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Busted for Driving while High: What’s Going to Happen?

Posted by Law Office of Justin T. Surginer

It’s not like drinking, is it? After all, you don’t feel out of control, you’re perfectly able to walk and—depending on your substance of choice—your head may actually be clearer than it is when you’re clean. So why all the fuss about taking a drive while you’re high? What exactly can happen to you? Let’s clear up the myths:

It Doesn’t Matter What (or How Much) You’ve Had

Smoking PotDUID stands for Driving Under the Influence of Drugs. It’s just as serious a charge as a DWI, and there are just as many misconceptions around being busted for DUID.

  • First, it makes no difference whether you’re under the influence of marijuana, prescription or recreational drugs, or whether you got them legally or not. If use of the substance can affect your judgment, it can bring a charge of DUI/D. And this can apply to both prescription and recreational drugs.
  • Second, research by the National Institute of Drug Abuse shows that if you use marijuana within a few hours of driving, your risk of accident is almost double that of a sober driver. The risks aren’t as high as for drinking alcohol and driving, but they are still high enough. A survey of drivers involved in accidents shows that 6.8% tested positive for TCH, which is the chemical found in marijuana.
  • Thirdly, even if you’re a licensed medical marijuana user it doesn’t mean you can drive after using, because traces of the drug can remain in your system after use.

Using drugs can affect your reaction time, your spatial sense and your perception, which are all vital to enable you to drive safely. When you drive while high, you can misjudge the distance between cars, follow too closely and be unable to stop in time. You could make unsafe turns or believe you’re traveling slower than you are, which can cause you to lose control of the vehicle.

What Happens When You’re Busted

So you’ve been pulled over for operating a motor vehicle while under the influence of drugs. What can happen to you?

  • Being Tested: Testing for drugged driving is not nearly as specific as testing for alcohol, but the Texas state law of Implied Consent means that if you’re arrested for doing anything while allegedly operating a vehicle in a public place, you’re considered to have already consented to giving specimens of your breath or blood for testing.
  • If You Refuse: You can refuse to be tested, but your refusal can be used as evidence in your trial.
  • Speaking to an Attorney: Under Texas law, you aren’t entitled to speak to your attorney before you decide whether to give a specimen or not.
  • Choosing the Specimen: Texas law doesn’t allow you to choose what type of specimen you want to give. The police officer might give you choice, but he (or she) doesn’t have to do so.

The prosecutor in a DUID case doesn’t need to prove your senses are impaired, so there’s no need for field sobriety tests to assess your speech or balance.

So, What Constitutes DUID?

Once you’ve been tested, the state determines whether to charge you based on the concentration of drugs in your blood or urine. This is measured in nanograms per liter, and the prosecutor doesn’t need to prove your sense were impaired. Just the presence of a drug such as marijuana in your system is enough to result in a DUID charge, according to Texas Statute and Code Ann. § 49.01.


If you’re busted for driving while high, the first thing to do is to appoint a skilled Texas criminal defense attorney with experience in DUID charges. Some of the defenses he may use to get justice for you include:

  • Presenting the case that you weren’t actually driving the vehicle at the time
  • Introducing independent witnesses who state you appeared to be sober, in spite of having found drugs in your system
  • Pleading guilty to a lesser charge, such as reckless driving

None of these arguments are foolproof, but your lawyer will be able to determine if there are ways to reduce the charges and punishment.

Conviction and Penalty

If you’re convicted of DUID, the penalty depends on whether it’s your first offense or not. A first offence is a Class B Misdemeanor, which carries any or all of:

  • A fine of up to $2,000
  • Between 72 hours and 180 days in jail
  • From 24 to 100 hours’ community service
  • Suspension of your driver’s license for a year
  • Additional fine surcharges of $1,000 to $2,000 a year for three years

A second offense is a Class A Misdemeanor, which carries the same penalties up to double the quantities, and a third offense or more is a third-degree felony. This takes you into the big time, with:

  • A fine of up to $10,000
  • Two to 10 years in prison
  • Community service between 160 and 600 hours
  • Driver’s license suspension for up to two years
  • Additional fine surcharges for three years

It’s best to avoid driving if you’ve used drugs in the past 24 to 48 hours, but it if happens and you or a loved one is busted, knowing your rights and the possible outcomes can help you to face the music. A good criminal defense lawyer is your best bet for having the charges against you reduced and minimizing your punishment, while helping to protect your dignity and reputation throughout the process.

*Image courtesy of Torben Hansen

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