Everyone knows that charges for DWI can have huge consequences in Texas and that anyone over the legal limit puts themselves at risk for life-altering penalties and serious criminal charges. But can you get a DWI on prescription drugs? Is driving high illegal?
We’ll cut to the chase and tell you that, although there is not as much of a defined process for making drug DWI arrests, they still happen all the time, and driving while intoxicated on drugs, prescription or otherwise, is still very illegal. If a police officer believes that your driving is affected by any sort of substance you can and most likely will be arrested for a DWI.
The other side of the story is all about Draconian drug laws, flawed tests, and mistaken arrests — which means that an experienced and aggressive DWI attorney can still fight your prescription drug DWI.
If you or a loved one has been charged with a prescription drug DWI, call Thiessen Law Firm at (713) 864-9000 today. We can help defend your freedom and tell your story when no one else will.
DWI laws in Texas
The Lone Star State is tough on DWIs of all types, but how exactly do you get charged with a DWI in Texas? The Texas drinking and driving laws come from Texas Penal Code § 49.04, where Driving While Intoxicated (DWI) is defined as:
- Operating a motor vehicle in a public place; while
- Not having the normal use of mental and physical faculties because of either alcohol or drugs.
So, intoxication is measured legally by “not having the normal use of mental and physical faculties.” The major problem with the Texas DWI laws is this: police are not trained to detect exactly when people do or do not have the normal use of mental and physical faculties, they’re trained to administer blood alcohol tests.
Can you get a DWI for drugs in Texas?
Is driving high illegal? Yes. Although the definition of Driving While Intoxicated, from the statutory language itself, is quite vague, it includes being intoxicated by the introduction of any drug or drug-like substance as well as alcohol.
One major complicating factor for drug-related DWI is that, although intoxication is measured as having a blood alcohol level (BAC) at or above 0.08% for drinking, there is no legal limit for driving high.
This could mean a couple of things:
- Many people assume that because police cannot measure intoxication with a breathalyzer, you won’t get a DWI for driving high. While this technically could come to pass, the assumption is dangerously incorrect.
- Because there is no standard level for consumption of drugs that equals intoxication, it is much more likely that you will be arrested and charged with DWI for any amount of drugs in your system.
There are drug and alcohol screening protocols, specifically the Drug Recognition Expert (DRE) Protocol, which is a 12-step process that the police use to determine whether or not you’re intoxicated. But these protocols are not only outdated and based on unsound science: they’re designed specifically to put you in jail.
Can you be charged with DWI when under the influence of prescription or over-the-counter drugs?
So, we’ve established that you can get a DWI for illegal drugs, but what about prescription or OTC drugs — or what you might consider legal drugs? Can you drive after taking prescription medication? Or will you be charged with a DWI?
Prescription drug DWIs happen all the time, and Texas DWI law doesn’t distinguish between legal drugs, illegal drugs, or drugs you picked up over-the-counter.
Let’s examine a scenario:
Imagine a veteran who has recently returned home from combat and is dealing with depression. He goes to his doctor who rightfully prescribes him antidepressants to help with the adjustment to civilian life.
The doctor casually says that the medication may affect driving under the medication but that ultimately it depends on the person. On his second day taking the meds, he unknowingly rolls through a stop sign.
A cop pulls him over and does the procedural interrogation. During the conversation, he apologizes and mentions that he is under new medication, which may have affected his impaired judgment. Sounds standard, right? Well, guess again.
From a legal stance, the driver just confessed to a DWI! Texas has a zero-tolerance policy with DWIs, so this more-or-less innocent veteran is now arrested and charged with a DWI. Despite his sobriety from the traditional good ol’ drinking, his meds still got him into trouble.
