Can Driving While on CBD Lead to an Arrest for Marijuana DWI?

Posted by Doug Murphy | Nov 28, 2022 | 0 Comments

If you're a regular or occasional user of cannabidiol (CBD) products, you're no doubt concerned about whether using CBD can lead to an unintentional DWI if a police officer mistakes CBD for marijuana or THC. If you're facing an arrest for a DWI while under the influence of CBD or THC, you're no doubt concerned about defending yourself from the charges. Texas has some of the toughest marijuana laws in the country, where using a marijuana vape or gummy can lead to felony charges. As a result, it's a good idea to make sure you understand the Texas laws on using CBD and Texas laws regarding driving while intoxicated.

While CBD products aren't necessarily illegal, if the police believe you are impaired to intoxication in Texas, you could still face a DWI arrest. Moreover, if the amount of THC advertised on your CBD product is incorrect, you could face drug charges. If you're arrested for a DWI or a DWI and drug charges, you should hire an experienced Texas attorney who is an expert in both criminal law and DWI defense.

Texas Compassionate Use Act

Texas law does contain an exception for the use of oils infused with cannabidiol, medical CBD, and low-THC products under the Texas Compassionate Use Act of 2015. However, in Texas, low-THC and medical CBD are only available by prescription from a licensed physician for conditions like epilepsy for pain relief and seizure treatment. While you may legally possess and use medical CBD or low-THC under a doctor's supervision, this doesn't exempt you from Texas DWI laws.

CBD doesn't have the same psychotropic effects as THC or marijuana, and businesses in Texas can sell non-medical CBD if the level of THC is below .3%. However, the levels advertised on these products aren't always accurate. If the police stop you with CBD and laboratory testing shows higher levels of THC, you could face additional criminal charges.

Drug DWI in Texas

If the police stop you while driving under the influence of CBD, you could still face DWI charges. A DWI in Texas isn't limited to charges involving just alcohol. Rather, you can face arrest if you are “intoxicated,” as defined in Texas law, whether it's the result of drugs, alcohol, or a combination of both. Because the levels of THC advertised on many CBD products can be incorrect, you can face an arrest if the police think you're “intoxicated.”

1. Defining a DWI in Texas

Under Texas law, driving while intoxicated means:

  • You have a BAC of .08% or higher, or .04% or higher if you have a commercial driver's license, or
  • You don't have the normal use of your physical or mental faculties.

There is no definitive objective standard for the amount of THC in your blood in Texas. As a result, the police are more likely to rely upon whether you have the “normal use of your physical and mental faculties,” which is a subjective standard.

2. Testing for Controlled Substances in Texas

The police don't have one specific test to measure the amount of a controlled substance in your blood. Experts also have no specific scientific standards to determine how much THC in your blood will render you “intoxicated.” Because of this, many prosecutors attempt to use any positive drug test to “prove” that you were driving while intoxicated. But remember, a drug test is not a BAC test. This is why you need an expert in DWI defense representing you.

3. The 12 Drug Recognition Protocol Steps

There is no THC or CBD equivalent of a BAC test. As a result, law enforcement officers developed a series of tests and observations to identify drug intoxication. This series of tests is called the Drug Recognition Expert Protocol (DRE), adopted by states across the country over the last 40 years. While Texas police have used DRE protocols for years, the process isn't infallible and can be highly unreliable. In some other states, laws don't allow police to give expert opinions based on DRE protocols in court testimony.

First, the officer will take a BAC breath test. If that doesn't explain the officer's observations of your behavior, the police will continue with the next 11 steps, including:

  • BAC breath test
  • Arresting officer interview
  • First pulse and preliminary exam
  • Eye exam
  • Divided attention psychophysical and sobriety tests
  • Second pulse and checking vital signs
  • Dark room exam
  • Muscle tone exam
  • Third pulse and check for injection sites
  • Taking your statement and observing your behavior and other physical signs
  • Analysis and opinions of the DRE
  • Toxicological exam

Whether you were subjected to a DRE analysis or proactively reading up on the steps, it's important to remember that this is not an objective process. Many of the steps rely solely on the police officer or examiner's interpretations of your behavior and physical responses. A DRE examiner can easily misinterpret medical conditions or normal behavior as drug-related. These interpretations are subjective. As a result, you need an expert in DWI defense, well-versed in drug DWI cases, to handle your case.

You Need an Expert in Texas DWI and Drug Defense

Attorney Doug Murphy is an expert in both Texas DWI defense and criminal defense law. He is one of only two Texas attorneys who hold Texas Board Certifications for both DWI Defense and Criminal Defense Law, making him an expert in these specialty areas of the law. Doug's experience, expertise, and technical know-how make him uniquely qualified to handle complex DWI cases involving controlled substances.

U.S. News and World Report recently named Doug Murphy as a Best Lawyers in America for DWI defense in Houston for 2023, an award voted on by his peers in Houston. The skilled attorneys at the Doug Murphy Law Firm have experience as prosecutors and defense attorneys, giving them the perspective needed to guide your criminal case to the best possible outcome. Contact the Doug Murphy Law Firm online or at 713-229-8333 to schedule your consultation.

About the Author

Doug Murphy

Doug Murphy is one of only two Texas lawyers Board Certified in Criminal Law by the Texas Board of Legal Specialization, and also in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.


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