0:02 this case ladies and gentlemen there's
0:04 about one thing
0:10 broke the law or not by driving intoxicated
0:14 we have a limited amount of facts that
0:17 we can actually look at in this case
0:20 the major fact that we have this is
0:21 blood alcohol level
0:25 the legal limit is a .08 grams
0:28 all vampires blood alcohol level was a .06
0:30 .06
0:33 judge o'brien will tell you that we have
0:34 to presume
0:38 that the blood test done at the hospital
0:42 the result of that was the same as when
0:46 paul was pulled over now
0:48 mr getz brings up a number of different
0:49 things but the way that i look at this case
0:50 case
0:52 it comes down to two separate issues
0:54 first we need to look at what happens
0:56 with the stop
0:59 of my client why was he stopped
1:01 well officer fatale was going to tell
1:03 you that he was lane straddling that he was
1:03 was
1:06 going over lanes and things like that
1:08 but i want each and every one of you to
1:10 watch the videotape that we have
1:12 and in the short quarter mile that
1:15 officer swatala follows my client
1:17 he never lands straddles and you can
1:20 watch that right on the tape
1:22 when you're watching the tape and you're
1:25 watching my client being stopped
1:27 what we would say would be for no reason
1:29 when you're watching that tape
1:31 i want you to look and see how well he's
1:33 driving not driving like somebody who's intoxicated
1:34 intoxicated
1:36 not driving like somebody who's impaired
1:38 but driving like somebody who's going to
1:39 use his turn signal to turn to the gas station
1:40 station
1:43 before officer swatala puts on her
1:44 overhead lights
1:47 now once he's pulled over and stopped in
1:49 the gas station
1:52 my client he doesn't act rude he doesn't
1:53 act inconsiderate
1:56 he does everything he's supposed to do
1:57 and he's honest
2:01 he says yes i've had four drinks officer
2:04 yes my license is suspended he was not
2:06 dishonest about that
2:08 he was very polite he was not slurring
2:10 his speech he was doing
2:12 what everybody would normally do when
2:14 you're pulled over you try to do what
2:15 the officer tells you to do
2:18 well he gets pulled out of the vehicle
2:21 and sobriety tests are done on him
2:23 now part of watching the tape and you're
2:24 going to be able to see all this or at least
2:25 least
2:27 some of these sobriety tests and the way
2:28 that my client
2:32 acts while he's being pulled over i want
2:34 you all to look and see how he acts is
2:36 he acting like somebody who's intoxicated
2:37 intoxicated
2:38 is he acting like somebody who's impaired
2:40 impaired
2:43 now is he swaying around
2:47 is he stumbling over is he slurring his speech
2:48 speech
2:49 is he acting like somebody who looks
2:51 like they're drunk
2:54 no and the tape shows that
2:57 now then we talk about sobriety tests
2:59 and that's something that you will learn
3:01 and if you haven't already seen it on
3:02 law and order
3:04 that these are done all the time in
3:06 almost every single drunk driving case
3:08 and i would love i would like it for all
3:10 of you to watch
3:12 and watch how my client performs on
3:14 these sobriety tests
3:15 these are the tests that are supposed to
3:17 determine whether somebody is impaired
3:20 intoxicated or not toxicated and not impaired
3:27 the first test that he does is he does
3:28 the heel to toe test
3:30 and unfortunately although there's a videotape
3:32 videotape
3:34 conveniently enough you can only see him
3:35 doing the test
3:38 for about three or four seconds now
3:40 you will hear testimony by officer
3:42 spatala that he basically fails this test
3:43 test
3:46 i want you to watch that test and i i
3:47 want you when you're watching
3:50 to watch paul stand here for 40 seconds
3:52 with his and i'll back up so
3:55 we can see this with his right foot
3:56 touching his
3:59 heel touching his left toe and he does
4:00 this for
4:04 40 seconds without even moving
4:07 without falling over without slipping
4:09 without stumbling without losing his balance
4:10 balance
4:12 and he hasn't lost his balance at all
4:14 and you will see that evidence will show that
4:14 that
4:18 so somehow my client who goes from not
4:19 doing anything that would indicate
4:22 intoxication or impaired driving
4:23 all of a sudden when he goes off the
4:25 camera as we will hear testimony all of
4:27 a sudden he fails the test
4:30 how does that happen and yet he does all
4:32 the steps he's instructed to do
