Driving While Intoxicated (DWI) is most often associated with alcohol. In Texas, however, an individual who operates a vehicle after taking a prescription medication may be arrested, charged, and convicted of DWI if he or she was impaired pursuant to Texas Penal Code § 49. This can happen even if the drug was prescribed by a health care provider and taken in the dose prescribed. Current standards used to determine impairment or intoxication are quite sketchy. If the police believe that you are impaired by any sort of substance, including illicit drugs, alcohol, or medication, you can and most likely will be arrested for DWI.

Many prescription drugs are in fact-controlled substances regulated by state governments and the federal government. The use of some prescribed medications even in the absence of any illegal drugs or alcohol may lead to a DWI charge for “drugged driving” or DWI drugs. If an individual mixes alcohol with prescription medications, he/she may be charged with both drunk driving and drugged driving. Drunk driving and drugged driving convictions in Texas impose the same penalties including, expensive fines, jail time, suspension of driver’s license, probation, and more.

Seasoned Attorney for DWI with Prescription Medications in Fort Worth

Between flawed tests and harsh laws, innocent individuals are mistakenly charged with DWI drugs for driving after taking their legally prescribed medications. If you or your loved one were arrested for DWI with prescription medications in Fort Worth, Texas, consider conferring with an experienced DWI attorney. And given that you only 15 days to request an administrative hearing to contest the suspension of your driver’s license, you should act quickly and retain an attorney to help you with the process.

I have the knowledge and experience to explain your charges, inform you of available options, and vigorously defend a charge of DWI drugs. Depending on the facts of your case, I may be able to uncover evidence that may help achieve a dismissal or reduction of charges. And if your case goes to trial, I will be prepared to fight against a DWI conviction.

For a free confidential consultation and case review, contact Andrew Deegan Fort Worth Attorney at Law at  817-470-2128.

Legal Definition of Terms Associated with DWI and Prescription Drugs

In Texas, a person may be arrested and charged with DWI or DWI drugs if he or she operates a vehicle in a public place while intoxicated as provided under the Texas Penal Code, Title 10, Chapter 49, § 49.04.

  • Intoxicated

Intoxication under Texas’s DWI statutes means not having the normal use of physical or mental faculties due to the consumption or introduction of alcohol, a drug, a controlled substance, a dangerous drug, or a combination of such substances.

This means that a person can be charged for operating a motor vehicle while intoxicated even if the intoxication was not caused by alcohol. However, this does not imply that an individual can be charged with DWI drugs just because he or she has taken a drug and then operated a vehicle. Instead, the test considers whether the drug has impaired an individual’s physical or mental capabilities, such as causing sleepiness, dizziness, or drowsiness.

  • Motor vehicle

A motor vehicle in Texas is defined as a device by, on, or in which an individual or property is or may be drawn or transported on a highway, except any device used solely on stationary tracks or rails. As such, motor vehicles include trucks, cars, boats, motorcycles, water scooters, helicopters, airplanes, or lawn mowers. Note that trains are not defined as motor vehicles.

Additionally, “operating” the vehicle is not limited to the act of driving. A person can be charged with DWI if they had actual physical control of the vehicle.

DWI with Prescription Medication is a gray area that law enforcement officers are not formally trained in to help them distinguish impairment due to medication and impairment from a medical condition. There’s a big difference between impairment due to drugs and taking a therapeutic dosage level top treaty a medical condition. Officers do not have professional or educational medical training to make such determinations.

Police utilize an unproven and unreliable tool known as a 12-step D.R.E. (drug recognition expert) protocol designed and created by policemen and not scientists or medical doctors. Studies on this protocol show that it results in false arrests more than 50 percent of the time. In Texas, there’s also no measure of the concentration of drugs to cause impairment. This is because people react differently to drugs that how they react to alcohol. The scientific community has not determined unsafe levels of all drugs because every individual is affected in a different manner.

