11 June

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Deadly Weapon finding on DWI

Name: The Coffey Firm
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deadly weapon, UCW, Unlawful Possession of Firearm What is the meaning of a deadly weapon finding on DWI? A deadly weapon finding in a Felony DWI can be very dangerous. One of the primary goals for a DWI Defense Lawyer is to get the District Attorney to waive the deadly weapon finding. By waiving the deadly weapon paragraph, more options begin to open. For example, after waiving the deadly weapon finding probation becomes a possibility.

I didn’t have a gun during my DWI Arrest! What is the meaning of a Deadly Weapon finding on DWI?

This is a very good question. When people think “deadly weapon” they think of guns, knives and the like. However, the law treats this phrase differently. Under Penal Code 1.07, which defines a multitude of terms, a “deadly weapon” is:

a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Let’s break this down. The first definition fits common sense. A deadly weapon is a tool that plainly appears made for causing injury, like a gun or knife. The second definition, however, is where problems arise. In simple terms, this definition, and cases that interpret it, say that anything is a deadly weapon if it is capable of causing injury. This means that items like rope or pencils can be deadly weapons. This definition, unfortunately, also means cars can be a deadly weapon if used in specific ways. As a “fun” side note: for assault cases a person’s own body might be a “deadly weapon” if they have martial training.

The State commonly (but not always) adds a deadly weapon charge to Felony DWI. The typical language claims that the “deadly weapon” was used in the commission of (or flight from) a felony and the defendant used the deadly weapon. Though not wholly inaccurate, adding this paragraph is highly unfair when the Felony DWI involves, for example, simply sleeping in your car with the engine on. In other words, the State might add the deadly weapon paragraph even if no one was actually in danger (e.g., no DWI accident).

Deadly Weapon and Probation

One VERY important thing to note is that the court CAN NOT give you probation if there is a deadly weapon paragraph. By “the court,” I mean that the law prohibits judge-ordered probation with a deadly weapon finding. On the other hand, a jury may still recommend probation (though there are other technical issues not important here). Essentially, the statute that applies to judge-ordered probation. 42A.053, does not apply if there is a deadly weapon finding. Tex. Code Crim. App. 42A.054. Using the language above, if the court finds that a deadly weapon was used during (or in flight from) a felony and that defendant was the one using the weapon, then the court cannot give probation.

Deadly Weapon and Parole

Similar to probation, the rules regarding parole differ depending on the existence of a deadly weapon finding. Since judge-ordered probation is unavailable if there is a deadly weapon finding, that means prison time is the most common punishment. While one may be eligible for parole in most cases (certain facts might change that), the eligibility requirements will be different depending on the deadly weapon finding. If the court makes a deadly weapon finding, then the minimum waiting period for parole eligibility is 2 years. By law, if there is a deadly weapon finding an inmate is not eligible for parole (not counting good conduct time) before completing half the sentence or 30 years, whichever is less, but no less than 2 years.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation. The Coffey Firm offers fair DWI payment plans and free consultations.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

26 May

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Probation Revocation: Do I get “Time Served” if my Probation is Revoked?

Posted by Mimi Coffey

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Texas DWI, Mimi Coffey DWI Lawyer, DWI Probation Revocation, Do I get "time served" if my probation is revoked? The short answer is, unfortunately, NO. The longer answer makes it more of a “not exactly”. The main goal of a Criminal Defense Lawyer in a Probation Revocation hearing is to, of course, avoid revocation. But, the truth of the matter is that certain probation violations cause more problems than others. Though not ideal, there are a couple of “exceptions” to not getting “time served” on a revoked probation.

Do I get “Time Served”if my Probation is Revoked?

The statute regarding Revoked Probation is 42A.755 of the Code of Criminal Procedure. When the court revokes your probation, it has two options. First, the court can treat the case as if there had been no probation. Put simply, the court can impose the original jail time before probation. For example, say the court sentenced you to 90 days of jail time probated for 1 year. The court can impose that 90 days of jail time when revoking your probation. The court may do this even if you completed 11 months of the 1 year of probation. The court’s other option is to impose a shorter term of confinement (but not less than the statutory minimum). This occurs if it is in “best interests of society” and if the shorter confinement would best serve you.

The worst part about either option is that none of the time spent on probation counts as any part of the term of confinement you must serve. However, there is one small exception to this rule. If you successfully complete a residential program as part of a substance abuse felony punishment (including felony DWI), then time spent completing that program WILL count for “time served” after revocation. Typically, this refers to SAFP, since the Texas Department of Criminal Justice operates that program. However, the statute also mentions completion of “other court-ordered residential program or facility,” so private programs, such as Cenikor, might also count if ordered by the court.

