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Too Stoned to Drive: DWI Arrests involving Marijuana, THC Vape Pens and Synthetic Marijuana

Can you get arrested for DWI if you're driving while stoned or on prescription drugs? The answer is Yes, even if you haven't had a drop of alcohol. The state's case against you may be weaker, however, if the DWI arrest involves synthetic marijuana like Kush or K-2, as opposed to a DWI arrest after smoking the actual marijuana plant or THC vape pen.


In an effort to keep people informed, and to make prosecutors' jobs even more difficult, here are a few bits of advice from an experienced DWI lawyer in Houston about driving under the influence of marijuana or THC.


If you've been smoking actual marijuana plant or a THC vape pen, as opposed to synthetic marijuana, your blood results will confirm the existence of THC in your system. Synthetic marijuana, on the other hand, will not typically show up on the blood results, making it harder for the state to prove a DWI case (and giving your DWI or marijuana defense lawyer a nice edge up).

Just to be clear, Texas law does not restrict the definition of “intoxicated” to alcohol. Many successful DWI prosecutions involve someone intoxicated on something other than alcohol, such as prescription medication, marijuana and synthetic marijuana. Most labs don’t test for synthetic marijuana or Kush and so cannot prove whether it was even in your system.


Most DWIs are quantified with a breath or blood test to identify your BAC level. (The accuracy and the science behind these rudimentary tests is the topic of another discussion completely.)  Without a lab test quantifying the amount of synthetic weed or Kush in a driver’s blood, or to determine the presence of Kush at all, the prosecutor is left grasping for circumstantial evidence.


These are the questions prosecutors, and therefore your defense lawyer, should ask when defending DWI arrests involving marijuana, THC vape pens or other prescription drugs:

Was there any Kush found in the vehicle?

Did the driver admit to using Kush and when?

Did the driver appear mentally or physically impaired?

Do I even have an expert to prove that those specific impairments are consistent with the known effects of synthetic marijuana or THC vape pens.


Synthetic marijuana DWI's and Kush related DWI's are simply harder to prove for a prosecutor than a DWI arrest involving alcohol, prescription drugs, and the plant and THC vape pen DWI arrests. What does this mean for people who are arrested for DWI due to being “synthetically” stoned on Kush or K-2? Their behavior during the stop, the statements they make to police officers and any paraphernalia found in the vehicle will likely be the only evidence of intoxication. Anyone being investigated for DWI or arrested for DWI should consider invoking their right to remain silent in order to avoid incriminating themselves by saying something that could be used later at trial.


Even if marijuana or a THC vape pen is found in your car, or your blood for that matter, the state still needs to prove the following facts beyond a reasonable doubt:

(1) you were intoxicated (loss of normal use of mental or physical faculties) at the time you were driving; AND

(2) your intoxication was a direct result of the marijuana or Kush.


If you’ve been pulled over for suspicion of DWI after smoking any type of marijuana, whether synthetic or not, do your DWI attorney a favor and invoke your right to remain silent. If you think honesty is the best policy in these situations, you’re probably stoned. If you think you may be too stoned to drive, fight the urge to drive to Whataburger and remain on the couch for a few hours before getting behind the wheel of a car.  Driving while intoxicated under any substance, whether alcohol or marijuana or some other drug, is a terrible idea and could make your life very difficult. 



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