DWI in Texas: Can you get a DWI from Prescription Drugs in Texas (No Alcohol DWIs - Drugged Driving)

In Texas, DWI laws are changing each year, often to make penalties and punishments more sever for DWI offenders, as well as creating more ways for law enforcement to make arrests.  I often receive calls about DWI arrests where no alcohol was involved -- but instead, the person was arrested for DWI based on a Prescription Medication.

Lunesta is one of the most common I see, although many other narcotics -- all legal with prescription -- have led to arrests and in many cases, convictions for DWI.

Texas Law specifically states, "

"Intoxicated" means: not 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."

Which means, DWI's are not limited to alcohol any longer, and include drugs -- even a legal, prescribed medication.

However, a non-alcohol DWI is far harder to prove than alcohol DWIs.  First, the prosecutors won't have much to go on if they don't test your blood, and I've seen many cases where blood is not tested.  Without blood results (which would show traces and potentially, depending on the test, the metabolites of the drug in your system) then the prosecutors must attempt to prove the case on circumstantial evidence.  They'll show that you were on a medication, or admitted to being on a prescription at the time of driving, and will point to driving errors or errors on the field sobriety tests to show impairment.

There is no legal limit, in terms of a numerical value, for medication DWI.  In other words, while it's prohibited to drive with more than .08% of alcohol in your system, leaving the prosecution to rely heavily on "impairment" in general.  Often they argue that any impairment is enough to prove DWI, but it's important to note that impairment must rise to the degree that it interferes with the ability to drive.  And that, is more difficult to prove to a jury than merely being over .08%, as in an Alcohol DWI.

What is the Difference in a Dismissal and Expunction in Texas?

Under Texas Law, there is a difference between a Dismissal of a Criminal Offense, and an Expunction of a Criminal Offense.  So which one is better for you?  The answer is obvious: Expunction.

A criminal case that is Dismissed means that the case is no longer pending, and there was no final finding of guilt by a Judge.  There are several ways a case can be dismissed, including Deferred Prosecution, Deferred Disposition, Dismissed for Insufficiency of the Evidence, or in the Interest of Justice.

Currently, as of this writing, if the case was Dismissed, and there are no other related cases that ended in a Conviction (such as a second charge, reduce charge arising from the same facts as the Dismissal), then the case SHOULD be eligible for Expunction.

Beware: Dismissals after Deferred Adjudication Probation are not considered a full Dismissal in terms of Expunction eligibility.

So why is Expunction so great? Why is Expunction better than letting the case remain a mere Dismissal? Because on an Expunction, the Judge Orders the state agencies that hold your record to destroy your paperwork and records.  Essentaillyu, the existence of the arrest, citation, and court proceedings are destroyed.

Expunction Law is always changing, so call us to see what we can do -- before the law changes again.

Will my Arrest (or Ticket) Show Up on a Criminal Background Check in Texas?

One of the first questions I get asked when a prospective client calls me is: "Will this arrest or ticket show up on my Criminal Background Check?"  Arrests or tickets -- even for very minor things like Drunk in Public -- can be embarrassing and often cost people their jobs.

Imagine a prospective employer, roommate, or someone you're dating Google's your name, and the first thing to show up is your mug shot.

Yes, in Texas they will take a mug shot for offenses that might not even result in jail time, like a Public Intoxication.  Which is why it's important to know your rights and how to keep your mistakes private.

Unfortunately, the law in Texas does not help.  In Texas, despite the presumption of Innocent until proven guilty, Texas police and courts forward the arrest, citation, and tickets to DPS, which is the Texas Department of Public Safety; basically a Super DMV.  DPS tracks all arrests and tickets in a central database.

But to make things worse, DPS can legally begin selling that information to private businesses.  yes, that's right; your arrest information is SOLD to businesses that report criminal history information on the Internet.  The great majority of purchasers run online background check services, and instantly can list the arrest, citation, or tickets, with you name, date of birth, and area of offense.

The problem is that often times, a first time offender here in Austin, Travis County Texas, can get the benefit of the doubt and possibly have the case dismissed.  Or, to a greater degree of being problematic, there are people arrested for crimes they did not commit -- and have the case dismissed within a few days of being arrested.  For those people, if they take no action, the arrest will still show up on a Criminal History Report.  Now, both are eligible for Expunction, with the former needing to wait possibly two years (for misdemeanor) to clear the arrest, while the former can do so much sooner.  But the problem still arises that the person needs to take an extra step to protect their privacy.

Texas may want to reexamine their procedures to fall more in line with States that protect their citizen's rights, by waiting for a conviction before reporting and selling criminal history information.  But that approach would obviously lose revenue from the lost sales, so it's doubtful in the near future.

If you have an offense that seems to be rearing it's ugly head on Criminal History Reports, call us for a Free Consultation to see if we can Clear and Destroy your criminal records.

What types of Criminal Cases can I Expunge? When is Expunction Available?

I used to practice in an area where you had the right to have any offense Expunged, even if it resulted in a Conviction.  Obviously it was up to the discretion of the Judge, but a person was afforded the opportunity to clean up their life and move beyond a criminal conviction.  Most common were one-time offenders, who had committed crimes in their youth, typically right around 18-20 years old.  By the time they were 25, they had matured past the typical student/young adult shoplifting offenses, gotten a job, and moved on.  When the Judge saw the person was doing well, with no new offenses, a job, a family, etc..., the record was Expunged.

Texas, however, subscribes to the creed that 'once a criminal, always a criminal.'  Why do I say that?  Because in Texas there is no right to an Expunction on a case that ended in a Conviction.  There are a handful of exceptions or course, such as a person being convicted of underage drinking, which in limited circumstances can be Expunged; but for the most part, once convicted, that offense will remain on your record for your life.

So what can be Expunged? The answer is actually fairly straightforward.  In Texas, a criminal offense can only be Expunged if the case resulted in a Dismissal AND the Dismissal was not the result of a completed Deferred Adjudication probation.  There are a few more questions that need to be asked, such as "did the original arrest result in a final conviction on any reduced or less serious offense?"  If the answer is yes, then you may not be able to Expunge the offense, but more research would be needed.

Expunctions, Motions for Non Disclosure, and Pardons are complex areas of the law, and it's best to talk with a local attorney to find out which options you may have to clear your criminal record.