Prescription drugs are also controlled substances in Texas
Even if you have a prescription for them, Texas strictly regulates the sale and possession of controlled substances. The Texas Controlled Substances Act breaks all controlled substances down to different penalty groups, the highlights of which are as follows:
| Penalty Group 1 | CocaineMethamphetamineCommon painkillers (hydrocodone, oxycodone, etc.)Heroin and other opium derivativesPsilocybin (psychedelic mushrooms)LSDMescalineKetamineAnd more |
| Penalty Group 2 | Ecstasy or MDMAPCPHashish or other cannabinoids derived from marijuana |
| Penalty Group 3 | Anabolic steroidsXanax and other benzodiazepinesSedativesPrescription drugs with potential for abuse because of their stimulating or depressive effects Opioids not contained in Penalty Group 1 |
| Penalty Group 4 | Opioids not enumerated in Penalty Groups 1 or 3 Prescription medications with small amounts of codeine, opium, etc. with significant potential for abuse. |
As you can see, most prescription drugs are Penalty Group 3, which means if you’re caught in possession of them without (or in some cases even with) a prescription, you’ll also be facing charges for possession.
What prescription can you get a DWI for?
Unfortunately, there’s no hard-and-fast rule for which legally-obtained drugs impairs your driving because it really boils down to how your body, energy level and diet metabolizes the medicine. That said, the following over-the-counter products are known to increase your chances of getting arrested.
- Ambien
- Vicodin and other pain killers
- Cough syrups with codeine
- Xanax
- Alprazolam
- Tylenol PM
- Benadryl
- Claritin
Continue reading: What prescription drugs can you not drive on?
How police measure (or don’t measure) prescription drug intoxication
Strange but true — testing devices used during most DWI stops are not what they’re cracked up to be and have been known to not even be able to tell the difference between a honey bun and booze. With that, are you really surprised that these devices wouldn’t be able to detect what type of drugs you’re on, especially prescribed ones from your doctor?
Oftentimes during a stop, cops are running on little else than A) your word and B) their judgment. If they allege any sort of driving impairment, you’ve more or less booked your stay at the county jail. So do not openly admit to being on any medication. All this does is increase your odds of arrest and conviction.
As is the usual line on being arrested for any reason: keep your mouth shut and call your lawyer when the police start asking questions.
Punishments for a prescription drug DWI in Texas
Because getting a DWI while on prescription drugs is charged the same way as a normal DWI, the penalties are the same as those for normal DWIs. Typical charges for common DWI offenses are listed below.
| Offense | Charge | Maximum fine | Jail time |
| First offense DWI | Class B misdemeanor | $2,000 | 3 – 180 days |
| Second offense DWI | Class A misdemeanor | $4,000 | 180 days – 2 years |
| Subsequent DWI offenses | Third-degree felony | $10,000 | 2 years – 10 years |
| DWI with a child passenger | State jail felony | $10,000 | 180 days – 2 years |
| Intoxication assault | Third-degree felony | $10,000 | 2 years – 10 years |
| Intoxication manslaughter | Second-degree felony | $10,000 | 2 years – 20 years |
Another thing to consider is that oftentimes if you’re found driving under the influence of drugs, the police will immediately search your car for more drugs. Even if you’re taking a substance for which you have a prescription, if you have an inordinate amount, multiple bags or bottles, or otherwise give the police the idea that you are distributing or illegally purchasing those prescription drugs, you will be charged with possession of a controlled substance.
Charged for a prescription drug DWI? Thiessen Law Firm has got your back.
Can you get a DWI on prescription drugs in Texas? Yes, and it happens all the time. The lack of a standard for drug intoxication and a method for testing that intoxication actually makes it easier for the police to make arrests.
If you or a loved one have been accused of a drug or prescription drug DWI, you need an experienced Houston DWI lawyer in your corner fast. Every moment that your attorney is not building your case is a moment that the prosecution moves against you unopposed.
Whether you’re looking at a DWI in Texas first offense or you need a drug possession lawyer because the police found a controlled substance, Thiessen Law Firm has the know-how and the track record to defend your future.
Call Thiessen Law Firm today at (713) 864-9000 or contact us online and ask us to protect your freedom.
More Helpful Articles by Thiessen Law Firm:
- Refusing a Breathalyzer in Texas: Why “Do Not Blow” is Bad Advice
- When Can Police Search Your Car in Texas?
- What Happens After Being Arrested for a DWI
- What Not To Do After a DWI Arrest
- Can a Breathalyzer Test Be Wrong?
