Triple Zero May Not be the Winning Number

As a recent arrest of celebrity golfer Tiger Woods highlights, even blowing .000 on a breathalyzer machine will not fully protect you from a charge of DUI or, in Texas, DWI.  The breathalyzer machine only tests for the presence of alcohol in the subject’s breath (and thus, their blood).  The machine will not detect the presence of many other substances that can lead to intoxication.

As a reminder, intoxication Texas is defined  as “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” or by having a blood alcohol concentration of 0.08 or more.  It is only for that last method of proving intoxication – the blood alcohol concentration – that the breathalyzer machine can speak to.

Beyond just alcohol which can be detected by the breathalyzer machine, intoxication can stem from the ingestion of controlled substances such as illegal narcotics, or even legally prescribed medications.  Even over the counter medication, if it renders the user “not normal” can lead to intoxication under Texas law.

Another aspect of intoxication that will not register on a breath test machine is the synergistic effect  that may occur when two or more substance are taken together or with alcohol.  Chemicals can often enhance and multiply the effects of each other when taken at the same time.  Legal, illegal, prescribed or over the counter, drugs that do not show up on a simple breath test may still be quite intoxicating to the user.

As always, be careful what you ingest, know your limits, and drive safely.

DWI vs. DUI: What’s the (Texas) Difference?


DWI: Driving While Intoxicated. DUI: Driving Under the Influence.  Two possibly similar Texas crimes, with two very different potential consequences.  In many states besides Texas, any allegation of driving while under the influence of alcohol is considered DWI.  In contrast, in those other states a DUI is charged when there is suspicion of driving under the influence of drugs.  DWI for alcohol.  DUI for drugs.  Simple really.

Well, sometimes here in Texas we do things our own special way.  In Texas the difference between a DWI charge and a DUI charge can hinge on two factors, the level of intoxication, and the age of the driver.

Let’s talk about DUI first.  In Texas, if a driver under the age of 21 has any detectable amount of alcohol in their system – even if it is not impairing them behind the wheel – they can be charged with a DUI.  The thinking is that in Texas, since it is illegal to consume alcohol under 21 anyway, the State can criminalize the conduct of younger drivers who drank any amount of alcohol.

A DUI in Texas is considered a Class C misdemeanor, which can result in a fine of up to $500.00, but cannot result in any jail time.  A DUI will get your driver’s license suspended however, anywhere from 60 to 180 days depending on the amount of prior alcohol-related driving convictions you have on your record.

Now let’s look at a DWI.  In Texas, a person is considered driving while intoxicated if they are operating a motor vehicle while either not having the normal use of their mental or physical faculties due to alcohol, drugs, dangerous drugs (i.e. prescription medications), or a combination of those substances, or by having a blood alcohol content (BAC) of .08 or higher.  As we see here, neither the age of the driver, nor the type of substance consumed has any bearing on the charge.  Alcohol, drugs, it doesn’t matter: if something makes you mentally or physically impaired, meaning “not normal”, and you drive, you risk a DWI charge.

While a DUI is merely a Class C misdemeanor which cannot result in jail time, a DWI is at least a Class B misdemeanor which carries a potential penalty of up to six months in jail or two years of probation and up to a $2000.00 fine.  And that’s just for your first conviction.  The second conviction is a more serious Class A misdemeanor while a third conviction is considered a felony with the possibility of prison time.

And don’t think that if you are under 21 you will only be charged with that lower DUI offense.  If the police think that you are exhibiting signs of a true DWI, they are free to charge you with that higher offense.

As always, take care of yourself, be careful what you consume, and drive safe.

The High is Gone, but the Evidence Lingers On

Testing for Marijuana Usage

The place: any courtroom in any jurisdiction in America.

The time: all day, every day…or at least Monday through Friday.

The players: a defense attorney and a client, and sometimes a judge and/or prosecutor too.

The question (nice version): “Can you pass a drug test TODAY?” or

The question (graphic version): “Can you pee clean TODAY?”


As a proof of bond or probation compliance, as a condition of a plea-bargain, or simply because a defendant was acting strangely in court, drug screening of defendants via a urine analysis (UA) test is a well-established part of today’s criminal justice system.  With that in mind, let’s look at some important facts to consider regarding UA testing and the use of marijuana.

Many illegal drugs are water soluble, that is, they dissolve in water.  What that means for your body is that they arrive, do their thing, and then rapidly get excreted out by the body through its natural elimination processes when you go to the bathroom.  Although there will be traces of the drug in your system, the body is not “storing” the drug anywhere inside your body, so the traces will be hard to detect in even a few days, generally.  Of course there are variables such as dosage size and what exact drug is being checked for.  But again, generally speaking, a simple UA will not detect the presence of many illegal narcotics if the user consumed the drug more than a week prior.

Marijuana however, is quite different.  The active ingredient in marijuana, tetrahydrocannabinol (THC), is extremely fat soluble (link:  Once consumed, fat soluble substances (legal or otherwise) are dissolved and stored in the body’s fatty tissue and liver.  The body wants to hold on to these fat soluble substances.  Thus, unlike the water soluble drugs, fat soluble drugs leave the body very slowly.  Slower time exiting the body means a much longer detection time.  As such, a UA can detect the usage of marijuana anywhere from three to six weeks prior to testing.

It is important to note that generally UA testing is not checking for THC itself, but rather for a substance called 9-carboxy-THC.  This substance is created by the body in reaction to exposure to THC and stays around in the body far longer than the THC itself.  The high is gone, but the evidence lingers on.

The rate that THC and 9-carboxy-THC is eliminated from the body is highly variable from person to person.  Someone may “test clean” after a less than a month, while another person may “show dirty” for pot even five or six weeks later.  Some of the variables that may increase or decrease the detection time include the potency and amount of marijuana consumed, how frequently the user has used marijuana, the method of ingestion, and the general variances in the metabolism from one person to the next.

Now all of this is not intended to give anyone the “inside scoop” on how to beat a UA for pot.  Rather, I hope that learning more about the physiology of the marijuana in the body will lead to a better understanding of the significant risks one runs when choosing to consume marijuana while you have a criminal case pending.  Fair or not, when you find yourself as a defendant, Big Brother IS watching you.  It’s best to play it safe.


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