Police officers typically rely on the medicine, the label on the side of the prescription bottle, and an explanation of potential side effects. Many side effects impact an individual’s ability to drive or operate machinery but the level of impairment may be a difficult factor to determine. Either way, if you drive while taking medication, you’re at risk of being arrested for DWI drugs.

Prescription Drugs in Texas

Many prescription drugs that may cause drowsiness, sleepiness, dizziness or any other effects that may affect a person’s ability to operate a motor vehicle contain warning labels cautioning users not to drive after taking the medication. You must heed to such a warning if present. Under Texas law, the fact that someone has been entitled to the use of a certain drug, controlled substance, or alcohol is not a defense. A person with a valid prescription and who have used the drug as directed by a physician can still be charged with DWI drugs if the medication renders him intoxicated and impairs his ability to drive. With this in mind, it’s therefore important to read the labels of drugs and to discuss potential side effects with your physician.

Anxiety drugs such as Ativan, sleeping pills such as Ambien, and Narcotic pain relievers such as hydrocodone all have warnings cautioning individuals not to drive while using them. Many individuals who rely on such drugs may not understand the potentially disastrous repercussions if the police officer determines that you’re driving while intoxicated due to the use of the prescribed medication.


James is a veteran who has returned home and dealing with depression. He visits his physician who legally prescribes him with antidepressants to help relieve symptoms of depression and help James adjust to civilian life. James’ physician casually says that the prescribed medication may cause drowsiness but that it varies from one person to the other. On his third day of taking the medicine, James unknowingly runs a red light. A police officer pulls him over and does the procedural interrogation. As James talks with the cop, he apologizes for running the red light and mentions that he is under new medication, which may have impaired his judgment. This may sound just right but from a legal stance, James just confessed to DWI Drugs. And since Texas takes a strong stance against DWIs, the more-or-less innocent James is arrested and charged with drugged driving. Despite his sobriety from alcohol, his prescription medication got him into trouble.

If a driver is suspected of DWI Drugs, the law enforcement officer will want to test the driver’s blood or urine for traces of controlled substances or drugs. When it comes to these chemical tests, it doesn’t really matter when the medication was used by the driver provided its presence is detected. The physical effects of many drugs tend to dispel before the body gets rid of all drug remnants from the system. The most common prescription drugs found in DWI toxicology tests include:

  • Hydrocodone
  • Codeine
  • Morphine
  • Zoloft
  • Prozac
  • Celexa
  • Paxil
  • Valium
  • Xanax (Alprazolam)
  • Darvocet (Dextropropoxyphene)
  • Ambien (Zolpidem)
  • Oxycotin (Oxycodone)
  • Lortab (Vicodin)
  • Percocet (Oxycodone with Acetaminophen)
  • Soma
  • Other Prescription Medications and Pills

In addition to these prescription drugs, it’s also possible to be charged with DWI Drugs in Texas if an officer alleged intoxication or impairment from over-the-counter medication such as cough medicine, cold medicine, Tylenol PM, and even allergy medication. There are no hard-and-fast rules to determine which prescription medications impair your driving ability because it all depends on how your body, diet, and energy levels metabolize the medicine.

How Law Enforcement Prove Prescription Medication DWI in Texas

In order to establish probable cause for a DWI arrest related to alcohol consumption, law enforcement officers usually administer breathalyzer or field sobriety tests. Given that most prescription medications won’t be detected by testing devices used during most DWI stops, the police will not be able to tell whether you’re really impaired or what sort of drug you’re on. For this reason, the officer will administer field sobriety tests for probable cause. However, since these tests are based on the officer’s judgment, they are subjective and every so often results in wrongful arrests.

Once you’ve been arrested, the law enforcement officer will ask you to submit to a blood test during DWI Drugs investigation to establish the presence of drugs in your system if an impairment is suspected. Despite the fact that this chemical testing may not ascertain the specific medication you used, the prosecutor can get enough information to pursue charges.

