Houston Controlled Substance or Drug DWI Defense Lawyers

Houston's Premier Defense Against Controlled Substance or Drug DWI Charges

If you or someone you care about faces an arrest for a controlled substance or drug DWI, you probably have many questions. But you're probably also scared and stressed about how to handle this. Do you plead guilty and hope for the best? Can you fight the charges? What is the best solution for you? Well, you aren't alone. More than 24,000 people each year are involved in DWI crashes in Texas.

Contrary to popular belief, a DWI doesn't always involve alcohol. You can also face arrest for driving under the influence of a controlled substance. However, this isn't something you should try to handle on your own. The consequences of a controlled substance DWI can be serious, and you should consult an attorney who is experienced in Texas DWI defense as soon as possible.

What Is a Controlled Substance DWI?

In Texas, driving while intoxicated doesn't always involve alcohol. Rather, you can also face arrest if you are intoxicated because of drugs, alcohol, or a combination of both drugs and alcohol.

Definition of DWI

Under Texas law, driving while under the influence is defined as:

• Having a blood alcohol content of .08% or higher or
• No longer having the normal use of your mental or physical faculties.

Texas Penal Code § 49.01 states that "intoxicated" means:

"[N]ot 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 having an alcohol concentration of 0.08 or more."

Testing for Controlled Substances

While the Texas Penal Code lists an objective standard for a DWI—a BAC of .08%—this doesn't apply to a suspected DWI resulting from drugs. Under Texas law, there is no objective standard for a level or amount of a controlled substance that should result in a DWI. In addition, there are no predetermined standards as to what level of a controlled substance results in intoxication or impairment. As a result, many prosecutors try to use a positive test for any controlled substance as evidence of a DWI. But a drug test is not a BAC test.

The 12 DRE Steps

Because no specific test can measure the level of drugs leading to intoxication in the same somewhat objective manner that BAC can, law enforcement officers developed a 12-step series of tests and observations to identify drug intoxication. The series is known as Drug Recognition Expert (DRE) Protocol. Police officers in Los Angeles first developed DRE protocols in the early 70s, but by the 1980s, the National Highway Safety Administration adapted DRE protocols. The International Association of Chiefs of Police now administers DRE protocol certification. However, the protocol process is notoriously unreliable. Moreover, courts do not permit law enforcement to deliver expert opinions on intoxication based on DRE protocols in some states.

• BAC Breath Test: The officer will take the suspect's BAC with a breath test. Then, it will be up to the officer to determine if the test results explain the suspect's behavior. If not, the arresting officer can request a DRE evaluation.
• Interview of the Arresting Officer: When the DRE arrives, they will interview the arresting officer, discussing the circumstances of the arrest, the behavior of the suspect, and any signs of intoxication.
• Preliminary Exam and First Pulse: The DRE will take the suspect's pulse and do a preliminary examination. The DRE will examine the suspect's attitude, behavior, speech, demeanor, and coordination.
• Eye Exam: The DRE will examine the suspect's eyes, looking for ocular convergence using several tests, including the Horizontal Gaze Nystagmus (HGN) test and the Vertical Gaze Nystagmus (VGN) test.
• Divided Attention Psychophysical Tests: Next, the DRE will administer several field sobriety tests to see if the suspect's motor coordination is affected by attempting to complete multiple tasks. These tests may include the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests.
• Vital Signs and Second Pulse: After the field sobriety tests, the DRE will take the suspect's vital signs and pulse again.
• Dark Room Exams: Next, the DRE will observe the suspect's pupils under different lighting conditions using a pupilometer. The DRE will observe whether the suspect has constricted, dilated, or normal pupils.
• Exam for Muscle Tone: The DRE will watch the suspect's muscle tone, looking for muscles that have become rigid and constricted or flaccid and loose.
• Check for Injection Sites and Third Pulse: The DRE will take the suspect's pulse again and look for injection sites on the skin that could be evidence of recent drug use.
• Subject's Statement and Other Observations: Before asking the suspect about any possible drug use, the DRE will read them their Miranda rights.
• Analysis and Opinions of the Evaluator: At this point, the DRE will consider all of their observations and questioning and form an opinion about whether the suspect is intoxicated and what substances could be involved.
• Toxicological Exam: The DRE will then request a voluntary blood, urine, or saliva test to send for analysis.