4:35 and somehow he fails although you can't
4:37 hear them on the table
4:39 the next step the next test that's done
4:42 is the one-legged stand and it sounds an
4:44 awful lot like my client
4:45 passes it that he does all the things
4:47 he's supposed to do
4:48 and we'll hear testimony about what
4:51 you're supposed to do and yet
4:53 officer swatala says he fails that one too
4:54 too
4:56 but we'll get into that we'll get into
4:58 what is accurate and not accurate in her report
4:59 report
5:00 and what really happened because we can
5:02 hear it and we can at least see some of it
5:03 it
5:05 and the next step the next test that's
5:08 done is called the gauges fabulous test
5:11 and we can't see it now
5:13 this is a very complex test and you'll
5:15 hear all about it but
5:17 in reality this test comes down to the
5:18 one where
5:20 you stick a pen up in front of somebody
5:21 and you look this you look at their
5:23 eyeballs we see this on tv all the time
5:26 what does it mean
5:28 nobody really knows i didn't even really
5:30 know until i started doing this job that
5:31 really means
5:33 but we will let you know exactly what
5:34 the officers
5:36 and officer swatala was really looking
5:37 for in this test
5:39 there are specific things that the
5:41 national highway traffic safety administration
5:42 administration
5:44 teaches officers to do when they do a
5:45 gay's nest agnes test
5:48 unfortunately officer sotala puts that
5:50 my client fails this test
5:52 conveniently we cannot see this one done
5:54 either and for reasons that aren't
5:56 contained within
5:57 the factors that she's supposed to be
6:00 looking at so then my client is placed
6:02 in the back of the patrol car where he
6:04 does the alphabet test and guess what
6:07 he does it find but through testimony
6:08 officer fatale is going to tell you that
6:11 he spoke it deliberately like that's
6:12 supposed to mean that he's
6:14 intoxicated in some way but you're going
6:16 to hear testimony that she instructed
6:17 him to speak
6:19 deliberately because when you do the
6:21 alphabet he was instructed by officers
6:22 with holland she'll testify to this
6:24 that you're not supposed to sing it so
6:26 when you don't sing the alphabet
6:28 you speak it deliberately there was one
6:29 more test
6:33 it was the count backwards test although
6:35 we fully admit that mr van vipper
6:36 continued to count he wasn't slurring
6:37 his speech
6:39 he wasn't missing numbers he just
6:41 continued to count
6:44 so that's what we have as far as the
6:45 night of the stop
6:49 what you can see what what you can hear
6:50 and what we can sort of look at to
6:52 understand what he looked like
6:55 was he impaired or not we've all seen
6:56 people that are impaired
6:58 but i want every one of you to look at
6:59 him and think about that
7:00 think about all the things he's doing
7:03 that would indicate this friday
7:06 now that's not just why we're here though
7:07 though
7:09 what you've heard is that from mr getz
7:11 is that there's this thing called
7:14 retrograde extrapolation okay
7:16 because the facts don't work out for the
7:19 people instead what they're going to use
7:22 is this pseudo-scientific formula
7:25 that they're going to back date what the
7:26 blood alcohol should have been
7:29 at the time of the stop and dr glenn
7:31 will come in here and testify
7:33 that oh yeah he was he was over the
7:35 legal limit
7:38 now i've done my homework on this
7:40 and i know all the journals and i've
7:41 read everything
7:44 and i will cross-examine her on what
7:46 retrograde extrapolation really is
7:48 and i i want you to listen ladies and
7:50 gentlemen when i'm asking her why
7:52 leading toxicologists in this field
7:55 disagree with its accuracy
7:57 leading toxicologists in this field all
7:59 say that when you do
8:01 retrograde extrapolation through the
8:03 what we call the widmark theory
8:06 which is a scientist from the 1900s
8:08 early 1900s who developed this theory
8:12 that there are many inaccuracies
8:14 when you decide that you're going to basically
8:15 basically
8:17 guess because that's what that is because
8:18 because
8:20 we presume that this is a .06 at the
8:22 time of the stop so we're guessing at
8:23 this point
8:25 that when you make this guest as
8:27 educated yes i guess you could say
8:29 that all these factors you have to
8:31 include all these factors
8:33 when you make that determination now dr glenn
