DUI Defense Lawyer Destroys Cop's Credibility as He Testifies RE Client's Lack of Sobriety

that concludes the opening statements uh from both sides we will begin uh with uh president uh presentation of evidence from the commonwealth uh who do you wish to call as your first witness mr robinson trooper miller judge trooper miller if if he could please come up to the witness stand and before you have a seat if you could face me and raise your right hand please you saw me swearing from the testimony you're about to give to be the truth the whole truth and nothing but the truth okay please be seated thank you you see this williams see the witness on my way right please state your full name for the record miller are you presently employed i am what do you do mr miller trooper was kentucky state police before you took the uh well when did you first become employed by the state police uh it would be april of 2012. before you were hired by ksp in april of 2012 did you have any prior experience in law enforcement yes sir in september of 2008 i was hired on with the shelby county sheriff's office as a road deputy and then prior to that it was with millersburg police department in bourbon county for about a year and a half hired in march of 2007. so is it fair to say that uh your experience in law enforcement began in march of 2007 so we're between nine and ten years of experience i met i missed the age the first agency that hired you millersburg no relation to me where is millersburg it's in bourbon county it's north of paris all right now when you were hired by millersburg did you have to uh complete any formal training before you took a position there uh with millersburg i was swore in uh prior to going to the academy in november of 2007 is when i was sent to the academy okay and when you say the academy what are you talking about department of criminal justice training in richmond the 18-week academy and i graduated in april 2008. okay so you had 18 weeks of formal training i guess after immediately after you were hired by the city of millersburg yes sir all right did any portion of that 18 weeks relate to the detection of individuals under the influence or driving under the influence yes sir there was a 40-hour block dedicated to just field sobriety so for for one week you did nothing but study field sobriety all right can you tell the jurors a little bit about that training was it all book work were there any was there any clinical training just you don't have to belabor it but just tell them a little bit about that the first part of it was explaining the three tests the horizontal gaze nystagmus the walk and turn and the one leg stand they explained it they showed you what it is the instructor showed you what it is we saw videos of um instructors on video performing these tests the instructors performed the test and then the last part of the week we actually performed the tests the rich department of criminal justice training actually has people come in that they put them in a contained group and they give them alcohol of various sorts male female tall what tall doesn't matter short and they consume certain amounts of alcohol and then we perform they put certain people with us with instructors and we perform our practical tests on them so is it fair to say that that training that you completed back in november of 2007 partially related to field sobriety testing sure and your training as to field sobriety testing was part clinical and part just study well did you have some um written materials that you studied also okay now did did you were you tested after you underwent that training yes sir all right how were you tested was that just a written test there was a written test and then there was also a practical that you had to pass several practicals yeah did you successfully complete both the written test and the practical example and then you were hired in september of 2008 by the shelby county sheriff's office and who was the sheriff at that time sheriff's mike armstrong and did you undergo any further training after being transitioning over to the shelby county sheriff's office besides keeping in order to keep your your peace officer professional standards which is abbreviated as pops every year we have to have a 40-hour in-service class so i've completed 40 hour in service classes and all not related to sobriety testing related to everything from you know sexual assault robbery just there's each class has its own title you weren't sent back to the doc jt by the shelby county sheriff's office were you for the for those particular classes i was yes okay i got you but not for like the 18 week no course no that was a basic training were you certified back in november of 2007 on the intoxilizer yes now you mentioned that 40 hours of your training was dedicated to the field sobriety test was there testing associated with the intoxilyzer 40 hours that that another 40 hours or that was part of the same additional 40. okay so you studied the intoxilyzer for an entire week and was there any testing did you have to pass any tests to to move on with your training yeah we had to pass during mid week we had to pass a test on the functioning of it how you use it and then at the end of the week we did a practical test and has were you certified to to use that instrument sir right have you maintained that certification continuously to today's date and then you were hired by the kentucky state police in april of well let me back up just a bit um did you what were your duties with the shelby county sheriff's office from september of 08 to april of 12. i was a road deputy so i was uh i worked primarily second shift which is three to 11 here take off calls for service anything that somebody would call into dispatch needing help with from a motorist assist to you know a domestic violence call so primarily you work between hours of three and 11. while you're with the sheriff's office did you have any dui or investigations and arrests do you feel comfortable estimating how many d or the irs you may have made between september of 08 when you were hired by the sheriff's office in april of 2012. i know hundreds i couldn't give you exactly probably 200. do you feel comfortable estimating what percentage of your uh your traffic citations may result may have resulted in dui arrests while you're with the sheriff's office less than five percent so if i understand you correctly 95 of the time you issued a traffic citation that didn't result in a dui arrest right when you were hired by the kentucky state police did they um require you to undergo any uh training kind of immediately after you were hired yes sir uh it was a uh it was an accelerated program so we didn't go through the full 22 weeks it was a 12-week academy that they it was more of a refresher if you will on how state police operates other differently than department of criminal justice training so a 12 week did any portion of that 12 weeks relate to the detection and i guess the handling of dui investigations and arrests we had a week that was dedicated to we had yeah a week that was dedicated to field sobriety testing okay and in addition to that week of fst training with ksp was there any additional training related to the intoxilizer there was not okay but you nonetheless have maintained your certification on the intoxilizer yes briefly describe your duties as a trooper well actually what's your title now uh senior trooper and did you have that title back in march of 2015 no sir that's true okay what were your duties back in march of 20 generally what were your duties as a trooper back in march of 2015. that night i was assigned uh five counties to cover it just as any of the other counties calls for service anything that would come in i've got uh you know i have a county radio on casino comes into shelby county or spencer county or any other counties so same as the sheriff's office it's a larger jurisdiction let me back up just a bit um to ask a couple more questions about your field the field somebody training that you received both through doc jt and the state police academy did you receive any certifications uh relating to field sobriety testing and you mentioned that there was there were tests that you had to pass my next question is was there some type of certification you received issued by doc jt or the state police for field sobriety testing department criminal justice training uh we got a certification for the intoxilizer 5000 and then as far as the field sobriety we didn't get a certification we just took a test okay and as long as you pass the test you're you're good all right to your knowledge does doc jt or the state police academy issue a separate certification for field body testing i got a certification through kentucky state police for a class called a ride that's a 16-hour class that was in that that block and that stands for advanced roadside impairment recognition enforcement so it's looking at someone who's not just an alcohol user but also a drug user someone who's a poly drug user you know if you're under the influence of alcohol and a narcotic what the signs