The marijuana plant is the most commonly used illicit drug in the world, and every year thousands of people in the US are arrested on marijuana charges. Many states have passed laws legalizing the use of recreational marijuana. Unfortunately for marijuana users, Texas is not yet one of those states who have legalized marijuana.
The laws in Texas, like many states, still aren't quite sure what to do about drivers who operate motor vehicles while under the influence of marijuana. When most people think about “driving while intoxicated” (DWI), they think about alcohol. But, a driver can also be accused of being legally intoxicated by marijuana and arrested and charged with DWI, even though it's much more difficult to prove that the driver is intoxicated.
The Effects of Marijuana
Also known as cannabis sativa and cannabis indica, marijuana leaves, stems, and seeds contain tetrahydrocannabinol (THC). THC is a psychoactive ingredient that is absorbed into the user's bloodstream when it is smoked or ingested, sometimes in the form of edible foods and candies.
When THC gets to the brain, it affects specific receptors by overstimulating them and causing the user to feel euphoric or “high.”
These effects can include:
- altered senses
- altered sense of time
- changes in mood
- impaired body movement
- difficulty with thinking and problem-solving
- impaired memory
- hallucinations (when taken in high doses)
- delusions (when taken in high doses)
- psychosis (when taken in high doses)
No Defined Legal Limits
A driver in Texas can be charged with DWI if their blood alcohol concentration (BAC) is .08 or higher. Drugged driving is different than drunk driving, though. There is not a defined limit for how high a driver can be and be under or over the legal limit, because there is not a set limit. It's solely up to a police officer or a prosecutor to determine if a driver was too high to drive.
That's not to say that Texas does not have drugged driving laws—it does. Texas' drugged driving laws can be found in Chapter 49 of the Texas Penal Code. Those laws say that a person in Texas commits a criminal offense if they are driving intoxicated. A driver is considered impaired under Texas law if they are not able to normally control their mental or physical faculties due to alcohol, a drug, a controlled substance, a dangerous drug, or a combination of both alcohol and drugs.
But there is not a fixed level of drugs someone can have in their system that will determine whether or not they are charged with drugged driving in Texas. Instead, a prosecutor will decide on a case-by-case basis. This means that two defendants could have identical circumstances but experience wildly different outcomes based solely on the decisions of the prosecutor. This gives the prosecutor a disconcerting amount of power and makes it all the more critical that someone facing drugged driving charges hires an attorney who knows how to mount a drugged driving defense.
Confusing State Laws
To make matters more confusing, an increasing number of states are decriminalizing or partially decriminalizing the purchase and use of marijuana. In Alaska, Washington, Oregon, California, Nevada, Michigan, Vermont, Massachusetts, Maine, and Colorado, for example, people can buy marijuana for both recreational or medicinal purposes. Other states have made marijuana legal for medical use but not for recreational use.
In Texas, simple possession of marijuana is illegal, for any purpose. However, as more and more states decriminalize marijuana, arrests for drugged driving are increasing in every state, including Texas.
You can be found guilty of driving while intoxicated under Texas law if you have lost the normal use of your mental or physical faculties due to drug use, or if you had a blood alcohol concentration of .08 or higher at the time you were driving. The law reads:
“… not having the normal use of mental or physical faculties by 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.”
Driving after you have voluntarily consumed a substance like marijuana that causes you to lose the normal use of either your mental or physical faculties falls under this definition. Unlike alcohol, however, there is no set level of drugs like marijuana that is legal or illegal to consume before driving.
Breathalyzers Can't Detect Marijuana
When someone is suspected of driving while intoxicated, police officers often ask the suspect to take a breathalyzer test at the police station. However, neither of the most commonly used models of breathalyzers in Texas can quantify how much THC is in a person's body. A blood test, however, can detect THC.
As a result, jurisdictions around the Lone Star State have begun blood testing suspects believed to be driving under the influence of marijuana. Also, countries and municipalities around Texas are increasingly relying on Texas' “No Refusal” law to compel suspects to submit to blood tests. Under the No Refusal law, a police officer can ask a magistrate judge to expedite a warrant that forces a suspect to submit to a blood test. The blood sample that is collected from the suspect is then analyzed to ascertain if a substance like alcohol or marijuana is in the suspect's blood, and how much.
Other Ways to Determine Marijuana Intoxication
While Texas law does not state how much THC is considered intoxicated for the purposes of drugged driving, other states have quantified legal limits.
In Colorado and Washington, where recreational use of marijuana has been legal statewide for several years, a suspect who has at least five nanograms of THC per milliliter of blood or five parts per billion in their system is considered intoxicated.
Other states also use other tools for assessing whether someone under the influence of marijuana is driving while intoxicated, including roadside saliva tests. Texas is not currently using these tests, but likely will in the coming years.
However, as all use of marijuana and all possession of marijuana is illegal in Texas, prosecutors and judges are often inclined to view any use of marijuana while driving as intoxication. Texas' lack of a defined amount of marijuana for DWI also means that the arresting officer must conduct a more thorough and meticulous investigation. This is why law enforcement officers will often call in a specially trained officer known as a Drug Recognition Expert (DRE) to the scene of an investigation of a DWI case that involves marijuana. The DRE will typically be more thorough and will conduct more tests to collect more evidence that the person is impaired.
Penalties for Driving Under the Influence of Marijuana in Texas
Even though Texas' laws regarding driving while high on marijuana are not clearly defined, the potential penalties for someone who is convicted are quite clear and can be really harsh.
Being convicted of drugged driving in Texas can lead to 72 hours to 180 days in jail and a fine of up to $2,000 for a first offense. In addition, your driver's license can be suspended for up to 100 hours.
Texas also has a system of surcharges for some traffic offenses, including drunk and drugged driving. Someone convicted of drunk or drugged driving in Texas can, through this complicated and controversial system of fines, end up paying fines of $1,000 to $2,000 a year for three years.
All of these penalties for driving under the influence of drugs can increase for someone who is convicted of a second or a third offense. Someone convicted of drugged driving a second time is likely to face a fine of up to $4,000, up to a year in jail, and 80 to 200 hours community service, and your driver's license could be suspended for up to two years.
Someone who is convicted a third time will likely face fines of up to $10,000, between two and ten years in prison, be ordered to complete 160 to 600 hours community service, and have their driver's license suspended for up to two years.
Help is Available
Texas' laws regarding driving under the influence of marijuana can be quite confusing, and the penalties can be very severe. Being convicted of DWI can negatively impact your life and possibly even affect your ability to do your job. It is essential that you hire an attorney who knows how to defend people who have been charged with driving under the influence of marijuana and who understands how to challenge the testimony of arresting officers in these cases.
Attorney Doug Murphy has successfully taught lawyers throughout the country on defending allegations of impairment due to drugs. Doug Murphy has successfully defended many clients who have been accused of drugged driving. He understands Texas' laws, and he knows how to help clients avoid charges and secure acquittals for drugged driving. Because Texas' laws are not as clear as other states on these issues, it's even more important that you hire a DWI Specialist who understands this area of the law and knows how to defend you. Doug Murphy can help you fight these charges and put this experience behind you. Call for an appointment today.