With weed laws that seem to change every day, many people are asking us “Can you get a DWI for weed in Texas?” The answer is simple: Yes, you can. Although Texas has started to loosen up the restrictions for marijuana usage, none of these efforts have anything to do with operating a motor vehicle while under the influence of weed.
There is no legal limit for driving high: any level of marijuana intoxication can land you a DWI — and, because recreational weed is still totally illegal in Texas, you can still be charged for possession. So you can see that there is nothing simple about facing these complex charges.
If you or a loved one has been charged with a DWI for weed, you need a DWI lawyer in Houston who knows how to take complex DWI cases to court, challenge the prosecution’s case, and win. At Thiessen Law Firm, we made our name taking tough DWI cases to court and winning them. Call us today at (713) 864-9000 for time-tested defense.
The laws on marijuana in Texas
Anyone familiar with the weed laws in Houston and Texas at large knows that, although regulations have relaxed nationwide, we still have some of the most stringent weed laws in the country.
While hemp-derived products and a minuscule medical marijuana program have (at least temporarily) made their way into the Lone Star State, recreational marijuana use is still totally illegal in Texas. And even though many jurisdictions are essentially writing traffic tickets for personal amounts of marijuana, possession is still a crime and often serves as probable cause for DWI arrests and other offenses.
What if you’re not carrying: can you drive high? Nope. Texas DWI laws prohibit operating a vehicle while intoxicated by any substance, including marijuana. A driver is considered intoxicated if they lack the “normal use of mental or physical faculties” due to drugs, alcohol, or a combination of both.
Does weed show up on a DWI?
The tricky thing about marijuana DWI is that, unlike alcohol-related DWI, in which blood alcohol content (BAC) tests provide a standard for intoxication, there is no equivalent legal limit for marijuana, making DWI cases involving weed more subjective.
This does not mean that you can’t get a DWI for weed, it just means it might not be as easy for the police to prove your intoxication. When the police pull you over, the officers will:
- Search for any probable cause that can lead to evidence of impairment, including behaviors, smells, and even objects like lighters, pipes, and residue.
- Perform field sobriety tests.
- Call the Drug Recognition Expert (more on that later).
- Perform blood tests if necessary.
If you are arrested and charged with a DWI, you will be facing the same situation you would face if you were charged with a DWI by way of alcohol — which means you will also be facing the same penalties.
Penalties for marijuana DWIs
DWI penalties for marijuana DWIs are just as steep as they are for alcohol-related ones. The Texas DWI penalties for all forms of intoxication look like this:
| Offense | Charge | Maximum fine | Potential jail time |
| First offense DWI | Class B misdemeanor | $2,000 | Up to 180 days |
| First offense DWI with BAC greater than .15% | Class A misdemeanor | $4,000 | Up to 1 year |
| Second offense DWI | Class A misdemeanor | $4,000 | Up to 1 year |
| Third or fourth offense DWI | Third-degree felony | $10,000 | 2 – 10 years |
| DWI with child passenger | State jail felony | $10,000 | 180 days – 2 years |
| Intoxication assault | Third-degree felony | $10,000 | 2 – 10 years |
| Intoxication manslaughter | Second-degree felony | $10,000 | 2 – 20 years |
But the punishments don’t even end at fines and jail time: you’ll likely be dealing with license suspension, revocation of certain rights, issues with your career, and family trouble whose ripple effect can continue for essentially the rest of your life. The hidden costs of a DWI can be far-reaching and paralyzing, which is why you’ve got to fight the charge with everything you’ve got.
2 ways to measure intoxication without blood alcohol tests
Since there is no standard for THC intoxication that resembles the legal alcohol limit, law enforcement uses a handful of alternative (and bogus) methods to determine whether a driver is too high to operate a vehicle safely.
1. They use standardized field sobriety tests
Police rely on a few different types of field sobriety tests to assess intoxication in all DWI cases. These tests can include:
- The horizontal gaze nystagmus (HGN) test
- The walk-and-turn test
- The one-leg stand test
These tests are deeply flawed and designed to be failed, not to mention designed to test alcohol-related impairment — but the police will still use them to establish probable cause for DWI and arrest you.