of the body are going to exhibit all right so there is some type of certification for completing that a-ride yes sir all right did you study the standard field sobriety test as part of that a-ride training prior to that a-ride training they wanted to the academy staff want to make sure everybody was on the same page since this was a class that was prior law enforcement and guys with three years up to 15 years were in this class so they want to make sure that everybody was on the same page and so we did do uh the standard field sobriety testing and had to pass practicals with that okay as part of the a-ride or was that prior to the a-rod prior to that okay what factors were you trained by doc jt and the kentucky state police academy to look for when you suspect you're dealing with an impaired driver or someone who has consumed alcoholic beverages contact with person or prior to contact let's just start with contact with the person what are you looking for contact with the person the smell of an alcoholic beverage emitting from the breath their breath bloodshot watery eyes fumbling with a license or an insurance card emotional like some people will get emotional heavy sweating dry mouth those are some of the main keys that we focus in on are you trained to look at the eyes yes and what do you look for uh well initial contact you're looking at see if they're watery bloodshot eyes you know heavy redness and are you trained to ask specific questions about drug or alcohol consumption it's it's going to be a you know every stop i try to conduct in the same way to where if i'm doing do smell the odor of an alcoholic beverage then i'll start in conversation with that where are you coming from where you're going have you had anything to drink tonight who are you with look and see how the person's dressed see if they're coming from a club or coming from an outing a wedding try to size up exactly what you're dealing with is the time of day significant in to you yes how so well at night more of your bars and clubs are going to be open it uh versus in the daytime obviously you can still drink and drive in the day but in my experience working night shifts solely i've run into a lot of people coming from clubs and bars and you know restaurants actually restaurants that sell alcoholic beverages please explain to the jury what field sobriety tests are and what purposes they serve field sobriety tests at least the starting with the three the the horizontal gaze nystagmus the walk and turn and the one leg stand they're all divided detention tests so you're you're giving somebody a task and you're trying to divide their attention during that task and someone who is normally who is not impaired or under the influence can perform that test versus somebody who is under the influence will have difficulty performing that test not saying they can't complete the test but they're going to have difficulty completing the tests and throughout that test they're going to show what we call a clue clues that what we mark with me i hash mark on my hand to know exactly what i'm looking at for further documentation and why do you use these tests well those are the tests that i was trained trained for their tests that were adopted by uh by nitsa and what is nitsa uh it's uh was it national traffic transportation i'm not certain what the actual abbreviation is i think it's nhtsa yes national highway traffic safety administration and um are they do you issue pass fails on these tests rephrase that when when you're administering the test i mean do you grade someone on the test you issue a a written score not a written score but i mean if somebody i mean i try to give everyone the benefit of the doubt um based upon the clues that i'm trained to look for that's what i'm marking hash marks for to show how many clues are they showing in this test for example the horizontal gaze nystagmus you've you know six clues you're looking for three in each eye or for the total hgn test so there's certain clues that you are just trained to look for all right now what is this is there a standard battery of field sobriety tests there is okay and again what are what is that standard battery uh the first we abbreviate for hgn horizontal gaze nystagmus second is walk and turn and third is the one leg stand okay and we'll get into those a little more extensively in a few minutes i want to direct your attention now to your initial contact with the defendant did you work on in the early morning hours of march 15th of 2015. yes sir were you in uniform and in a marked patrol car yes sir right do you recall approximately where you were and what you were doing at around 1 20 a.m 1 20 a.m i was on the right side the right shoulder of i-64 at about the 29-mile marker i was blacked out had my lights off and i was riding stationary radar that is an area having worked this county for many years on friday nights and saturday nights eastbound traffic i would commonly run into people coming from louisville having been drinking coming from clubs and bars that is my sole reason for sitting out there is to get not only people speeding but also try to prevent collisions and people from driving in the influence were you seated in your vehicle or and what type of of radar instrumentation do you have in that vehicle i got a state issued it's what's called a stalker dsr-2x it's one of the more advanced radar units on the market it is a dual what's called a dual band radar system so i can run the front radar and the rear radar independently of each other and it also has a fastest slowest feature for example prior to issuing somebody a traffic citation you need to see visibly tell that that vehicle is traveling faster than another vehicle that's when you admit your radar and get a reading on the screen was this the first radar instrument that you'd use in your career no approximately how many other radar units did you have oh one other radar unit it was a made by mph it was with the sheriff's office okay and um how do these two units compare i mean do you feel did you feel more confident with one or the other i feel more confident with the stalker unit because it is a ka band versus a k-band it sends the the frequency a lot faster over 350 000 feet per second gets the speed and brings it back to your screen um it's uh you know i use tuning forks on it every every before every shift those are certified tuning forks and it's got internal calibration i mean it's i'm very confident with it okay and i'm guessing one of the advantages to the dual radar is that you don't have to get out of your vehicle to turn the other way to like shoot the radar yeah so i mean if you're for example if you're on i-64 and you have east and westbound traffic i can sit on the right shoulder and run rear rear same direction traffic coming behind me and then opposite the opposite direction coming at me with the front so front opposite direction at the same time because it has split screen do you remember what traffic was like that evening there wasn't any what's that very very light very light hardly any cars in our own right did you hear or observe anything at about 1 20 a.m that led you to believe that a traffic offense was committed i observed a lone vehicle in the interstate left lane far left lanes a three lane interstate so it's anyone's familiar with shelby county west of city limits interstate it's three lanes it's wide it's got wide it's got a wide meeting and a wide right shoulder so i'm sitting on the right shoulder i observed a vehicle traveling visible visibly high rate of speed transmitted radar and it brought signal back to my radar screen of 85 miles an hour there's the lone vehicle in the road there was no other vehicle in sight all right now the vehicle that you're talking about did you ultimately stop that vehicle yes sir did you ultimately learn what type of vehicle that was yes and what type of vehicle was it it was a newer vehicle it was a 2013 bay chevy tahoe how do you know well before how do you know that the the radar instrumentation gave you an accurate reading what assurances can can you provide the jurors that that reading was accurate uh well i mean it's besides using my tuning forks which are certified prior to shift after i use the tuning forks the radar has its own internal self check it doesn't calibrate itself it's got its own self check and commonly while running radar moving radar i'll look at my speedometer which is also a certified speedometer i'll look and see if my vehicle and also say my gps are all reading the same speed and it's and it's always the same it's never changed variances since this particular instrument was issued to you have you experienced any problems with it that required any maintenance sure to your knowledge to the best of your knowledge was it functioning properly around 1 20 am on march 15th 2015. what were the what were the weather lighting and road conditions that morning if you remember uh the weather was uh i couldn't tell you what the weather i know it wasn't raining it's comfortable outside no lighting in that portion of the interstate okay any precipitation