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Houston Prescription Drug DWI Lawyer

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Houston Prescription Drug DWI Lawyer

Most people know that driving under the influence of illegal drugs or alcohol will get you slapped with a DWI charge, but where does this leave prescription drugs? Is it possible to get a prescription drug DWI? It’s not just possible, it’s a common affair. 

Here’s the short version: if you are pulled over under the suspicion of prescription drug DWI do not tell the officers if you are on any medication, and make sure you have an experienced and aggressive attorney on speed dial. 

Punishments for DWI on prescription drugs are just as steep as those for traditional DWI. If you or a loved one has been arrested for DWI, defend your freedom and call the Thiessen Law Firm today at (713) 864-9000 for a free consultation. 

Is it okay to drive under the influence of prescription drugs?

Let’s get this out of the way, it is not okay to drive under the influence of any substance, whether that substance is legal or illegal, whether it is prescribed or not prescribed. The truth is that prescription drugs are treated the same way as illegal drugs, even with a valid prescription, in Texas. Here’s why. 

Texas Penal Code 49.04 defines the crime of Driving While Intoxicated as driving a vehicle while intoxicated in a public place. Intoxicated is defined as:

  • Possessing a blood alcohol content of 08% or higher; or
  • 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.

The key here is that it doesn’t really matter what the substance is, whether it is a controlled substance, a drug, or literally anything else — if the substance causes you to not have the normal use of mental or physical faculties, it is illegal to drive while under its influence. 

How do they test for drug-related DWI?

You may be wondering how they test for DWIs on drugs. Can a breathalyzer detect Xanax? How will they know what drugs are in my system? The major distinction, as you’ve probably noticed, between a regular DWI charge and a charge for prescription drug DWI, is that there is no breathalyzer for drug use. There is also no legal limit for drug use, making drug-related DWI a subject with much more gray area than regular, alcohol-related DWI.

So how exactly do they test for prescription drug DWI? Using a 12-step process known as the Drug Recognition Expert Protocol (DRE). When an arresting officer believes that a subject under suspicion of DWI is on drugs, they call a DRE (also used to refer to the experts themselves) on the scene to investigate. The 12-step of the DRE are as follows:

  1. Breath Alcohol Test. The arresting officer will take an initial blood alcohol content reading to determine if the suspect’s behavior is due to alcohol. If they cannot explain the perceived impairment with a BAC test, the arresting officer requests a DRE.
  2. Interview of the Arresting Officer. The DRE interviews the arresting officer to get caught up on the details of the traffic stop.
  3. Preliminary Examination and First Pulse. The DRE conducts a preliminary examination of the subject, mostly to check on the subject’s health and establish a baseline for their vitals. 
  4. Eye Examination. The DRE conducts Horizontal Gaze Nystagmus, Vertical Gaze Nystagmus, and other lack of convergence tests. 
  5. Divided Attention Psychophysical Tests. The DRE conducts field sobriety tests like the Walk and Turn Test, the One Leg Stand Test, and the Modified Romberg Balance Test.
  6. Vital Signs and Second Pulse. The DRE takes the blood pressure, temperature, and pulse of the subject. 
  7. Dark Room Examinations. The DRE uses a pupilometer to examine the subject’s pupil sizes under various light conditions.
  8. Examination for Muscle Tone. Because drugs can cause rigidity or flaccidness of the muscles, the DRE will check the subject’s muscle tone. 
  9. Check for Injection Sites and Third Pulse. The DRE will check for evidence of recent drug use and take a final pulse reading. 
  10. Subject’s Statements and Other Observations. The DRE reads the subject their Miranda Rights and asks them questions about their drug use. 
  11. Analysis and Opinions of the Evaluator. The DRE gives their opinion on the subject’s drug use. 
  12. Toxicological Examination. Finally, the DRE will request a toxicological examination to support their opinion on the subject’s drug use. 