In most cases, police and law enforcement will use their judgment and your words to arrest and charge you. As such, the statements you make during the interrogation can be used against you in court. Simply telling the officer that you took a sedative, pain medication, antidepressant, or any prescription drug that you knew had the potential to cause impairment may be used to prove intoxication and allow a DWI Drug conviction. It’s therefore important not to openly admit on being in any medication because it increases your odds of arrest and strengthens the DWI case against you.

Implied Consent Rule in Texas

Law enforcement officers may seek to carry out blood test after an arrest on suspicion of driving while intoxicated. These tests are permitted under Texas “implied consent” law, which states that any person who has accepted a driver’s license from the state of Texas consents to chemical tests when requested by law enforcement. These DWI blood tests are not obligatory and a person may choose to refuse them. However, refusing to submit to a chemical test will lead to an automatic driver’s license suspension, which you may appeal within 15 days after the arrest.

In some cases, such as those involving serious accident causing death or bodily injury, the law enforcement officer may obtain a search warrant to have the tests administered even if the individual refuses to submit the test. The test may also be administered forcefully if circumstances allow. However, any person who withdraws blood from a DWI suspect must be eligible and the equipment he/she uses must be accurate and certified.

Blood testing may produce inaccurate results, depending on how the is conducted, how the specimen is stored, transported or stored. A seasoned Fort Worth DWI attorney may be able to single out problems with the person who conducted the test, how the specimen was handled, how the test was conducted as well as the condition and accuracy of the testing equipment. Mistakes and human error in such scenarios may lead to the exclusion of the blood test results as evidence in a DWI trial.

Furthermore, blood tests may detect substances that may still be present in the system from previous use. The results obtained do not directly show that the driver was intoxicated by drugs at the time he/she was arrested. A DWI attorney may argue that the mere presence of drug residue in the blood does not automatically suggest legal intoxication at the time of the arrest.

DWI with Prescription Medication and Burden of Proof in Texas

For a person to be charged with DWI, what’s mainly required is the police officer’s knowledge that you’ve used a prescription drug and operating a motor vehicle while intoxicated by the medication. Before arresting and charging you with a DWI offense, law enforcement officers will typically consider a number of factors. If you openly admit to having taken prescription medication, the officer will want to know how much you took, the type of medication you used as well as how long ago you took them.  Some of the medicines that get much attention include Ambien, Valium, Oxycontin, Vicodin, and Xanax.

The police will also consider the severity of the reasons for the traffic stop. For example, did you swerve outrageously from one lane to another? Or were you stopped for failing to put your signal on before changing the lane? Additionally, the police will consider your conduct. Are you drowsy or alert? Are you rude or congenial? Do you have bloodshot eyes or blurry vision? Any information you provide to the officer freely or in response to a question will also be considered.

If charged with Prescription Drug DWI, the prosecutor will use the lack of normal use of physical or mental faculties due to the use of the prescription drug as a way to prove the charge. This means that the prosecutor must provide evidence that you were actually intoxicated or impaired. As such, the mere presence of the medication in your blood may not be enough to warrant a conviction for DWI drugs.

Penalties for DWI in Texas

Criminal Penalties for DWI with Prescription Drugs

Just like alcohol-related DWI or DWI for Marijuana, DWI with prescription medication offers no less punishment. If you’re charged with a first-time DWI, your DWI with Prescription Drug charge is considered a Class B Misdemeanor under Texas Penal Code § 49.04 (b) and 12.22. The offense is punishable by a fine of up to $2,000, a mandatory jail term of 72 hours up to 180 days, or both. If at the time of the arrest, the driver had an open container of alcohol in the vehicle, the minimum jail term is increased to 6 days as provided under Texas Penal Code § 49.04(c).

If you’re charged with a second DWI offense, your DWI with Prescription Drugs charge is a Class A Misdemeanor. Upon conviction, you’ll face a mandatory jail term of 30 days up to 1 year and/or a fine not exceeding $4,000 (Texas Penal Code §12.21 and § 49.04).