no any uh snow on the ground all right what was the posted speed limit 70. and what was the the radar reading 85. and did you obtain a visual estimation of speed as well or did you just rely solely on the radar i always i always obtain a visual estimation and having running radar for many years it's very easy for me to distinguish vehicle speed i'm not saying right on but in the practical test we have to be within five miles an hour visibly to looking at a vehicle and i can tell the vehicle was traveling at high rate of speed isn't that hard when there's no other traffic around though didn't that complicate it no i mean you i mean it it's kind of hard sitting here to to explain unless you go out and actually have you done it how many times have you visually estimated the speed of a vehicle in your life oh i couldn't tell you i couldn't tell you thousands uh easel easily yes sir you said that the vehicle was uh in the the far left of three lanes did it remain in that far left lane as it passed the location of your vehicle yes sir okay now i want you to just tell the jurors what you observed and what you did after that point i conducted a traffic stop in the vehicle being that the vehicle was in the left lane when my lights came on that's when the vehicle went into what we would what we refer to as the median or the left portion of the roadway this portion of the roadway is a newer section of the interstate and it has a large median wall to prevent median crossover made contact with the operator the sole person the vehicle was nobody else in the vehicle where did the vehicles come to a stop where were they located in relation to the lanes of travel on the far left side you've got three lanes a right shoulder and then what would be considered the median of the road was there room in the median you mentioned that there was some type of barricade there or wall yeah the median the medians the way they've set the the way department transportation set this section of the interstate up is both medians are designed for a semi truck to be able to safely park there so there was plenty of room for a tahoe and a dodge charger there to fit in there safely so my understanding is the vehicles stopped to the left of the far left lane is that accurate okay because most of the traffic stops that i've personally witnessed have been over in the right shoulder most people would would merge to the far right shoulder but this instance she stopped in the meeting there okay so you didn't direct her to pull off to that side of the highway did you initiate your emergency lights before she stopped all right and i interrupted keep keep going sorry uh made made contact with uh the sole operator of the vehicle um female operator uh in talking to her see where she was coming from where she was going i could smell the odor of an alcoholic beverage meeting from from the vehicle until she had a bloodshot bloodshot watery eyes um she said she was coming from bardstown road which i know that's having worked this area i know that's a common area at night where there's bars and said she was drinking at bardstown road did you all have um any conversation while she was still seated in the vehicle or was all of the conversation tell me how much conversation took place while she was still seated in the vehicle if you remember that was the conversation that was seated i asked her where she was coming from she said bardstown wrote mr what she was doing there she was out drinking i can't recall if she said she was with friends or not and she got her her license took her license i as habit for safety reasons and having my hands free in case anything happens i stole someone's license in my belt and i asked her to step out of the vehicle based upon my observations of the bloodshot water eyes in the order of alcoholic beverage in her admission to having drink earlier in the night did she did she say what she had consumed i don't recall fair enough is that generally questions that you would ask it is it is um you know because everything has its own alcohol percentage and um that does that does play a factor okay you just don't remember what's in this case or not fair enough do you recollect if she told you how many alcoholic beverages she had consumed not not off the top of my head sorry didn't i approximately how close were you to the side of the tahoe when i'm assuming she rolled the window down and didn't not and did not open the door initially okay approximately how close were you to the tahoe when you first sensed the smell of an alcoholic beverage i was right at the driver's side door frame when i could smell when she put her window down i could smell an odor coming out of alcoholic beverage so when i initially made contact with her and started asking her where she was coming from where she was going to it's habit for me and all of my stops that if i'm smelling that i might suspect somebody has been drinking i'll ask them for registration and their insurance and their license which i do in all stops but when i do that they're going to look away and grab something so they're getting the document that i'm asking for while they do that i'll stick my head in your car and take a huge sniff to see if exactly it's exactly what i'm smelling if it's outside or if it's coming from your vehicle coming from you and that's exactly what i did in this instance so you know i tried to stick my head in the car as best i could and smell and it confirmed that i'm smelling alcoholic beverage coming from the vehicle and she hadn't denied drinking alcoholic beverages when you encountered oh okay approximately how long did you talk to her while she was still seated in the car or the truck less than a minute and then what happened i asked her step out of the vehicle step we stepped out of the vehicle went to the rear of the vehicle uh shut her car door and uh that's when i uh we proceeded with uh field sobriety testing did she appear to be physically injured in any way to you no did she inform you that she was suffering from any type of injury at this time no did she inform you at any point that she was on any sort of medication or that she was under a doctor's care for any reason no now i want to focus on the field sobriety tests um why did you feel the need to administer field sobriety tests because that's a tool that i was trained to use the standard field sobriety test is you know through two academies it's it's what i know it's what i've been trained it's what i've used for years and based on training experience it works now our field sobriety tests in themselves what you use to make a decision whether someone's impaired everything comes together as a package so from your initial observations of the vehicle to your observations and conversations with somebody how are they acting um are they fumbling with their license they have slurred speech bloodshot watery eyes uh to getting them out of the vehicle if they're using the vehicle for support having trouble walking um and then so it all plants your question everything is together is a package after the field sobriety then you make a decision on whether to rest or not okay about how many times have you administered field sobriety tests in the field hundreds do you ever administer field sobriety tests and let people drive home yes do you feel comfortable estimating what percentage of the time you administer field sobriety tests and allow people over half half the time i suspect that someone has been drinking i'll get them out and they had been drinking they admit they'd been drinking but based on field sobriety test train experience i don't believe you're over an 08 and i believe you can safely operate a motor vehicle which tests did you ask the defendant to perform i asked her performed the the three standard test i was trained on which is the hdn the one length stand and the walk and turn do you administer them in the same order each time uh yeah hdn walk-in turn one-length stance the way that i the way i was trained to administer them and the way i administered them i want to ask you some specific questions now about the hgn test again what part of the body are you observing when you give this test the eyes and again what is hgn it's horizontal gaze nystagmus it's one of many kinds of nystagmus but we are trained to typically look at the eyes horizontally so the eyes left and right is what you're looking at and i hold my finger up you can use a pen whatever but that's that's something for them to look at it's a stimulus for them to look at and you hold it 12 to 12 to 15 inches from their face from their nose and above a little bit of their nose so they can see it and prior to actually performing the test you want them you want to make sure that they can actually do the test um i ask them if they have eyeglasses ask them to remove their eyeglasses um if they uh i'll ask them do you have any medical issues with your eyes glaucoma anything that would prevent you from looking at me and following my finger and i get a response from them in that with in this instance there was not and then i'll look at your eyes to see if you have some