If you're facing a DWI in Texas for driving while intoxicated by a controlled substance like cocaine, you're likely worried about what will happen next. Fear, embarrassment, and concern over whether you'll face jail time or lose your license are completely normal. But it's important to remember that you are innocent until proven guilty. Just because the police charge you with DWI or a controlled substance violation doesn't mean that a court will find you guilty. With a good Houston DWI attorney, you have options. An expert in Texas controlled substance DWIs can help you develop the best possible defense in your case.
Controlled Substance DWI in Texas
In Texas, driving while intoxicated doesn't always involve alcohol. Rather, you can also face arrest if you are intoxicated because of drugs, alcohol, or a combination of both drugs and alcohol.
What is a DWI in Texas?
Texas DWI law defines driving while intoxicated as driving in a public location:
- With a blood alcohol content of .08% or higher, or .04% or higher if you have a commercial driver's license, or
- Without the normal use of your mental or physical faculties because 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.”
See Tex. Penal Code § 49.01. Under this law, you don't have to have a blood alcohol content (BAC) over the legal limit, and the law encompasses drugs and alcohol.
Drug DWI Testing
Texas law has an objective standard for a DWI, as well as a subjective standard. A BAC over .08% gives police an objective standard for arrest and prosecution of a DWI. However, because not all DWIs involve alcohol, the law also gives a more subjective standard of no longer having the normal use of your mental or physical faculties. This subjective standard is the one police rely upon for your arrest for a cocaine DWI.
While the police may rely upon a positive drug test showing cocaine use, it's important to remember that this test alone does not prove that you were driving while intoxicated. Even if the substance is an illegal drug versus a prescription drug. While many prosecutors will try to use a positive drug test for a controlled substance or an illegal drug as evidence of a DWI, the drug test is not a BAC test. A Texas attorney experienced in drug DWIs will understand the best way to attack these results and mount an effective defense on your behalf.
The Drug Recognition Expert Protocol
Because there is no definitive, objective “drug” test for drug DWIs--especially cocaine, a stimulant--law enforcement officials developed a 12-step protocol to make the process somewhat less subjective. The steps include:
- A BAC breath test,
- The Drug Recognition Expert interviewing the arresting officer,
- A preliminary exam and first pulse,
- An eye exam,
- Divided attention psychological tests,
- Taking vital signs and a second pulse,
- A dark room exam,
- An exam for muscle tone,
- Checking for possible injection sites and a third pulse,
- Taking your statement and making other observations of you,
- The opinions and analysis of the evaluator, and
- A toxicological exam.
Controlled Substance DWI Penalties in Texas
The penalties for DWI vary in Texas based on whether you have any prior DWIs, whether anyone was injured, and even whether there were any children in the car.
- First DWI: A first DWI is typically a Class B misdemeanor, carrying up to 180 days in jail, a license suspension, a $2,000 fine, and a $3,000 administrative fine.
- Second DWI: A second DWI is typically a Class A misdemeanor, carrying up to one year in jail, up to a $4,000 fine, and a mandatory $3,000 administrative fine.
- Third or subsequent DWI: A third or subsequent DWI in Texas is a third-degree felony, carrying penalties of up to ten years in prison and a $10,000 fine. You will also pay the mandatory administrative fine.
Search Incident to Arrest
If the police arrest you for a DWI, they will likely search you and your car “incident to the arrest.” If the police don't have a warrant for this search, they typically can't search you and your car. However, if the police have probable cause to arrest you, they can search you. The justification for this search is safety and to inventory your belongings and the contents of your car.
Possession of Cocaine
If the police search you or your car and find cocaine, you may also face charges for cocaine possession. However, the prosecution must prove every element of the crime, including possession, beyond a reasonable doubt to prove this crime. Texas law defines “possession” as when “a person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.” Tex. Health & Safety Code §481.115(a). This definition means that the prosecution must show that:
- The substance in your possession was cocaine,
- The quantity, and
- That you “knowingly or intentionally” possessed it.
Cocaine Possession Penalties
Cocaine possession is a serious crime in Texas. Like many state laws, the Texas Controlled Substances Act penalized drug use by “penalty group” classification, ranging from Penalty Group 1 to Penalty Group 4. Texas law classifies the most dangerous drugs, including cocaine, as Penalty Group 1 drugs.
Penalty Group 1 drugs, including cocaine, can carry serious penalties for possession:
- Possession of less than one gram of cocaine is a state jail felony, carrying penalties of 180 days to two years in jail and up to a $10,000 fine.
- Possession of between one and four grams of cocaine is a third-degree felony, carrying penalties of two to ten years in prison and up to a $10,000 fine.
- Possession of between four and 200 grams of cocaine is a second-degree felony, carrying penalties of two to twenty years in prison and up to a $10,000 fine.
- Possession of between 200 and 400 grams of cocaine is a first-degree felony, carrying penalties of five to 99 years in prison and up to a $100,000 fine.
- Possession of more than 400 grams of cocaine is also a first-degree felony, with enhanced penalties. It carries penalties of ten to 99 years in prison and up to a $100,000 fine.
Hire an Expert in Texas Drug DWI Defense
If you're facing a cocaine DWI in Texas, you need an expert defending you in court. Attorney Doug Murphy is such an expert in criminal defense law and Texas DWI defense. Doug is one of only two lawyers in Texas that are Board Certified in both DWI Defense and Criminal Defense Law, making him an expert in these specialties. Doug's broad range of experience gives him the knowledge and skill to handle complex DWI cases like cocaine DWIs
Moreover, U.S. News and World Report recently named Doug Murphy to the list of Best Lawyers in America for DWI defense in Houston for 2021. Contact the Doug Murphy Law Firm today online or call 713-229-8333 to schedule a consultation.