Austin Drug DWI Lawyer

Drug-Related DWI Defense In Austin, TX

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.  

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.” These cases can be complicated, but an experienced Austin drug DWI attorney will be able to help you better understand these charges and build the best defense tailored for your case.

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 in 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.

Driving Under the Influence of Prescription Drugs

In Texas, if you have consumed any substance like alcohol, drugs, or controlled substances and it has caused you to lose normal use of mental or physical faculties, you can be charged with a DWI, even if you were operating your car without ever having consumed alcohol. Just taking drugs and operating a vehicle doesn’t necessarily result in a drug DWI charge. It depends on whether the drug affects your mental or physical abilities, like making you feel tired, lightheaded, or sleepy.

It’s important to note that in Texas, having the legal right to use a substance is not a defense if it impairs your driving ability. This means that even if you have a valid prescription from a doctor, you can still face a DWI charge if the medication affects your driving. To avoid this, make sure to read the drug labels for warnings and side effects, and to talk to your doctor about any potential side effects.

Which Drugs Are Most Associated with Drug DWI Arrests?

Prescription drugs are often involved in DWI cases, specifically when drivers are accused of driving while under the influence. The most common prescription drugs found in these cases include:

• Xanax
• Alprazolam
• Soma
• Vicodin
• Ambien

It is worth noting that you can still get a DWI charge even if you only consumed over-the-counter medications such as Tylenol PM, cough medicine, cold medicine, and allergy medication if a police officer suspects impairment. If you are charged with driving under the influence of over-the-counter drugs, the penalties can be just as severe as those for alcohol intoxication. Even though these drugs are not classified as controlled substances, a conviction can still result in serious long-term consequences. It is recommended that you seek legal counsel from our experienced Austin drug DWI lawyer immediately if you are facing such charges.

Penalties for Drug-Related DWI in Texas

If it’s your first time getting a DWI for drugs in Texas, you could face a Class B misdemeanor charge. If convicted, you may have to spend at least 72 hours but up to 180 days in jail. In addition, you could be fined up to $2,000. (Texas Penal Code Ann., Title 3, Chapter 12, Subchapter B, § 12.22).

• A Drugged DWI conviction requires a minimum jail sentence of six days if the driver had an open container of alcohol in his or her vehicle at the time of the arrest.
• A second drugged DWI charge may result in a Class A misdemeanor charge, which is punishable upon conviction by a mandatory minimum term of 30 days in jail and a maximum of one year in jail and/or a fine not more than $4,000.
• A third drugged DWI charge or a charge of Intoxication Assault from the use of drugs is a third-degree felony, which is punishable upon conviction by a term of two to 10 years in prison and/or a fine up to $10,000.

If drugs are involved in a deadly accident, the offender may be charged with Intoxication and Manslaughter as a second-degree felony. If convicted, the offender may face a prison sentence of two to 20 years and/or a fine of up to $10,000. Apart from this, there may be civil penalties, some of which may be ordered by the court. These penalties are separate from the criminal penalties and may include administrative sanctions.

• Probation or community supervision
• Community service
• Automatic driver’s license suspension
• Mandatory DWI class
• Requirements to attend an approved drug education program
• Drug assessment and drug treatment, if indicated Installation of an ignition interlock device
•  Installation of an ignition interlock device (IID)
• Court costs

“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 criminal 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.

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 them. It is an intuitively good argument and can be difficult to overcome when there are obvious signs of intoxication.