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14 May

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Will I lose my VA benefits after a DWI?

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I got a DWI! Will I Lost my VA Benefits?

Let’s start with the good news. In most common situations, you will not lose VA benefits because of a criminal charge. The issues arise in two situations: (1) when you are facing a felony charge, or (2) when in jail or prison for more than 60 days.

Because DWI is a misdemeanor (except 3rd or more), most veterans will not have to worry about losing VA benefits. Even if sentenced to jail time, VA beneficiaries can generally receive full benefits if otherwise entitled. For felonies, though, the situation becomes somewhat more complicated. If given prison time for a felony, you may still be able to keep some benefits. But if that imprisonment lasts longer than 60 days, you might lose benefits until release. Even then, you will likely have to re-apply for benefits after release.

Keep in mind this restriction typically only applies to incarceration. Placement on community supervision, in a halfway house, or on work release typically will not strip you of your benefits. However, you might have reduced benefits depending on the circumstances. Also, though not unlimited, it may be possible to apportion your benefits to your spouse or children (unless incarcerated for a felony). In that situation, though, your spouse or children must still file their own claim. Apportionment is not automatic.

So, the short answer to “Will I Lose my VA Benefits?” is NOT FOR EVERY CASE.

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12 May

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Can You Win a DWI?

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Can I win my DWI case?

A common question is “Can You Win a DWI?”. Obviously, a win is a redemption of the charges. Simply, though, “winning a DWI” is satisfying the client’s goals. Like most other issues in criminal law, DWI is not Black & White. All cases are different, and all clients are different. Sometimes the facts are favorable. Other times winning a DWI is a mitigation of damages (i.e., lower fine, less probation, less interlock, etc.). The Coffey Firm’s #1 goal is to achieve our client’s objectives. We want to get you back to where you were before the arrest or better.

It goes without saying that The Coffey Firm will always fight for a not guilty, a dismissal, or a reduction. However, a quick check with the county clerk of pretty much every county will show that only a handful of cases (around 2-3%) are reduced or dismissed per year. Any lawyer who promises or guarantees a dismissal or reduction is lying.

Will I have to go to Jail on my DWI?

For a first-time DWI, we usually say that “you do not have to go to jail unless you want to.” This may sound like a strange answer but remember that each case is different and each client has different goals. Each client has a different “win” for us to fight for. Put in simpler terms, there are many alternatives to serving jail time, especially on a first-time DWI, if a conviction can’t be avoided. Mimi will go over all these options during the case evaluation and will give her recommendations. Remember, accomplishing your goals is a winning a DWI case.

License Suspensions

There is an important note about license suspension to keep in mind. You might receive either (or both) a civil and a criminal license suspension. This is because a DWI arrest has two distinct parts: an ALR and the DWI itself. The ALR (Administrative License Revocation) is the driver’s license suspension process.

Example 1: I won my ALR! Does that mean my DWI can be dismissed?!

Unfortunately, the answer is no. The outcome of the ALR hearing has little to no impact on the DWI itself. However, do not lose hope! An ALR decision citing lack of reasonable suspicion or probable cause might make for a good “bargaining chip” for negotiating on the DWI. While the ALR is not exactly binding in relation to the DWI, a sympathetic DA might see the ALR win and make a more favorable offer (e.g., a DWI reduction or DWI deferred adjudication).

Example 2: I got a DWI Dismissal! Why is my ALR Lawyer still calling me about a license suspension?

This situation is a bit more complicated. While the criminal court has higher authority than an administrative court, that does not mean that a DWI dismissal affects the ALR. This is partly due to the civil courts having direct appellate control over the administrative judge. But, this is mostly due to the ALR laws themselves. The ALR statute allows for a license suspension to be lifted if you are acquitted on the DWI charge. Unfortunately, the statue also explicitly states that a dismissal of the DWI is NOT an “acquittal” even though logic suggests otherwise.

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04 May

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What is the DWI Eye Test?

Posted by Mimi Coffey

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The DWI eye test is called the Horizontal Gaze Nystagmus. This is the first of the three “standard” DWI tests. During this test an officer might have a pen-light or might use a finger illuminated by a flashlight. The officer will move the light or the finger to the left and right. The purpose of the test is to see if there is any involuntary jerking of the eye. There is a second part of the test that looks for “vertical” nystagmus, but that is not considered “standardized” like the HGN.

