Drug Based DWI Cases

April 13, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


What happens when someone gets arrested for Driving While Intoxicated but there is little or no alcohol detected?

The Legal Basis for DWI Arrests Without Alcohol Involved

Chapter 49 of the Texas Penal Code defines driving while Intoxicated as operating a motor vehicle in a public place while intoxicated.  Intoxication is further defined by Tex.Pen.C. 49.01.  Under that chapter “Intoxicated” means:

(A) 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; or (B) having an alcohol concentration of 0.08 or more.

So as you can see Texas recognizes a laundry list of things which could cause intoxication capped by the catch-all phrase “any other substance into the body.”  Taken literally this could mean sugar, coffee, or even water if it caused you to “not have the normal use of your mental or physical faculties.”

The Major Difference Between Drugs and Alcohol For DWI Arrests

There is a “per-se” definition of intoxication for alcohol but none for “street drugs” such as marijuana, cocaine, or even heroine… nor is there a per-se definition of intoxication for prescription medications such as hydrocodone, oxycontin, or xanax.

This is to say the scientific community agrees no one is safe to drive at 0.08 or higher BAC.  In other words, at 0.08, everyone is intoxicated.  There is no similar number or level for drugs.

Even the State’s most loyal toxicologists cannot say for certain that at any given amount of marijuana, for example, caused a specific person to be intoxicated on a specific occasion.  They may testify such a drug “affected” the driver but any lawyer’s ears should ring when they hear those words — because those probably aren’t legally sufficient to sustain a conviction for driving while intoxicated.

The Real Battle

Drug based DWI cases can be real dog-fights in the courtroom.  This is because it is at the intersection of science and bias.

Pharmacologists, toxicologists and people of science will tell you up and down just how difficult (if not impossible) it can be to tell whether a person has lost the normal use or about what caused a person not to have the normal use of mental or physical faculties based on drugs… but this doesn’t stop police officers, prosecutors, or jurors from from making knee-jerk reactions based on some of the drugs involved or based on the behavior they observe.

Prosecutors know many juries will convict a person for almost anything when they hear a person used marijuana or xanax.  This doesn’t make it legal.

In many cases police who may have had some training in the detection of drug impairment will attempt to testify as if they are a qualified physician able to diagnose highly complex situations of drug ingestion.  Also many officers claim to learn about the effects of drugs on the job through their “training and experience.”  This can often be a concocted phrase that makes them experts on everything from hydrocodone to tennis racquets to waffle irons.  They mean well but I’m pretty sure they’d get a 2nd opinion if a fellow officer diagnosed one of their loved ones with a life-altering disease (which a DWI diagnosis can be).

How Courts Struggle With Drug Related DWI Arrests

Courts are the ‘gatekeepers’ of evidence which juries receive to come to their verdicts.  The law school example is the Judge should exclude testimony from a witness who claims the moon is made of cheese.  In drug based DWI arrests, then, the issue is whether a judge should even allow a police officer with several hours of training (if any) on pharmacology or toxicology to speak as if they have post-graduate degree on the matter.

In Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009), the Court of Criminal Appeals ruled use of medications was not admissible in a case where alcohol was the main intoxicant unless the State could show the dosage of the medication taken, the time of ingestion and the half-life of the drug.  But, as always, Courts are constantly re-analyzing the edges of the issues and often reaching contrary conclusions.

What You Need to Do if You’re Charged with a Drug Based DWI

Don’t assume you’ll lose or that things are hopeless.  These cases can be real battles but they are highly complex and many are winnable.  Call an experienced lawyer.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contact through this forum is not privileged nor confidential.


Will I Get a Deep Lung Device Ordered on My Car – And When Can I get it Off?

April 11, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

One of the biggest changes to DWI practice I’ve seen over the past decade is the increasing frequency an Interlock Ignition Device is ordered on someone’s car.  It can also be a headache getting it off the car when the time is over  (it is also known as “Deep Lung Device” or “DLD” for short).  If you’re not familiar — it is the device you must blow into to start your car when battling a DWI arrest or probation.

One of my biggest challenges as an advocate for my clients is to show the prosecutors and judges I work with the DLD is an affront to a person’s dignity more than anything.  Should the punishment for DWI arrests be public humiliation of my client every time they start their car in front of their loved ones, kids or neighbors?  I’d imagine when someone blows in to the device — it must feel like every eyeball on the planet is on them.  The battle over the deep lung devices is truly at the intersection of individual freedom and public safety.  It says a lot about us where we draw the line.

When a DLD is Required – And Why They’re All the Rage

Several factors are converging to make the devices popular.  First is legislature who score automatic good-guy points every time they “get tough on DWI.”  They require the DLD in many instances including (1) when you’re on bond for DWI 2nd or higher; (2) when you are convicted of DWI over 0.15 or DWI 2nd for at least 1/2 of the probationary period; or (3) when you apply for an occupational driver’s license (“ODL”) due to a DWI related suspension.

Another factor is Judges tighten the grips even more.  Judges have discretion in setting terms and conditions of bond to put an interlock device on a car.  In Collin County, most will Order the DLD in certain circumstances regardless if it’s a 1st arrest.  Those include where there was a car accident, where there was a blood alcohol concentration over 0.15, or where the driver was a minor.

The final factor I am told time and again by many who work at the Courthouse (such as probation officers, prosecutors, and even court staff) is they say they will get fired if they allow someone to remove the device and that person causes a DWI accident with victim fatalities.  Thankfully I haven’t seen this happen and hopefully I never will.  I still do my best to assure whomever I deal with that even if there were a DWI accident, I’ve also not seen someone fired (or lose an election) for a specific decision they made related to one particular case.  I also point out to them they are allowing unreasonable fear to effect their better judgment — and that if no one in the courthouse has the courage to order (or suggest) these things be removed we should just have a policy to have the DLDs on cars 100% of the time in all DWI cases.

Getting the DLD Off Your Car

For all practical purposes, you need an Order getting it off your car.

Device providers often see themselves as surrogate probation officers or Court Bailiffs.  They won’t take the interlock ignition devices off your car without a Court Order.  I’ve never seen any law or rule which allows them to do this and I suspect they make money by requiring you to take the 2 or 3 weeks to get an Order to remove the device from your car. I’m sure it’s not bad for the bottom line in aggregate.  Anyways, the companies are getting more savvy because I’ve recently seen clauses in their contracts which require Court Orders for removal.  So there it is.

When Are You Eligible for DLD Removal?

If you have a DLD on your car as a condition of bond then you are eligible once the case is over… though often it stays on for other reasons (see below).  If you are acquitted, then it comes off immediately (with a Court Order, of course).

If you have a DLD as a term of probation then you can ask the Judge to remove it at any time unless it is a DWI over 0.15 or a DWI 2nd or higher… in which case you must have it for at least 50% of probation.  Then you can ask for its removal.

If you have the deep lung device as a term of an occupational driver’s license then it remains until the ODL expires.  New legislative changes actually loosen restrictions on where you can drive with an ODL so long as you have a DLD.

How Do I Get a DLD Removed?

Give us a call.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice in any situation you should contact an attorney directly.  Communications through this forum are not privileged or confidential.