Driving While Intoxicated Case Law Update - Texas District ...

R. KELLY V. STATE
1. APPLIES TO BREATH TESTS
Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997).
Thiswasabreath fesf case inwhich fherssue atthemotionfosuppresswaswhetherthefesf sef
forth in Kellv v. State. 824 S.W.2d 568 (Tex.Crim.App. 1992) applied to breath tests. The Court
of Criminal Appeals remands back to the Court of Appeals and holds that the Kelty test is
applicable to all scientific evidence offered under Rule 702 and not just novel scientific evidence.
The three prongs that must be satisfied are: (1) the undertying scientific theory must be valid; (2)
the technique applying the theory must be valid; and (3) the technique must have been properly
applied on the occasion in question.
2. FIRST TWO PRONGS OF KELLY TEST MET BY STATUTE
Beard v. State, 5 S.W.3d 883 (Tex.App.-Eastland 1999), permanently abated in 108 S.W.3 304
(TCA-2003), opinion withdrawn in 2003 WL 21398347 (TA-Eastland, June 18, 2003)
(unpublished). (Case was permanently abated due to death. The body of opinion can be found at
http://www. cca. courts.state.tx. us/opinions/028200. htm. ).
Harmonizing the Tranisportation Code and Rule 702, we hold that when evidence of atcohot
concentration as shown by the results of analysis of breath specmens taken at the request or order
of a peace officer is offered in the trial of a DWI offense, (1) the underlying scientific theory has
been determined by the legislature to be valid; (2) the technique applying the theory has been
determined by the legislature to be valid when the specimen wastaken and analyzed by individuals
who were certified by, and were using the methods'approved by the rules of, the Department of
Public Safety; and (3) the trial court must determine whether the technique was property applied,
in accordance with the department's rules on the occasion in question.
Henderson v. State, 14 S.W.3d 4Og (Tex.App.-Austin 2000, no pet.).
Testimony regarding the validity of the underlying theory of breath fesf analysis and technique
applying theory was not necessary for test resu/fs to be admissibte. Legislature recognized the
validity of the theory and the technique when rt passed the statute authorizing admission of test
resu/fs in DWIcases.
S. PROPER TO OFFER BT SLIPS TO SHOW NO RESULT OBTATNED
Kercho v. State, 948 S.W.2d 34 (Tex.App.-Houston [14th Dist] 1997 pet. refd).
State offered Intoxilyzer slrps fo show no test result was obtained. Defense objected that
compliance with DPS regulation was not shown. Court held that such compliance is required onty
when test results are beinq offered. and in fhrs case since the State conceded the fesf was invatid
and the s/rps drd not show any result, the admission of the tesf s/rps was proper.
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