If you are ever subjected to the DRE, DO NOT give the officers a statement when they get to step 10. This step is not included so that you can “tell your side of the story,” it exists to get you to incriminate yourself. Answer their questions politely, but be sure not to incriminate yourself.

The DRE is built on terrible, outdated science, and does not always provide evidence that will hold up in court. The best thing that you can do is make sure that you have a lawyer who understands the science and can attempt to debunk these antiquated methods. 

Mark Thiessen is an ACS-CHAL Forensic Lawyer-Scientist, which means he understands the science as well as he does the law and can make sure that the police don’t cut any corners or get away with the use of any bogus evidence. 

What is the most common drug in DWI?

Or in other words, what prescription drugs can you not drive on? As discussed earlier, you cannot drive on any substance that affects your mental or physical faculties. That being said, the following medications are most commonly involved in DWI arrests. 

  • Sleep aids like Ambien and Tylenol PM
  • Pain relievers like Vicodin, codeine, and Tylenol 3
  • Anti-anxiety medicine like Xanax, Alprazolam, and Valium
  • Antihistamines like Benadryl and Claritin
  • Antidepressants like Trazodone and Nefazodone

It may sound absurd, but if you are found driving under the influence of an over-the-counter antihistamine that is found to impair your ability to drive, you can be charged with a DWI, and face penalties just as severe as those caught driving drunk. 

Punishments for a prescription drug DWI in Texas

Just how severe are the punishments for prescription drug DWI in Texas? The breakdown of the punishments for DWI charges in Texas is as follows:

OffenseChargeLicense SuspensionFinesJail Time
DWI First OffenseClass B Misdemeanor90 days – 1 yearUp to $2,0003 days – 180 days
DWI First Offense, BAC greater than .15Class A Misdemeanor180 days – 2 yearsUp to $4,00030 days – 1 year
DWI Second OffenseClass A Misdemeanor180 days – 2 yearsUp to $4,00030 days – 1 year
DWI Third or Fourth OffenseThird Degree Felony180 days – 2 yearsUp to $10,0002 – 10 years
DWI with a Child PassengerState Jail FelonyUp to 180 daysUp to $10,000180 days – 2 years
Intoxication AssaultThird Degree Felony180 days – 2 yearsUp to $10,0002 – 10 years
Intoxication ManslaughterSecond Degree Felony180 days – 2 yearsUp to $10,0002 – 20 years

Even worse, if you don’t have a valid prescription for prescription drugs, you’ll likely be looking at a charge for possession of a controlled substance in Texas — and with prescription drugs, sometimes as little as one pill bottle can be grounds for law enforcement to pursue charges for intent to sell, or possession with intent to distribute. 

These charges can be particularly steep, especially when added to the charge for prescription drug DWI. If you are pulled over under the influence of, and in possession of, prescription drugs, you could be going away for a long time if you don’t hire the right attorney. 

Hire a prescription drug DWI lawyer

We understand that facing a charge for prescription drug DWI can be a traumatic experience. Very often people accused of DWI because of their prescriptions have no idea that they’re doing anything wrong, and suddenly being treated as a criminal can feel like a shocking betrayal. 

During these times you need someone in your corner fighting for you, but very often, not just any DWI lawyer will do. 

Mark Thiessen is the only lawyer in America who is triple board-certified in DWI. He is an ACS-CHAL Lawyer-Scientist and a perennial Super Lawyer. But the most important thing is that he wins DWI cases, securing Not Guilty verdicts for his clients in the most complex, high-stakes cases. 

Call Thiessen Law Firm today at (713) 864-9000 or schedule an appointment online for a free consultation.

Mark Thiessen’s Board Certifications include:

  1. Criminal Law by the Texas Board of Legal Specialization
  2. DUI Defense by the National College for DUI Defense as approved through the American Bar Association
  3. DUI Law by the DUI Defense Lawyers Association
  4. Board Certified Advocate in Criminal Trial Law by the NBTA Foundation
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