As part of the test, police instruct you to follow the light/finger with your eyes only. Though moving your head during the test is not technically a clue, police will use the movement against you. The same can be said of swaying during the test. The HGN test does not test for swaying, but police will say that swaying during the test indicates impairment. Though it can and does vary depending on training, many officers consider the HGN to be the test which best indicates impairment. This begs the question:

Is the DWI Eye Test Accurate?

The short answer is “not exactly”. Like the other tests, the DWI Eye Test does not predict impairment. The test is mostly designed to correlate performance with the probability of being above a particular BAC. The main issue, however, is that the DWI Eye Test is actually a very complex test. The DWI Eye Test is primarily based on tests that doctors and other medical personnel use to diagnose neurological function. For example, it is a test that a doctor might use to diagnose a head injury. Most officers do not have the scientific or medical training to properly conduct such a complex test. Further, officers usually conduct the DWI eye test where outside forces might impact the performance and results of the test.

There are at least 86 different types of nystagmus. In other words, Horizontal Gaze Nystagmus is only 1 of a possible 86. Most officers do not receive training in differentiating between all of these varieties. Even narrowed to HGN, officers do not receive instruction on the various causes of HGN. Horizontal Gaze Nystagmus might occur due to factors like the flu, vertigo, epilepsy, and hypertension (among others). HGN might even occur due to having too much caffeine! That means a person who had a bunch of soda but no alcohol might still “fail” the DWI Eye Test!

Overall, the DWI Eye Test is not very accurate. At the same time, it is not wholly inaccurate. Even minor alcohol impairment (e.g., around .04) might cause HGN. However, the problems with the DWI Eye Test lie mostly in the minimal training received by officers and the complexity of the test itself. Like with the other DWI tests, the eye test tends to be very subjective. In short, the DWI eye test is not a good indication of impairment.

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28 April

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What are the DWI Tests Called?

Posted by Mimi Coffey

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One of the most common questions asked about DWIs is for information about the DWI Tests. There are three “standard” tests police officer have you perform during a DWI investigation. These three tests are: HGN (“eye” test), Walk-and-turn (walking test), and One-Leg Stand. There are other tests that police sometimes use, but they are non-standardized tests. However, even the “standardized” tests are plagued with issues.

What are the DWI Tests?

Before making any judgement on the “accuracy” of the tests, it might help to know exactly *what* the tests are.

The DWI Eye Test – HGN

The first of the three “standardized” tests is the HGN. This stands for “Horizontal Gaze Nystagmus” but is more commonly called the “eye” test. During this test an officer might have a pen-light or might use a finger illuminated by a flashlight. The officer will move the light or the finger to the left and right. The purpose of the test is to see if there is any involuntary jerking of the eye. There is a second part of the test that looks for “vertical” nystagmus, but that is not considered “standardized” like the HGN.

The Walking Test – Walk-and-Turn

The second of the three SFSTs is the Walk-and-Turn test. The name is fairly self-explanatory, but many people simply call this the “walking” test. During this test the officer wants you to walk in a straight line. That may sound simple, but the extra instructions make this test more difficult and annoying. Not only do officers want you to walk in a straight line, they want you to do in in a *very* specific way. This test requires “heel-to-toe” steps, not normal steps. Additionally, officer’s expect you to maintain the “heel-to-toe” stance while they are giving you the instructions. In other words, the test begins before the test actually begins. Officers also want you to turn a very specific way during the test, by taking a small series of steps rather than a full pivot. The 8 clues for the walk-and-turn are:

Not keeping balance during instructions
Starting too soon
Stopping while walking
Missing heel to toe
Stepping off line
Using arms to balance
Turning improperly
Wrong number of steps

One-Leg Stand

The last of the three “standard” tests is the One-Leg Stand. The name of the test explains itself, and unlike the walk-and-turn there isn’t really a “trick” to the instructions. During this test the officer wants you to stand on one leg. Simple enough, right? There are a few specifics to the instructions, such as holding your foot at least 6 inches off the ground. The “clues” that officers look for are whether you used arms to balance, were swaying during the test, hopped during the test and whether you put your foot down *at all* during the test.

Non-Standard DWI Tests

There are many non-standard tests. By “non-standard” it means that there is no specific (read: national) way to have suspects do the tests and therefore they are not supposed to be given as much weight. Some of the non-standard tests include:

Finger-to-nose test
Finger Count test
Alphabet test
Counting test

Are the DWI Tests Accurate?

