Because marijuana use is becoming more commonplace throughout the nation, and many states are moving to decriminalize or completely legalize the formerly illegal substance, marijuana DWIs are on the rise — as are the many misconceptions surrounding it.
Is it okay to drive under the influence of marijuana? Can the police test you for marijuana? Is there such a thing as a marijuana blood test? The experienced criminal attorneys from Thiessen Law Firm are here to answer these questions and more.
If you’ve been arrested under suspicion of DWI, whether it’s a DWI first offense in Texas or your fourth marijuana DWI, you’re going to need the best DWI lawyer in Texas if you want to walk away from it with your freedom.
Mark Thiessen is an award-winning trial attorney, an ACS-CHAL Forensic Lawyer-Scientist, and the only attorney in America who is quadruple board-certified in DWI. If you’ve got a case that you just can’t lose, you need to call Mark Thiessen at Thiessen Law Firm today at (713) 864-9000 for a free consultation.
Mark Thiessen’s Board Certifications include:
There are a couple of things to discuss here. In Texas, it is only illegal to possess marijuana, not to have smoked it. However, someone must possess marijuana in order to smoke it, and that makes smoking marijuana technically illegal. It is illegal to smoke marijuana and drive because you will be in possession of marijuana, which is why people so often eat weed during traffic stops in the movies — and be careful, eating your stash may help you avoid a possession charge but land you with a tampering or destroying the evidence charge.
The other angle here is that driving under the influence is illegal. Even if Texas were to legalize marijuana, they would not legalize driving under the influence of marijuana, which affects your decision-making and reaction time and is therefore illegal in every state in the U.S.
Can you get a DWI for marijuana in Texas? Texas Penal Code 49.04 defines Driving While Intoxicated as driving a motor vehicle in a public place while having either:
That being said, you can get a DWI for marijuana in Texas (or any state in the U.S.). DWIs are not only reserved for those driving drunk, they are also commonly given out for driving high. The main difference between a traditional DWI for driving drunk and a marijuana DWI is how the police gather their evidence.
So, how do they test for drug-related DWI in Texas? Can a breathalyzer detect drugs? Because there is no test to measure the toxicity of marijuana, nor is there an established legal limit for driving high, we often get questions about how marijuana DWI is proven.
Usually, drug-related DWIs are tested using a 12-step protocol called the Drug Recognition Expert Protocol (DRE), which is detailed below. Keep in mind that in the following steps, the acronym DRE refers to both the process and the specialist who administers it.
Whether you’re suspected of DWI on prescription drugs or a marijuana DWI, you’ll likely be subjected to the DRE as the police try to determine your intoxication.
The problems with this system are too many to count. A few of the most glaring problems are that it is unreliable, subjective, and not based on modern toxicology or behavioral science — but the most egregious thing about the DRE is that it is fundamentally incapable of determining how intoxicated a subject is and that it isn’t intended to do so.
The DRE exists solely to allow the police to more easily stick you in a jail cell. Don’t let them. Keep your mouth shut and tell them you want to talk to your lawyer, Mark Thiessen.
So, how long after you smoke can you get a DWI? Because blood toxicology is not as easily measured as BAC, there is less of an exact science to this than there is to retrograde extrapolation. Again, because there is no legal limit for driving high, it is likely that a chemical test for marijuana will be used to confirm intoxication, but not necessarily to measure it.
The science on marijuana blood tests is bad. How bad? Weed can show up on a blood test for up to a month for regular users. So if a police officer suspects that you’re intoxicated, and you smoked weed three weeks ago, they can use the affirmative blood test as evidence for a DWI arrest with no other evidence of intoxication.
Don’t be fooled. They will use this evidence against you, and it might even stand up enough to convict you — if you don’t have the right lawyer.
Punishments for a marijuana DWI in Texas will be the same as the punishments for any DWI. Although many people see driving under the influence of marijuana as a lesser offense, one that is much less dangerous than driving under the influence of alcohol, the courts do not see it that way at all. The punishments for DWI in Texas are as follows:
| Offense | Charge | License Suspension | Fines | Jail Time |
| DWI First Offense | Class B Misdemeanor | 90 days – 1 year | Up to $2,000 | 3 days – 180 days |
| DWI First Offense, BAC greater than .15 | Class A Misdemeanor | 180 days – 2 years | Up to $4,000 | 30 days – 1 year |
| DWI Second Offense | Class A Misdemeanor | 180 days – 2 years | Up to $4,000 | 30 days – 1 year |
| DWI Third or Fourth Offense | Third Degree Felony | 180 days – 2 years | Up to $10,000 | 2 – 10 years |
| DWI with a Child Passenger | State Jail Felony | Up to 180 days | Up to $10,000 | 180 days – 2 years |
| Intoxication Assault | Third Degree Felony | 180 days – 2 years | Up to $10,000 | 2 – 10 years |
| Intoxication Manslaughter | Second Degree Felony | 180 days – 2 years | Up to $10,000 | 2 – 20 years |
Punishments for repeat offenses only get more severe, but part of the increased severity is the intensity of the prosecution you can expect to face. If you’re looking at a charge for a 2nd DWI in Texas, there is virtually no chance that a judge or jury will go easy on you, and it becomes that much more difficult to suspend their disbelief.
A charge for marijuana DWI comes with all of the severity of a DWI charge, plus the possibility of serious consequences related to marijuana possession in Texas. If you or a loved one has been arrested under suspicion of marijuana DWI, you need a serious DWI attorney to begin building your defense before it’s too late.
What you need is an attorney with plenty of experience taking complex, high-stakes DWI cases to trial and winning. Mark Thiessen and the attorneys at Thiessen Law Firm do just that.
If you have a case that you cannot afford to lose, call Thiessen Law Firm today at (713) 864-9000 or schedule an appointment online for a free consultation.
