Can you get a Delta-8 DWI? You absolutely can, but the issue is highly complex with room for gray areas —  just like most Texas/Harris county weed laws. For a long time, the weed laws in Texas dictated that you would go to jail if you were caught in possession of any variety of cannabis. A lot has changed since Delta-8, CBD, Delta-10, and even regular old Delta-9 weed edibles hit the shelves in coffee shops and corner stores. 

We get a lot of questions about Delta-8 and how it differs from weed. Will legal Delta-8 make you fail a drug test? Can you do Delta-8 and drink alcohol? Can I get a DWI on Delta-8 in Texas?

We hear your questions, and we’ve got answers. Mark Thiessen, who is both an ACS-CHAL certified Lawyer-Scientist and the only lawyer in America who is triple Board-Certified in DWI,* is here to tell you everything that you need to know about Delta-8 DWI in Texas.

*Criminal Law by the Texas Board of Legal Specialization, DUI Defense by the National College for DUI Defense as approved through the American Bar Association, DUI Law by the DUI Defense Lawyers Association.  

Is Delta-8 legal in Texas?

Any conversation about Delta-8 in Texas has to start here. Delta-8 THC is currently legal in Texas, thanks to a series of farm bills, house bills, and a successful injunction filed against a secret DSHS ban on the sale of Delta-8. 

The story of the product’s legality is long, twisted, and unfinished. Though Texas’ intentions to keep all cannabis products illegal have been mostly successful, the national landscape is changing and they can only swim so hard against the current. So Delta-8 THC is legal in Texas, for now, but there are no guarantees for the future. 

Read the full story: Is Delta-8 legal in Texas?

Does Delta-8 show up on a breathalyzer?

So, if I am pulled over under suspicion of Delta-8 DWI, should I be worried about the breathalyzer? No, breathalyzers are only designed to detect blood alcohol content (BAC) and blood alcohol content does not apply to drug DWI. DWI in Texas is defined as either:

  • Having a BAC of .08 or higher; or
  • Not possessing the normal use of physical or mental faculties

There isn’t a specific test that is used to determine intoxication if you’re pulled over for Delta-8 in Texas, but you will likely be subjected to the Drug Recognition Expert Protocol. The DRE was developed by the National Highway Safety Administration — the same folks that developed the famously bogus standardized field sobriety tests — in the 1980s. The protocol is so unreliable that some states don’t even allow the “expert” testimony of officers who administered the DRE to be heard in court. 

12-step Drug Recognition Expert Protocol

The DRE uses 12 steps to assess anyone suspected of driving under the influence of drugs. 

  1. A breath alcohol test is administered.
  2. An interview with the arresting officer is conducted about the suspect’s behavior and appearance, but also how they were driving.
  3. A preliminary examination and first pulse by the DRE themselves will determine if the suspect has sustained an injury before asking questions about food, drugs, and alcohol ingested. 
  4. An eye examination is given that includes the horizontal gaze nystagmus test.
  5. A set of divided attention psychophysical tests is administered. These include the one-leg stand test, the walk-and-turn test, the Romberg test, and the finger-to-nose test.
  6. The DRE will check for vital signs and second pulse, measuring blood pressure and temperature.
  7. Next, in a series of dark room tests, the DRE will observe the suspect’s pupils under several lighting conditions using a pupilometer.
  8. In a muscle tone examination, the DRE will observe whether the suspect’s muscles are rigid or loose as a result of drug consumption. 
  9. The DRE will check for injection sites and a third pulse.
  10. A statement is taken and other observations are made. This is usually when Miranda Rights are read and a statement is taken from the suspect. 
  11. The DRE will give their analysis and opinion on whether the suspect is intoxicated, and if so, what drugs they may have taken.
  12. The DRE will request that the suspect take a voluntary toxicological exam in the form of blood, urine, or saliva tests.

DRE officers, while certified as Drug Recognition Experts, are not medically or scientifically certified in any way. Their opinions are just that — opinions. As in any situation when talking to the police, do not submit to any voluntary exams after the breathalyzer, say as little as possible, and call your lawyer.

If you’re looking for the best DWI lawyer in Texas, you’re looking for Mark Thiessen. As an ACS-CHAL Lawyer-Scientist, he is uniquely qualified to handle drug DWI cases. He understands the science — and how the police get it wrong. 

If you are not arrested for DWI, you can still be arrested for possession

So, if you are intoxicated on any substance you can be arrested for DWI, but what happens if you get pulled over with Delta-8 and you’re not intoxicated? What happens if you get caught with CBD bud in Texas?

The answers to these questions are essentially the same: it depends on what the police believe. One of the most alarming things about the confusing and fickle legality of cannabis products is that the police can’t tell the difference between them. They do not have the capability to distinguish between illegal marijuana or a gram of perfectly legal CBD bud, rendering many legal hemp products illegal — unless you or your lawyer can prove differently. 

The important thing to remember is that you can’t predict how an officer will react. A pack of legally purchased Delta-8 gummies could raise 0 alarms in an officer’s head, but they can always decide to arrest you and sort the rest out later.

Delta-8 DWIs require expert DWI lawyers

If you have been arrested under suspicion of Delta-8 DWI, there is a lot at play. You need a lawyer who is an expert in both criminal defense and DWI defense, and who knows the science behind sobriety tests, toxicology tests, and the chromatography used to identify the specific kind of buds that were in your bag. 

That’s a long wishlist and one that not many people can fulfill better than Mark Thiessen. He knows the science behind DWI and Delta-8 and uses that knowledge to win cases for his clients. If you have been arrested under suspicion of DWI call Thiessen Law Firm today at (713) 864-9000 or contact us online for a free consultation.

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Mark Thiessen is an aggressive trial lawyer best known for his devotion to justice for his clients and high rank as a DWI Super Lawyer in Texas.