Police and prosecutors are focused on finding evidence to show the use of drugs other than alcohol in DWI cases. DWI officers and crime labs will use this in court to try and obtain convictions for DWI. This includes both illicit illegal drugs like cocaine, THC, and heroin, and also prescribed drugs such as ambien and alprazolam. Cocaine is one of these controlled substances that can arise in DWI cases. Cocaine sometimes shows up in the presence of other drugs, or with alcohol, and sometimes it shows up by itself. DWI cases that involve alcohol have the same penalty level as DWI cases that involve only cocaine, or those that involve any other controlled substance or prescription drug. There is no enhanced penalty for cocaine. Many people are surprised by this. If police find actual cocaine powder—in the car or on someone’s clothing—then that will be a possession charge. Possession of any amount of cocaine is a felony in Texas. For more on that click here. However, having cocaine in appear on a blood test will not lead to a possession charge. To prove that someone is intoxicated with cocaine, prosecutors need to show, beyond a reasonable doubt, that the person driving had lost the normal use of their physical faculties, or the normal use of their mental faculties. If cocaine is present in a blood test, this begins with the blood test.
How Are These Cases Defended?
A toxicologist for the state will testify at trial that cocaine impairs people, and that the amount of cocaine found in the person’s blood in any given case is enough to impair a person. They also need to establish that the person was impaired at the time of driving. Then prosecutors will show the video created at the time of arrest to the jury. They will look to the driving to show impairment. They will also look to the person’s behavior and performance on the field sobriety tests to try and show impairment. Field sobriety tests were designed and validated to detect alcohol and nothing else, so any argument that someone’s performance on these tests shows intoxication because of drugs will be speculative. There is a test that is designed to detect drug intoxication, and this is called a drug recognition evaluation (discussed in detail below). The officer conducting this test is called the drug recognition expert, or the drug recognition evaluator. This is misleading, however, because the DRE is not an expert in drug detection by any estimation. He or she has no medical training, but is just a police officer with 40 hours of additional DRE training. This page discusses aspects of cocaine intoxication as it relates to DWI, and discusses how to attack the State’s evidence in a cocaine DWI case. There is always a bias to overcome if cocaine turns up in a person’s blood or is found in their car. This will be a battle of course, and having a defense lawyer that understands how to defend these cases and point out the holes in the State’s case is crucial.
Cocaine Intoxication
To obtain a guilty verdict, prosecutors must prove beyond a reasonable doubt that a person was intoxicated while operating a vehicle in a public place. That is the law set forth in section 49.04 of the Texas Penal Code. Intoxication has a specific legal definition in Texas and it has three parts: loss of physical ability, loss of mental ability, and having a BAC above .08. This number is only for alcohol. There are no threshold numbers that establish intoxication by cocaine or other drugs. Prosecutors must prove that a person was impaired physically or mentally. If cocaine shows up in a blood test, they will attempt to correlate this test with observations about the person’s behavior they see on the video of the arrest and the observations of the police and what the person says to police before and after being arrested.
Cocaine Versus Alcohol
To start with, detecting cocaine in a person’s blood, and then using a detected amount to establish intoxication is not as clear or as straightforward as it is with alcohol. Unlike alcohol, there is not any measured limit for intoxication in Texas, as noted above. Having a blood alcohol concentration above .08 is per se intoxication (per se means it is the legally sufficient to convict—although there are still defenses to this too). The problem for the State is that, unlike alcohol, there is not any scientific basis for the proposition that any set amount of cocaine will cause intoxication in a given person. Everyone has a different tolerance and experience with a given drug. While some people will be intoxicated at a given amount of cocaine, others will not. There are a host of validated studies showing that alcohol affects people at certain quantities across the board. But this is not true with cocaine and other drugs. Intoxication must be shown by evidence on the video and the impressions of the officers who made the arrest.
Mixing Cocaine and Alcohol
Cocaine and alcohol are often mixed for several reasons. One reason why people drink alcohol while using the stimulant cocaine is that alcohol takes the edge off. Also, using both of them at the same time can minimize the negative side effects of the other. Alcohol can slow reaction times and cause confusion, clumsiness, and loss of coordination. Cocaine can cause erratic behavior and intensity and also paranoia and anxiety. Alcohol can soften the edginess of using cocaine, while cocaine can decrease the drunken side effects of consuming alcohol. Consuming both at the same time causes the liver to produce cocaethylene, which forms when ethanol and cocaine are both present in the bloodstream. Cocaethylene prolongs the cocaine high, which is another reason combining the drugs is a popular choice. If both alcohol and cocaine are revealed in a blood test, prosecutors will use this to argue greater intoxication than alcohol alone, and will definitely use it to defendant look bad in front of a jury, but some research shows that cocaine mitigates the behavioral side-effects of alcohol.
How Does Cocaine Affect Drivers?
