Controlled Substances DWI: Drug Specifics

Felony DWI Offenses Based on Drug Tests

Many assume that a Texas DWI always involves alcohol intoxication. On the contrary, Texas DWI laws also criminalize controlled substance or drug DWI. You can face a first or second-offense misdemeanor DWI charge, or even a third or subsequent DWI offense felony charge based on having drugs in your system when tested relating to a DWI arrest. You can also face felony intoxication assault, intoxication manslaughter, or DWI with a child passenger charges based on controlled substances showing up in your blood draw relating to a DWI arrest. Many different drugs in your system can form the basis for a felony or misdemeanor DWI charge, including prescription drugs, marijuana and cannabis derivatives, and hard drugs like cocaine. Retain DWI Specialist defense attorney Doug Murphy to defend your Texas DWI felony or misdemeanor charges based on drug test results. Get the skilled and experienced defense representation you need for your best possible outcome to drug DWI charges.

Federal Controlled Substances Act Schedules

The drugs that law enforcement officials discover or claim to discover in your system from a DWI arrest and blood draw don't have to be illegal drugs for you to face Texas DWI charges. Prescription drugs or even sleeping pills will do if the police believe they have evidence of your intoxication. Texas law defines "intoxicated" to mean when a person does not have "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." But when police discover illegal drugs or drug paraphernalia in your vehicle relating to a DWI arrest, you may face additional criminal charges. And the nature and severity of those charges depend in large part on definitions within the federal Controlled Substances Act. The federal Controlled Substances Act classifies drugs into Schedules I, II, III, IV, and V. Schedule I drugs are the most addictive and least beneficial, and thus the most serious drugs relative to drug crimes a prosecutor may charge relating to a DWI arrest. See the discussion below of specific drugs according to their Schedules.

Texas Controlled Substances Act Penalty Groups

The Texas Controlled Substances Act largely tracks the federal Act, reclassifying the federal Schedules I through V into Texas state Penalty Groups PG1, PG1-A, PG2, PG2-A, PG3, and PG4. Each Texas state penalty group assigns different punishments depending on drug quantities and the type of action involved, whether manufacture or delivery or possession. Penalties can thus range from moderate to severe within each penalty group, as follows:

• Penalty Group 1 punishes the manufacture, delivery, or possession of opioids and other drugs in federal Schedule I from a state jail felony punishable by up to two years in jail and a $10,000 fine all the way up to a first-degree felony or even enhanced felony punishable by up to 99 years in prison and a $250,000 fine;
• Penalty Group 1-A punishes the manufacture, delivery, or possession of LSD and similar federal Schedule I drugs from a state jail felony punishable by up to two years in jail and a $10,000 fine all the way up to a first-degree felony or even enhanced felony punishable by up to 99 years in prison and a $250,000 fine;
• Penalty Group 2 punishes the manufacture, delivery, or possession of hallucinogens similar to other federal Schedule I drugs from a state jail felony punishable by up to two years in jail and a $10,000 fine all the way up to a first-degree felony punishable by up to 99 years in prison and a $100,000 fine;
• Penalty Group 2-A punishes the manufacture, delivery, or possession of cannabinoids like K-2 and Spice, similar to other federal scheduled drugs, from a Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine all the way up to an enhanced felony punishable by up to 99 years in prison and a $100,000 fine;
• Penalty Group 3 punishes the manufacture, delivery, or possession of sedatives like Valium, anabolic steroids, and other drugs similar to federal Schedule III drugs from a Class A misdemeanor punishable by up to one year in jail and a $4,000 fine all the way up to a first-degree felony punishable by up to 99 years in prison and a $100,000 fine; and
• Penalty Group 4 punishes the manufacture, delivery, or possession of a range of prescription medications and other drugs similar to federal Schedule IV drugs from a Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine all the way up to a first-degree felony punishable by up to 99 years in prison and a $100,000 fine.

Drug Levels and Texas DWI Crimes

As many people know, Texas law authorizes alcohol-based DWI crime charges based on blood alcohol content levels. A blood alcohol level at or above 0.08% is generally the level at which prosecutors may charge the basic DWI offense, although commercial drivers operating commercial vehicles under a CDL face a lower .04% limit for DWI crimes. But drug-based DWI crime charges do not depend on specific drug levels. Instead, the arresting officer must make observations indicating that the driver does not have the required "normal use of mental or physical faculties" because of the drug's effects. Drug levels in the defendant's blood merely support the officer's observations. Drug levels in the defendant's blood do not on their own indicate intoxicated levels.

