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IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

STATE OF GEORGIA vs. , DEFENDANT.

) ) ) ) ) ) )

CASE NO. 11C36608

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is. Q.

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

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 If you have a person under

that NHTSA had put forward.

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. 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

not the prosecution's line of questioning.

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

I will give you a brief recess.

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. we are ready to go.

I ask you to come back when

(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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