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Erin H Gerstenzang serves as the co-chair of the Public Defenders DUI Seminar, held in Atlanta Georgia on October 17, 2014. Her talk covers cross-examining police officers and using techniques like "white space" and "gray space" to win acquittals for those charged with DUI or traffic ticket clients.
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Winning Your Casewith Their Witness on CrossErin H. GerstenzangOctober 17, 2014
DUI REFUSAL
Speeding (80/55)
Strong odor
Admits 2 beers
Bloodshot eyes
Mumbled speech
Refused PBT
HGN: 6/6
Walk and Turn: 5/8
One-Leg Stand: 3/4
๏ Driving prior to stop๏ Emergency lights
response time๏ Pull over๏ Window๏ Eye contact๏ Lack of gum/fragrance๏ License๏ Speech๏ Eyes
๏ Odor๏ Exit๏ Walk to rear๏ Standing๏ Injuries๏ No sway during HGN๏ Follows instructions
during HGN๏ Attitude๏ General appearance
WHITE SPACE
;
Trained to observeImpaired people have difficulty doing thisExample(s) of what impaired people doYou asked John to do thisHe compliedAnd, you did not indicate anything unusual about the manner in which he did this?
MY CHAPTER EXAMPLE.
WHITE SPACE FORMULA
/ /
DUI ARREST, FIELD NOTES Page 2STATE REQUESTED TESTS
Suspected Intoxicant: Alcohol OtherDrugs Both Alcohol & Drugs Explain:
IMPLIED CONSENT NOTICE # READ AT SCENE: YES N O URINE BREATHTEST REQUESTED: BLOOD
WITNESS: TIME: INTOXIMETER RESULT:
LOCATION OF STATE ADMINISTERED TEST: INTOXIMETER OPERATOR:
TIME IF BLOOD OR URINE TEST: SAMPLE DRAWN BY
TRANSPORTED TO STATE CRIME LAB BY DATE TIME: Hours
YES NO TYPE: LOCATION AND TIME:DID DRIVER REQUEST AN ADDITIONAL TEST?
REFUSAL 1205 FORM PREPARED, NOTARIZED & TRANSMITTED? (Detail the facts and circumstances of the refusal in the narrative account)
VEHICLE INFORMATION
IMPOUNDED: NO TO: COMMENTS:
APPEARANCE OF SUSPECTPhysical Manifestations Clothing
Face Condition ShoesSpeech Color & Type
Flushed Normal Normal Shirt: On:
Pale Slurred Soiled Pants/Dress: Off:
Sweat Mumbled Jacket/Coat:Disarray Type:
Normal Slow Torn Hat / Glasses: Color:
Incoherent Other: Socks:
Odor of Alcoholic Beverage or MarijuanaModerate NoneStrong Odor of Marijuana
Walk/Stand Normal
Unsteady Swayed Needed Support Staggering
Attitude & BehaviorNormal Hysterical
Fighting Crying
DefensiveVomiting
PoliteHiccuping
ExcitedDrinking
Driver's Response to Request to Produce LicenseLaughing Uncooperative
Fumbled Comments:Argumentative Cooperative Complied Immediately
No Driver's LicenseDefiant Talkative Unable to Locate
Sullen Indifferent
AlphabetCombative Inattentive ABCDEFGHIJKLMN
OPQRSTUVWXYZNervous Performed RefusedInsulting Repeated Letters
Hesitated Omitted Letter Out of order Could Not PerformConfusedArrogant
Ability to Follow InstructionsCarefreeProfanity
Good Fair PoorQuietComments:
Walk and Turn One Leg StandHorizontal Gaze Nystagmus Instructions Stage: Cannot Keep Balance
LEFT RIGHT 0-10 Sec 11-20 Sec 21-30 SecStarts Before Instructions are Finished
Sways While BalancingLack of Smooth Pursuit
Distinct Nystagmus at Maximum Deviation
Onset of Nystagmus Prior to 45 Degrees
OUT BACK Uses Arms For BalanceWalking Stage:
Stops Walking To Steady Self Hops
Total Clues Does Not Touch Heel To Toe Puts foot down
Other Observations Relating to the Eyes: Steps Off Line Unable To Complete (explain):
Normal Dilated Uses Arms for Balance
Bloodshot Constricted Improper Turn
Watery Rebound Dilation Incorrect Number of Steps
Non-ResponsiveGlazed Unable To Complete (Explain)
Sleepy VGNRemarks:
Video / AudioResult:
Yes No PBTTape#
Total Clues
Total Clues
Under 21?