Let me answer your question with another question. Do these look more like balance tests to you? If they do, then you already see how problematic these tests can be. Even more, many of the “clues” appear to be more about following directions rather than looking impaired. For example, you might take the heel-to-toe steps perfectly and have great balance, but “fail” the test simply because you took 12 steps instead of nine (just to show that you could and looked fine doing it) and for making an “improper” pivot turn. In other words, going the extra mile might actually have the opposite effect.

Another question you might want answered is what “standardized” means. The HGN, Walk-and-Turn and One-Leg Stand are “standardized” because some studies determined that those three tests are the best way to estimate impairment. Don’t let that fool you! These “studies” are very much a point of contention. Despite what many may think, these tests have *ZERO* correlation with driving ability. In other words, these tests *DO NOT* have *ANYTHING* to do with your ability to drive a car. Another reason why these tests are problematic is because of bias. Most of the studies involved controlled environments with ideal conditions, while during actual arrests the conditions vary wildly. Further, most of these studies were funded or controlled by NHTSA or other police agencies (who have incentive to justify their own behavior).

In short, the answer to the above question is “no” because of the problems surrounding both the “validation” studies and the tests themselves. The SFSTs are junk science.

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21 April

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Can you get a DWI Blood Test Thrown Out?

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How can you Suppress a DWI Blood Test?

“Can you get a DWI Blood Test thrown out?” is a very common question in Texas DWI Defense. While most people assume that a DWI Blood Test is automatically admitted, the truth is not so simple. There are various issues when it comes to DWI Blood Tests. Perhaps the person drawing blood performed the blood draw incorrectly. Or, maybe the seals on the blood tubes were faulty. These are just two broad examples. A DWI Blood Test is a scientific issue, meaning it must satisfy the legal test for scientific evidence. In short, there is a possibility to suppress the Blood Test depending on the facts.

Even if not suppressed, a judge or jury may disregard a DWI blood test if it is not reliable. In other words, even if the judge denies a motion to suppress, Mimi can still attack the issues with the DWI blood test in front of a jury. If a jury disregards the blood test, than the fact that the judge denied suppression becomes moot. This is because the State cannot appeal an acquittal (absent special circumstances). On the other hand, the State usually may appeal a decision granting suppression. The short-and-simple version is that suppression is a preliminary issue while acquittal is the final decision of a fact-finder.

What does it mean to throw out the DWI Blood Test?

Once the court throws out the DWI blood test, the State can not use it against you. A suppressed blood test means that the issue with the test/draw was so severe as to be a violation of your rights. For example, if police drew your blood as a result of a defective search warrant, than it may be possible to throw out the blood test. The typical legal term is “fruit of the poisonous tree”. This term means that if the initial stop/search is invalid, then any evidence obtained as a result of that is likewise “tainted” and should not be used. Mimi understands the potential scientific and legal issues with DWI blood test. She knows which suppression motion to file and how to analyze the potential arguments to use at the hearing.

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15 April

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Can a Criminal Defense Lawyer Defend a DWI the same as a DWI Lawyer?

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Mimi Coffey DWI Lawyer While most think that a DWI is just another criminal charge, the truth is that DWI is a highly technical area of the law. A DWI case contains many technical issues such as the DWI blood draw or DWI breath test, to name a couple examples. Can a Criminal Defense Lawyer Defend a DWI the same as a DWI Lawyer? While a regular Criminal Defense Lawyer might know how to navigate the court system, they do not have the same amount of knowledge or experience in navigating the science behind a DWI case. A Board Certified DWI Lawyer, such as Mimi, knows the ins-and-outs of a DWI case.

Can a Criminal Defense Lawyer Defend a DWI the same as a DWI Lawyer?

DWI CLEs

To really understand the intricacies of a DWI case, an Experienced DWI Lawyer might take special CLE (continuing legal education) courses designed around the scientific issues present in a DWI case. DWI is a very science-heavy field in criminal defense. For example, most Criminal Defense Lawyers might not know about fermentation affecting the results of a blood test. They likewise may not know that a breath test machine requires proper calibration to report a legitimate result. Mimi is an Experienced DWI Lawyer that started her career organizing these CLEs and currently is asked to teach these DWI Defense CLEs. She wants to make sure she is up-t0-date on all potential issues that might arise in a DWI case. Having earned a degree in Science from Baylor, Mimi is also well-suited to understanding the scientific issues that arise in DWI cases.