Despite the appearance of objectivity, the DRE analysis is completely subjective. This protocol can also have the result of convicting an innocent person under the care of a physician. That's why it's imperative that you contact an experienced controlled substance DWI attorney as soon as possible.

Drugs Most Often Involved in Controlled Substance DWIs

Some of the most common drugs involved in controlled substance DWIs are:

• Cocaine,
• Marijuana,
• Amphetamines,
• Methamphetamine,
• Heroin,
• Ketamine,
• Methadone,
• Hydrocodone,
• Morphine,
• Opium,
• Oxycodone,
• 3,4-Methylenedioxymethamphetamine (MDMA),
• Dextromethorphan (DXM or DM),
• Flunitrazepam (Rohypnol),
• Phencyclidine (PCP),
• Gamma-Hydroxybutyric Acid (GHB),
• Lysergic Acid Diethylamide (LSD),
• Mescaline, and
• Psilocybin Mushrooms.

However, users of illegal drugs or prescription drugs can easily test positive for these substances long after the effects on the body wear off.

Controlled Substance DWI Penalties in Texas

The penalty for a controlled substance DWI conviction will vary based on whether this is your first offense and any aggravating circumstances like an accident, a serious injury, or death.

• First Offense DWI: A first offense DWI is a Class B misdemeanor in Texas. It can carry penalties of up to 180 days in jail, a fine of up to $2,000, license suspension of up to one year, and an additional mandatory administrative fine of $3,000 or $6,000 if the driver's BAC is over .15%.
• Second Offense DWI: A second offense DWI is a Class A misdemeanor in Texas. A second offense can carry penalties of up to one year in jail, up to $4,000 in fines, a license suspension of up to two years, and an additional mandatory administrative fine of $4,500 for a second offense in 36 months or $6,000 if the driver's BAC is over .15%.
• Third or Subsequent Offense: A third DWI offense in Texas is a third-degree felony, and a fourth DWI offense can be a second-degree felony. Penalties include up to ten or twenty years in prison, a $10,000 fine, a two-year license suspension, and an additional mandatory administrative fine of $3,000 for a first offense in 36 months, $6,000 if the driver's BAC is over .15%, and $4,500 for a second DWI offense in 36 consecutive months.
• Felony DWIs: A felony DWI can be much more serious, resulting in additional jail time and steep fines.
• Intoxication Assault: If you are involved in an accident while intoxicated, and it results in a serious bodily injury, the police may charge you with intoxication assault. Texas Penal Code § 49.07(1)(b), defines serious bodily injury as an injury that "creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." Intoxication assault is a third-degree felony, punishable with two to ten years in prison and up to a $10,000 fine. This charge is typically imposed in addition to a controlled substance DWI charge.
• Intoxication Manslaughter: The police may charge you with intoxication manslaughter if someone dies due to a crash or accident you have while intoxicated. Intoxication assault is a second-degree felony, punishable with two to twenty years in prison and up to a $10,000 fine. Police will typically charge you with intoxication manslaughter in addition to a DWI charge.
• DWI With a Child Passenger: If the police arrest you for a controlled substance DWI while you have a child under 15 in the car, they may also charge you with DWI with a child passenger. This offense is a state jail felony in Texas, punishable by 180 days to two years in jail and up to a $10,000 fine. Therefore, the police will typically charge you with a DWI with a child passenger in addition to a charge for a controlled substance DWI.

Searches Incident to an Arrest

If the police pull you over for a traffic violation and suspect that you are under the influence of a controlled substance, they can't simply pull you out of the car and search it. Typically, police need a search warrant, with a few exceptions. The police can search your car without a warrant if:

• They have probable cause to believe incriminating evidence is in your car,
• You consent to the search,
• The police need to search the car for safety reasons, such as a gun within reach of a suspect while in the car, or
• If the police have probable cause to arrest you for suspicion of a controlled substance DWI, they will search both you and your car incident to your arrest.

It's usually not a good idea to consent to a search of your car or your person during a traffic stop. However, there's no need to make things easy for the police.

While law enforcement will justify the search of your vehicle after an arrest as an "inventory" search to ensure that nothing in your car goes missing during the impoundment process, if they find anything illegal, including drugs, in your car during the search, you will face additional charges.

