Legally reviewed by Chris Jeansonne, Criminal Defense Attorney, Dunham & Jones, Attorneys at Law, P.C. · Last reviewed: September 8, 2026
You can be arrested for DWI in Texas even if you did not feel drunk or had not consumed alcohol. Texas defines intoxication to include loss of the normal use of mental or physical faculties because of alcohol, a drug, a controlled substance, a combination of substances, or another substance. An arrest, however, does not prove that the State can establish intoxication beyond a reasonable doubt.
The Situation
You had two drinks with dinner.
Or maybe you didn’t drink at all.
You took a prescription medication. You consumed THC earlier in the day. You used a cannabis product legally in another state before traveling to Texas. You are exhausted after a long drive.
An officer pulls you over and begins asking questions. Soon you’re standing on the side of the road performing field sobriety exercises.
Then the officer puts you in handcuffs.
You say, “But I’m not drunk.”
That may be completely true, but Texas DWI law does not require the State to prove you were “drunk” in the ordinary sense of the word.
What Does “Intoxicated” Mean Under Texas DWI Law?
Texas law focuses on intoxication, not simply drunkenness.
That can involve alcohol concentration or an alleged loss of the normal use of mental or physical faculties because of alcohol, drugs, controlled substances, combinations of substances, or certain other substances.
So a Texas DWI investigation can involve alcohol, marijuana, THC, prescription medications, illegal drugs, over-the-counter medications, or any combination of substances.
Being arrested and being guilty are still two different things.
Can I Get a DWI With a BAC Below .08?
Potentially.
The .08 threshold is important, but it is not the only way Texas law defines intoxication.
The prosecution may attempt to prove loss of normal mental or physical faculties even without establishing an alcohol concentration of .08 or higher.
That also gives the defense reason to scrutinize the evidence supposedly showing impairment.
Can I Get a DWI in Texas for Marijuana or THC?
Yes, a Texas DWI allegation can involve marijuana or THC even when no alcohol is involved.
This is particularly important for people traveling to Texas from states where recreational cannabis is legal.
The fact that you legally consumed marijuana somewhere else does not create an exception to Texas DWI law if the State alleges you operated a motor vehicle in a public place while intoxicated.
Detecting THC and proving legal intoxication are not necessarily the same question.
Someone can therefore face a THC-related DWI allegation while sincerely believing, “I wasn’t impaired when I drove.”
That factual dispute deserves investigation.
Unlike alcohol, there is currently no widely accepted chemical test that can reliably determine from a particular THC concentration whether a person was impaired at a specific time. THC may be detected in blood or other biological samples, but the relationship between THC concentration and driving impairment is much less predictable than the relationship between blood alcohol concentration and alcohol impairment.
A DWI defense involving cannabis can therefore raise issues about observations of driving, field sobriety testing, statements, toxicology evidence, timing and method of consumption, frequency of cannabis use, biological samples, and whether the evidence actually establishes loss of normal mental or physical faculties at the relevant time.
Arrested for DWI in Texas but you weren’t intoxicated? Call Dunham & Jones 24/7 at 800-499-8455 for a free consultation.
What If I Legally Used Marijuana Before Entering Texas?
Legal consumption in another jurisdiction does not make impaired driving legal in Texas. It also does not automatically prove that you were intoxicated when you drove in Texas.
Those are two different propositions.
Travelers should also understand that Texas marijuana laws differ substantially from laws in many states. Marijuana possession remains prohibited outside applicable legal exceptions, while Texas separately regulates compliant consumable hemp products.
If you are traveling to Texas, do not assume a product that is lawful at home is automatically lawful to possess here.
What If I Failed a Field Sobriety Test but I Was Sober?
Field sobriety testing is evidence. It is not an automatic determination of guilt.
Performance can be affected by circumstances unrelated to intoxication, including physical limitations, injuries, balance problems, footwear, road conditions, instructions, environmental distractions, and fatigue.
Body-camera and dash-camera footage may provide important context. A police report may characterize someone’s movements one way. The video may tell a more complicated story.
Can Prescription Medication Cause a DWI?
Yes.
A valid prescription does not automatically prevent a DWI allegation if police claim a medication caused intoxication. At the same time, lawful medication use does not automatically establish intoxication either.
The prosecution still has to prove the required elements.
What Should I Do After a DWI Arrest?
- Write down everything you remember, including when you ate and what substances, medications, alcohol, THC, or other products you consumed.
- Preserve receipts and records that can establish a timeline.
- Identify any witnesses who saw you before you drove.
- Preserve relevant medical information concerning physical conditions that may have affected roadside testing.
- Tell your attorney exactly what you consumed and when. This is not the time to omit marijuana, THC, or prescription medications because you’re embarrassed or worried about another legal issue.
- Contact a Texas DWI defense attorney promptly. Driver’s license issues may involve separate deadlines that begin running soon after an arrest.
What Shouldn’t I Do?
Don’t assume arrest means guilt.
Probable cause for arrest and proof beyond a reasonable doubt are different standards.
Don’t assume a field sobriety test scientifically proves intoxication.
Performance must be evaluated in context.
Don’t assume THC in your system automatically answers whether you were impaired.
Cannabis-related DWI cases can require careful analysis of the evidence and timing.
Don’t post your explanation online.
Give the complete story to your attorney.
What Evidence Can Be Challenged?
Depending on the case, a DWI attorney may examine:
- the basis for the traffic stop;
- driving behavior;
- body-camera and dash-camera video;
- field sobriety testing;
- breath-testing procedures;
- blood collection and analysis;
- toxicology evidence;
- laboratory records;
- chain of custody;
- statements made to police;
- prescription medications;
- marijuana or THC evidence; and
- whether the evidence actually supports the officer’s conclusion.
Government evidence is not automatically accurate, admissible, or sufficient merely because it exists.
What Happens Next?
Texas Penal Code Chapter 49 establishes the state’s intoxication offenses and provides enhanced penalties in circumstances involving prior convictions and other aggravating factors.
The precise charge and possible consequences depend on the facts.
A defense attorney should separately examine whether the initial stop was lawful, whether probable cause supported the arrest, and whether the State’s evidence actually establishes intoxication.
When Could the Answer Be Different?
A DWI case can change significantly depending on whether it involves alcohol, THC or marijuana, prescription medication, several substances combined, a high alcohol concentration, an accident, a child passenger, prior DWI convictions, or serious injury or death.
“I wasn’t drunk” may be entirely accurate, especially concerning alcohol.
The next question is what the State claims made you legally intoxicated and whether the evidence actually proves it.
Frequently Asked Questions About DWI Without Being Drunk
Frequently asked questions about a DWI charge in Texas when you were not drunk.
Can I get a DWI with a BAC below .08?
Can I get a DWI if I didn’t drink alcohol?
Can marijuana cause a DWI in Texas?
What if marijuana is legal in my home state?
Does THC in my blood prove I was impaired?
Can prescription medication cause a DWI?
Does failing field sobriety testing prove I was drunk?
Can a physical condition affect field sobriety testing?
Can a DWI charge be dismissed?
Should I hire an attorney if I know I wasn’t intoxicated?
If you were arrested for DWI in Texas but do not believe you were intoxicated, Dunham & Jones can review the stop, video, field sobriety testing, chemical or toxicology evidence, and circumstances surrounding your arrest.
This article provides general information and is not legal advice. Every case depends on its particular facts, charges, criminal history, court orders, and applicable law.
