IN THE STATE COURT OF DEKALB COUNTY

STATE OF GEORGIA STATE OF GEORGIA )

) CASE NO. 11C36608vs. )

) , )

)DEFENDANT. )

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, CCR556 N. McDonough Street

Suite 3240Decatur, Georgia 30030

(404) 687-7136

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.

Q. Earlier you testified that six clues out of six

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

that NHTSA had put forward. If you have a person under

alcohol (as stated) that attributes and shows six out of

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six clues, their blood alcohol content will be over

a .08.

Q. You can say that, based on your expertise, with

certainty?

A. I can say that based on, if it is alcohol

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. There is no such

evidence.

THE COURT: You asked him what his knowledge of

the studies were. He is telling you what he thinks

his knowledge is. This is your line of questioning,

not the prosecution's 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: How brief?

MR. KLEIN: 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: In anticipation of --

THE COURT: 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.

I will give you a brief recess. 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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to take a short break. I ask you to come back when

we are ready to go.

(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.

(TRIAL PROCEEDINGS RESUMED)

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