Glasses? Yes NoContacts? Yes No
Weather ConditionsClear
Cloudy
RainFog
Ice/Snow
DryWet
YES
YEAR: MAKE: MODEL: COLOR: TAG# and State: V.I.N. :
Hours
WHAT DID YOUR CLIENT DO RIGHT?
UNABLE TO MAINTAIN BALANCESTARTS TOO SOONARMSHEEL TO TOEIMPROPER # STEPSIMPROPER TURNOFF LINESTOPS
WHAT DID YOUR CLIENT DO RIGHT?
EQUAL PUPIL SIZEEQUAL TRACKINGLACK OF SMOOTH PURSUITMAXIMUM DEVIATIONPRIOR TO 45 DEGREESFOLLOWED INSTRUCTIONS SWAY
GRAY SPACE๏ Condition of eyes๏ Odor of alcohol๏ Performance on FSTs๏ Instructions for FSTs๏ Mental clarity
(followed instructions)๏ Admission (investigate
size/type drinks)
๏ Polite๏ Cooperative๏ Explanations๏ Equal pupil size๏ VGN๏ No resting nystagmus๏ Anything the officer did
incorrectly
DEMONSTRATE WEAKNESSES
new attorneys - type out your chapters...the best way to learn how to organize and structure a reliable cross chapter. the chapter has to be reliable otherwise you lose if you don’t look good
LIST OUT YOUR CHAPTERS
MASTER THE FACTS... AVOID
MEMORIZATIONCRAM STRATEGIZE
exceptionally difficult to find the white space by using a police report.
CLIENT: John Doe OFFICER: Deputy Smith
HGN
Date
Equal pupil size Equal tracking
Lack of smooth pursuit
Max deviation
Prior to 45º 6 out of 6 clues
Had to be reminded to keep head still
VGN
Not present
WALK AND TURN
Notes
ONE LEG STAND
January 1, 2010 2:36 AM
Sways
Hops
Arms
Foot down
0 out of 4
Stayed for 44 seconds indicating slow internal clock
Unable to maintain balance
Starts too soon
Arms
HT
Improper #
Improper turn
Off line
Stops
2 out of 8
Does not count out loud
**
Polite; Cooperative;
Talkative;
Carefree
CLIENT: John Doe OFFICER: Deputy Smith
DRIVING
Date
High rate of speed Wide turn
Straddles center line
Fish-tailed
Slow to respond to ER lights
ADMISSION
Did not realize car lost control Going to Pink Pony
Denies drinking
ODOR
Alcohol, “moderate”
EXIT
WALK TO REAR
Hands on vehicle
Bloodshot; Watery
Notes
EYES
Flushed
FACE
SPEECH
ABILITY TO FOLLOW INSTRUCTION
January 1, 2010 2:36 AM
ATTITUDE
Fair
Normal
DRIVERS LICENSE
Complied immediately
ORGANIZE INFORMATION ON TWO PAGES
Page 1:Observations
Page 2: FSTS
Page 1:General
Observations
- DRIVING PRIOR TO STOP- RESPONSE TO EMERGENCY LIGHTS- PULL OVER- WINDOW- EYE CONTACT- LACK OF GUM/FRAGRANCE- LICENSE- SPEECH- EYES- ODOR- EXIT- WALK TO REAR- STANDING- INJURIES- ATTITUDE- GENERAL APPEARANCE- IMPLIED CONSENT
CHRONOLOGICAL STRUCTURE
This is how the testimony will be
presented on direct.
