DWI Arrest for THC Gummies or Vape Pen Use

If you are like most people, then when you hear of a DWI, you think of alcohol intoxication. And in fact, by far, most DWI arrests are for alcohol intoxication, not for drug use. But driving while impaired by drugs is also a crime in Texas and other states. Indeed, drug-impaired driving is a Texas crime whether the drugs are legal or not. With marijuana's increasing legalization and the proliferation of marijuana-extract products, so-called drugged driving, as contrasted with drunk driving, has grown by leaps and bounds. And with the vast increase in drug-impaired driving, law enforcement is increasingly on the lookout for drug-impaired, not just alcohol-intoxicated, driving.

If you are a Texas driver, then you need to be aware that your use of marijuana in any form, including THC gummies or THC vaping, could lead to a DWI charge. Eating gummies or vaping seems like an innocent and harmless diversion. Texas law does not treat it as harmless if you get behind the wheel of a vehicle after ingesting a THC-laden product. Driving while impaired by drugs is a Texas DWI crime. If you face a Texas DWI charge based on your use of THC gummies or THC vaping, or any other marijuana or drug use, then you need a premier Texas DWI Specialist attorney to represent you. You can do no better than to retain Best Lawyers in America's 2021 Lawyer of the Year and Texas DWI Specialist attorney Doug Murphy.

The Big Increase in Drug-Impaired Driving

More and more Texas drivers are facing DWI charges based on drug use, including the use of marijuana in any of its forms, such as gummies or vaping. The Centers for Disease Control reports that about twelve million U.S. drivers admit driving under the influence of marijuana within the past year. Another two million admit driving under the influence of other drugs. Those figures on drug-impaired driving are on the increase. One recent mental-health report cites studies showing that drivers with marijuana in their system have increased by an astounding 50% since 2007. Marijuana use among drivers is so now so prevalent that on weekends, one out of every eight (12.6% of) nighttime drivers have marijuana in their system. Indeed, fully 15% of weekend nighttime drivers now test positive for at least one illegal drug. That 15% of drugged drivers is nearly double the 8% of weekend, nighttime drivers with alcohol in their systems.

And if you didn't already know, weekend nighttimes are when the most serious fatal accidents occur due to some form of intoxicated or impaired driving. A recent National Highway Traffic Safety Administration update indicates that the pandemic has accelerated the trend of an increase in marijuana and other drugs in the systems of drivers, causing fatal and serious injury accidents. Texas law treats drug-impaired driving as a serious offense. You should, too.

Does Marijuana Use Really Increase Crash Risks?

One might assume from these reports that marijuana or other drug use significantly increases the likelihood of a driver causing a serious motor vehicle accident. Yet if marijuana use does increase crash risk, then the increase appears to be far less than the increased risk from alcohol-intoxicated driving. A 2016 National Highway Traffic Safety Administration drug and alcohol crash risk study confirmed that alcohol intoxication could increase crash risks by as much as four times. That's 400% of the sober driving crash risk!

Yet the same study found only a barely statistically significant increased crash risk of 1.25 times, or 125% of the clean-and-sober driving crash risk, for drivers with marijuana in their system. And the study further showed that the relatively small effect of marijuana on crash risks disappeared when adjusting the data for age and gender effects. Young men have more crashes. More young men also drive with marijuana in their systems. Adjust for those patterns, and the study showed no significant marijuana effect on crash risk. A National Conference of State Legislatures summary of recent studies concludes that “the exact impact of marijuana and other drug use on impaired driving deaths is unknown….” As explained further below, the question of THC's effects on driving can be a big question when prosecutors charge DWI based on THC levels in the driver's system.

Marijuana's Potential Effect on Driving Skills

Even if little is confirmed about the crash effects of driving with marijuana in your system, don't make a practice of driving with THC in your system. The National Highway Traffic Safety Administration summarizes several studies showing that marijuana can have negative effects on driving skills. The myth is that marijuana may actually help your driving. The studies instead connect marijuana in a driver's system with deterioration in the driver's motor skills, lane tracking, cognitive skills, and multitasking. The latter multitasking effect reducing the driver's ability to attend at once to several stimuli is especially concerning.