what's called resting nystagmus and resting nystagmus is basically what nystagmus is the uncontrolled twitching of the eye so we're looking at the eye to see if they have rusty nystagmus if your eyes are just bouncing looking at me is that common no do you know and what percentage of people may have resting nystagmus connor i don't believe this witness is qualified to answer that question did it if it was addressed in his training i i that that should have been my first question i'm sorry i'm asking if you want to reorganize some questions um what during your training was there any discussion as to what portion of the pop general population may have arresting nystagmus very little very little training or very little very few amount of people have resigned statements is there i think you've already addressed this but is there a standard way in which hgn should be administered and is an administer is administered by you yes sir and did you administer the hgn to miss wood in accordance with your standard operating procedure yes sir and the way you had been trained yes sir all right did you ask her before you administered if she understood what you were you wanted her to do yes sir did she indicate she understood did the defendant have any difficulty following directions no now i would like to ask you about the clues you're taught to look for what is the first clue of the hgn test first part of the test is what's called a lack of smooth pursuit so in in in doing that i'm moving my finger to the left and right of your face and and it's as you're moving your finger you're just it's a gradual pace as you're moving your finger which basically what you're looking for is you're watching the eyes to see if they can track your finger are they tracking your finger smoothly or are they tracking your finger where they're bouncing they're trying their eyes are trying to catch your finger and you can see the eyes physically bouncing as you're going back and forth so that's what we're looking for in lack of smooth pursuit when um you administered this part of the test or observed this part of the test um with miss wood what did you observe i observed both her eyes um were having were having problems they she did show lack of smooth pursuit in both eyes going left and right all right what is the second clue that you're looking for on the hgn um distinct nice tag distinct and sustained nystagmus so basically i'm holding my finger it's the same thing but now i'm holding my finger all the way out to where you can see just a little bit of the white of the eye so your your eyes are flexed all the way over as far as you can see and what you're looking for why the eyes rest there and you hold it four to six seconds back and forth but you're looking for the eyes the nystagmus in the eyes to start bouncing and that's different from lack of smooth pursuit correct the lack of smooth pursuit is what you're looking for before the eye gets to the maximum flex point yes sir yes sir all right and when you gave that when you observed that particular part of the test with miss wood what did you observe she showed both eyes she showed nystagmus in both eyes at maximum deviation and what is the final part of the test uh final part of the test is onset prior to 45 degrees and it's holding my finger in the center of your face from the start position as you move either to the left or right and you're slowly moving the finger and you're watching their eyes to the eyes start to start to twitch when they are starts to twitch you hold that position four to six seconds and watch to see the nice diagonals in the eyes and if they show nystagmus in the eyes prior to and what did you observe during this portion of the administration on this wood with her i went almost all the way out to maximum prior to maximum deviation i didn't see any nystagmus okay and what did your observation your observations of the defendant's performance on this test indicate to you based on based on just this portion is that she was under the influence of alcohol or she is under the influence in your experience is there a connection between hgn and the amount of alcohol a person has consumed there is somebody who has consumed higher amounts of alcohol you will see signs of nystagmus sooner the sustained nystagmus and the lack of smooth pursuit and depending on how much they've consumed some people may have rusty nystagmus so there is a direct correlation to alcohol consumption in hgn are the clues or your observations during the administration of this test um indicative of the presence of alcohol in this wood's body let me rephrase that yeah are the your observations during the administration of this particular test are those observations indicative of the presence of alcohol in this wood's body and did you quantify the clues that you observed on this particular test yes sir all right and what was the i guess the number of clues you observed four four clues you've got a total of six uh and i observed four of the six now what was the next field sobriety test you administered the walking turn and tell the jurors a little bit about that walk in turn is a divided attention test so it's it's a test prior to the test i ask i'll ask you if you have any problems with your hips knees joints any medical issues surgeries that would prevent you from taking a walking test to prevent you from walking period and based on a response i mean if someone's had had an injury then you know i will note that but in this particular case we didn't have any injuries and she didn't indicate that would you mind demonstrating the test for the jurors and do you have a kind of a standard routine or habit that you follow on the roadside i do if a line is available i like to use a line and most of the time if i in a safe manner if i suspect that i will be doing field sobriety i will move my car i'll have them stay where they are i'll move my car and block a lane so that way i can safely do field sobriety on the roadside this instance we're on i-64 and nothing is safe on a 64. so that's why i didn't do it that's a particular essence but if we have a line i like to use a lot and i want you i don't want you to truncate it or shorten it just because we're in court here today i want you to just if you have a standard routine just uh demonstrate that for the jurors what i tell you to do while you're facing me tell you to put your left on the line put your right foot in front of that foot i instruct you to stay like that don't move they don't understand i'll repeat myself as many times as it takes for them with your right foot in front of your left you're going to take nine heel toe steps you're going to turn around you're going to take nine heel toe steps back so what you're gonna do with your nine steps you're gonna take nine steps one two three nine when you get to your ninth step you're gonna look like this right foot from your left use your right foot you do a series of small turns and you do nine steps back one two three four five six seven eight nine episode nine now did you instruct miss wood this way as you have just all right demonstrated welcome to return to the seat did the defendant indicate that she understood your instructions she did and and prior to instruction i make sure that they keep their arms at their side they look at their feet and they count their steps out loud and do not stop did she attempt this test she did all right and please describe the defendant's actions and and your observations as you observe them she uh her first nine steps she was heel to toe i didn't see any clues um her as far as her turn she she turned them properly instead of turning like i instructed her to turn she just turned around like anybody would just turn around then on her return i'm gonna have to refresh my memory with citation to explain sir okay so she stepped off line and counts five and eight of her return steps so you have nine steps down which i didn't see any clues she turned them properly which is going to be a clue and then on her return steps back on steps five and eight um she uh stepped off the line so which means she couldn't maintain her balance and walking she's stepping off line for balance so she's stopping stepping off line and then continuing it that's step five six seven eight steps offline for balance continues to nine now during throughout the portion of the test she also used her arms for balance which in the initial instruction i advise you to keep your arms at your side throughout the direction of the test so she's using her arms more than six inches is going to be the clue off of your side so she's using her arms for balance was there any significant significance in your mind to your observations during her walk and turn test did it was there any significance in your mind what did what was the significance of the defendant's clues that you observed in your mind if anything i mean i guess what did you gather from the administration of this particular test uh that just it same as with the htn this is just showing that she at least on her return steps she didn't follow the instruction of keeping her