marijuana use and possession are still against the law but for the limited compassionate use exception. Medical cannabis in Texas is generally limited to CBD/low-THC marijuana, requires a prescription, and is limited to certain qualifying conditions, like:
- Intractable epilepsy,
- Multiple sclerosis,
- Terminal cancer, and
- Other limited conditions.
Marijuana's Impact on Driving
According to the National Highway Traffic Safety Administration (NHTSA), “there is evidence that marijuana use impairs psychomotor skills, divided attention, lane tracking, and cognitive functions.” However, how marijuana use contributes to the risk of an accident is less clear. One of the reviewed studies found “no increased risk of crash involvement for those drivers testing positive for THC.”
Texas Marijuana DWI Penalties
The criminal penalties for a Texas marijuana DWI are generally the same as if the driver was under the influence of alcohol. The penalties may depend on the specific facts of your case, prior DWI history, and whether anyone was hurt in an accident.
Class B Misdemeanor
up to 180 days in jail
up to $2,000
Class A Misdemeanor
up to 1 year in jail
up to $4,000
2 to 10 years in prison
up to $10,000
2 to 20 years in prison
up to $10,000
Testing for Marijuana Intoxication in Texas
One of the biggest problems for drivers charged with DWI marijuana is that testing for marijuana can be so inaccurate. From the beginning of a traffic stop, the smell of marijuana can be strong and long-lasting. Even if the driver smoked marijuana the day before, the smell may remain on their clothing. If a passenger was smoking marijuana, the police may suspect the driver is impaired.
There is no roadside breathalyzer for marijuana, as of yet. So the police and prosecutors generally rely on two other types of tests to use as evidence that the driver was intoxicated: chemical tests and Drug Recognition Experts (DREs).
Chemical Testing for Marijuana
Chemical testing for marijuana may consist of urine or blood testing. In Texas, blood tests are the primary means of testing for marijuana. Under Texas' implied consent laws, you may risk having your license suspended for refusing a blood draw after a DWI.
However, even if you submit to giving a blood sample for a DWI, the results are not always accurate. Evidence of marijuana can stay in the body long after the effects of the drug have worn off. Additionally, failure to properly observe the test, calibrate the equipment, or track the blood sample can all risk a false or inaccurate test result.
Drug Evaluation DRE for Marijuana
The drug evaluation process for the DRE consists of 12 steps, including:
- The Breath Alcohol Test
- The Interview of the Arresting Officer
- The Preliminary Examination
- Examination of the Eyes
- Divided Attention Psychophysical Tests
- Examination of Vital Signs
- Dark Room Examinations
- Examination for Muscle Tone
- Examination for Injection Sites
- Suspect's Statements and Other Observations
- Opinions of the Evaluator
- The Toxicological Examination
This may sound very scientific but it is made up of a lot of subjective information. DRE evaluations for marijuana can be very inaccurate and give the jury the idea that this so-called “expert,” should be trusted. Fortunately for the driver accused of a DWI, there are many ways to challenge the reliability of these findings and show the evaluation is not proof of anything.
Marijuana DWI and Drug Possession Charges
A marijuana DWI also risks the possibility of getting charged with possession of marijuana if there is some amount of pot in the vehicle or on the driver. Evidence of drug use, like a pipe, bong, or roach clip, may also lead to charges for possession of drug paraphernalia.
Marijuana possession charges are based primarily on the amount of drugs involved and their intended purpose. Possession of a small amount of marijuana (less than 2 ounces), is a Class B misdemeanor, punishable by a fine of up to $2,000 and up to 180 days in jail.
However, prosecutors in Dallas County may be more lenient towards first-time offenders and offer a diversion program instead of prosecuting small marijuana possession offenses. Talk to your Texas criminal defense attorney about any related charges to a marijuana DWI.
Defending a Texas Marijuana DWI
There may be a number of ways for you to challenge a marijuana DWI charge, including:
- Challenging the field sobriety tests,
- Challenge the test by the drug recognition expert (DRE),
- Challenging the blood test procedure and results,
- Constitutional violations, and
- Lack of evidence.
Contact an Aggressive, Smart DWI Defense Lawyer in Dallas Fort Worth Today
Carl David Ceder represents clients who were arrested for marijuana DWI charges in and around the Dallas/Fort Worth metro area. He knows that there's a lot at stake in these cases, including the loss of your license, fines, and even possible jail time. Contact his office online or at 469-900-0000 today.