Federal Offense Levels for Texas DWI Drug Crimes

The type of drug does not directly affect the offense level of a Texas drug-based DWI crime, although the type of drug involved may lead to other drug crime charges, the penalties for which do depend on the drug type. Texas DWI laws provide these offense levels and associated penalties for Texas drug-based DWI crimes:

Felony Drug-Based DWI Offenses

Felony-level drug-based DWI crimes in Texas include intoxication assault, intoxication manslaughter, DWI with a child passenger, and third or subsequent DWI offenses. Intoxication assault is generally a third-degree felony carrying maximum penalties of ten years imprisonment and a $10,000 fine but can become a second-degree felony increasing the potential imprisonment to twenty years when the offense leaves the victim in a vegetative state or involves a police officer, firefighter, or emergency medical personnel victim. Intoxication manslaughter is generally a second-degree felony carrying a maximum prison term of twenty years. DWI with a child passenger is generally a state jail felony with maximum penalties of two years imprisonment and a $10,000 fine. Third or subsequent DWI offenses are generally third-degree felonies with maximum penalties of up to ten years imprisonment and a $10,000 fine.

Misdemeanor Drug-Based DWI Offenses

Misdemeanor-level drug-based DWI crimes in Texas include first and second-offense DWI crimes. The first offense DWI crime is generally a Class B misdemeanor with maximum penalties of 180 days in jail and a $2,000 fine. A second offense DWI crime is generally a Class A misdemeanor with maximum penalties of twelve months in jail and a $6,000 fine. Various circumstances like injury to another or property damage can raise either misdemeanor to a higher offense level.

Controlled Substances Commonly Involved in DWI Arrests

This discussion of controlled substances commonly involved in DWI arrests groups those drugs by their federal Controlled Substances Act schedules. But scheduled drugs frequently change, federal officials frequently add other substances to those schedules, and the schedules can reach equivalent substances and synthetics. The Controlled Substances Act's Section § 811 authorizes the attorney general to add drugs to the schedules or remove drugs from the schedules based on their potential for and pattern of abuse, beneficial effect, public health risk, and addictive properties. The Drug Enforcement Administration (DEA) and Food and Drug Administration (FDA) assist in classifying drugs.

Schedule I Drugs

Schedule I drugs have no currently accepted medical use but have a high potential for abuse and no accepted way for safe use under medical supervision. Common Schedule I drugs include:

• Heroin, a potent opiate users typically sniff until tolerance requires injection, but also including smokeable black tar heroin, giving pleasurable effects;
• Hallucinogens LSD, PCP, also known as Angel Dust, Killer Weed, or Zoom, psilocybin mushrooms, and mescaline or peyote, altering perception of reality but leaving damaging physical and psychological effects;
• Methamphetamines, including Molly or Ecstasy, producing a sense of well-being or euphoria lasting a few hours followed by lows lasting days; and
• Marijuana, which though legalized even for recreational use in many states not including Texas, remains a federal Schedule I drug.

Texas DWI offense levels related to intoxication from a Schedule I drug are those stated above. Felony-level DWIs generally require serious bodily injury to or reckless death of a victim, a child passenger in the vehicle, or a third or subsequent offense. But if police discover evidence of the possession or trafficking of one of these drugs during or as a consequence of your DWI arrest, penalties can increase substantially. Federal penalty levels for Schedule I heroin or LSD drug trafficking can bring up to forty years of imprisonment and a $5 million fine. Trafficking in marijuana can bring federal penalties of up to five years imprisonment and a $250,000 fine, or for larger quantities, life imprisonment and a $10 million fine. Possession penalties for Schedule I drugs range up to three years and a $3,000 fine, depending on the specific drug and the offense number.

Schedule II Drugs

Schedule II drugs have a high abuse potential leading to severe dependence but have an accepted medical use. Common Schedule II drugs include:

• Cocaine, also called coke, blow, or powder, producing a euphoric high when sniffed, smoked, or injected, in powder, resin, or dissolved forms, with the risk of cardiac arrest or stroke;
• Methadone, a synthetic opioid prescribed for severe pain and to treat heroin addictions, but producing a euphoric effect and highly addictive and dangerous when abused, causing mental impairment and respiratory depression;
• Morphine, on the street called Miss Emma, Monkey, or White Stuff, an opiate pain reliever prescribed after major surgeries and for cancer pain, but abused for its pleasurable effects, potentially causing coma;
• Demerol, called Dillies, D, or Dust, a painkiller with anxiety and nausea symptoms on withdrawal, spurring dependency, and potentially causing coma and breathing cessation when abused in large amounts;
• Adderall and Ritalin for attention-deficit hyperactivity disorder, producing alertness and focus, with withdrawal effects contributing addiction; and
• Fentanyl, a painkiller Actiq in lozenge form, Duragesic in patch form, and Sublimase in hospital use, fifty to one-hundred times more potent than morphine.

