When people think DWI they think alcohol. But thousands of people are arrested in Texas each year for DWI when they have had nothing to drink. They are arrested and accused of driving while intoxicated through some sort of drug or prescription medication (Drug DWI).
Drug DWIs, their penalties, and consequences are the same as those of alcohol DWIs, but the investigation and defenses can be very different.
The funny thing about Drug DWI cases is most of the time the officer actually thinks you are drunk! I have had a ton of drug DWI cases where the officer conducts a full alcohol investigation and takes someone to jail and gives them a breath test. When someone is accused of being under the influence of drugs, obviously a breath test is going to do nothing to prove or disprove anything.
When the person blows on the machine and the machine reads 0.00 the officers realize there is a problem. At this point they typically request consent to draw blood, or start working on a search warrant to draw blood.
The blood is sent to a toxicology lab where it is tested for drugs, and tested to see what the levels of drugs are in your system.
What is intoxication for drugs?
There is no per se level of intoxication for drugs. For example, there is no specific number that says, “if you have this much marijuana in your system you are intoxicated. This creates a problem for the prosecutors. They will typically get a toxicologist to review the reports, and the toxicologist will form an opinion if they believe the amount of drugs in the person’s system was enough to potentially cause the loss of the normal use of the physical and mental faculties.
The officers will still typically perform the standard field sobriety tests to check for the loss of the normal use of your mental and physical faculties. But the fact that the substance at issue is drugs and not alcohol is a game changer.
Are there specific sobriety tests for Drug DWI?
There are no specific tests for Drug DWIs, but the state can seek to enter evidence of a Drug Recognition Expert (DRE).
The DRE program that officers go through helps them learn how to justify arresting people for Drug DWIs. The DRE process requires the officers to do a 12-step evaluation.
The 12 Step DRE Protocol is as follows:
- Breath Alcohol
- The officer should determine if there is alcohol in their system, if there is not, they should request a DRE evaluation
- Interview with the Officer who arrested the defendant
- The DRE should interview the officer, ask about the suspects demeanor, behavior, appearance, and driving
- Preliminary Exam and First Pulse
- The DRE conducts a prelim exam to see if the suspect has any injuries. They will ask standardized questions about health, food consumption, and drug consumption. They also check for equal pupil size, and can check for nystagmus by doing the HGN test. The DRE will take the suspects pulse for the first of 3 times.
- Eye Examination
- DRE checks the eyes through the HGN exam, and also checks for VGN vertical gaze nystagmus
- Divided Attention Psycphysical Tests
- The DRE does 4 tests: modified Romberg test, Walk and Turn, One Leg Stand, and Finger to Nose. You can find out more about those in my DWI Standard Field Sobriety Test section.
- Vital Signs and 2nd Pulse
- DRE takes the suspects blood pressure, temperature, and pulse
- Dark Room Exam
- The DRE estimates the pupil size of the suspect in 3 different lighting conditions
- Exam for Muscle Tone
- The DRE checks the muscle tone of the suspect. Certain drugs can cause muscles to be rigid. Other drugs can cause your muscles to be very loose and flaccid.
- Check for Injection Sites and 3rd Pulse
- DRE checks for injection sites, which can show that someone might have been using certain types of drugs recently, and also does a 3rd
- Suspects Statement
- Suspect is read their rights, and then an interview about drug use is done
- Analysis and Opinions of Evaluator
- The DRE will form an opinion based on the totality of the circumstances to whether or not the person arrested is in fact impaired because of the introduction of drugs into their system
- Toxicology Exam
- Blood is taken and sent to the lab for analysis
It is very rare that a full DRE analysis is done. Not many officers are certified to do this type of analysis, so sometimes there is no one available. Other times they are just too lazy to get a DRE over to the jail. Either way, if they don’t do the DRE analysis, or don’t do it right, that is good for us.
More and more jurisdictions are investing money to train officers on the DRE process, so it is very important to have an attorney who understands this as well.