arms at her side she had to step offline twice for balance and she turned him properly not like the instructions so she was having an issue with the turn she had an issue with the return nine steps and she had an issue with the instruction of keeping arms at her side which quantified that she's based on training experience those are clues we look for for people under the influence okay was that a significant number of clues in your mind uh well we're trained to look for more than two um there's eight clues that we look for in this uh we're trained to look for at least in this you're looking for a minimum of two and what was the total number of clues that you observe based on what i'm seeing what i'm seeing here she had three clues before she stepped off she's um she turned them properly which is one clue she stepped off line at five and eight that's one clue and then she used her arms for balance that's one clue so she had three of the eight and what was the the last field sobriety test that you administered the one leg stand all right and again would you mind demonstrating that to the jurors just as you would at the roadside well before we do that i don't want to assume that you have a standard kind of procedure that you follow on the roadside but i'm going to ask that question do you have kind of a standard regimen that you follow for this test okay would you mind demonstrating that standard regimen i'll ask you to put your feet together uh put your feet together on your side um and you can take whatever whatever direction that you want to face you can use whatever foot that you want to use either foot doesn't matter but the instruction of the test is with your arms at your side i need you to look at the foot that you decide take that foot point your toe out keep your foot about six inches off the ground while looking at your foot i need you to count out loud thousand one thousand two thousand three thousand four and so on to instruct you to stop that's all you're doing if you're looking at your foot you're counting your arms at your side do you understand and we'll get you guys for now and if they say no i'll explain as many times as it takes for them to understand once they start once they bring and as i'm giving instruction i turn my stopwatch on and we're looking for 30 seconds it's based on training we look for 30 seconds so once that foot comes off the ground i start my stopwatch i'm watching them but also watching my stopwatch to make sure that we don't go past 30 seconds after 30 seconds thank you and you can return to the chair can you please uh tell the jurors what you observed when you administer well did she take the the one leg stand she did all right and what did you observe of the four clues which we looked for two she showed one she used her arms for balance fair enough at that point did you do anything else to make a judgment as to whether her condition warranted taking her into custody no sir so what was your determination as to whether her condition warranted taking her into custody based on my initial observations of her uh her admissions to drinking and then me um you know doing the field sobriety test which coincides with what she said of her drinking the reliability of my training experience that's my place to understand dui okay what other options did you have at that point in time yes sir uh she was going to lexington from louisville um i didn't have any uh i mean you could you could take her home but that's not we don't we don't do that get in trouble for that did you feel um that you could have allowed her to just get back in her tahoe and drive home no not at all and how long what did you do how did you take her into custody what how does that work uh well after the last test you know my advisor you know i said based on train experience and place your arrest for dui you turn up with change behind your back once i said that and put handcuffs on her she became very emotional and crying and it placed her in my car called on the radio that i had rested one female and need a record for her vehicle and so we sat and waited for the wrecker once the wrecker showed up took her vehicle and her vehicle secured i transported her by policy since she's a female i have to call out my miles so i called out my mileage beginning at the jail ending and then took her into the jail for toxilizer do you remember any dialogue between the roadside in the detention center i do not i do not sir fair enough did was there any discussion about the tahoe the ownership of the tahoe i remember something briefly about she had just graduated possibly and that was a present she's not the registered owner of it when i ran the registration she'd come back as a registered owner but i think believe she said it was a it was a present for her graduating and where did where did you transport her shelby county detention and just tell the jury what what happens once you pull into the detention center i pull in detention center call out my miles i advise the detention center that i have one female at the main gate for them to let me in so they know to send a female deputy or male depending on who it is you know what sex the person you have to search them uh with this particular instance i brought her into jail immediately we go to the left in the jail where the intoxicalizer room is and the intoxalyzer to bring it out of standby mode there's a big green button on the front push that to bring the intoxiclezer out of standby mode and take intoxilizer slip on the bottom of the slip your right observation began at and you wait for the intoxicalizer to produce a time okay let me ask you just a couple of preliminary questions before we jump into the intoxilyzer did you administer any additional tests at the detention center such as the field sobriety test do you redo the field sobriety testing at the detention center i don't know okay and you made reference to an intoxilizer slip or card i'm not sure what word uh you could call it either uh it's it's a three page uh three page you could say it's card three pages and it when it when the intoxilizer prints on it it prints through the same thing to all three pages do you have one of the three original copies on your person today yes i do okay may i see that yes i have it on my i need a table over here underneath my hat that's the bottom of the three and i'm gonna walk this is exhibit one if i may thank you no objection judgment uh that there for now thank you and for identification purposes only at this point i'm going to mark this as commerce exhibit two no objection all right have you by chance brought a copy of an intoxilyzer certification i did okay do you have that on your person that is awesome uh i believe this is a copy of it i didn't see the original the original should be in the same spot as this intoxicalizer card that's it you want to hold on to this original down here it's you know i've got to do i've got to do uh it should be expired in october so i've got to redo something you can have it i'll hold on i'll use this with my copy for purposes of today's trial your honor i have no objection if the commonwealth wants to admit a copy of the original we've probably gone in reverse order here but you mentioned the intoxilizer print card first so i've marked it for identification purposes is commonwealth exhibit one but i'm probably going to talk about that last um if you don't mind please take a look at commonwealth's exhibit 3 and familiarize yourself with that can you tell me what that is that is a certification to operate the toxilizer 5000 en through department of criminal justice training okay what is the date of that certification looks like uh october 24th of 2014. all right and i'd ask that that be admitted now commonwealth exhibit number three can you tell me what that is it's what's it for uh this is just to show that i have recertified the intoxilizer training that we receive the 40-hour training expires so every two years and prior to that second year you need to re-certify with a class and it can be done online or you can go in person but it's a class to say to refresh you in the operation of the intoxilizer okay once you successfully pass a written test on that and you actually have to go to a detention center and run a breathalyzer card for yourself so you blow into it and everything and then keep that card for your records after you transported the defendant to the detention center did you attempt to obtain a sample of her breath in order to determine the concentration of alcohol in her breath before you asked her to submit a sample of her breath did you read an implied consent warning notice to her and can you do you have a copy of the implied consent warnings that you would have notified her of on march 15th of 2015 yes sir and if you don't mind please familiarize yourself with commonwealth's exhibit number two it's one page can you tell me what that is this is an instruction sheet from department of criminal justice training um it's uh it's got the uh at the time then it's since changed but it's got at the time the implied consent warning okay and did you read