Cocaine is snorted or smoked or sometimes dissolved into liquid and taken intravenously. Cocaine blocks the transporter that recovers dopamine from the synapses in the brain, and this gets people high. Cocaine amps blood pressure and heart rate and increases arousal. Cocaine provides elation and ecstatic well-being. Cocaine also increases alertness. However, cocaine lasts only for a short period of time. The euphoria does not last very long and people need to take more of the drug—because of that it can be difficult to ascertain when a person used cocaine.
What Are the Penalties?
As mentioned above, the penalties of a DWI involving cocaine are the same as a DWI involving alcohol. If it is a person’s first DWI—and there is not an accident involving an injury or a child under 15 in the car—it will be a Class B misdemeanor. There is no increased penalty for having cocaine show up in a blood test. Generally, the primary evidence of cocaine in a DWI case will appear in the blood test, and cocaine is not detected by a breath test (more on this below). In fact, the penalties can actually be lower if there is no alcohol in the case, or alcohol below the .15 grams per deciliter. This is because alcohol is detected and measured and if there is an amount shown to be above .15 (almost twice the legal limit), then the charge will be enhanced from a Class B to a Class A misdemeanor. There is no such enhancement for DWI charges involving drugs other than alcohol. For felony DWI charges, if there is a child under 15 in the car, it will be indicted as a state jail felony. If someone gets seriously injured because of an accident, this is Intoxication Assault, and this is a third-degree felony. If someone dies, the charge will be Intoxication Manslaughter, and this is a second-degree felony.
Breath Testing
Cocaine does not show up in breath testing. The breath test machine utilizes infrared spectroscopy to measure and detect alcohol. Cocaine and other controlled substances will go undetected if a person only takes a breath test. In DWI prosecutions in Texas, there are both breath tests and blood tests. A person can agree to take a breath test, but police cannot force a person to take one. In days gone by, if a person refused to take a breath test, there would be no chemical test in the case. In those days, it was an easy answer: never take a breath test. These days police will get a warrant for a blood test if the breath test is refused. It is unusual for there to be a DWI case without either a breath test or a blood test, although it still does happen. Policies and procedures differ based on where a person is arrested. Most police departments utilize a breath test machine at the police station and will give a person an opportunity to take that first. Getting a blood test is more time consuming, especially if a person refuses to consent and police have to get a warrant. After arrest, police officers will offer a person a choice to take a breath test, although some police stations only obtain blood tests, regardless if an arrested person consents to it or not. If an arrested person has consumed cocaine, this may be the smart route to go: consent to a breath test. If police suspect that cocaine has been used, they will likely go for a blood test, which can detect and measure cocaine in the blood.
Blood Testing
Blood testing is the only forensic test that will detect cocaine in the bloodstream. While breath testing is no good for detecting cocaine, a machine called the mass spectrometer is. Crime laboratories use this to detect and measure cocaine and other substances. There are two ways police can get a blood test after an arrest for DWI. First, a person can consent to give a blood test (if a person does consent, police will ask for a blood test or a breath test, and what they ask for depends on the department policy). Second, a police officer can get a warrant for a blood test if a person refuses to consent. If police get a warrant, they will get a blood test. This is because police cannot compel someone to take a breath test, but they can get a judge to sign a warrant to stick a needle in someone’s arm to search for evidence of DWI. Blood must be taken by someone qualified to do so. Texas Transportation Code Section 724.017 dictates that this must be a nurse, a physician, or a qualified technician.
How is Blood Analyzed?
Blood is drawn and filled using two small tubes. These tubes contain small amounts of a white powder that consists of two compounds, one to preserve the blood and one to keep it from clotting. These tubes are then capped and sealed and preserved and placed into a small box which is sealed and the box is taken to the crime lab for analysis. The police officer will transport the blood tubes to the crime lab where they will be refrigerated and stored for testing. When it is time for testing, the tubes will be taken from the refrigerator and removed from the box and the tubes will be uncapped. A small quantity is taken from the tube in a measured amount by a pipette and then transferred to a small vial. The vial is then mixed with a proportional quantity of other chemical compounds which act as controls in the analytical testing process. The vial is given a unique identifying number and placed into a tray and put into a machine with many other vials. All of these samples are run together as a batch. With each step of this process, there are many things that can go awry that can mess up the reliability of the test. More than any other aspect of a DWI test, it is most important that a defense attorney know how to uncover and expose potential errors and thereby create reasonable doubt in the minds of the jury. And the defense attorney must have the ability to explain complex and boring and dry science in a way that jurors can understand and relate to.
Driver’s License Suspension
For a misdemeanor DWI in Texas, if a person consents to take a blood test, there will be no suspension until the blood test comes back. When it comes back, there will not be a suspension unless the blood test shows an alcohol concentration of above .08 BAC. If so, the suspension will be three months on a first-time DWI, and one year on a misdemeanor DWI with a prior conviction. If it is lower than .08, there will be no suspension—even if there is evidence of other drugs, even if there is evidence of cocaine. If a person refuses to consent to a test, there will be a mandatory six-month driver’s license suspension. If the person has a prior DWI conviction and refuses to consent, there will be a two-year suspension.