A third DWI Drugs conviction, also referred to a charge of intoxication from the use of drugs is a third-degree felony. Under the Texas Penal Code § 49.09(1) and 12.34, this offense is punishable by 2 years to 10 years in prison and a fine not exceeding $10,000, or both.

If the use of the prescription medication led to an accident that resulted in death, the offense is a second-degree felony. Pursuant to Texas Penal Code, §§ 12.34, 49.07, and 49.09(b)(1), intoxication manslaughter is punishable by a fine of up to $10,000 and/or a term of 2 years to 20 years in prison.

Administrative penalties for DWI with Prescription Drugs

Additional administrative punishments for a Texas DWI with prescription medication conviction may include:

  • Loss of driving privileges for 90 days or up to 2 years or restricted driving privileges if an occupational license is issued
  • Community supervision or probation
  • Community service
  • DWI school
  • Attendance at an approved drug treatment program
  • Completion of an approved drug or drug education course
  • Court costs
  • Potential increase in insurance rates
  • Any additional fees required by the court
  • Expensive annual DWI surcharges between $1,000 and $2,000 per year imposed by Texas DPS for a period of 3 years
  • Installation of an interlock ignition device which prevents a motor vehicle from starting until the driver’s BAC is substantiated

Challenging a Prescription Drug DWI

Since establish drug intoxication presents a great challenge and testing in blood or urine is far less accurate when compared to alcohol testing, there are chances of getting your case dismissed. A skilled and experienced Fort Worth DWI Attorney may be critical in identifying weaknesses in the prosecution’s case and protecting your future from the consequences of a DWI conviction. Some of the legal defense strategies that I use in cases of DWI with Prescription Medication include:

  • Faulty blood test results

The testing lab that obtains your blood sample is required to strictly adhere to specific procedures and protocols in handling, testing, and storing the specimen as well as maintaining the testing equipment. If the lab failed to follow the set protocol, I may successfully argue that the testing process may have been flawed and the results could be inaccurate. Also, drug tests could have occurred long after your arrest and this may fail to show that you were impaired by drugs at the time of the arrest.

  • Lack of reasonable suspicion

If the law enforcement officer didn’t have reasonable suspicion that you engaging in illegal activity, they may have violated your rights by pulling you over. Therefore, if there was a lack of reasonable suspicion, any evidence obtained may be inadmissible in court.

  • Lack of Probable Cause

If the cops failed to administer the field sobriety tests as provided by the National Highway Traffic Safety Administration (NHTSA), it could significantly invalidate the outcome and could also help get your charges dismissed or reduced.

The prosecutor bears the burden of proof in a DWI with Prescription Medication case. However, it’s not worth believing that you have no ground to challenge the charges because there are many who are wrongfully arrested and convicted or drug-related DWIs. If you find yourself in such an unfortunate situation, I can bring the most nuanced defense possible to vigorously fight charges against you.

Finding a DWI with Prescription Medication Attorney Near Me

Being arrested when you’ve not been taking illegal drugs or drinking alcohol is terrifying. And with lousy standards for determining DWI with prescription medication, it’s no wonder many people are wrongfully charged for this crime. I know how to not only aggressively defend your case but possibly win the DWI with Prescription Medication charges in the Fort Worth area. I will thoroughly investigate your case, review the results of any breath test, field sobriety tests, or blood tests that were done before and after your arrest, and come up with a defense strategy that will have the charges against you possibly dismissed or reduced. When fighting DWI drugs, there are many considerations brought to bear and I will exhaust every one of them to defend your rights. It’s also important to remember that you only have 15 days to retain your driving privileges. So, you shouldn’t wait any longer to take the first step in the interest of your defense.

Call today at 817-470-2128 or submit a free case evaluation form online to discuss your case and learn how I can help.