We all know how distracting the interior of a vehicle can be with its dials, screens, signals, and sounds. One doesn't have to be texting while driving to be easily distracted by passengers, food, refreshments, music, radio shows, and other entertainment inside the vehicle. If marijuana reduces attention, then that effect is a problem for driving. Marijuana is well known to induce relaxation, euphoria, disorientation, altered perception, drowsiness, paranoia, and image distortion, among other effects. None of these effects are good for driving. That's why in some cases, prosecutors can prove DWI charges based on THC levels in the driver's system, provided they have other reliable evidence of the driver’s impairment.

Marijuana-Impaired Driving Remains Illegal

Studies showing little to no marijuana effect on crash risks might help reduce or defeat a Texas intoxication assault or intoxication manslaughter charge. In an intoxication-assault charge, the prosecution must show not only that drugs or alcohol were in the driver's system but also that the drugs or alcohol contributed to the driver's impairment in a way that caused the death or injury. With expert representation from a DWI Specialist, a defendant charged with intoxication assault or intoxication manslaughter may be able to prove that drugs, including marijuana in the system, were not a contributing cause of the crash that brought about the injury or death.

But those studies suggesting little if any relationship between marijuana in the system and increased traffic crashes won't beat a Texas DWI charge based on marijuana use. No matter the crash risks of marijuana use among drivers, drug-impaired driving remains illegal in Texas and other states. Indeed, drug-impaired driving remains a Texas crime, whether based on marijuana use, prescription drug use, or other drug use. A DWI arrest, charge, and conviction can occur in Texas for either alcohol intoxication or drug impairment, including when a test after a DWI arrest detects marijuana in the driver's system. Don't think that you are home-free just because test results showed nothing impairing in your system other than THC. Prosecutors still have a chance of making the charges stick.

Texas' DWI Crime for Drug-Impaired Driving

Under Texas Penal Code §49.04, prosecutors can charge a driver with a DWI whenever they do not have normal use of mental or physical faculties by reason of intoxication. Intoxication may sound like drinking alcohol, but Texas Penal Code §49.01 defines intoxication to include “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 and its psychoactive ingredient THC clearly fall within the Code's broad definition of a controlled substance or drug, including both legal and illegal drugs. The punishments for a Texas DWI based on marijuana use are generally the same as punishments for an alcohol-based DWI. Penalty enhancements for things like a second, third, or fourth DWI, and for DWI with a child passenger or causing injury or death can also apply.

THC Levels Do Not Matter to Your DWI Arrest

What, though, about the THC level that a test result shows may have been in the DWI defendant's blood at arrest? With alcohol DWIs, Texas law sets a .08 minimum for the blood-test form of the crime. Texas law sets a higher .15 minimum for enhanced penalties. But for drug-based DWIs, Texas law sets no minimum levels. No amount of marijuana's psychoactive ingredient in the blood is legal or illegal on its own, simply on the test results. Instead, the level must cause impairment. Under Texas Penal Code §49.01's definition of intoxication, the THC level must cause the DWI defendant to “not hav[e] the normal use of mental or physical faculties,” which is how the law defines intoxication's impairment.

Thus, in a way, your THC level does not matter to your DWI arrest and charge. If the prosecution has other evidence of a driver's impairment, then test results showing THC in the driver's system create an opportunity for the prosecution to connect the THC level with the other evidence of impairment. The prosecution must make that causal connection, but evidence of THC plus evidence of impairment may permit at least some inference of a connection. That's why THC in the blood test results can support a DWI arrest and charge, almost no matter the THC level.

THC Levels Can Matter to Your DWI Defense

On the other hand, your THC level can definitely make a difference to your defense. We've just seen that because Texas law has no specific statutory THC level making your driving illegal, prosecutors must prove more than their allegation that you had THC in your system. They must also prove that the THC in your system caused you not to have your normal use of mental or physical faculties. That issue of how your THC level affected or did not affect your mental and physical faculties is the factual issue on which your actual measured THC level can have a significant influence.

For example, if your THC levels were comparatively high, then the high THC level may make more likely the fact of an effect on your faculties. If, on the other hand, your THC levels were very low, such as just a trace from long-prior use, then the very low THC level would make less likely the fact of an effect on your faculties. In short, THC levels matter to your DWI defense, not to your DWI arrest and charge. Police may arrest you for any level, and prosecutors may charge you for any level. But with expert DWI Specialist defense representation, you'll likely beat the charge if you had very low THC levels. Retain premier Texas DWI Specialist attorney Doug Murphy to defend and defeat your THC-based DWI charge.