this these exact implied consent warnings to uh miss wood yeah i guess sir and did you read it word for word did she read the form herself or did you read it i read it all and would you read it to the jury please word for word i will be requesting that you submit to a test of your breath blood or urine or any combination of these tests if you refuse to submit to any tests which i request your refusal may be used against you in court as evidence of your violation of krs winning on a 0-1-0 and your driver's license will be revoked if you are convicted of krs 19a 0 your refusal will subject you to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence that would be imposed if you submit to all requested tests you will also be unable to obtain a hardship license the results of any test taken may be used against you in court as evidence of your violation of krs 29a 0. if the results are 0.15 or above and you are convicted of violating krs 189a 010 you will be subject to a jail sentence that is twice as long as the mandatory minimum jail sentence that will be imposed if the results are less than .15 if you submit to all tests which i request you have the right to obtain a test or tests of your blood performed at your expense by a qualified person of your choosing within a reasonable amount of time of your rest i want you to repeat that last sentence or paragraph please if you submit to all tests which i request you have the right to obtain a test or tests of your blood performed at your expense by a qualified person of your choosing within a reasonable time of your arrest okay and i would ask that this be admitted as be admitted as commonwealth's exhibit two please objections so admit it all right now you mentioned an observation what is an observation period the observation period is designed for to get the residual mouth alcohol out of somebody's mouth and based on training it takes about 20 minutes to do that the it with the the intoxilizer will read differently if you take a drink of an alcoholic beverage right now and blow versus wait 20 minutes and below because it's gathering the molecules from your mouth versus the molecules from your lungs and did you did you have an observation period for miss wood before you asked her to submit sure what time did that observation period commence at 2 16 in the morning and how do you know that because as soon as we walked into jail that's the first thing i do is right observation began bring the machine out of standby and i write observation again at the time that's your own handwriting yes sir all right and do you can you tell if that's a true and accurate copy of the intoxicalizer print card that was generated by the intoxilyzer 5000 yen at the detention center after miss wood submitted a breath sample yes and how how can you confirm that i keep all of the originals of the intoxicalizers from the certification on the 8 000 now to the 5 thousands i keep every single original the top two copies go to the courts and i keep these for my records okay well we know that you keep them but how can you tell that that is the test card printed in association with miss wood sample i mean i i know it is i mean you've got the you can see where the other two pages were off it's got my own handwriting on it it's got her name um my name her license number the date the time fair enough i'd ask to admit that as commonwealth's exhibit number one i believe no objection now did you offer miss wood an opportunity to contact an attorney was that part of the implied consent warnings yes did she elect to contact an attorney i don't recall i don't recall if she did or not fair enough um how did you intend to obtain a sample of uh miss wood's breath i used utilizing the intoxilizer 5000 yen please explain what the intoxilizer 5000 instrument is and generally how it works uh it's a it's an it's an instrument that is um made by cmi and it is solely designed to look for alcohol molecules and measure those as simple as we can put it can you tell the jury what serial number um was of instrument was used that evening nine 68-01129 were there multiple intoxilizers at the detention center no who maintains and certifies uh the performance and accuracy of that instrument if anyone our state police lab techs are chapter 18 employees that non-sworn employees that work at the lab and again i think we've covered this but on march 15 2015 were you certified to administer the intoxilizer five the 5000 test yes sir do you have any knowledge regarding whether this intoxilizer was functioning properly at that time it was yes sir and how do you know that based on visual clues i mean the intoxilizer for first will tell you if it's not the the mouth tube that they blow into has to be warm to the touch it was warm to the touch the external alcohol simulator has a little paddle wheel in it the paddle wheel's moving the tubes on the back are warm to the touch it's not it's not indicating to me that it's having any issues did you observe the defendant for at least 20 minutes before you asked her to provide a sample of her breath during that period did she have anything to eat drink or smoke no did she ingest anything through her nose during that period no did she belch regurgitate or vomit during that period no is there a pers is there a sequence that the intoxilyzer uh automatically goes through before it generates a an analog a report or an analysis there is um we abbreviate it as a kabba so it it it has a chamber that it reads the sample through so it will clean the chamber out as an air blank and then it will use its own external simulator to pull alcohol into the chamber it reads that to make sure that it's self-check with intolerance it clears the tube again then asks for the subjects or your your defendant's breath sample it gives your reading on that and then it clears the tube again so it's by the time you're done it will have cleared the tube three times okay and do you know if the intoxilizer followed this automated sequence in this instance i do how do you know that on the card it reads air blank calibration check air blank subject test air blank and so the first air blank it read triple zeros it's not reading any alcohol molecules within the chamber the calibration check is .077 in order for based on our training it needs to be within point zero zero five above an o eight or below an o eight so you have an o seven five or an o eight five it needs to be in between in this particular instance it's zero seven seven so it's within tolerance another air blank three zeros and then her breath sample point one zero zero and then i'm sorry go ahead and then another air blank to clear out her sample okay now at what time did the instrument test itself with the the simulator solution uh zero 237 in the morning and at what time did she submit a breast sample and it test her breath sample zero two thirty seven in the morning so within the same minute is that correct yes sir okay so my understanding is that within the same minute did you say 237 237 it started the air blank at 236 and then it ended the last air blanket 237 so it all happened within a minute yes sir okay and you mentioned the result was a point her result was a point what one zero zero now of what what are the the units of measurement there uh per 210 milliliters of breath is what it uses um so it's 0.100 is what it's reading and you know when this intoxilizer card was created in relation to the test i mean does that come out the next day is you pick that up somewhere else this is this is something that a card that i write the observation began on i write my name her name and once it's time for the test once the 20 minutes has elapsed you push the same green button to pull it out of standby mode there's only one button on the front of it push the same button to bring it on standby mode well this time when you push this button it you feed this card from the top into the machine face up into the machine it grabs the card sucks the card in and holds it i have to manually enter all the information on this her name my name twice for the operator and the arresting officer my agency my ori which is the agency i'm with um the citation number a report number if you have one her driver's license number uh her date of birth whether she's her race her sex and then her ethnic origin i have to enter all of that now do you share this result with um the defendant typically yes um do you always share the result with the defendant all right and would you have done that in this instance and how do you make the defendant and aware of the test result it displays the test result so the screen that it will display it on is on the left of the instrument so she would in this in the tube that she would have been blowing into is also on the left so as she's blowing into it she can see the screen and it will display once she fills the chamber up it will display the reading of 0.100 and i will point to it and say this is what you blew a 0.100 it'll print the card off and i'll point to the card this is what you blew 0.100 and then after you complete that test and the card's printed what do