Marijuana laws are becoming more and more lenient each passing day. Most states in the US have legalized the utilization of marijuana for medical purposes. A handful of them have declared that it is not illegal to use marijuana for recreational reasons.
Texas has not been left behind despite constant opposition from various stakeholders who are against legalizing marijuana use. For instance, the Striking Oil Senate Bill 339 that came into force in September 2017 has allowed patients who have epilepsy to use cannabidiol oils for treatment.
But, not all marijuana users in Texas have epilepsy. Because marijuana is a popular drug, it attracts numerous individuals from a wide range of socio-economic backgrounds.
Although we predict that marijuana will be completely legalized in the long run, this will not affect Texas DWI laws in any manner whatsoever. Driving while under the influence of any drug, regardless of whether or not it is prohibited, is unlawful in Texas.
If you or your loved one has been charged with DWI with marijuana in Fort Worth, we invite you to contact us for help. We at the Fort Worth DWI Defense Lawyer have helped numerous individuals facing DWI charges in Texas. We will help you build a robust defense strategy.
The Legal Definition of DWI with Marijuana
According to Texas DWI laws, it is unlawful to drive while under the influence of any drug. Since marijuana is a drug, you can be arrested for DWI if you drive after taking it.
The crime of DWI with marijuana has two elements:
- Driving a vehicle
- Being under the influence of marijuana
Let us discuss these two elements comprehensively:
Driving a Vehicle
For you to be convicted of DWI with marijuana, the prosecutor must prove that you were driving. You will not receive a conviction if the prosecution is unable to verify this fact.
Typically, it is quite easy for the prosecutor to prove that you were driving, especially if you were arrested at a traffic stop. But in some situations, you can be arrested for DWI when you were not driving. For example, a police officer can find you asleep inside your car and arrest you for DWI. In such a situation, the court will not convict you.
However, the police can still use circumstantial evidence to prove that you were driving. For example, if the engine was running when you were arrested, the court may presume that you were driving.
Although circumstantial evidence can prove that you were driving, the court does not usually rely on it. What the courts want is direct evidence to show that you were driving. The jury must be satisfied that you intentionally performed an activity geared towards operating and directing the vehicle’s course. You cannot be convicted for DWI with marijuana simply because the police officer saw you sitting behind the wheel.
Being Under the Influence of Marijuana
The prosecutor must demonstrate that you were under the influence of marijuana. Being under the influence of marijuana implies that your physical or mental abilities were impaired due to the consumption of the drug, and you were unable to drive the way a sober person would, while exercising reasonable care and under similar circumstances.
Unlike the element of driving, which is easy to prove, it is difficult for the prosecution to show that you were under the influence of marijuana. Note that the burden of proof in Texas DWI cases falls on the prosecution, and the standard of proof is beyond a reasonable doubt.
How can the Prosecutor Prove that you were Under the Influence of Marijuana?
Remember that proving you were under the influence of marijuana poses serious challenges to the prosecution. Unlike alcohol, there isn’t any ‘legal limit’ for DWI with marijuana in Texas.
Texas has completely distinct DWI laws, in comparison to other states. Some states have laws restricting the total amount of THC present in a motorist’s bloodstream.
THC in full is delta-9-tetrahydrocannabinol. THC is the major psychoactive component in marijuana. It is what will make a marijuana user feel ‘high’ or ‘stoned.’
Some weed strains have low THC levels, but are high in ‘cannabidiol.’ Unlike THC, cannabidiol (commonly referred to as ‘CBD’) is non-psychoactive.
Often, individuals who use marijuana for medical reasons select weed strains with high CBD and low THC. This way, they can get the health benefits of marijuana without feeling stoned.
Here is why Texas does not have any law limiting the amount of THC present in a driver’s bloodstream:
- DWI chemical tests are not highly reliable
- Experts can’t agree on the maximum limit of marijuana for motorists
This means that prosecutors in Texas cannot absolutely rely on DWI chemical tests to prove that you were under the influence. You can still be convicted for DWI without a chemical test result. In fact, you can be charged with marijuana DWI even if you did not take any chemical tests. A test result is just part of the evidence that the prosecutor will utilize to show that you were physically impaired.
There are three types of DWI chemical tests that the Texas Law Enforcement can administer to you. These tests include blood, urine, and saliva tests. Blood tests are the most common, because they are deemed to be the most accurate of the three.
There are other methods that the prosecutor can use to show that you were under the influence of marijuana. Evidence to show that you were physically impaired can include:
- Poor driving patterns
- Statements issued to the police
- Field sobriety test (FST) results
- Presence of drug paraphernalia or marijuana inside the vehicle
- Physical symptoms of intoxication
- Medical reports showing marijuana addiction
- Written or oral testimony from a drug recognition expert(DRE)
Here is a brief discussion of each of these pieces of evidence:
Poor Driving Patterns
A law enforcement officer can motion you to pull over if he/she notices that you exhibit poor driving patterns. For instance, probably you were speeding or breaking a particular traffic law.