Controlled Substance DWI Defenses

It's important to remember that testing positive for a controlled substance is not the same as being under the influence of a controlled substance. Many controlled substances remain in the blood for quite some time, even after their effect on the body wears off. As a result, much of the evidence used for a controlled substance DWI conviction can be subjective. An experienced DWI attorney can often develop a well-rounded defense on your behalf by attacking:

1. Reasonable Suspicion for the Initial Stop

The police must have reasonable suspicion that you've committed a crime to pull you over. But the crime can be a simple traffic violation like running a stop sign, driving over the center line, or driving a few miles per hour over the speed limit. In some cases, your attorney may be able to use dash camera evidence from the police to show that you didn't violate a traffic law and the police didn't have reasonable suspicion for the stop.

2. Probable Cause for the Arrest or Search

The Fourth Amendment to the U.S. Constitution protects us from "unreasonable searches and seizures" and that "no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The courts have expanded on "probable cause" to define it as a reasonable belief that a crime was committed considering the facts and circumstances.

The police can use "facts and circumstances" like reckless driving, your behavior during sobriety tests, the results of a BAC or DRE test, or visible drugs in the car to support probable cause for an arrest. However, an experienced DWI attorney can challenge the reliability and integrity of all of these in court.

3. Other Constitutional Defenses

Your attorney may be able to raise other constitutional defenses on your behalf, like whether the police had probable cause to search your vehicle or whether the police failed to give you your Miranda warning before questioning you. For example, if the police arrested you on suspicion of DWI, placed you in the back of a police car, and then proceeded to question you about whether you'd taken any drugs or ingested any alcohol, any information you gave them that they attempt to use against you may be inadmissible before a court. The police must give you a Miranda warning to remind you of your right to remain silent and your right to an attorney before questioning you.

4. Inaccurate Testing

Blood tests for BAC and other drugs aren't infallible. Rather, blood tests can be subject to inaccurate results as well, and your lawyer may decide to challenge the results in court if:

• The police officer administering a breath test wasn't properly trained or qualified to administer the test,
• The tech drawing the blood sample wasn't qualified or failed to follow all of the proper procedures,
• The equipment used to analyze the blood or administer the breathalyzer test wasn't adequately maintained or regularly calibrated,
• There was a break in the evidence chain of custody, and the police didn't track the blood sample at all times, or
• Your test results didn't accurately reflect the level of drugs or alcohol in your blood when you were driving.

Breath tests are often affected by foods you eat or health conditions you may have. For blood BAC tests, if the test happens too long after your initial stop and arrest for DWI, your results could change dramatically. This change happens because alcohol or drugs can continue to enter your blood system while you sit around and wait, sometimes for a significant period, for a blood test. Other issues can affect your blood test as well. For example, in 2019, the manufacturer recalled a large number of blood test tubes that didn't contain the proper additive needed to keep blood samples from clotting before testing. As a result, samples could clot and give inaccurate testing results.

Drug Possession

If the police search you or your car incident to an arrest for a controlled substance DWI and find drugs, you may face additional charges for drug possession. The penalties vary widely in Texas based on the substance in your possession and how much you had.

Texas has steep penalties for drug possession for anyone who "knowingly or intentionally" possesses a penalty group substance without a valid prescription. Under the Texas Controlled Substances Act, there are six penalty groups for illegal drugs. Group 1 is the most serious, and Group 4 is the least serious. Penalties for possession vary based on the penalty group and the amount of drug.

1. Penalty Group 1: Penalty group one includes drugs such as heroin, methamphetamine, cocaine, ketamine, oxycodone, hydrocodone, opium, opium extracts, and methadone. Penalties include:

• Less than one gram: Fine of up to $10,000 and 180 days to two years in jail. Possession of this amount is a state jail felony.
• Between one and four grams: Fine of up to $10,000 and two to ten years in prison. Possession of this amount is a second-degree felony.
• Between four and 200 grams: Fine up to $10,000 and two to twenty years in prison. Possession of this amount is a first-degree felony.
• Between 200 and 400 grams: Fine of up to $100,000 and five to 99 years in prison. Possession of this amount is a first-degree felony.
• Four hundred grams or more: Fine of up to $100,000 and ten to 99 years in prison. Possession of this amount is a first-degree felony.

2. Penalty Group 1A: Penalty group 1A includes drugs such as lysergic acid diethylamide (LSD), also known as acid, and all variants of LSD. Penalties include:

• Fewer than 20 units: Fine of up to $10,000 and 180 days to two years in jail. Possession of this amount is a state jail felony.
• 20 to 80 units: Fine of up to $10,000 and two to ten years in prison. Possession of this amount is a second-degree felony.
• 80 to 4,000 units: Fine of up to $10,000 and five to 20 years in prison. Possession of this amount is a first-degree felony.
• Four thousand units and more: Fine of up to $250,000 and 15 to 99 years in prison. Possession of this amount is a first-degree felony.