The DRE Officer
The investigation tools available to police to determine whether someone has used cocaine or not very reliable or scientific. In short, they are not very good. These are the behavioral tests performed at the police station that were designed to identify drugs. They were created in response to has a pressure on law enforcement to identify drugged driving and gather information to support convictions. There has been a rising incidence of drugs other than alcohol affecting drivers, especially marijuana and THC, but increasingly cocaine as well. Enter the DRE investigation. Two retired Los Angeles police officers developed the DRE protocol out of frustration that medical doctors were not trained or not interested in determining whether someone is impaired by drugs. Police were also concerned that blood tests only reveal recent use, but do not answer the ultimate question of whether a drug was psychoactive while the person was driving. This is the key question in almost every DWI case—is the person intoxicated while driving? If prosecutors cannot establish this, the test has little value. The DRE test purports to answer this question, and also purports to identify which kind of drugs are involved. The DRE draws broad conclusions and is not a reliable indicator. It has little or no medical value. To begin with, the test is administered by police officers, and not doctors. If an officer is Field Sobriety Test Certified, he or she is eligible to attend the DRE course, which is only seven days long.
The 12-Step DRE Investigation
The DRE procedure includes a 12-step investigation, and this is outlined below. Importantly, a DRE test is standardized like the field sobriety tests. This means the evaluation must be run in the same way every time, or the validity is compromised. This is set forth the DRE manual. It is crucial for a defense lawyer to look closely at how the investigation is performed and look for omissions. The first step is a breath alcohol test.
1. Breath Alcohol Test
For a DRE investigation to be complete, the person arrested must take a breath test. This is a necessary and required part of the DRE investigation. According to the DRE manual, the possibility is acknowledged that intoxication may be caused by alcohol alone. If the breath test is not performed, the DRE investigation cannot be completed.
2. Interview of The Arresting Officer
The second step is when the arresting officer has a discussion with the suspect. Essentially, the officer asks the person what drugs they have taken and this will guide the rest of the investigation. So, if a person does not talk, this can also compromise or muddle the process.
3. Preliminary Examination and Pulse Check
The primary purpose of the preliminary examination and pulse check is to rule out medical conditions from drug impairment. This is very important because medical conditions can look like drug impairment. Medical conditions such as diabetes, epilepsy, head trauma, endocrine conditions, shock, stroke, and other medical conditions can imitate drug impairment. If a medical condition is suspected, the investigation should stop and medical attention should be sought.
4. Eye Examination
The DRE uses a component of the field sobriety testing, the horizontal gaze nystagmus test to check for nystagmus. Nystagmus is the involuntary shaking of the eyes that can be caused by alcohol and other drugs. For more on this test as a component of alcohol DWI testing, look here. The DRE also looks for a lack of convergence of the eyes.
5. Divided Attention Test and Psychophysical Test
This part of the DRE examination also borrows pieces of the standardized field sobriety testing from a traditional DWI investigation. The Walk and Turn test, the One Leg Stand test are conducted here. Also, the Rhomberg test is performed and the person is asked to touch their finger to their nose.
6. Vital Signs and Second Pulse Check
This part of the DRE examination measures blood pressure, checks temperature, and pulse rate is checked again. The DRE is attempting to identify categories of drugs, some of which can increase or decrease these vital signs. Of course, there are factors that can impact these tests such as anxiety or fear or excitability that can impact the value of the examination.
7. Dark Room Examinations
The purpose of the dark room examination is to look for pupil size which will enlarge or constrict in response to different categories of drugs. However, the darkness itself causes pupils to enlarge and direct light causes pupils to constrict.
8. Muscle Tone Examination
A DRE then grasps the left upper arm and checks the muscle tone along the arm down toward the wrist. The muscle tone will be flaccid or rigid or normal. After the left arm is checked the right arm is checked in the same way. This is an element of the test that is completely divorced from scientific investigation.
9. Check For Injection Sites and Third Pulse Check
The DRE then inspects the person’s arm for track marks to look for evidence of intravenous drug use. However, track marks can show that drugs have been used but does not necessarily speak to drug intoxication.
10. Subject Statements and Other Observations
At this stage the DRE has performed the investigation and notes what information they have gathered so far. They then interview the suspect again and makes a preliminary determination of what drugs he or she believes the person has taken.
11. Opinions and Analysis of the Evaluator
The DRE uses all of the information and notes gathered and then consults a drug matrix to choose what category of drugs they believe the person has taken.
12. Toxicological Examination
The final step in the DRE investigation is to request a blood test from the suspect to test the blood for evidence of drugs. If the suspect refuses, then the police officer can obtain a warrant to get a blood test, and the blood will be tested according to the process described above.