Poor driving patterns directly correlate to physical impairment. This is because an individual who is physically impaired finds it challenging to exercise reasonable care and caution while driving. Such an individual may drive recklessly or carelessly.
The investigating officer can demonstrate that you were under the influence of marijuana by providing the jury with some of the statements you made. When a police officer flags you down, he/she may ask you several questions or engage you in a conversation.
In such a situation, we advise that you remain silent. This is because you can make various incriminating statements that can be used against you during trial. For instance, you may unknowingly admit that you had just smoked marijuana.
Field Sobriety Test Results
Upon being pulled over, the police officer may request you to take a field sobriety test. There are three main types of FSTs that the Texas Law Enforcement Department uses typically. These types include the Horizontal Gaze Nystagmus, the One-leg Stand, and the Walk-and-Turn.
In all these tests, you will be asked to do different mental and physical exercises. Poor performance in these tests implies that you are intoxicated. Courts in Texas greatly rely on field sobriety test results to gauge whether an individual was physically impaired.
Presence of Drug Paraphernalia or Marijuana
If the investigating officer searched your vehicle and found marijuana or any drug paraphernalia, he/she will use it as strong evidence against you. In this situation, the court will automatically assume that you were intoxicated.
Physical Symptoms of Intoxication
If you exhibit certain physical symptoms of intoxication, the police officer will believe that you are impaired. Some examples of these symptoms include:
- Dilated pupils
- Slow reaction time
- Rapid heart rate
- Marijuana odor
- Rapid breathing
- Dry cottonmouth
- Red eyes
The investigating officer will adduce oral evidence in court showing that you exhibited a particular symptom of intoxication. This will prompt the judge/jury to believe that you are guilty.
If you have a history of addiction to marijuana, the court may assume that you were intoxicated at the time of arrest. The prosecutor can thoroughly scrutinize your background to provide evidence showing that you are addicted to marijuana. He/she can also rely on medical reports.
Drug Recognition Expert
Some Texas Law Enforcement Departments employ drug recognition experts. When you have been arrested for DWI, the police officer may contact a DRE.
The primary function of a drug recognition expert is to examine DWI suspects to find out if they are physically and mentally impaired. The prosecutor will utilize the oral or written testimony of the DRE during trial.
Does Marijuana Affect Driving Ability?
Whether or not marijuana impairs driving ability has been a subject for scientific debate for a very long time. Marijuana is listed as a Schedule 1 narcotic in the Federal Controlled Substances Act. Because it has been classified as a narcotic, it is widely deemed hazardous, and there is very little research about its effects on driving.
But, it is widely known that THC – the psychoactive ingredient in marijuana can affect an individual’s motor skills, including perception, memory, and cognition. On the flip side, scientific research has not shown any direct correlation between driver impairment and THC use.
Some scientists claim that individuals are highly alert after excessive consumption of THC. Other scientists argue that individuals are significantly impaired after consuming extremely low THC amounts. However, regardless of whether or not marijuana affects driving ability, it is still unlawful to drive after taking it.
The Penalties for DWI with Marijuana
Upon being convicted for first offense DWI with marijuana, you will face a minimum incarceration period of 3 – 180 days. You may also be ordered to pay a fine of a maximum of $2,000, and your driver’s license may be suspended for 3 – 12 months.
Note that DWI is classified as a priorable offense in Texas. This means that its penalties increase with each subsequent charge.
If you have been convicted for second offense DWI with marijuana, you will be incarcerated for 30 – 365 days. Also, you may pay a fine of up to $4,000, and the DPS will suspend your driver's license for a minimum of six months and a maximum of two years.
A third and any subsequent conviction for DWI with marijuana will attract a prison sentence of 2 – 10 years. Moreover, you will have to pay a fine of up to $10,000, and your license may be suspended for two years.
The judge can also impose other penalties, such as:
- Community service
- Vehicle impoundment
- Drug therapy/rehabilitation
- DWI school
If you were found with marijuana inside your vehicle, you might receive additional charges for drug possession. Moreover, other aggravating factors can make you face a longer incarceration period and increase the fine's value. Some of these aggravating factors include:
- Having a child who is below 15 years old inside your vehicle
- Having extremely high THC levels
- Reckless driving
- Excessive speeding
- Driving on a suspended or revoked license
- Causing property damage or injuries
Legal Defenses to DWI with Marijuana
Below, we analyze the three most popular defenses in Texas to DWI with marijuana:
The Driver Didn’t Use Marijuana
The metabolites of marijuana are distinctly unique. A person cannot test positive for it if he/she hasn’t used it within the past few days.
Therefore, if you obtain a negative chemical test result, you can use this defense. However, you can still apply this defense even if your test results were positive.
This is because chemical test results can be inaccurate. They may be incorrect due to various reasons, such as existing health complications and test equipment flaws.
The Driver Utilized Marijuana Recently, but is no longer Stoned
Chemical test results can show that you have used marijuana, but they cannot indicate when you used it. You could obtain positive test results for marijuana if you smoked it within the last 12 hours. If you are a habitual smoker, you can test positive for it, even if you used it 30 days ago, or you completely stopped utilizing it.