Additionally, field sobriety test accuracy is notoriously bad, and they don’t always hold up in court for DWI offenses, which is one of the reasons why the police developed the 12-step DRE to measure drug-related intoxication.
Continue reading: Can you refuse a sobriety test?
2. They call in a drug recognition expert
To strengthen their case, officers may call a Drug Recognition Expert (DRE) — a specially trained officer certified to identify drug impairment. DREs conduct a 12-step evaluation (also called a DRE), which includes:
- Interviewing the arresting officer and the suspect
- Conducting eye examinations
- Checking vital signs (pulse, blood pressure, body temperature)
- Assessing muscle tone (THC can cause muscle relaxation)
- Examining the suspect’s behavior and physical appearance
If a DRE determines that you are intoxicated by way of smoking weed, their report can be used as evidence in court during your DWI case. DRE evaluations are, however, like sobriety tests and blood alcohol tests: incredibly flawed, subjective, and challengable by experienced drug and DWI attorneys.
How many DWIs are from weed?
It’s hard to say exactly how many DWIs are drug-related, and even harder to say how many are from weed, but the National Highway Traffic Safety Administration (NHTSA) offers some (dated) statistics in their survey on drug-impaired driving:
- 20% of surveyed drivers tested positive for potentially impairing drugs
- Weed DWIs are rising quickly: 8.6% of weekend nighttime drivers tested positive for marijuana in 2007, while 12.6% tested positive in 2014 — a 48% increase in less than 10 years.
- 56% of drivers involved in serious injury and fatal crashes tested positive for at least one drug.
With marijuana-related DWIs on the rise, you need to make sure you understand your rights and know what steps to take if you find yourself accused of driving under the influence.
What should I do if I’ve been arrested for driving high?
If you’re arrested and charged with a DWI for being under the influence of marijuana, our first advice is to treat it just like any other DWI (because that’s exactly what it is). Do not take the charge lightly, and do not write it off as “not a big deal.”
A DWI for weed can negatively impact your future employment, living, and financial prospects, so it’s important to know what to do and how to beat a DWI in Texas. If you’re caught with weed while operating a vehicle, here are a few good tips to keep in mind:
1. Invest in an ACS-CHAL Lawyer-Scientist to fight your charges.
Identifying a meaningful presence of THC in a suspect’s body is a complex art that most police labs still can’t get right. A lawyer-scientist will understand the nuances associated with a test for marijuana impairment and can use that as a possible defense in court. A board certified DWI lawyer can also bring up potential issues with the impairment evaluation process and discredit the officers involved.
2. Make sure you understand everything you’re getting yourself into.
Even if a guilty plea comes with no jail time and only a short period of license suspension, this may not be in your best interest. This charge will remain on your record, and you will not have the opportunity to seal it from public view. This is why it can pay off in dividends to work with an attorney who knows how to beat a DWI in Texas and is capable of taking your case to court and fighting your charges.
3. Do not enter a Guilty plea just because you think a conviction is inevitable.
Just as there are many nuances associated with testing for marijuana and evidence of impairment, there are many nuances associated with DWIs as a whole. There are countless opportunities that a skilled lawyer can use to create holes in the prosecutor’s case — including issues with reasonable suspicion, accurate reporting of the event, and more.
Caught smoking and driving? The marijuana DWI lawyers at Thiessen Law Firm can help.
Facing a DWI, a possession charge, or both? Thiessen Law Firm has gotten thousands of cases dismissed for our clients accused of DWI and other criminal charges in Houston. If you or a loved one has been charged with DWI, you need an aggressive and experienced defense team, like the team at Thiessen, by your side.
Mark Thiessen is a multi-board-certified DWI attorney and ACS-CHAL Lawyer-Scientist. He understands the science and the laws behind intoxication and can help defend you against junk science and overly-aggressive prosecution.
Call Mark Thiessen and Thiessen Law Firm today at (713) 864-9000 or contact us online to put science on your side.
More Helpful Articles by Thiessen Law Firm:
- What Are Charges for Conspiracy to Distribute?
- What Is the Penalty for Receiving Drugs in the Mail?
- Is Mushroom Chocolate Legal in Texas?
- Is a DWI a Felony in Texas?
- How to Win an ALR Hearing in Texas
