Under Texas law, it is a criminal offense to drive with a blood alcohol concentration (BAC) of 0.08 percent or more. The situation with marijuana is different, however – any detectable amount of marijuana in your system is enough to support a DWI conviction. This is unfair, because there are detectable levels of marijuana that are not enough to impair your driving skills. In essence, for marijuana users, the Texas DWI statute works as if even a BAC of even 0.01 percent was enough to support a conviction.
Medical Marijuana in Texas
This already unfair situation could become even worse next year. In 2017, Texas will legalize medical marijuana for one malady – intractable epilepsy. Texas DWI laws, as currently written, could allow a medical user of marijuana to be convicted of DWI for the ”crime” of having a prescribed, legal and non-intoxicating medicine in his bloodstream while driving.
The Arizona Experience
Arizona struggled with the same difficulty after it passed the Arizona Medical Marijuana Act – medical marijuana users were, in effect, banned from Arizona roads because they could be arrested for DWI at any time simply for having traces of marijuana in their system while driving. Arizona addressed this problem by allowing medical marijuana users to avail themselves of the “affirmative defense” of medical use. This defense can not only exonerate medical marijuana users, but can also deter prosecutors from prosecuting in the first place.
The Affirmative Defense
The affirmative defense of medical use works like this: once the prosecutor proves beyond a reasonable doubt that the defendant was driving with a detectable amount of marijuana in his system, a medical marijuana user can still beat the charge by proving by a preponderance of evidence that (i) he holds a medical marijuana card and (ii) that the amount of marijuana found in his system was not enough to impair his driving (a “preponderance of evidence” means enough evidence to reach 51 percent certainty).
The Road Ahead
Hopefully, Texas will take Arizona’s lead and allow a medical marijuana DWI defendant to prove that his use of marijuana and that the amount of marijuana in his system was insufficient to impair his driving abilities. Indeed, the amount of THC (the ingredient in marijuana that gets you “high”) is so low in the type of medical marijuana approved for use in Texas next year that its use is unlikely to result in any impairment. .
Although sufferers of intractable epilepsy are limited in their ability to drive in the first place, it is conceivable that Texas may legalize the use of medical marijuana for other conditions such as glaucoma and chemotherapy. If so, the medical marijuana affirmative defense will become even more important to ensure that unjust DWI convictions do not result.
Houston criminal defense lawyer Mario Madrid has been practicing law in Texas for twenty years as a criminal defense lawyer, prosecutor and judge at various points in his career. He is a board-certified specialist in criminal law and a member of the National College of DWI Defense Attorneys. If you have been charged with DWI or a marijuana offense in the Houston area, call Madrid Law, PLLC at 713-877-9400 for a free initial consultation.