Houston’s limited “legalization” of marijuana has many people asking about the Texas DWI-drugs law. That law says that intoxication means “not having 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 [emphasis added].”
So, just like it is legal for most adults to purchase and consume alcohol but it is illegal to drive while under its influence, even if the marijuana was legal or the defendant had a valid prescription for the pain pill, it’s illegal to drive while under the influence of that substance.
There are two basic prongs to a DWI-drugs case.
Substance in the Body
It may not be long before prosecutors have ready access to direct evidence with regard to this element. A marijuana Breathalyzer is already close to production, and other similar drug detection devices may not be far behind. But for now, the only direct evidence comes from either a urine or blood test. To extract such a sample, the officer must have a search warrant, and except for the occasional “no-refusal weekend,” most officers will not bother to take this extra step.
So, most prosecutors must rely on circumstantial evidence on this point. Some typical items include:
- Pill bottles in the vehicle
- Traces of a controlled substance
- Drug paraphernalia in the vehicle
Some prosecutors try to use medical prescriptions to bolster weak evidence like bloodshot eyes, but while such evidence proves that the defendant probably consumed the drug at one time or another, it does not establish that the substance was in the defendant’s body at that particular moment.
Loss of Faculties
Prosecutors almost always use circumstantial evidence to establish this element, and in most cases, that means the field sobriety tests, which are the:
- One Leg Stand
- Walk and Turn (walking a straight line or heel-to-toe walk)
- Horizontal Gaze Nystagmus
In all these tests, officers look for clues, or failure points, such as using arms for balance, failure to take the proper number of steps, falling over, and so on. Typically, four clues mean a test failure. Many times, officers count hypertechnical items, like beginning with the wrong foot, as a “clue” and therefore a “failure.” But the jury, and not the prosecutor or police officer, determines what counts as passing and failing these tests.
Driving under the influence of legal drugs often results in a DWI arrest. For a free consultation with an experienced criminal defense lawyer in Houston, contact the Law Office of Jim Medley. Convenient payment plans are available.