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A partial transcript of the JURY TRIAL before the HONORABLE DAX E. LOPEZ, commencing September 6, 2012 . DeKalb State Court, Division VI
APPEARANCES: FOR THE STATE: William Richardson, Assistant Solicitor-General Clarence Duchac, Solicitor General Apprentice FOR THE DEFENDANT: Adam Klein, Attorney at Law
LEQUETTA CARTER WALKER, CCR 556 N. McDonough Street Suite 3240 Decatur, Georgia 30030 (404) 687-7136
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CROSS-EXAMINATION OF OFFICER T.P. DUNN BY MR. KLEIN Q. And you said that the HGN test, itself is
indicative of -- I wrote this down -- indicative of alcohol consumption and that violation of six out of six of the tests -- of the signs, is evidence that someone is most likely impared; is that a fair characterization? A. That -- I don't understand what your question
is indicative of the fact that someone is most likey impaired, most likely. A. Four out of six clues, based on the studies and
my training, is indicative that a person is most likely impaired over a .08. Six out of six clues, they are going to be above a .08. When he was asking about the minimum number
of clues, four -- a minimum of four out of the six clues is indicative, based on -Q. It's your testimony that six out of six is
conclusive proof that someone's blood alcohol content is more than a .08? A. Yes, sir. And that is based on the studies If you have a person under
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six clues, their blood alcohol content will be over a .08. Q. certainty? A. I can say that based on, if it is alcohol You can say that, based on your expertise, with
alone, based on my training, based on the studies and based on the NHTSA manual that even states that six out of six clues is going to be -- a person is going to be over a .08. Q. Can you tell me which study it is that shows
that the six clues out of six means conclusively that someone's blood alcohol is more than .08? A. Well, if you want to talk about the validation
study that was done in Florida, Colorado and San Diego, the last study that was done by mostly DREs that was -stated that just with, just by itself, with HGN, on alcohol alone, is between 77 and 88 percent accuracy that a person's blood alcohol level is above -- just with four clue is above an 08 (as stated) and six out of six it will above a .08, based on six out of six clues. And
that is the validation study that was conducted in San Diego, Florida, and Colorado. MR. KLEIN: Your Honor, may we approach?
(BENCH CONFERENCE OUT OF THE HEARING OF THE JURY) MR. KLEIN: I don't know what to do about this.
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He can't misstate the study. evidence. THE COURT: the studies were. his knowledge is.
There is no such
You asked him what his knowledge of He is telling you what he thinks This is your line of questioning, If you
have something to refute him, by all means, go ahead. MR. KLEIN: Your Honor, if we could have a
brief recess, I would like to produce the studies. THE COURT: MR. KLEIN: How brief? A few minutes, maybe 20. He is
flatly misstating the science. THE COURT: You asked him a question. I don't
know why you asked him the question that you asked him. MR. KLEIN: THE COURT: In anticipation of -In my ruling, I am taking into
consideration that you are the one who asked the question. I don't know why you asked the question. This trial is
already running a lot longer than it should be. 10 minutes, and then I'm getting started. (IN OPEN COURT) THE COURT: Ladies and gentlemen we are going
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(WHEREUPON, THE JURY RETIRED FROM THE COURTROOM.) (BRIEF RECESS AT 3:04 P.M.) (JURY RETURNS TO THE COURTROOM AT 3:23 P.M.) THE COURT: Mr. Klein you may proceed.