Interviewer: What about if the breath test result is below a .08, or you’re found to have a blood alcohol level below .08, are there laws that address that? Will you still be arrested and charged with DWI?
Gary: Technically they could still charge you with DWI because at .08 there is a presumption of intoxication. That just means the burden shifts so the state has to prove you were intoxicated. But if they will try to prove it through the testimony of an officer or the video shows that you were intoxicated.
Interviewer: Are there laws that address people having certain levels of drugs in their blood and whether their metabolites can be considered active compounds?
Gary: Okay, that’s basically depends a lot on the individual and what their tolerance is for the particular narcotic. I’ve represented clients that were addicted to pain killers. These individuals can easily ingest eight to ten painkillers a day and not be affected by it because their body has built tolerance level to the drug.
Interviewer: In an alcohol-related DWI, there are specific limits where there is a presumption of intoxication because of the level of an individual’s blood-alcohol but how about for drugs?
Gary: Well, there isn’t. That’s just the thing about it. You can look at a blood toxicology screen and based upon the milliliters of the testing in the blood, you can see the prescriptive dose. As an example, a 10 mg pill would be a prescriptive dose. Very rarely do I see a blood test result that’s really beyond what a normal prescriptive dose would be.
The problem begins when people mix narcotics, or people are on the drug for the first time and don’t really know how their system will react to it. With people who are regularly like on pain pills can function normally on their prescriptive dose but when they mix it with Xanax then following asleep at the wheel.
It primarily depends on the individual and his or her chemical makeup. With marijuana there is no presumption. If you’ve had X amount in your system you are determined to be intoxicated. I think that’s the problem they’re having right now in Washington and Colorado.
They need to define what exactly is driving under the influence of marijuana. In Texas there is no such thing. If it’s in your blood and you’re driving erratically for whatever reason they are going to argue you were intoxicated.