Drug Related DWI Questions & Answers
Q. I read that most states require a Breath Test Operator to possess a valid, unexpired operator’s license, or the breath test result is inadmissible. Can the case be thrown out due to test operator unlicensed or operator license expired?
A. In order to operate an Intoxilizer 5000 in Texas the operator must be certified by the Texas Department of Public Safety. In addition the machine must be properly calibrated and inspected on a regular basis. A Failure to comply with these requirements can lead to the inadmissibility of the BAC evidence through a Motion to Suppress. Information regarding the arresting agency’s Intoxilizer 5000 status can be obtained by the defense counsel from DPS through the filing of Discovery Motions.
Q. I’m going to my Intake Meeting for the first time to get on probation. Will I get drug tested?
Answer: It is possible that you will be drug tested at your initial probation meeting. This is especially true if you are on probation for a drug offense. If you are asked to submit to a UA and are hot, it is advisable to let the probation officer know. Probation will use the test as a benchmark to see if you continue to use drugs. Also if you are hot you can expect to be tested on a regular basis.
Q. What if a person is caught with a very small amount of marijuana? Will he still be charged with a DWI?
Answer: The amount of Marijuana does not matter, whether for the purposes of a DUI or for criminal prosecution, if it’s a small amount, 0 to 2 ounces it’s a class B misdemeanor, 2 to 4 ounces it’s a class A misdemeanor, over 4 ounces it’s a felony. So, you could realistically be charged with a possession of marijuana and a DWI at the same time. What they look for is has the marijuana impeded your ability to drive, and that’s what the officer is going to look for in field sobriety test and if a blood test is taken to see what the THC level is in your blood at the time that you were driving.
Q. What if a person is not on drugs and simply has drugs in his car; will he be charged with a DUI or possession?
Answer: In order to be charged with driving while intoxicated; the drugs have to be in your system. If they’re in your vehicle and you get pulled over, you could be charged with possession but then, you know, it’s a defense that the drugs do not belong to you and they may belong to a friend who had a prescription form. So, at this point, you know, if you’re looking at a possession charge, it’s a good idea to go hire yourself a drug lawyer and start getting the evidence together that shows that it was not your drugs but someone else’s who had a valid prescription form.
Q. Can a person be charged with both DWI And possession?
Answer: That is conceivable. If they find any illegal narcotics or marijuana in your vehicle while you’re being arrested for DWI, the chances are that you will be charged with both; possession of the drugs and DWI. It is not unusual and I’ve had numerous cases through the years where individuals have been charged with felonies for drug possession and a misdemeanor DWI.
Q. What are the differences between an alcohol induced DWI and drug related DWI charges?
Answer: It’s the same. Basically, it’s driving under the influence of either alcohol or drugs. So, it doesn’t delineate between whether you were driving drunk because of booze or driving drunk because you are in the influence of narcotics.
Q. Are there any differences in the procedural handling or the timeframe of resolution?
Answer: Well, usually, drug related cases require a blood test and it takes some time to get the blood results back from the lab, so that could add an additional two to three months for the case. Otherwise, there is probably no difference between handling a DWI with alcohol and handling a DWI with drugs.
Q. If there is a prescription form for the drugs found in a car, can both DWI and possession charges be beaten?
Answer: You could probably beat the possession case. However, it does not matter whether you were driving under the influence of illegal narcotics or prescription narcotics. In fact, you will note that often prescription bottles contain the warning “can cause drowsiness. Do not drive, do not operate machinery”. So, and it is conceivable that even though you have a prescription for the drug, you could be charged with DWI. And in fact, I’ve had a numerous cases where my clients have been charged with DWI because they’ve taken a Zoloft or Xanax and were determined to be under the influence of that narcotic drug while driving.
Q. What if a person has smoked marijuana 3 or 4 days prior to being arrested and administered a blood test? Would it show on the test that the person is under the influence?
Answer: It would probably read a low percentage of THC in your blood depending on how much you smoked. Usually, it will — Marijuana could stay in your system up to 30 days, it just depends on how much it’s showing in your system at the time that they’re running the blood test. There is a scale they use arbitrary as it is to make a determination of the level of intoxication.
Q. So it is possible to be arrested for a DWI even if I smoked marijuana 3 days ago?
Answer: The Blood test will probably read that you have THC in your system. Marijuana, which the basic formula for the drug is THC, stays in your system about 30 days. So, the chances are that it would show up in your system. Now, the question is if you smoke three days ago, why were they pulling you over for DWI at that time? There may be an issue as to probable cause for the arrest down the road the fact that you had such a small amount in your system at the time that you were driving.