you do i resort back to the implied consent why um you have because there's there's more to it okay please tell the jurors what it says uh after after she successfully submits to my requested tests [Music] i ask her based upon the information which is previously read to you right here since you have submitted to all requested tests you now have the right to have a test or tests of your blood performed at your own expense by a physician registered nurse phlebotomist medical technician or medical technologist of your choosing within a reasonable amount of time of your arrest do you want such a test and did she accept your offer to obtain an independent test no and you're positive that you would have read that final portion of the implied consent yes sir it's yeah do you remember anything else about your interaction uh with the defendant after the the test was completed uh i do not i do not besides her being extremely upset that's as far as any interaction with her i don't and what was um what if you remember what was your state of mind when you saw the test result uh i wasn't surprised i mean based on based on my training experience and what i saw in my field sobriety tests [Music] it coincided that's all the questions i have this time i believe all three of those exhibits were admitted were they not yes they were [Music] mr foreman can we have a couple of things oh uh [Music] okay [Music] so afternoon trooper you have stated that you have had quite extensive field sobriety test experience it sounds like is that right you've had experience in a based on your dlc jt the department of criminal justice training background i see that you've completed your basic training back in april of 08 does that sound right and you have completed leap the law enforcement accelerator program for ksp in july 2012. is that accurate and you stated back in oh wait you have completed field sobriety test training and intoxilizer training 40 hours each but in 2012 it was strictly field sobriety tests 40 hours worth in 2012 for state police it was about half a week of refresher for field sobriety half a week of refresher so it wasn't the full 40. it wasn't a full they're not trying to certify you they're just making sure everyone's on the same page and then we did a practical on the fields party but there was no retraining on the intoxilizer no okay and you mentioned you also completed um a ride the advanced roadside impairment program that was after march 2015 right i've taken it twice i've had it twice when was the first time you took it in the academy with state police and the second time i believe it was march of this year march of this year i believe so so after yes you've encountered ms wood yes okay so again it it sounds to me like you're quite familiar with field sobriety tests and you've administered you've i think you already stated several hundreds of them so you know how to perform them you know how to grade them no questions asked okay when you let's um let's talk about the stop okay when you pulled over ms wood and you have stated that you pulled her over for speeding right right in your extensive field sobriety test training they describe to you a series of traffic infractions that are more or less likely to be related to a dui arrest yes there are about 24 of them i believe correct me if i'm wrong i'd have to re refresh but it sounds about right and some of them are weaving swerving making jerking motions with the vehicle um changing lanes unexpectedly without showing a turn signal not signaling could be none of which you've seen here and speeding is not one of those 24 clues either is it no after you stop miss wood [Applause] you've stated that you smelled alcohol coming from the vehicle am i correct an odor of an alcoholic beverage yes sir odor of an alcoholic beverage coming from the vehicle yes not from her person correct you've also stated that you saw bloodshot watery eyes and she made the statement that she was drinking correct but you don't recall if she said how much or what she was drinking no okay she did tell you she was coming from bardstown road and she was on her way home to lexington okay now the three clues that we just discussed you're also trained and i don't know how many uh i've gone through the the dui manual myself many many times i i always lose count of how many clues you actually look for you mentioned several of them i just want to briefly go through you did not you you stated yourself i believe on direct examination when you ask for her license and registration she did not fumble with her license otherwise you would write that in the citation right she um she was not sweaty she didn't have dry mouth slurred speech she when you asked her out of the vehicle she didn't have any trouble exiting the vehicle shouldn't lean on the door no she did not leave the vehicle in gear for it to start rolling she did not climb out of the vehicle she did not lean on the vehicle when you were talking to her she was standing up straight not swaying not that i observed she did not keep her hands on the vehicle for balance she did not have any difficulty exiting the vehicle um and i believe i asked that i apologize she did not have slurred speech right a clear indication of intoxication another one is um glassy eyes i believe you look for right and her eyes were not glassy she had bloodshot eyes but they weren't glassy the stop occurred at 1 30 in the morning i believe correct uh 127 is what we have written for the citation violation time one o'clock in the morning 127. um do people normally feel tired around that time yeah it depends on the people you have people working all different kinds of shifts some are tired coming from work some are awake going to work something that could be looked at multiple different ways could red eyes indicate the individual is simply tired yeah thank you her face was not red or flushed and she was not slow to respond to any of your questions did you have to repeat any questions to her that she did not understand she had to re-ask not that i recall you also mentioned one um she did not have any trouble walking which is another very very strong indicator of intoxication for individuals is that right she didn't have any trouble with it okay i like to talk about the field sobriety tests that you have conducted in this case okay everybody see that officer can you see this ah a little bit it may be best to put it in that entryway right as you come in through the bar that way that i think everybody would be can you see this it's got a little glare but we can we can we're no good i'd take your word for what it said i don't know i can't read it i don't know if we can do any you've conducted one of the tests that you did was the um excuse me let's talk about the hgn first that was the first test that you did right the horizontal gaze nystagmus in the academy i don't know if they teach it at the ksp i know that they teach it at the the first academy that you went to in 08 they tell you that nystagmus occurs is a naturally both naturally and a chemically occurring um phenomenon in the eye something to do with the fluid in the eye i believe is that right they explained it to us as it's the uncontrolled tuition of the eye uncontrolled twitch what does that mean means you don't have control over it okay and it's caused one of the causes excuse me is alcohol and they also teach you that there are about 60 other causes such as tobacco caffeine some people have naturally occurring nystagmus maybe not resting but someday it happens and you were also taught that excessive tiredness can also lead to nystagmus do you recall that remember that one no okay that's fine and you were also trained that after performing the horizontal gaze nystagmus you will estimate in about i think the figure they have in the book is uh correct me if i'm wrong it's 77 of cases that you see four clues on that will be an accurate indicator of impairment does that sound right so in 23 out of 100 cases you can see four clues and you're wrong correct let's talk about the walk and turn i've outlined here i believe there are you mentioned this yourself there are eight clues there's the balancing during instructions starting too soon stopping while walking touching heel to toe stepping off the line using arms for balance doing an improper turn and having the wrong number of steps did i miss anything that's it in your citation you wrote that on the walk and turn the subject turned improperly is that right then she stepped off the line on counts five and eight on her return steps so she got nine steps fine one way but then she got only seven right coming the other way correct last thing you put on here is she used her arms for balance yes right the entire time she like this yes the entire time okay so everything else she did correctly according to your citation and your observations that night correct i can't do math in my head this is why i went to law school okay sorry the total was yes didn't do well on that one 77 what is that a c plus i gets a c plus assuming she was walking like that the whole time right that's what you observed correct