Texas DWI offense levels related to intoxication from Schedule II drugs are stated above, with felony levels generally requiring serious bodily injury to or reckless death of a victim, child passenger in the vehicle, or third or subsequent offense. But police discovery of Schedule II drug possession or trafficking evidence from your DWI arrest can increase offense levels and penalties substantially. Trafficking in Schedule II drugs can bring up to twenty years imprisonment and a $1 million fine. Possession penalties range up to three years and a $3,000 fine, depending on the Schedule II drug and offense number.

Schedule III Drugs

A Schedule III drug is one with an accepted medical use and low to moderate risk of addiction less than higher-scheduled drugs. Schedule III drugs the public generally recognizes as legal when prescribed and only moderately addictive. Common Schedule III drugs include:

• Codeine, common in cough syrups as a suppressant but also prescribed as a painkiller, having generally mild addictive and pleasurable effects;
• Ketamine, used to tranquilize humans or animals but abused by young adults at clubs and raves for its hallucinogenic effect, but producing potentially strong feelings of detachment and impaired cognition for days; and
• Aanabolic steroids, prescribed to recover from injury but abused for fitness and muscle-building effects, potentially producing strong addictions among obsessive-compulsive users with body dysmorphia, and potentially leading to hormone imbalances and suicidal ideation.

Texas DWI offense levels related to intoxication from Schedule III drugs are stated above, with felony levels generally involving serious bodily injury to or reckless death of a victim, child passenger, or multiple offenses. But Schedule II drug possession or trafficking charges arising from your DWI arrest can increase offense levels and penalties. Federal penalties for selling, delivering, or intending to sell or deliver a Schedule III drug range up to five years of imprisonment and a $15,000 fine, although Schedule III drug trafficking can increase the maximum penalties to ten years imprisonment and a $500,000 fine. Possession penalties are like those for Schedule I and Schedule II drugs, ranging up to three years and a $3,000 fine, depending on the Schedule III drug and offense number.

Schedule IV Drugs

A Schedule IV drug has an accepted medical use but low risk of abuse and limited potential for addiction. Common Schedule IV drugs include prescriptions the public generally sees as legal and mostly harmless while presenting little abuse and dependency risk. Common Schedule IV drugs include:

• Ambien, a sedative sleep aid replacing the more-addictive Xanax that slows neurotransmitters by activating a brain compound;
• Darvocet, a mild to moderate opioid painkiller with the same active ingredient as Tylenol, no longer prescribed but available by street names like Pinks, Footballs, 65s, and Ns, providing some euphoric effect when crushed and snorted;
• Tramadol, a moderate painkiller typically prescribed after surgery, carrying street names like Trammies, Chill Pills, and Ultras, producing relaxed and happy effects but potential side effects when abused, including seizures.

Texas DWI offense levels involving intoxication from Schedule IV drugs are stated above, with felony levels involving serious bodily injury, death, child passenger, or multiple offenses. But Schedule II drug possession or trafficking charges arising from a DWI arrest can increase offense levels and penalties. The federal Schedule IV penalty level is up to three years of imprisonment and a $10,000 fine. Possession penalties are up to three years and a $3,000 fine, like the other scheduled drugs.

Schedule V Drugs

Schedule V drugs have an accepted medical use but even lower addictive dependency and dangers than Schedule IV drugs. Schedule V drugs are generally prescription drugs the public does not recognize as presenting abuse potential or dependency risk, even though pharmacologists recognize minor risk. Common Schedule V drugs include:

• Lomotil, a diarrhea medicine in pill or liquid forms, with opiate-like effects, potentially causing severe drowsiness, breathing irregularity, and seizures;
• Motofen, another diarrhea medication, sudden withdrawal from which can produce stomach cramps, nausea, and vomiting, with overdose risks of drowsiness, breathing depression, and seizures; and
• Lyrica, used for pain from nerve damage, potentially causing sleep disorders, headache, nausea, and diarrhea after sudden cessation, creating small dependence and abuse effects.

Texas felony DWI offense levels involving intoxication from Schedule V drugs are stated above, involving serious bodily injury, death, child passenger, or multiple offenses. But as with other scheduled drugs, Schedule II drug possession or trafficking charges out of a DWI arrest can increase offense levels and penalties. Federal penalties for Schedule V drug trafficking are up to one-year imprisonment and a $100,000 fine. Possession penalties for Schedule V drugs range up to three years and a $3,000 fine, like possession penalties for the other scheduled drugs.

