This content is a defense attorney's argument challenging a DUI charge by questioning the validity of the stop, the performance on sobriety tests, and the scientific basis of retrograde extrapolation used to estimate blood alcohol content at the time of the stop.
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this case ladies and gentlemen there's
about one thing
broke the law or not by driving intoxicated
we have a limited amount of facts that
we can actually look at in this case
the major fact that we have this is
blood alcohol level
the legal limit is a .08 grams
all vampires blood alcohol level was a .06
.06
judge o'brien will tell you that we have
to presume
that the blood test done at the hospital
the result of that was the same as when
paul was pulled over now
mr getz brings up a number of different
things but the way that i look at this case
case
it comes down to two separate issues
first we need to look at what happens
with the stop
of my client why was he stopped
well officer fatale was going to tell
you that he was lane straddling that he was
was
going over lanes and things like that
but i want each and every one of you to
watch the videotape that we have
and in the short quarter mile that
officer swatala follows my client
he never lands straddles and you can
watch that right on the tape
when you're watching the tape and you're
watching my client being stopped
what we would say would be for no reason
when you're watching that tape
i want you to look and see how well he's
driving not driving like somebody who's intoxicated
intoxicated
not driving like somebody who's impaired
but driving like somebody who's going to
use his turn signal to turn to the gas station
station
before officer swatala puts on her
overhead lights
now once he's pulled over and stopped in
the gas station
my client he doesn't act rude he doesn't
act inconsiderate
he does everything he's supposed to do
and he's honest
he says yes i've had four drinks officer
yes my license is suspended he was not
dishonest about that
he was very polite he was not slurring
his speech he was doing
what everybody would normally do when
you're pulled over you try to do what
the officer tells you to do
well he gets pulled out of the vehicle
and sobriety tests are done on him
now part of watching the tape and you're
going to be able to see all this or at least
least
some of these sobriety tests and the way
that my client
acts while he's being pulled over i want
you all to look and see how he acts is
he acting like somebody who's intoxicated
intoxicated
is he acting like somebody who's impaired
impaired
now is he swaying around
is he stumbling over is he slurring his speech
speech
is he acting like somebody who looks
like they're drunk
no and the tape shows that
now then we talk about sobriety tests
and that's something that you will learn
and if you haven't already seen it on
law and order
that these are done all the time in
almost every single drunk driving case
and i would love i would like it for all
of you to watch
and watch how my client performs on
these sobriety tests
these are the tests that are supposed to
determine whether somebody is impaired
intoxicated or not toxicated and not impaired
the first test that he does is he does
the heel to toe test
and unfortunately although there's a videotape
videotape
conveniently enough you can only see him
doing the test
for about three or four seconds now
you will hear testimony by officer
spatala that he basically fails this test
test
i want you to watch that test and i i
want you when you're watching
to watch paul stand here for 40 seconds
with his and i'll back up so
we can see this with his right foot
touching his
heel touching his left toe and he does
this for
40 seconds without even moving
without falling over without slipping
without stumbling without losing his balance
balance
and he hasn't lost his balance at all
and you will see that evidence will show that
that
so somehow my client who goes from not
doing anything that would indicate
intoxication or impaired driving
all of a sudden when he goes off the
camera as we will hear testimony all of
a sudden he fails the test
how does that happen and yet he does all
the steps he's instructed to do
and somehow he fails although you can't
hear them on the table
the next step the next test that's done
is the one-legged stand and it sounds an
awful lot like my client
passes it that he does all the things
he's supposed to do
and we'll hear testimony about what
you're supposed to do and yet
officer swatala says he fails that one too
too
but we'll get into that we'll get into
what is accurate and not accurate in her report
report
and what really happened because we can
hear it and we can at least see some of it
it
and the next step the next test that's
done is called the gauges fabulous test
and we can't see it now
this is a very complex test and you'll
hear all about it but
in reality this test comes down to the
one where
you stick a pen up in front of somebody
and you look this you look at their
eyeballs we see this on tv all the time
what does it mean
nobody really knows i didn't even really
know until i started doing this job that
really means
but we will let you know exactly what
the officers
and officer swatala was really looking
for in this test
there are specific things that the
national highway traffic safety administration
administration
teaches officers to do when they do a
gay's nest agnes test
unfortunately officer sotala puts that
my client fails this test
conveniently we cannot see this one done
either and for reasons that aren't
contained within
the factors that she's supposed to be
looking at so then my client is placed
in the back of the patrol car where he
does the alphabet test and guess what
he does it find but through testimony
officer fatale is going to tell you that
he spoke it deliberately like that's
supposed to mean that he's
intoxicated in some way but you're going
to hear testimony that she instructed
him to speak
deliberately because when you do the
alphabet he was instructed by officers
with holland she'll testify to this
that you're not supposed to sing it so
when you don't sing the alphabet
you speak it deliberately there was one
more test
it was the count backwards test although
we fully admit that mr van vipper
continued to count he wasn't slurring
his speech
he wasn't missing numbers he just
continued to count
so that's what we have as far as the
night of the stop
what you can see what what you can hear
and what we can sort of look at to
understand what he looked like
was he impaired or not we've all seen
people that are impaired
but i want every one of you to look at
him and think about that
think about all the things he's doing
that would indicate this friday
now that's not just why we're here though
though
what you've heard is that from mr getz
is that there's this thing called
retrograde extrapolation okay
because the facts don't work out for the
people instead what they're going to use
is this pseudo-scientific formula
that they're going to back date what the
blood alcohol should have been
at the time of the stop and dr glenn
will come in here and testify
that oh yeah he was he was over the
legal limit
now i've done my homework on this
and i know all the journals and i've
read everything
and i will cross-examine her on what
retrograde extrapolation really is
and i i want you to listen ladies and
gentlemen when i'm asking her why
leading toxicologists in this field
disagree with its accuracy
leading toxicologists in this field all
say that when you do
retrograde extrapolation through the
what we call the widmark theory
which is a scientist from the 1900s
early 1900s who developed this theory
that there are many inaccuracies
when you decide that you're going to basically
basically
guess because that's what that is because
because
we presume that this is a .06 at the
time of the stop so we're guessing at
this point
that when you make this guest as
educated yes i guess you could say
that all these factors you have to
include all these factors
when you make that determination now dr glenn
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