Board Certified in DWI Defense

The process of becoming Board Certified in DWI Defense is far from easy. Importantly, the National College of DUI Defense (NCDD) has the only board certification in DWI Defense accredited by the ABA. Mimi is the only DWI Lawyer in North Texas with this board certification. Board certification requires many hours of DWI trial representation and many hours of case work. In fact, a lawyer must dedicate at least 5 consecutive years to DWI Defense before even applying for board certification.

Board Certification also requires the lawyer to have at least 3 lawyers and judge *each* to recommend board certification. These references must, additionally, *personally observe* the lawyer handle a DWI Defense case. In addition, the lawyer must have at least 8 other recommendations. Even more, board certification in DWI Defense requires at least 36 hours in DWI Defense CLE (see above). Furthermore, Mimi had to pass rigorous tests (both written and practical) before becoming board certified. These are just *some* of the requirements to become Board Certified in DWI Defense.

Experience in Handling DWI Defense Cases

A DWI Lawyer has insight into a DWI Case that other lawyers do not have. For example, a DWI Lawyer knows what kind of jury might be best for a specific case. Perhaps a jury that is sympathetic to a client’s personal situation might help. At other times, maybe a jury that thinks the traffic stop is wrong will be best. A DWI Lawyer knows that proper jury selection means the difference between a positive or negative verdict or sentence.

Similarly, a DWI Lawyer know which motions to file on a specific DWI case. For some cases, perhaps a motion to suppress the traffic stop for lack of reasonable suspicion or probable cause. On other cases, maybe a motion to suppress the blood draw for incorrectly performing the draw or for some other technical issue. A run-of-the-mill criminal defense lawyer might throw every possible motion at a case just to see what sticks. Meanwhile, a DWI lawyer knows how to pick out the issues and find the best motion to file to reach the best possible outcome. Relatedly, a DWI Lawyer can fight by knowing exactly how to argue the motions and what cases to use in support.

More about Mimi Coffey & The Coffey Firm

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to seal your record or avoid probation revocation. The Coffey Firm offers fair DWI payment plans.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

08 April

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How can I get a DWI off my record?

Posted by Mimi Coffey

in Helpful Legal Information

At the Coffey Firm, we understand that sealing a DWI is still a “fake” measure. A Deferred Adjudication DWI is still a “conviction” if you get another DWI. The government can still see sealed DWIs at all times. Our main goal is to avoid a DWI if possible, including fake dismissal DWIs. The Coffey Firm will fight to get, and keep, a DWI off your record.

A very common question for anyone with a DWI on their record is whether it will stay on their record. Similarly, many ask if there is a way to get a DWI off their record. The general answer for both questions is yes. But, getting a DWI off your record is possible in some situations. Though far from easy, the law allows for sealing of some DWIs. When a DWI is sealed, it means that it stays on your record but does not appear on some background checks. It also means that you do not have to disclose the DWI on most applications. Contact an Experienced DWI Lawyer at The Coffey Firm to discuss how to get a DWI off your record.

Mimi Coffey DWI Lawyer, Texas Nondisclosure, Texas Expunction. Texas DWI

Getting a DWI off your record

Though each disposition (probation, DFAJ, etc.) have unique requirements, all DWI Nondisclosures share some basic eligibility requirements:

Must be a Class B offense. In other words, it must be a first-time DWI and you must not have a alcohol concentration of .15 or more.
1. A reduction to a Class B is fine for eligibility. This might happen, for example, if the DWI Blood Test is not accurate.
The DWI must not have involved an accident involving another person (including a passenger).
1. Injury to another person is not a requirement, only that it involved another person. Even a minor accident can impact eligibility for getting a DWI off your record.
You are INELIGIBLE for a nondisclosure if you have EVER been convicted of or placed on deferred adjudication for ANY offense other than a traffic ticket punishable by fine only.

Sealing a Deferred Adjudication DWI

On top of the basic requirements above, there is one additional eligibility requirement:

You are INELIGIBLE if, at the time of the offense, you held a commercial driver’s license or commercial driver’s permit.

The applicable waiting period to petition for a Deferred Adjudication DWI Non-Disclosure is two years after discharge and dismissal, regardless of whether interlock was a requirement.

Getting DWI Probation off your record

On top of the basic requirements, there are a couple additional requirements:

Must have fully completed DWI probation (including serving any time of confinement and paying any fines)
Must not have probation revoked

There are two applicable waiting periods depending on interlock status:

TWO YEARS after completion of probation IF a condition of probation required installation of an interlock device for AT LEAST 6 months
FIVE YEARS after completion of probation IF there was no interlock requirement OR if the interlock requirement lasted LESS than 6 months.