Q. Can a drug related DWI be negotiated to a lesser charge? Are there any diversion programs available for drug related DWI offenders?
Answer: Well, there could be a possibility of receiving a lesser included offense like obstruction of highway by alcohol or drugs could be offered as a plea bargain. Some counties have pre-trial diversion programs for younger defendants. It all depends on where your case is being prosecuted at. Like I said, Bell County, for one, will not give a pre-trial diversion for a DWI and it’s very rare that you can get obstruction of highway for any kind of drug related DWI. However, in Wilson County, in just South of San Antonio, they’ll offer a pre-trial diversion for a DWI.
Q. Does a police officer need a search warrant to search my car?
Answer: No, it’s not going to matter because the law is pretty established that once an officer pulls you over for any kind of infraction of a law, which could be seeding or running at red light or even crossing lanes without signaling, he has the ability to search your vehicle if he has any kind of reasonable cause to do so. So, it is not a defense that he didn’t have a warrant and he went and searched your vehicle and found the Marijuana. Often, I have that situation come across where the officer says he smelled Marijuana in the vehicle but that is the usual excuse officers use for searching vehicles.
Q. If I’m arrested for a drug related DWI, will my family or my work find out?
Answer: Anytime you’re arrested, your job can find out about it. It just depends on the situation. Usually, it takes some time for criminal background checks to pick up any information on arrest. It could be as little as a week, it could be months. I had a recent situation where a client of mine lost his job because his arrest was posted on some website and his boss saw it. So, you never know. There is no guarantee that your boss isn’t going to find out that you’ve been arrested.
Q. If there are 3 or 4 passengers in car and marijuana is found by an officer, will they all be charged with possession?
Answer: Well, it depends on whose Marijuana it is. Usually, it’s based upon possession. Possession can be held by two individuals at the same time. Often, in these situations, a cop will take everyone in who’s in the car if some person doesn’t confess to the possession of the Marijuana. So, if that situation happens to somebody, a client of mine, it’s my recommendation that he pursue it as hard as he can to try to establish it wasn’t his marijuana. If the other guy takes the wrap, often, we’re able to get the case dismissed because somebody has taken the wrap for the Marijuana.
Q. What are examples of probable cause for a traffic stop or a vehicle search?
Answer: Well, the probable cause is very, very loose. Basically, the officer, all he needs to do is observe an irregularity while you’re driving. In San Antonio, that means anybody on the road after 12 o’clock is basically a DWI suspect. And if the officer finds any kind of driving infraction, even the smallest one like crossing a centerline without — crossing a line without signaling, he will pull you over and if he believes that you are — have been drinking, he will ask you if you’ve been drinking, if you say yes or no, he will come and provide the field sobriety test, the HGN, the walk and turn and the one-leg stand to determine if you were under the influence of alcohol. If he determines you are under the influence of alcohol or drugs, he will basically take you downtown. If it’s alcohol, he will offer you a breath test. If you refuse, in Bell County, he will get a warrant for your blood. If he believes you’re under the influence of any kind of drug, he will go directly to the blood draw and get a warrant for that.
Q. What are the Driver’s License implications for a drug related DWI?
Answer: Well, it’s going to be the same as if you were arrested for an alcohol DWI. If you submit to a breath or blood test and fail, your license will be suspended for 90 days administratively. If you refuse, your license will be suspended for up to 180 days administratively. If you are convicted for DWI, either alcohol or drugs, you’re looking at a potential license suspension. However, if it’s your first offense, you are able to take a class through DPS to keep your license so it will not be suspended if you’re put on probation. If you’re convicted and sent to jail, you will lose your license for up to two years.
Q. How can an attorney mitigate the DMV penalties? Is the DMV administrative hearing winnable?
Answer: It would depend on what the attorney does at an administrative hearing. The only way that you can win in an administrative hearing in Texas is to subpoena the officer and if the officer does not show on a number of occasions, the administrative judge will dismiss the case. They do not even need the live testimony of an officer; all they will need to do is establish through documents certified copies of the police report and the DCI25 that basically the officer had a probable cause for the arrest that he offered the defendant to take a blood or alcohol test, that the defendant took the test and failed or refused the test. That’s all they have to prove for an ALR license suspension. So, it’s pretty much a stack Kangaroo Court losing your license if you get pulled over for DWI. It’s my recommendation that it’s always a better pop for your dollar to have your attorney go ahead and get you an occupational license versus trying to fight an ALR suspension.