DPS: DNA proves McKinney driving the night of fatal crash - KCBD NewsChannel 11 Lubbock

DPS: DNA proves McKinney driving the night of crash that killed deputy

Justin McKinney Justin McKinney

Testimony continued in a trial for a Lubbock man once charged in the death of a Lubbock County Sheriff's Deputy.

Justin McKinney, 27, is charged with driving while intoxicated. McKinney was previously charged with intoxication manslaughter for the April 2009 death of Corporal D. Robert Harvey. Harvey died when his Dodge Charger patrol car collided with McKinney's F250 pickup at East 88th Street and Martin Luther King, Jr. Blvd. 

At the time, McKinney told authorities he wasn't driving when the accident happened. He claimed his friend Justin Walkup, who was with him that night, was at the wheel. However, Lubbock District Attorney Matt Powell said the evidence shows McKinney was the driver.

Justin Walkup testified against his former best friend. He is now in a wheelchair because of injuries he suffered from the accident. He said the two went to about four bars that night. Walkup admitted he drove at some point, but doesn't remember who was behind the wheel when the crash happened.

Gordon Miller, a former DPS officer, testified that Harvey was responding to a fight call before the accident. Miller said McKinney was turning left when he collided with Harvey who was driving nearly 100 miles per hour. Miller said the pickup was going about 14 miles per hour. Two women witnesses testified back in May 2009 and said they didn't see sirens or lights when the patrol car passed.

Miller said neither McKinney nor Walkup was wearing a seatbelt and both were ejected. McKinney was found lying behind the truck and Walkup was lying in front of the truck. Miller said Walkup's shoe was found near the gas pedal, but he said that doesn't mean he was the driver. He testified and said he found McKinney was the driver that night because the driver's side airbag injured his hands.

DPS crime lab analyst Naomi McDonald testified that Walkup's DNA was found on the passenger airbag, windshield and assist handle. McKinney's DNA was not found.

The Lubbock County District Attorney's Office dropped the intoxication manslaughter charges against McKinney at the recommendation of Texas Department of Public Safety investigators due to a lack of evidence. DA Matt Powell has not tried a case like this in a year, but he says he is doing it for Harvey's family.

"What most folks believe is if someone's drunk and they're driving and death occurs in the accident then that person is responsible for it.  Unfortunately that's not what the law says.  What the law says is because of that, intoxication that was the factor," said Powell.

The state has rested its case. The trial is expected to last until Thursday.  

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