3. Penalty Group 2: Penalty group two includes drugs such as ecstasy, phencyclidine (PCP), mescaline, Marinol, most amphetamines, and Tetrahydrocannabinol (THC) other than marijuana. Penalty group two includes THC oils like those used in popular vape cartridges. Possession of vaping THC cartridges in Texas can be a felony charge. Penalties include:

• Less than one gram: Up to a $10,000 fine and 180 days to two years in prison. Possession of this amount is a state jail felony.
• One to four grams: Fines of up to $10,000 and two to ten years in prison. Possession of this amount is a third-degree felony.
• Four to 400 grams: Fines of up to $10,000 and two to twenty years in prison. Possession of this amount is a second-degree felony.
• Four hundred grams or more: Fines of up to $50,000 and five to 99 years in prison. Possession of this amount is a first-degree felony.

4. Penalty Group 2A: Penalty group 2A includes drugs such as cannabinol derivatives and synthetic cannabinoids. Penalties include:

• Less than one gram: 180 days to two years in jail and up to $10,000 in fines. Possession of this amount is a state jail felony.
• One to four grams: Possession of this amount is a second-degree felony, punishable by two to twenty years in prison and up to a $10,000 fine.
• Four to 400 grams: Possession of this amount is a first-degree felony, punishable by five to 99 years in prison or a life sentence.
• Four hundred grams or more: Possession of this amount is a first-degree felony, punished by ten to 99 years in prison or a life sentence.

5. Penalty Group 3: Penalty group three includes drugs such as hydrocodone if it's less than 300mg, Ritalin, Valium, Xanax, Clonazepam, and Salvia. Penalties include:

• Less than 28 grams: Fines of up to $10,000 and 180 days to two years in jail. Possession of this amount is a state jail felony.
• 28 to 200 grams: Up to $10,000 in fines and two to ten years in prison. Possession of this amount is a second-degree felony.
• 200 to 400 grams: $10,000 in fines and two to twenty years in prison. Possession of this amount is a first-degree felony.
• Four hundred grams or more: Up to $50,000 in fines and five to 99 years in prison. Possession of this amount is a first-degree felony.

6. Penalty Group 4: Penalty group four includes morphine, motofen, pyrovalerone, and other opioids like buprenorphine. Penalties include:

• Less than 28 grams: Fines of up to $4,000 and 180 days to two years in jail. Possession of this amount is a state jail felony.
• 28 to 200 grams: Up to $10,000 in fines and two to ten years in prison. Possession of this amount is a second-degree felony.
• 200 to 400 grams: $10,000 in fines and two to twenty years in prison. Possession of this amount is a first-degree felony.
• Four hundred grams or more: Up to $50,000 in fines and five to 99 years in prison. Possession of this amount is a first-degree felony.

Just like with any crime, including DWI, you are always innocent until proven guilty. Just because the police charge you with drug possession doesn't mean that a court will convict you of the crime. An experienced criminal defense attorney can help you develop your best defense strategy.

Hire an Experienced Houston Controlled Substance DWI Attorney

If you're facing a controlled substance DWI, particularly if you're also facing a drug possession charge, it's important to remember that you are innocent until proven guilty. Even if the police charge you with drug possession and a controlled substance DWI, that does not mean a court will find you guilty. Controlled substance DWI cases can be technically and legally complicated. You will need a skilled criminal defense attorney with extensive legal education in DWI defense, DRE protocol analysis, and technical know-how concerning the science and mechanics behind BAC tests. In addition, you'll need a skilled criminal defense attorney with a deep well of litigation experience and defense work, particularly with complex controlled substance DWI cases.

Attorney Doug Murphy is one of only two attorneys in Texas who are Board Certified in both DWI Defense and Criminal Defense Law. These certifications let you know that Doug has extensive experience in his field and has been recognized by his fellow criminal defense attorneys and local judges. He has the technical and legal knowledge to handle the most complex controlled substance DWI cases.

U.S. News and World Report recently named Doug Murphy as a Best Lawyers in America for DWI defense in Houston for 2021. Find out why the Houston Press calls him the "Drinking Driver's Best Friend." Contact Doug today at 713-229-8333.