Sealing a DWI Conviction

Similar to the probation requirement, you must fully complete any term of confinement imposed and pay any fines imposed. However, there is one small difference:

If you lose eligibility due to revoked probation you MAY be eligible under this section (depending on the facts of the case).

There are two applicable waiting periods depending on interlock:

THREE YEARS after completion of sentence if a condition of the sentence required installation of an interlock for AT LEAST 6 months.
FIVE YEARS after completion of sentence if there was no interlock requirement OR if the interlock requirement lasted LESS THAN 6 months.

More about Mimi Coffey & The Coffey Firm

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to seal your record or avoid probation revocation. The Coffey Firm offers fair DWI payment plans.

06 April

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Are DWI Blood Tests Accurate?

Posted by Mimi Coffey

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Texas DWI, Blood Draw, Blood Test Mimi Coffey DWI Lawyer

Some initial questions:

I thought DWI blood tests were automatically admitted?
Isn’t blood testing the gold standard?

The answer to both is NO. A judge or jury may disregard DWI blood tests. When it comes to scientific evidence, there are many factors that a court needs to consider when determining the reliability of a scientific theory or technique. While these factors apply to both civil and criminal cases, these factors might mean the difference between suppression of evidence and a conviction in criminal cases. In Texas, these factors mainly come from three cases: Frye, Daubert, and Kelly. I will go through each one briefly and then give an example based on one of our current cases.

The Frye General Acceptance Standard for Scientific Evidence

The Frye case is the oldest and most simple of the three cases. All the Frye case requires is “general acceptance” of the theory or technique among the scientific community. Though no case has expressly overruled Frye,”general acceptance” standard is not the standard anymore. However, Frye is an important building block for the other two cases.

The Four Daubert Factors

There are four Daubert factors:

Whether the theory/technique can be or has been tested
Whether the theory is subject to peer review
The potential error rate of the theory/technique
General acceptance of the theory technique

Going out of order, one of the factors is the Frye general acceptance standard. As said above, Frye is no longer the standard, but is still and important factor for courts to consider. While the other factors may seem self-explanatory, remember that science is an evolving field. Scientists make new discoveries and perform new experiments every day. Because of this, these factors are designed to prevent a brand new theory or technique from being used as authoritative science. These factors require that a theory or technique undergo enough testing to have a potential error rate and for other scientists to criticize or support the theory or technique.

The Texas Kelly Factors

Here is the big one for Texas. The Texas Court of Criminal Appeals decided the Kelly case a year before Daubert, but both have similarities. There are actually two sets of factors present in the Kelly case.

The first three factors when determining reliability are:

the validity of the underlying theory
the validity of the technique applying the theory
that the technique was properly applied on the occasion in question

To make these determinations, the court discussed other factors for courts to consider. These include:

Acceptance by the scientific community (the Frye standard again)
The expert’s qualifications
The existence of literature supporting or rejecting the underlying theory and/or technique
Potential rate of error of the technique
Availability of other experts to test and evaluate the technique
The clarity with which the underlying theory and/or technique can be explained to the court
The experience and skill of the person applying the technique on the occasion in question.

As you can see, Daubert and Kelly have many similarities. Also, the Frye standard makes another unsurprising appearance. As with Daubert these factors help courts determine whether to suppress scientific evidence.

A current example of the Factors

On some of our current DWI cases, we have issues with the DWI blood tests. As a starting note, Mimi requests blood records when she feels like there might be an issue with the blood test. In this case, we sent a subpoena to the Tarrant County Medical Examiner’s office. In return, TCME gave our office a six-page summary of the validation study. Here is the issue, a summary tells us and our expert nothing about the tests or how they were performed. Our office then had the judge sign a motion to compel TCME to provide us with more records. TCME sent us more paperwork about the results, but the same six-page summary when it came to the theory and technique used.

Without the raw date to show that the machine is validated for blood testing, the results are worthless. Our expert has almost nothing to go on to come to an opinion on whether TCME used a valid theory/technique based on a six-page summary. This should trigger on of the Kelly factors (#5 above) as well as call the validity of the theory/technique in question. This six-page summary also tells us nothing about the potential rate of error or whether the theory/technique is or has been tested. In short, a six-page summary violates Daubert and Kelly. It might also violate Frye since a six-page summary doesn’t describe the general acceptance of the theory/technique.