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2023 Travis Co. DWI Guide Drug DWIs

Travis County DWI Guide Part 9 -Drug-Based DWIs

The most common way for someone to be charged with a DWI is by driving after consuming an excessive amount of alcohol. Not everyone realizes that drugs can lead to a DWI as well. This can include illegal drugs such as cocaine or marijuana, but can even include prescription drugs with a valid prescription.

Definition of “Intoxicated”


There is not a separate statute that gives police the authority to charge with drug DWI.  Instead, let’s look at the elements of the regular DWI statute.  The Prosecution must show beyond reasonable doubt that you: 1) Operated a motor vehicle 2) While intoxicated, 3) In a public place.  Note that intoxicated means that you lost “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.”


In addition to a controlled substance, intoxication can occur because of a “drug” or “dangerous drug”.  This includes prescription medications that are not illegal.  Many people believe that if they take their drugs as prescribed, then they cannot be charged with a DWI, but this is not true.  I have seen folks charged for a DWI for Xanax even when they can show that they took the drug in accordance with their prescription.  Counter intuitively, this is even true sometimes for medications that do not prohibit the operation of heavy machinery.  As long as there is a warning somewhere on the bottle (and there almost always is), it can be used for a DWI. I have even heard of allergy medication as the basis for a DWI! 


For a number of reasons, drug DWIs are more difficult for prosecutors to prove than alcohol DWIs.  There is no breath test for drugs, and the blood tests need to be specially ordered.  There is no “per se” level like .08 BAC above which intoxication can be assumed.  Most importantly, most drug tests only show that drugs have been consumed at some point of a period of days or even weeks.  This is a far cry from proof of intoxication since the effects may have worn off days ago.


“Drug Recognition Experts” (DREs)


To attempt to show that the intoxication happened at the time of driving, police employ a “Drug Recognition Expert” or DRE.  This is an officer who has been trained to recognize signs of intoxication from drugs.  They will ask a series of questions and basically guess what drug the person is on.  Most defense attorneys know that DRE is junk science.  Can some classroom hours prepare a person to recognize the specific drug taken and whether this drug is intoxicating?  In obvious cases, maybe, but research has shown that DRE conclusions are little more than a hunch.  Even so, Courts have allowed DRE testimony to come in to convict thousands of DWI defendants.  I would advise anyone to refuse a DRE exam if ever presented with that situation.


Outcomes in Drug-based DWIs


So, we’ve established that it is more difficult to prosecute Drug DWI cases.  What does this mean for outcomes?  Well, across the board, Drug DWI cases tend to have better outcomes for clients.  There is almost always room to argue that the driver was not intoxicated.  For that reason, prosecutors are often more willing to compromise and drop charges down to something like Obstructing a Roadway, or even a class C traffic ticket.  If a compromise is not offered, I am more often comfortable taking the case to trial because reasonable doubt exists.


There are still a number of factors that still make a Drug DWI a difficult case for the defendant.  Even though there is no “per se” level of intoxication, there are definitely higher levels that can be harder to explain.  Were there multiple drugs in the system?  How did the driver act when police pulled him or her over?  Did she make incomprehensible statements? Did she know where she was and where she was going?  Does she have a history of drug use and previous DWIs? 


These are all factors that can increase the severity of penalties whether in a plea deal with the prosecutor, or at trial.  One method prosecutors use that is very effective is to bring in research showing that the cumulative effect of multiple drugs can amplify the effect of both drugs.  This is an effective argument for a jury because most of us have either experienced the effects of certain drugs or had friends who have experienced it.  It is an intuitively good argument and can be difficult to overcome when there are obvious signs of intoxication.


Defenses to Drug DWIs


As touched upon earlier, the best defense to a drug DWI is usually to force the State to prove that the intoxication – if it happened at all – was not during the time of driving.  A blood test with a positive for marijuana, for example, only shows that the driver smoked marijuana at some point in the last two weeks.  It obviously would not have affected his driving if he had smoked two weeks ago.  A good defense attorney will point out the absence of DRE testimony, or call it into question if it exists. 


Often, then, jurors must come to the conclusion that a driver is intoxicated by merely looking at the video and judging for themselves.  Obviously there is a spectrum here.  A person passed out and slurring his words may be clearly intoxicated.  But many cases are not so clear and we can get to a reasonable doubt.


Sometimes I have to explain to clients that the argument that “I’m a better driver on cocaine!” isn’t going to work.  Even if your senses are enhanced, the prosecutor will argue that it also increases your propensity for risk-taking and recklessness, and they’re probably right!

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