Marijuana and DWI

Although Texas legalized a form of marijuana for the very first time in 2015, only marijuana extracts to treat severe types of epilepsy were authorized. Because marijuana is a controlled substance in Texas, all other forms of marijuana for medical or recreational use remain against the law.

Under Chapter 49 of the Texas Penal Code, driving while under the influence of marijuana is the same crime as driving under the influence of alcohol and a so-called "Marijuana DWI" or "drugged driving" conviction is punishable by the same penalties as an alcohol-related DWI — or worse.

In fact, the police may cite Section 481.121 of the Texas Health and Safety Code in adding a Possession of Marijuana charge to a Marijuana DWI charge. Combining marijuana and alcohol while driving may also result in multiple criminal charges.

Punishments for a marijuana DWI conviction may include both criminal and civil (administrative) penalties, including time in jail, probation, expensive fines, driver's license suspension, mandatory drug and alcohol education programs and treatment, and more.

Attorney for DWI with Marijuana in Lewisville, Texas

If you were arrested for Marijuana DWI, or DUI with marijuana, or drugged driving in Lewisville, Texas, or the surrounding areas of Denton County, Texas, you should consult with a qualified criminal defense lawyer experienced in DWI cases. A knowledgeable attorney will be able to explain your charges and options to help you decide how to proceed with your case.

Texas imposes strict limits on drivers who are arrested for any type of DUI charge, allowing only 15 days after an arrest to request an administrative hearing related to the retention of driving privileges. If a person fails to make such a request in a timely manner, his or her driving privileges will be suspended.

Law Offices of Richard C. McConathy is capable of effectively defending DWI with marijuana and related charges, such as Marijuana DWI and drugged driving. Our attorneys work tirelessly to defend the rights of our clients. We may be able to present evidence that results in a reduction or dismissal of charges, but we will take a case to trial if it is required to fight a DWI conviction. We also fight for you in your efforts to retain your driving privileges.

Law Offices of Richard C. McConathy represents DUI clients throughout Denton County, including the cities of Denton, Lewisville, Little Elm, Flower Mound, Grapevine, The Colony and many nearby communities throughout North Dallas. Contact us today at 940-222-8004 to schedule a time for us to review your case during a free, confidential consultation with one of our skilled DWI attorneys.


Information Center for Marijuana & DWI in Lewisville, Texas


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DWI in Lewisville, Texas

Under the Texas Penal Code, Title 10, Chapter 49, § 49.04, a person commits the offense of DWI, DUI or driving under the influence of alcohol, drugs or a controlled substance in Lewisville, Texas if he or she is "intoxicated while operating a motor vehicle in a public place."

Definitions of Terms Related to DWI in Texas

A person does not need to be intoxicated by alcohol in order to be legally "intoxicated."

Section 49.01(2) of the Texas Penal Code defines "intoxicated" as:

  • "Not having the normal use of mental or physical faculties (due to the consumption of) alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances;" or
  • "Having an alcohol concentration of 0.08 or more."

Note: Alcohol concentration, also known as blood alcohol concentration or BAC, is defined in the Texas Penal Code, § 49.01(1), as the number of grams of alcohol per:

  • 210 liters of breath
  • 100 milliliters of blood, or
  • 67 milliliters of urine

A "motor vehicle" is defined in §32.34(2) of the Texas Penal Code as "a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks." Under this definition, motor vehicles include cars, trucks, motorcycles, boats, water scooters, airplanes, helicopters and even riding lawn mowers, but not trains.

In addition, a person must have "actual physical control" of a vehicle in order to be "operating" the vehicle.


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Marijuana in Texas

The Texas Health & Safety Code, Title 6, Subtitle C, Chapter 481, Subchapter A, Section 481.002(26) defines "marihuana" (spelled with an "h") as "the plant Cannabis sativa Linnaeus, whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds."

Marijuana does not include:

  • The resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
  • The mature stalks of the plant or fiber produced from the stalks;
  • Oil or cake made from the seeds of the plant;
  • A compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake;  or
  • The sterilized seeds of the plant that are incapable of beginning germination.

    Note: So-called "metabolites," which are traces of cannabis, can linger in a person's system for several weeks, long after any euphoric effects of marijuana wear off. Nevertheless, the presence of these metabolites may result in an arrest because Texas law makes no distinction as to the amount of drugs in a person's system and disregards whether a person is actually impaired with its legal definition of impairment.


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    Blood Tests and Implied Consent in Texas

    If the police, sheriff or Texas Highway Patrol suspect a driver is under the influence of controlled substances, drugs or alcohol, they may request the driver submits to a chemical test to determine if any drugs or alcohol are present in the driver's system. Although breath tests are most common to detect alcohol, only blood tests can determine the presence of marijuana.

    Texas' "implied consent" law makes these tests obligatory, because by accepting a driver's license from the State of Texas, a driver consents to chemical tests for intoxicants when requested by the police.

    A person may refuse to take a DUI blood test, but the refusal of a test will result in an automatic administrative driver's license suspension (which may be appealed).

    In certain cases, such as a serious accident causing bodily injury or death, the police may obtain a search warrant to withdraw blood and do so even if a person refuses to be tested (See Texas Transportation Code, § 724.013). Anyone who withdraws blood from a DWI suspect must be qualified to do so and the equipment used must be certified as accurate or the test results will be invalid.

