DWI by Drugs

Occasionally I've had a DWI case where the client has taken a breath test and blown 0.00 or significantly under the legal limit of .08 indicating a complete absence of or little alcohol in the person's system.  Despite the lack of evidence of alcoholic intoxication an arrest is made due to the officer's belief that the person is intoxicated from drugs, either "recreational" or prescribed. Even though the prosecution is not required to prove the specific intoxicant involved, proof must exist of the loss of normal use of physical or mental 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." The "average" police officer may not, however, possess the expertise necessary to testify that a person is intoxicated from drugs.

According to Smithhart v. State, 503 S.W.2d 283,286 (Tex. Crim. App.-1973), a 1973 decision of the Texas Court of Criminal Appeals, expert opinion is needed to establish that a person is intoxicated from drugs in a DWI by drug case.

The rationale is that intoxication by alcohol is of such common occurrence that its recognition requires no expertise.  When a person is under the influence of drugs, expert testimony must connect that person's symptoms to a conclusion that he or she was under the influence of a drug and was incapable of safely operating a vehicle.

Enter the "DRE", the drug recognition expert, the creation of the LAPD-a police officer trained to recognize impairment in drivers under the influence of drugs, other than or in addition to alcohol. DRE's utilize a 12-step protocol to check for impairment by drugs. The examination takes about 45 minutes and is similar to a medical exam (minus the doc).

No DRE in your DWI arrest? Can you still be convicted of DWI by drugs? It depends upon what creeps into the record. Statements by the driver admitting to drug use coupled with the arresting officer's observations and a toxicologist's testimony about potential impairment from the consumed drug could certainly do it. My conclusion-I'd pay extra special attention to any DWI case involving drugs where no DRE participated.