Polite; Cooperative;
Talkative;
Carefree
CLIENT: John Doe OFFICER: Deputy Smith
DRIVING
Date
High rate of speed Wide turn
Straddles center line
Fish-tailed
Slow to respond to ER lights
ADMISSION
Did not realize car lost control Going to Pink Pony
Denies drinking
ODOR
Alcohol, “moderate”
EXIT
WALK TO REAR
Hands on vehicle
Bloodshot; Watery
Notes
EYES
Flushed
FACE
SPEECH
ABILITY TO FOLLOW INSTRUCTION
January 1, 2010 2:36 AM
ATTITUDE
Fair
Normal
DRIVERS LICENSE
Complied immediately
Page 1:Observations
Page 2:Field Sobriety
Tests
- HGN- WALK AND TURN- ONE LEG STAND- ROMBERG- FINGER COUNT- ORIENTATION
CLIENT: John Doe OFFICER: Deputy Smith
HGN
Date
Equal pupil size Equal tracking
Lack of smooth pursuit
Max deviation
Prior to 45º 6 out of 6 clues
Had to be reminded to keep head still
VGN
Not present
WALK AND TURN
Notes
ONE LEG STAND
January 1, 2010 2:36 AM
Sways
Hops
Arms
Foot down
0 out of 4
Stayed for 44 seconds indicating slow internal clock
Unable to maintain balance
Starts too soon
Arms
HT
Improper #
Improper turn
Off line
Stops
2 out of 8
Does not count out loud
**
CLIENT: John Doe OFFICER: Deputy Smith
HGN
Date
Equal pupil size Equal tracking
Lack of smooth pursuit
Max deviation
Prior to 45º 6 out of 6 clues
Had to be reminded to keep head still
VGN
Not present
WALK AND TURN
Notes
ONE LEG STAND
January 1, 2010 2:36 AM
Sways
Hops
Arms
Foot down
0 out of 4
Stayed for 44 seconds indicating slow internal clock
Unable to maintain balance
Starts too soon
Arms
HT
Improper #
Improper turn
Off line
Stops
2 out of 8
Does not count out loud
**
Page 2: FSTS
FINDING THE WHITE SPACE
Use their report!!! Categories of observations they could have made!Accident reports!!!
CLIENT: John Doe OFFICER: Deputy Smith
HGN
Date
Equal pupil size Equal tracking
Lack of smooth pursuit
Max deviation
Prior to 45º 6 out of 6 clues
Had to be reminded to keep head still
VGN
Not present
WALK AND TURN
Notes
ONE LEG STAND
January 1, 2010 2:36 AM
Sways
Hops
Arms
Foot down
0 out of 4
Stayed for 44 seconds indicating slow internal clock
Unable to maintain balance
Starts too soon
Arms
HT
Improper #
Improper turn
Off line
Stops
2 out of 8
Does not count out loud
**
Polite; Cooperative;
Talkative;
Carefree
CLIENT: John Doe OFFICER: Deputy Smith
DRIVING
Date
High rate of speed Wide turn
Straddles center line
Fish-tailed
Slow to respond to ER lights
ADMISSION
Did not realize car lost control Going to Pink Pony
Denies drinking
ODOR
Alcohol, “moderate”
EXIT
WALK TO REAR
Hands on vehicle
Bloodshot; Watery
Notes
EYES
Flushed
FACE
SPEECH
ABILITY TO FOLLOW INSTRUCTION
January 1, 2010 2:36 AM
ATTITUDE
Fair
Normal
DRIVERS LICENSE
Complied immediately
Questions?Erin H. GerstenzangAtlanta, GeorgiaEHGLawfirm.com
