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Marijuana Myths: Can You Get a DWI After Smoking?

The Law Firm of Andrea M. Kolski

Let’s say you toke up and get behind the wheel of a car. You may be worried a cop will catch you, but then you feel better knowing you didn’t drink any alcohol.

Or are you really off the hook? When most people think of DWI charges in Texas, they think about driving under the influence of alcohol. But driving while intoxicated can include substances other than alcohol — such as marijuana.

There may still be a chance that you can get a DWI if you smoked marijuana before driving. Here’s what to know about marijuana and DWIs.

Per Se Rules and Marijuana DWIs

Before we go into Texas laws regarding marijuana DWIs, let’s cover what a “per se” is.

Per se means you have 0.07% of a specific substance in your blood alcohol concentration (BAC). This also applies to tetrahydrocannabinol (THC), the psychoactive substance in marijuana. If the police officer can prove this, you can get a DWI conviction.

However, Texas isn’t a per se state. But marijuana possession is still illegal in the state of Texas, as well as driving under the influence of marijuana.

Is It Still Illegal to Drive Under the Influence of Marijuana? Yes

Under Texas Penal Code Ann. §49.04, a motorist can be charged with a DWI if marijuana causes abnormal use in the driver’s physical and mental state. The illegal nature of the substance can also give way to a conviction.

You can be convicted of a DWI in Texas even if you’re only under the influence of marijuana without any alcohol or other drugs in your system.

Just because Texas isn’t a per se state doesn’t mean it isn’t illegal to drive when you’re high. Actually, every state has some form of law regarding driving under the influence of marijuana. This also extends to medical marijuana users and states that legalized recreational marijuana.

Recreational marijuana isn’t legal in Texas. However, medical marijuana is. If your medical marijuana prescription contains THC, you still can’t drive while taking your medication. Therefore, you can still be charged with a DWI.

Why Impairment Matters

If Texas isn’t a per se state, how can they convict you for a marijuana DWI? They judge by something called impairment.

Since Texas isn’t a per se state, the officer doesn’t have to prove THC was in your bloodstream or that you consumed a certain level of cannabis. But they use various factors of impairment to convict you.

Examples of impairment can include:

  • Failed field sobriety test
  • Slurred speech
  • Impaired driving
  • Strange conduct

Officers will also look for these marijuana-specific behaviors:

  • Euphoria
  • Relaxation
  • Altered time perception
  • Disorientation
  • Paranoia
  • Drowsiness
  • Increased heart rate
  • Image and visual distortion
  • Smell of marijuana on you or in the vehicle

All of these behaviors can affect your motor coordination, judgment, and reaction time.

Why do officers judge my impairment? Even if Texas was a per se state, proving THC levels is difficult. Unlike alcohol, officers can’t find this information via a simple breathalyzer. You’ll have to get bloodwork done to prove there’s THC in your bloodstream.

Even if the officer insists you get a blood test, the results may not be effective in court. THC can be detected in your bloodstream even two days after you smoke. Therefore, no marijuana test can detect intoxication at that given time.

Keep in mind, you don’t have to agree to take a blood specimen. It’s always best to consult with a DWI attorney before agreeing to any type of impairment test.

What an Officer Will Do If They Suspect You’re Driving While High

Let’s say you smoke a little bit and start driving. If an officer pulls you over and suspects you’re high, they will follow a process to see if they can convict you. The process is similar to that of a field sobriety test for alcohol.

First, many officers may give you a breathalyzer to first rule out alcohol. If you pass, they will go through other tests to see if you’re still fit to drive, such as an eye exam (pupil size, etc.) and attention testing (stand on one leg, etc.).

If you fail these tests, this can give the officer leverage to arrest you.

Penalties for Getting a Marijuana DWI

Let’s say you were convicted of a marijuana DWI in the state of Texas. What penalties could you be facing? You’ll receive the same penalties as if you were arrested for driving while drinking or taking illegal drugs.

Some penalties for first-time offenders include:

  • License suspension (usually three months to a year)
  • Fine between $500 and $2,000
  • Substance abuse treatment
  • Probation
  • Up to a year in jail (though most first-time offenders usually have short sentences)

The penalties increase in severity if you’ve had more than one DWI. Other factors may affect your final ruling, such as past criminal convictions and if you caused injury or even death as a result of your intoxication.

How a Lawyer Can Help

If you’re facing a marijuana DWI conviction, you’ll need a skilled lawyer to create an argument on your behalf. Your lawyer can craft a strategy depending on the details of the case. Some of the points they may take into consideration include:

  • Results of the sobriety test and whether or not you consent
  • Reason you were pulled over
  • Any mistakes on the officer’s part
  • If there was enough probable cause to make an arrest
  • Accurate and reliable test results
  • Justification for blood test refusal

The best DWI lawyer can either minimize your penalties and may even remove them.

Hire a DWI Lawyer in Montgomery County

Are you facing a DWI, whether for marijuana, alcohol, or another substance? Don’t fight your case alone. Andrea M. Kolski has 17 years of experience in defending citizens accused of a crime.

Contact our law firm for a free case review.

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The Woodlands, TX 77381

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