next you administered the one leg stand right correct now on that you're looking for i know for certain you're looking for four clues i added on here and feel free to uh tell me if this is not a clue that you're looking for but i believe the individual has to count out loud while they're holding their foot up in the air right it's not a clue it's not a clue it's not so if they're starting to count 1 3 72 that's not a clue per training it's not a clue it's a clue for showing a possible influence but it's not a clue what we're trying to look for but it's something that you would look for right following officers instructions swaying using arms for balance not hopping and keeping the foot off the ground yes those are the things you're looking for those four and the only thing that you mentioned was that she used her arms for balance correct everything else flawless the whole time yes much better on this one didn't you appears to be b and pursuant to your training and and um the dlc jt department that issued you your um certificate you are trained in the fsds that one clue is not enough to successfully excuse me one clue is not enough to consider that a failed attempt at a test correct so even still despite my board by your training even she passed this test that one yes let me just also back up for a second going back to the percentages we talked about the fact that the hgn will be wrong 23 of the time um on the walk and turn and correct me if i'm wrong i believe it's 68 percent of the time will be correct so it will not be accurate in 32 out of 100 cases give or take and with the one leg stand it's even lower by three percent about 35 about two thirds will be accurate it will be an accurate assessment do you remember from your training oh it's been a while was the the statistics on that stance but do you remember talking about them in your training yeah okay you said that you are certified to operate the intoxilizer when you were in training on the intoxilyzer did you all discuss something called a partition ratio i don't recall that i don't remember anything about that judge under kentucky law the partition ratio has no elements and the reason is under kentucky law the definitions section krs-1898.010 is right at the beginning of the statute it specifically defines the alcohol concentration under uh kentucky law does not require any conversion of the brett alcohol rating to a blood alcohol concentration that's what the partitioning ratio deals with the partition ratio it comes from henry's law henry's law says that there's always a ratio between the blood and the air outside of the blood when there is a toxic substance but a a substance that's dissolved that is missing a word a volatile substance when there's a volatile substance in the blood henry's law says that there is a proportion between the alcohol concentration or volatile substance in the blood and the air outside the blood but kentucky law doesn't force us to convert a breath alcohol reading to guess indirectly what the blood alcohol concentration is so under kentucky law kentucky amended their statute to define breath alcohol concentration and say that you can be convicted just solely by the fact that your breath alcohol concentration is greater than 0.08 grams per 210 milliliters or excuse me liters of breath and it also defines it as 0.08 or greater per milliliter of blood so there's no need for partition testimony under kentucky law or partition evidence we're not arguing that her blood concentration was in violation of kentucky law or solely arguing that her breath alcohol concentration was in violation of kentucky law mr john is absolutely correct there the fact that the if you're going to try and convert yourself the breath alcohol concentration to blood alcohol concentration that would be a in violation in direct violation of the statute the one thing that mr robinson failed to mention is that the machine does that automatically the machine does not spit out a br ac the machine does it all on its own you don't need to convert it mathematically in your head or have a scientist otherwise expert testimony would have been required by the commonwealth in every dui trial to show that unless the commonwealth excuse me unless the legislature simply allowed the use of breath alcohol concentration which it does judge if you would just look under the definition section but the machine doesn't even spit out the breath alcohol concentration it's it converts it that's not true the machine i i didn't hear an objection i heard it may we approach it but i'm assuming that there's not object yes to any questions about the partition and he already answered it doesn't know so i will grant mr robinson's objection i don't think based on my interpretation of 189a or 101 subsection a that we have to do a conversion it's one or the other it's a breath or below so thank you trooper back when we discussed the all the things that ms wood did right on the side of the road do you remember yes sir once again the only things that you saw that she did incorrectly were the improper turn stepping off the line and counts five and eight using arms for balance on the walk and turn yes yes sir and on the one leg stand using arms for balance including uh four clues on the hgn correct and all the things that i asked you about that you did not see are also indicators of her being a sober person it'd be no further questions any follow-up questions for this witness trooper um is this how you score field sobriety testing no okay on the hgn test how many clues is it that you look for six is that how many you've been trained to look for yes how many clues did you observe when you administered the test on miss wood okay so if you get two out of six right would that be a passing grade no we're looking for um what would not be a passing grade would be four so in that this particular instance you're looking for four okay and on the the walk and turn test how many particular clues are you looking for you're not looking for hold on where was the other board thank you sir okay on the walk and turn tests how many clues are you looking for hey um is it fair to say that you're not looking for 93 clues no okay have you ever utilized this no sir besides i mean besides what it's saying the exercise performed that's correct these are the clues this is what you look for yes sir okay um were you trained to score this way at the doc jt no sir i've never seen that before were you trained to score this way at the ksp academy no sir trooper um you've probably had a couple of cases in your career that that you remember because someone was particularly under the influence is that fair to say yes sir sometimes people are so under the influence that you don't even administer the field sobriety test is that accurate okay have you ever administered a test where someone would have failed all 93 steps on the walk in turn no um have you administered tests how many excuse me how many clues were you looking for again on the walk and turn walk and turn eight okay have you ever had someone fail all or manifest all eight clues on the walk and turn okay would that person have um failed all 93 steps that mr foreman has brought up if you'd like to look at it again in that model yes okay so you've had people that haven't been able to make a single step right correct so on this um if she manifests four out of eight clues on the walking turn is that the number that you observed uh on this particular um uh we've got uh three three out of eight three out of eight okay and let me grab my calculator so does that mean that she didn't manifest five out of the eight clues correct all right and by my calculations 5 divided by 8 is 62 62 so she would have passed 62 percent of the clues based on the way you've been trained to score this test correct and she would have failed 38 of the test as it's you've been trained to administer it correct and as to the hgn one more time how many of those clues did she pass out of six uh i saw four four of the six so she would have passed successfully not shown two of the six clues that you were looking for correct and that's one third correct so does that mean that she did not manifest 33 of the clues that you were looking for yes and she did manifest 66 of the clues that you were looking for no further questions any uh follow-up mr former okay is that all for this witness it is judge okay thank you trooper miller we need these exhibits back um can i have the attorney's approach real quick please

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Keywords: criminal defense attorney, dui attorney, dui defense lawyer, dui case, dui charge, the dui guy, dui trial, trial attorney, larry forman dui guy, larry forman law, larry forman attorney louisville kentucky, dui lawyer kentucky, dui attorney louisville kentucky, criminal defense attorney kentucky, DUI Defense Lawyer Destroys Cop's Credibility as He Testifies RE Client's Lack of Sobriety, how to beat a dui case, how to beat a dui charge, criminal defense attorney in action

Id: 4zPeqYkSYIo

Length: 108min 22sec (6502 seconds)

Published: Mon Dec 28 2020