    Blood testing is not an exact science. Sometimes tests are conducted incorrectly or other inaccuracies occur. A knowledgeable DWI attorney may be able to find problems with the way a test is conducted, the person who conducted the test or the testing equipment. Any of these discoveries may result in the results of the blood test being excluded as evidence in a criminal DWI trial.

    It is also important to note that blood tests may reveal substances that may still be present from previous use. They do not directly indicate the driver was under the influence or intoxicated by drugs at the time of the arrest. An experienced DUI attorney may be able to present a convincing argument that the mere presence of drug residue in the blood is not necessarily indicative of legal intoxication at the time of arrest.


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    Criminal Penalties for DWI with Marijuana in Texas

    A first-time conviction for DWI with Marijuana is a Class B misdemeanor charge in Texas, which is punishable by a mandatory minimum term of 72 hours in jail and up to 180 days in jail as well as a fine of up to $2,000, or both (Texas Penal Code, §§ 49.04(b) and 12.22).

    If the driver had an open container of alcohol at the time of arrest, the mandatory minimum jail term is increased to six days (Texas Penal Code, § 49.04(c)).

    A second drugged driving charge is usually a Class A misdemeanor, which is punishable upon conviction by a mandatory minimum term of 30 days in jail and a maximum of one year in jail and a fine of up to $4,000, or both (Texas Penal Code, §§ 49.09(a) and 12.21).

    A third drugged driving charge or a charge of intoxication assault from the use of drugs may result in a third-degree felony conviction, which is punishable by a term of two to 10 years in prison and a fine of up to $10,000, or both (Texas Penal Code, §§ 49.07, 49.09(b)(1) and 12.34).

    Intoxication manslaughter from the use of drugs may result in a second-degree felony conviction, which is punishable by a term of two to 20 years in prison and a fine of up to $10,000, or both (Texas Penal Code, §§ 49.08 and 12.33).

    Possession of Marijuana in a Texas DWI case

    In addition to a criminal charge of DWI, the police or prosecutor may add a collateral charge of possession of marijuana.

    Section 481.121 of the Texas Health & Safety Code describes the offense of Possession of Marijuana as when a person "knowingly or intentionally possesses a usable quantity of marihuana."

    Possession of marijuana may be charged as:

    • A Class B misdemeanor if the amount of marihuana possessed is two ounces or less;
    • A Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;
    • A state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;
    • A felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;
    • A felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and
    • A felony of the first degree if the amount of marihuana possessed is more than 2,000 pounds. (A first-degree felony is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000. (Texas Penal Code, § 12.32.))

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    Administrative Penalties for DWI with Marijuana in Texas

    The criminal court is only one of the issues that a person charged with DWI with marijuana must deal with because Texas follows up with harsh administrative (civil) penalties as well.

    Additional punishments for a DWI conviction may include any of the following:

    • Loss of driving privileges for six months or more; or restricted driving privileges, if a hardship license is granted (a Texas DWI automatically triggers a driver's license suspension unless an administrative hearing is requested within 15 days of the arrest)
    • Probation or community supervision
    • DWI school
    • Completion of an approved alcohol or drug education course
    • Attendance at an approved drug treatment program
    • Community service
    • Installation of an ignition interlock device (IID), which prevents a vehicle from starting until the operator's BAC is verified
    • Expensive annual DWI "surcharges" of at least $1,000 per year imposed by the Texas Department of Safety (DPS) for a period of three years
    • Court costs
    • Any additional fees required by the court
    • A permanent criminal record

    Insurance companies also charge higher rates for drivers with a DWI conviction.


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    Resources for DWI with Marijuana in Denton County, Texas

    Texas Penal Code, Chapter 49 — DWI with Marijuana — Read the Texas statutes related to the state’s intoxication laws and penalties that can result from a conviction, including DWI with marijuana offenses (Section 49.04) in Texas and the potential penalties for a conviction.

    Texas Transportation Code, Chapter 724 — Implied Consent — Read the Texas statutes related to implied consent and blood testing in Texas.

    Texas Drug Offender Education Program — Find information about the DWI drug offender education program in Texas. The program, designed by the Texas Department of State Health Services (DSHS), is required of all persons convicted of DWI with prescription drugs before they may reinstate their license.

    Denton County Drug and DWI Court — The Denton County Drug and DWI Court presides over drug and DWI cases in the county. The court is located at:

    Denton County Criminal Court No. 5

    Hon. Charles "Coby" Waddill
    1450 E. McKinney St., Fourth Floor
    Denton, Texas 76209-4524
    Phone: (940) 349-2190

    Find an Attorney for DWI with Marijuana in Lewisville, Texas

    If you were arrested on a charge of Marijuana DWI, DWI with Marijuana or Drugged Driving anywhere in Denton County, Texas or any of the nearby communities, please contact Law Offices of Richard C. McConathy today to schedule a free initial consultation about your DUI case.

    The experienced DWI attorneys at Law Offices of Richard C. McConathy will work aggressively as your advocate to help you avoid the serious criminal and civil penalties associated with a drugged driving conviction. We serve clients throughout Denton County, including Lewisville, Denton, Little Elm, Flower Mound, Grapevine, The Colony, Westlake and the University of North Texas.

    Law Offices of Richard C. McConathy may be able to uncover problems with the prosecution's case, flaws in the way the blood tests were administered, or with the arrest itself, which may result in a reduction or dismissal of the charges. You face important deadlines, so you must act soon in order to retain your driving privileges. Contact Law Offices of Richard C. McConathy today at 940-222-8004 to discuss your case.

    This article was last updated on Wednesday, January 6, 2015.

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