Typically, the court does not absolutely rely on chemical test results for marijuana. Your lawyer can convince the jury/judge that indeed you had used marijuana, but you were not feeling high when driving. As a result, you may obtain an acquittal or a dismissal.
The Driver Utilized Marijuana, but he/she was not physically Impaired
The prosecutor can prove that you had used marijuana. However, he/she can find it challenging to prove that you were physically impaired.
Remember that Texas does not have a ‘per se’ THC limit. Unlike in drunk driving cases where the court can hold you guilty simply because you exceeded the Blood Alcohol Content (BAC) limit, the prosecutor must prove that you were actually physically impaired in a case for DWI with marijuana. If the prosecutor does not reach the high standard of proof required in Texas criminal cases, you will be acquitted.
Common Misconceptions about Marijuana Legal Defense Strategies
Various common misconceptions about marijuana legal defense strategies exist. First, you should never admit to the law enforcement that you are addicted to marijuana. Most defendants often do so believing that they will elicit sympathy from the prosecution. Also, do not admit that you are attending a drug therapy/rehabilitation program. If you do so, the prosecutor will use your admissions as evidence against you. It will be easy for them to prove that you were impaired while driving, because you are a habitual smoker. You should note that driving while addicted is also categorized as DWI in Texas. An overzealous prosecutor, who has insufficient evidence to prove that you were physically impaired, might attempt to convince the court that you are addicted.
Second, it isn’t a defense strategy to assert that you were using marijuana legally, even if you had only used it for medical reasons. Remember that Texas DWI laws criminalize driving while under the influence of any drug. Therefore, do not think that you can fight marijuana DWI charges by asserting that you had used it legally.
Finally, you cannot admit that you were physically impaired due to other reasons. For instance, you should not tell the court that you had taken a sedative pill before driving. If you do so, you will make it easy for the prosecutor to prove that you are guilty because you've already admitted that you were impaired.
Expungement of a DWI with Marijuana Conviction
Texas criminal records are available to the public. If you have been arrested, charged, and convicted of marijuana DWI, any person who performs a background check can find out. This means that it can be challenging for you to find a nice job, good housing, or even a bank loan. To prevent this, you can delete your criminal record.
It is easy to expunge a DWI criminal record if you were not convicted. On the other hand, deleting a criminal conviction for DWI with marijuana is difficult. According to HB 3016 – Texas’ law for DWI expungements, you can only expunge your DWI marijuana conviction if:
- It was your first and only conviction for DWI
- You do not have any other criminal conviction
- You’ve completed your probation terms, incarceration periods, and you have paid the required fines and court assessment fees
- You did not cause an accident or injure another person
If you’ve satisfied all these conditions, you can have your DWI marijuana conviction expunged. To find out whether you qualify for expungement, you should consult an experienced Texas DWI attorney. Once you expunge your criminal conviction, you will be able to state without fear of perjury that you have never been convicted before.
DWI with Marijuana and Related Offenses
Two Texas criminal offenses are related to DWI with marijuana. These offenses are:
- Possession of marijuana
- Sale of marijuana
In Texas, possessing even tiny amounts of marijuana can make you serve a jail sentence. In fact, owning less than two ounces of marijuana can lead to a jail term of 180 days and a fine of up to $2000. If you own over 2000 lbs of marijuana, you risk facing state imprisonment for life. Also, you can be ordered to pay a fine whose maximum value is $50,000.
If you sell or attempt to sell marijuana, you risk facing a jail sentence of 180 days to life. The penalty you will receive upon conviction will depend on the amount of marijuana you sold or attempted to do so.
Both the criminal charges of possessing and sale of marijuana are wobblers. This means that they can be charged as either felonies or misdemeanors. The primary determining factor that the prosecutor will look at when deciding to charge the offense as either a misdemeanor or a felony is the amount of marijuana involved.
Note that if you were found with marijuana when the police pulled you over, you could be charged with the offense of possession of marijuana, alongside DWI. Alternatively, the prosecutor may decide to only charge you with DWI and use the fact that you possessed marijuana to strengthen his/her case. In such a situation, you will serve a much longer jail term if you become convicted.
Find a DWI Attorney Near Me
Being convicted for DWI with marijuana can result in devastating, life-altering consequences. Apart from imprisonment and hefty fines, you will obtain a criminal record that may hinder you from accessing numerous opportunities such as jobs, scholarships, university admissions, and good housing. Moreover, insurance will become very expensive for you. You may also lose your driver's license and be required to attend a drug rehabilitation program.
A good criminal defense attorney can help you avoid a DWI conviction. Get in touch with Fort Worth DWI Defense Lawyer if you or your loved one has been arrested for DWI with Marijuana in Fort Worth.
We specialize in all DWI cases. As a result, we have extensive experience in these type of cases. Call us today at 817-470-2128 for a free, no-obligation consultation.