The Increased Role of THC Gummies and Vape Pens

You may, as a practice, restrict your marijuana use to gummies or vaping. But don't think that the outcome of a DWI arrest related to marijuana in the system will be any different just because you ate THC-laden gummies or used a THC product in your vape pen rather than smoking marijuana. The National Institute on Drug Abuse indicates that tests to detect marijuana in drivers arrested for a DWI measure delta-9-tetrahydrocannabinol, or THC, levels. THC is marijuana's mood-altering ingredient.

Commercial providers of THC products will help users get THC's psychoactive effect any way they can. Hence the various gummies and vape pen products. One mental-health source indicates that vaping THC involves heating and vaporizing the THC oils to carry the ingredient into the blood through the lungs. Vaping can have greater social acceptance than smoking. Another health source indicates that THC gummies are just one of a wide range of THC edibles. Those THC edibles tend to extract the psychoactive ingredient into oils or butters used in the final products, making consumption very discrete. The point is that THC users have many more ways to ingest the product, gummies and vaping prime among them.

The Long Duration of THC Levels

A big problem for drivers who use THC products is the long duration of measurable THC levels in their system. With DWI arrests for alcohol, you generally have to have imbibed the same day or night as the arrest. Alcohol dissipates at a fast rate. An American Addiction Centers summary indicates that tests measure alcohol in the blood for up to six hours and breath, saliva, or urine for twelve to twenty-four hours. By contrast, another American Addiction Centers summary indicates that tests detect THC in the saliva for up to two days, blood or urine for up to three days, and hair for up to three months.

THC thus lasts in the system for two, three, or more times longer than alcohol lasts in the system. Generally, the alcohol you drank today or tonight matters at your DWI arrest. Often, the THC you ingested not just today or tonight but also yesterday and the days before can also matter. Ingest THC on Saturday, and you may still face DWI arrest for THC impairment on the way to work Monday morning. The long duration of THC levels in a driver's system means a significantly greater risk of a THC-based DWI arrest.

What to Do for DWI Arrest Based on THC Gummies or Vaping

Consider what to do after your DWI arrest. You may have already taken the right immediate actions after your DWI arrest. The first thing to do when arrested for a DWI after you have ingested THC gummies or used THC oil in a vape pen is to rely on your constitutional right to remain silent. You are doing nothing but implicating yourself in crime if you blurt out to the officer that you have only eaten a few gummies or used your vape pen. You have the right not to speak or answer the officer's questions, other than to identify yourself. Rely on that right. Things won't get any better for you if you answer the officer's questions about what you ate, drank, smoked, or otherwise ingested, or any other questions about your habits, practices, and activities. If your arrest occurred while you were already in a drug or alcohol treatment program, then your expert retained attorney will advise you to take other steps, including evaluating the effectiveness of that program. In short, you have several good things to do after your arrest on a DWI charge based on gummies or vaping. Your expert Texas DWI defense attorney will advise you of those good things to do.

Retain Expert DWI Defense Representation

Indeed, the best thing to do after a DWI arrest based on gummies or vaping is to retain a premier Texas DWI defense attorney. If police arrested you for DWI based on alleged marijuana or other drug use, then retain Best Lawyers in America's 2021 Lawyer of The Year DWI defense attorney Doug Murphy. Your only drug use may have been something so innocuous as THC gummies or THC oil in a vape pen. But that doesn't reduce the seriousness of your DWI charge. You need to retain a premier Texas DWI defense attorney. Attorney Doug Murphy is one of only two Texas lawyers holding both DWI Board Certification and Criminal Law Certification. Attorney Murphy's dual certification is so rare because of the rigor of certification examination. Texas DWI defense attorney Doug Murphy is your best option for defending a DWI charge involving alleged drug use, including the use of THC gummies or THC oil in a vape pen. Contact Doug Murphy Law Firm now, either online or at (713) 229-8333.

Contact Us Today

If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.

Doug Murphy Law Firm, P.C.
902 Heights Blvd.
Houston, TX 77008
713-229-8333
713-583-0205 (fax)

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