official case but the lack of probable cause or reasonable suspicion to have a rest of the funding for driving under the influence of alcohol and clearly under people or would have shifted the burden to the state to produce evidence of a breath test result in excess of point the way the evidence of used before the circuit court included the testimony of the defendant and expert all five is an expert by the circuit court on behalf of the defendant dr henson correctional officer who was with defendant for twenty to thirty minutes immediately following his arrest and two individuals who were with the defendant the entire evening both of whom testified that the defendant participated in a weekly coolly for over three hours consuming only one glass of bourbon the entire no carrie focus was the correctional officer that was with the defense for she testified approximately twenty to thirty minutes or maybe more in close proximity at the jail well that indifference she testified that there was no evidence of mental or physical impairment that the defendant his speech was not slurred his eyes were not plessy watery sludge shot and in fact there were no visible signs of alcohol  that occurred again judge i'm offering this referring to the video i can stop and start it but i'm offering it with the exception of this t v t v and h g again it was typed to s their testimony offered by mr volunteer and his father toby that he had consumed only one drink the entire evening that he had been involved in this school the video also demonstrated that there was no  he was essentially stopped for speeding it was no weaving no drifting he didn't cross any ling markers he stopped appropriately pulled off appropriately there was no erratic driving noted whatsoever  e officer essentially as is often the case when he approached the vehicle asked if he had been drinking and then said he had one drink there's some confusion on the video the audio is not clear whether he said one beer or one drink defend infest the five you had one drink and it was a plastic bourbon that was corroborated by both the draw injuries and by the defendant himself but there was no evidence and no suggestion that it was any more than that one the holly beverage it was the trooper who in response to the defendant's statements that one theory is a question but regardless of whether it was a fear of a bourbon there was no evidence of anything other client a correctional officer in the end an expert witness the circuit court really isn't free to just disregard everything and arbitrarily say that it in this case church believed that there was reasonable grounds there was no specific findings of fact play that were in fact the court's on the reasonable sounds or probable cause issue merely said that the video showed reasonable grounds there w no further findings no effort to discuss the credibility of any of the witnesses never commented that the defendant's testimony was not credible didn't comment on the testimony of the draw injuries for the the and fighting against the defendant at the close of that evidence really is what worth cautioned against and that is as a matter of you process shifting the complete burden of proof without any opportunity of the the vises including the devices used in this case because the brother hosting devices are unable to distinguish the up only in blood all from the alcohol which it is trying to register as part of the breat come forth with some evidence to justify and to prove that there was a breath test result in greater than zero point zero eight we want to be on there not only do we have credible testimony on the defendant and it was credible in part because testified with respect to the field sobriety test and indicated has it is noted on that video that my client had had a prior knee injury on the video you can hear the defendant indicate that he's extremely uncomfortable because he needs to go to the bathroom the officer just kind of ignores that for the moment but up dr henson testified and the video demonstrates is that his performance on the one late stand fast was simply impeccable it greeny which are both cited referred to in the proof that those cases specifically addressed this notion of whether a defendant in or of the dress as well whether a defendant in that happening in the summer of suspension must affirmatively produce machine that was over the legal limit your client has to come in and the burden is on your client to show that for whatever reason they can't hear correctly because he was not  accurately reflect a result greater than point zero eight that evidence can be a stablished even under or by the defendant's testimony of course the defendant's testimony if you take work that it's worth the defendant testimony would not in the bill of the to testify as an expert with respect to the machine or the certification of that machine within the sixty two day period required by law it would not  expected to nor would it include the production of a lot evidence in certification of the testing process nor would it include evidence that the machine was operating properly at the time of the testing or that the operator was certified or license or that the operator conducted the testing in a manner consistent with the operation manuals and the ministry so the short answer to that question is no we name we need not produce specific evidence about the wrongness nature of that test result but must produce some evidence to demonstrate that in fact the defendant was not under the influence of alcohol or and politician produced by the electronic cigarette and the alcohol which the machine is designed to test for and nothing that is nothing on cross examination but that not at  all you could say that the cross examination rebut it tended to undercut his credibility given there were no scientific studies this isn't something that had been tested before it's just that he's based on his expert opinion these two missed these two things are and it can't escape that seems to me to be the most important thing that i agree and i wouldn't say that his  credibility was undermined because he didn't attempt to exaggerate or attribute characteristics to his opinions or the analysis that he put in support i don't because his personal example if the court had denied that motion for fine the state then put on its experts to establish a foundation for the admission of the test results and the test results were negative the court could have at that point all of the evidence before me and now the establishment of the breath test result i choose to find in favor of the state that could have been a possible outcome depending upon the rest of the hearing but we never got that and our there was nothing offered by the state correctional officers testimony very folks who took the defendant as she had contact with him immediately following his arrest and actually she said it could have been anywhere between midnight and eight am so she might have seen him as much as seven or eight hours after he was arrested time she did not detect any sign of any variation so her testimony is kind exactly what the effects of this vapor cigarette would be there was no as you pointed out there were no scientific studies i found no cases whatsoever in any jurisdiction on  convinced by his testimony and after seeing videotape it said that back clearly establish reasonable grounds to determine that he was in need so that's an implicit finding that the defendant's vapor cigarette all night long but yeah when the officer stops and he's got this smelly cigar which he asked him to you extinguish our throw away and i think it's a reasonable inference from there that he might have been  to the squad car and can't get those instructions correct for quite some time he faces the back of his car then he turns around in different directions so he has to go through that several times and you've seen ask you what does it take to get to the point where the state's credit card the trooper couldn't some evidence from the breath analysis operator that machine was working correctly well i guess you have to convince the court with what credible didn't refer to the stuff that occurred on the ride back because at one point he says he has his expert witness say that there's a couple of points during the right there where he seems to be bent over and you see this little black cylindrical object but he keeps it in his mouth for all of one second i mean up to the tape and then another point can't even tell if it's in his mouth or not and of course the expert relied upon those indications say that he was smoking indication there is he has his expert witness testify about the portable breath test results and of course the court finds that the experts testimony doesn't show that that was skewed so presumably he's he's saying not to offer it he's saying that the results are unreliable and report finds that his is not true because he doesn't think he does not believe the experts testimony he also implicitly rejects the defendant's testimony about how much he had soon oh also the defendant and i did not hear the song tape and there were portions of the tape that were very difficult for me to hear but apparently there is some interchange between the officer and the defendant about do you think here he created and the defendant says well my allergy pills still seems to  says i look at the menu for this i look at the menu for that i know what that substance is that it's in this official cigarette they keep there's a problem with  and it could affect the results that sounds like enough to require so she didn't he did the burden of proof or at least the burden of going forward what's because this hasn't been tested none the less you know more about this and most people in the courtroom and you're saying it could affect the result that's not like saying if it was worried it could affect your resolve or if it was you know something totally unknown to you to mean up to that point we're talking about there's i guess that's what it is an artificial cigarette or a bucket and you take a little with the implication that if the trial judge finds that video establishes probable cause that that's the end of the road because under or and under all of