following a traffic stop he was class speeding on his way home from work as the manager of a local dollar general store in the stop was actually initiated in front of his own home he was caught the as he pulled up in front of his house about four thirty in the afternoon on august day after jacob rule initiated the stop and approach the defendant told me if you see even a citation for speeding the officer that told the defendant to remain in his own vehicle in the officer returned to the that was prepared and submitted there was no recording of the trial in this case and there was no recording by the officer or the deal there was nothing was introduced of that nature so the officers  testimony was that he told the defendant at that point to return to his car the officers that he was nearly done preparing the citation he only needed to sign his name on the center of the ticket had been written out it just needed to be signed rather than signing it and telling the defendant  handing it to the defendant he told the defendant back to his car and the defendant did not tell me again he did not at that point the officer grabbed the defined by the arm and it struck him that he was under arrest at that the second count count two is based on that physical struggle that occurred after the officer told the defendant he was under we have a race a challenge to that count based on the case law and the facts that were introduced in the trial that count should stand it can be  court defending the law of the defendant can't resist an arrest even if you believed it to be unreasonable and so based on the evidence and the case that count should be in for now one on the other hand charged conduct which actually occurred prior to the arrest to charge the defendant with obstructing his arrest by accessing his vehicle and refusing to return when that was the kind of which actually led to the defendant being placed with him i guess that the case is talking about when what constitutes an arrest and we cited bunch in a brief there's also the read case and i believe we cited it talking about the factors of what is an arrest you know into citing whether someone's arrest which it let me preface this by saying the state did not argue this theory in the trial but they did not pursue this conviction on the basis that the traffic stop was the arrest and that he obstructed than by car and after he refused to return that that's what the record shows the officers testimony was so i think the record shows the officer was not intending an arrest at that point he was going to issue a citation and not every traffic stop is with the variance in the proof in the charge if that you know we're now talking about only what is the obstructing by accepting the car at trial the state shifted from this it was obstructing arrest you while he's obstructing the issu the traffic citation well that's a problem for two reasons we've talked about in the brief not talked about in here number one is it's a variance it's immaterial variance it goes directly to an element in of the charge in terms of what was the authorized acts went to a trial that's what the defense was that he had been put under arrest at the time that he accepted the vehicle refused to return while he was charged with obstructing the arrest which hadn't yet happened if it's the traffic citation that material variance there's also a problem with that being proved beyond a reasonable doubt because common sense tells us nothing was actually obstructed the officer could have signed the ticket and handed it to him that's not speculation that's common sense officer wasn't actually enter or impeded in the issuance of this traffic citation just because he chose to order the defendant back to the car at that point rather than squiggle his name on a ticket and hand it over you know it was looking choice the officer mean to proceed with addressing one thing versus completing the task he had been doing it was a dui investigation at issue an ak a says that the defendant was a passenger in the car being driven by his wife his wife was out of the car for field sobriety test the defendant the passenger then exit the car they told him to get back in invention he did it took twenty some seconds well at that point that officer chose to go around and deal with that defendant rather than completing what he was doing and there's some discussion in there about the officers choice the actual delay the defendant created in that case was short the twenty some seconds before getting back into his poet in terms of what was actually impeded here nothing was actually impeded was there an impediment the officer could have sign a ticket and handed it to the defendant and if the defendant had been advised that that was the ground on which the state was going to proceed we might have a more fully developed record about that but we don't know because the state charged on a different ground it wandered around through various theories  ticket and instead to i guess exert more authority trying get this guy go back to his car it was ninety one degrees out i lucked on weather underground this morning i met a in sterling he had called groceries he was h that may be true but common sense tells us in this case that the officer wasn't obstructed or hindered by the defendant's acts whether that's good sense or not what the question for this court is is did the defendant actually have struck or hinder forth in support of this charge under any of them i think this conviction should be reversed we've made those arguments in the brief i think for the reasons in the briefs and the reason stated here count one should be reversed count us we said i can stand and i depended in their case was the weight of one of the prisoners it was the pose the police the berkeley only the prisoners in the police officers could write in the elevator the defendants the preparing an offense the defendant prepared to defend against the charge which was obstructing the arrest the state's which this theory a trial to have struck in the issuance of the citation i do think that the state's case should fall on either argument in the breeze they haven't met last i do want to take a minute to address the credit issue no part has addressed the inner play of the two statutes the obstruction provision that requires either a minimum a minimum of forty consecutive hours in jail the judge did enter that order he complied with the statute require in any order a forty eight hour sentence he did not comply with the credit provision now and there is nothing in either of those statutes or anywhere else in the in the codes that i can find that would deny this particular defendant that the legislature has generally been clear when they watch tonight credit for whether it's days of credit or a five dollar a day provisional legislature  right and he says they're right in the county jail good behavior act if if like you keep a day for day credit in that for instance that would lower it below the minimum this isn't lowering it a lot of the defense has done time the court entered the order it has to the defendant has done time for which he should receive credit essentially if you interpret the statutes the way the state assisting this defendant has to do four days to get credit for two generally you do two days and you get credit for fo if it's something that's day for day eligible you generally earn four days by viewing to hear this defendant would have to do four days he's done two he was sentenced to two he went after you for to get credit for two days in this case if you read the sessions together one statute requires imposing a specific sentence the other statute requires the giving of credit those things can be accomplished based on the plain language of the statue and i would propose that's what this court do if you find it that to make us you should still interpret in favor of the defendant under principles of statutory construction and again give the credit if the legislature wants to deny credit in the circumstances they would set forth already in the statute and if they later find that this court decides the case in favor of the defendant and what they meant was to then i credit then the legislature can amend this if to say that but based on what the statutes say they can be read