Over-the-Counter Drugs Commonly Involved in DWI Arrests

The drug that prosecutors claim to have found in your blood test relating to your DWI arrest need not be a controlled substance for you to face drug-related DWI charges. From a strictly legal standpoint, you can face DWI charges based on an over-the-counter drug found in your system just as much as on a prescription or street drug found in your system. Police officers must only have evidence of your intoxication from the drug, meaning that you lack your normal use of mental or physical faculties because of the drug. As a practical matter, some prosecutors may be more willing to charge a drug-based DWI crime when the drug detected in your system is an illegal street drug. But prosecutors may also charge a DWI crime based on over-the-counter medications or commonly prescribed medications without addictive effects, like the following, when they impair your vehicle operation:

• Pain relievers potentially causing dizziness, sleepiness, disorientation, or other interference with your physical or mental faculties impairing your driving ability;
• Antihistamines that cause drowsiness and may dry tear ducts causing blurred vision and impairing your driving ability;
• Antidepressants like Trazodone, Nefazodone, and tricyclics that may cause drowsiness and slowed reaction time;
• Serotonin reuptake inhibitors like Prozac, Zoloft, Paxil, Luvox, Lexapro, and Celexa that can cause insomnia resulting in sleepiness, drowsiness, and inattention while driving;
• Antihypertensive medications for high blood pressure that can initially cause listlessness;
• Anti-anxiety agents and muscle relaxants like Valium with tranquilizing effects impairing judgment and reaction times.

The Drug Recognition Expert Protocol

Because prosecutors may charge Texas drug-based DWI crimes without proving minimum levels of drugs in your system, police observations of your alleged impairment at the accident scene become critical evidence in your prosecution and defense. Police nationwide currently use a Drug Recognition Expert (DRE) protocol to gather, assess, and testify to drug intoxication evidence. Your defense or conviction may depend on the credibility of policy DRE testimony and your DWI Specialist's cross-examination of that testimony. The International Association of Chiefs of Police offers police officers a certification in the DRE protocol. Texas appoints a statewide coordinator for officers to obtain the International Association's DRE certification. The DRE protocol purports to include these standardized twelve steps:

1. The arresting officer's administration or attempted administration of a breath alcohol test;
2. The DRE expert's interview of the arresting officer when arriving at the arrest scene;
3. The DRE expert's taking of the defendant driver's pulse at the arrest scene and other preliminary observations;
4. The DRE expert's observations of the defendant driver's eyesight using the Horizontal Gaze Nystagmus test, the Vertical Gaze Nystagmus test, and presence of lack of ocular convergence;
5. The DRE expert's administration of psycho-physical tests including the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests;
6. The DRE expert's taking of the defendant driver's vital signs and second pulse test;
7. The DRE expert's measuring the defendant driver's pupil sizes under three different lighting conditions, using a pupillometer device;
8. The DRE expert assessing the defendant driver's muscle tone;
9. The DRE expert's check for drug injection marks and taking a third pulse test;
10. The DRE expert's reading Miranda rights before interviewing the defendant driver;
11. The DRE expert considers all of the above in an overall analysis to form an opinion on drug intoxication; and
12. The DRE concludes the protocol by requesting the defendant driver to take a voluntary blood, urine, or saliva test to check for drugs.

Challenging DRE Protocol Testimony

Because of the critical importance of the DRE evidence in your drug-based DWI case, your retained DWI Specialist must have substantial skills and experience challenging the prosecutor's DRE evidence, if you are to have the best possible outcome for your drug-based DWI defense. The DRE protocol has the appearance of objectivity. Yet the DRE protocol is, in fact, a highly subjective overall test, depending on the DRE expert's unmeasurable or unmeasured impressions of things like elevated or depressed pulse, slurred or articulate speech, keen or poor balance, sharp or sloppy coordination, muscle tone or absence of tone, focused or unfocused eyesight, and other observations of demeanor.

Each person differs in how they appear on those measures. Some people naturally look and speak unfocused, while others naturally do the opposite. Some people naturally look and act coordinated, while others naturally do the opposite. The so-called DRE expert's opinion is simply an opinion, one with which other so-called DRE experts may well disagree. Each part of the DRE protocol is open to multiple interpretations depending on the individual DRE expert's experience and assessment. Indeed, for that reason, some jurisdictions refuse to permit a testifying officer to draw conclusions in DRE protocol terms. Texas DWI Specialist defense attorney Doug Murphy knows how to cross-examine prosecution DRE experts to expose the subjectivity and unreliability of their opinions.

Contact Our Harris County DWI Drugs Attorney

Premier Texas DWI Specialist defense attorney Doug Murphy is available in Texas for your defense of felony or other DWI charges relating to positive drug tests. Attorney Murphy has the preeminent reputation, substantial experience, and strong skills you need for your most effective defense. Renowned for his DWI knowledge and skills, attorney Murphy regularly speaks on DWI defense issues to lawyers and judges nationwide. Attorney Murphy is also one of only two attorneys holding both Texas DWI Specialist and Texas Criminal Law Specialist certification, and he is Best Lawyer's 2023 Lawyer of the Year for DWI Defense. You can trust attorney Murphy to pursue with skill and passion the best possible outcome to your controlled substance DWI charges. Call 713-229-8333 or contact us online.