- proposal by the NHTSB Proposes the Federal standard BAC ( Blood Alcohol content) level be lowered from .08% milliliters of alcohol to blood content as a per limit of legal intoxication to a proposed .05% per se;
- BAC limit as being intoxicated under the Federal guidelines.
- The current law although is .08%, the law in the State of Texas is an officer has the right to arrest if a motorist operating a motorized vehicle under a BAC level of .08% if the officer believes the totality of the circumstances believes the individual does not have the mental or physical fa
- culties to operate a motorized vehicle even if the BAC level is below 08% after observation of the individuals driving, and furthering the DWI Standard Field Sobriety Tests aka FSTS's. These tests include three tests that have been "scientifically" proven under the case law establishing the law on what is considered to be scientifically proven under the case referred to as the Daubert Standard to determine the the credibilty of the evidence under the Federal rule 702 of Evidence and the admission of such if it can withstand a challenge to a motion attacking its validity under FRE 702;
- VARIOUS STATES EQUIVALENT
- There are several States that have adopted a similar standard as a Rule of Evidence on the State level and exas equivalent case law called "Frye" tests.
- Specifically the case of Daubert states:
- The Daubert standard provides a rule of evidence regarding the admissibility of expert witnesses' testimony during United Statesfederal legal proceedings. Pursuant to this standard, a party may raise a Daubert motion, which is a special case of motion in limineraised before or during trial to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy refers to the three United States Supreme Court cases that articulated the Daubert standard:
- Daubert v. Merrell Dow Pharmaceuticals, which held in 1993 that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye "general acceptance" test as a basis for assessing the admissibility of scientific expert testimony, but that the rule incorporated a flexible reliability standard instead
Although the Daubert standard is now the law in federal court and over half of the states, the Fryestandard remains the law in some jurisdictions including California, Illinois, Maryland, New York, New Jersey, Pennsylvania, and Washington.[5]
Florida recently passed a bill to adopt the Daubert standard as the law governing expert witness testimony, which took effect on July 1, 2013.[6]
Although trial judges have always had the authority to exclude inappropriate testimony, prior to Daubert, trial courts often preferred to let juries hear evidence proffered by both sides.[7] Once certain evidence has been excluded by a Daubert motion because it fails to meet the relevancy and reliability standard, it will likely be challenged when introduced again in another trial. Even though a Daubert motion is not binding to other courts of law, if something was found untrustworthy by one court, other judges may choose to follow that precedent. Of course, a decision by the Court of Appeals that a piece of evidence is inadmissible underDaubert would be binding on district courts within that court's jurisdiction.
Daubert motion: timing
To attack expert testimony as inadmissible, counsel may bring pretrial motions, including motions in limine.[8] The motion in limine may be brought prior to trial, although counsel may bring the motion during trial as well.[9]
A motion attacking expert testimony should be brought within a reasonable time after the close of discovery if the grounds for the objection can be reasonably anticipated.[10] The hearing should be made well in advance of the first time a case appears on a trial calendar.
In one case where a Daubert hearing was conducted on the day of the trial, in which the district court excluded all plaintiff's expert testimony, resulting in the dismissal of all claims, the appellate court remanded the case because of multiple irregularities and a defective record of lower court proceedings.[11]
The appellate court noted that in cases that rely heavily on expert testimony, a district court should set a discovery[12] and trial schedule that realistically provides both sides with an adequate opportunity to introduce necessary evidence. The application of Federal Rule of Evidence 702 to proposed expert testimony can often be an uncertain process, and is best conducted in such a manner that litigants have a reasonable opportunity to locate experts who meet the rule's requirements.
In another case in which the defendant was apparently at fault for filing a motion to exclude expert testimony one week before the trial date, the district court denied the motion on that ground, but it advised the defendant that it might conduct its own voir dire of the expert in question before he testified. The district court preliminarily found that defendant's motion was predicated on a ruling made almost three months earlier by a district court in another state, and that defendant had shown no good cause for waiting to file the motion. The defendant ultimately lost that case, following the admission of the disputed expert testimony, and ultimately failed in its appeal.[13]
An evidentiary hearing on the motion may not be necessary if the court finds that it would not assist the court in ruling on any of the matters in the motion. These tests have become the foundation of attacking new science as well the advancements in the ever " improvements" in the modifications of older scientifically proven methods that have met the Daubert and Frye Tests as technology is daily making advancements in various areas of criminal law such as the DWI breathlizer machines in DWI cases, cases involving DNA and genetics, computers and programs involving the veracity of an individuals truthfulness which the current law does not allow the use of such "lie detector" tests to be allowed in a Court of law. Ironically, these tests have been determined not to meet the requirement of the Federal or State laws, but are regularly used as a condition of probation in cases that involve a sex offender case and are used to determine whether the convicted sex offender has violated a condition of probation. These seems to be a contradiction in the belief of the tests reliability as it can't be used in trial, but can be used to violate a person on felony probation where failure of such polygraph could be used to incarcerate a Probation for many years to life for failure of such "scientifically" unproven tests reliability.
As an experienced criminal defense Attormey, these are matters when inquiring into the retainining of an attorney should be asked of the attorney if your case will involve the State of Texas to have their case a rely on scientific on evidence the experience of the defense attorney being well versed in challenging the States use of this type of evidence and make the proper challenges to have the w evidence exuded. Information provided in this article is for information purposes only and is not intended to establish an attorney/client relationship. Additionally, material used for the creation of this article was supplemented by:
Wikipedi:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)
See: Daubert v. Dow Merrill Pharamaceuticals
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