very briefly are that michael bradley was a truck driver asleep in the sleeper compartment of a tractor trailer parked on the shoulder of the interstate he was one of the defendants jack reno came up to the vehicle banged on the door couldn't get a response for a short while finally saw mr bradley come out from the sleeper compartment open the window and he smelled the hall and some other indicia of intoxication he told mr bradley to get out of the vehicle gave him some field sobriety tests which the trooper stated that he failed to come down to the station gave him here a breath test and the breath test result was a point one one one blood alcohol content he was charged mr bradley was charged with three counts of the u i two ordinary what we call ordinary ovi eyes that anybody can be charged with and then one for commercial driver people commercial driver's license the standards are entirely different for those two different types of ovi eyes he was also charge of the parking violation during the course of the criminal case a motion to suppress was filed a motion to suppress was directed at the issue of whether or not there was any evidence that mr bradley was driving or operating the motor vehicle the trial court determined that there was so there was no evidence that he was operating the motor vehicle which is a term that's used under the ordinary over  and suppress those two charges and dismissed the commercial v i i however the trial court determined that there was some evidence that he was driving so we have a difference between operating and driving under the wire revised code the commercial of the i section driving intoxicated or not is not relevant it's whether their blood alcohol content is over point zero four in the second thing that it requires is that they be driving and have a b a c of point zero four at the same time so we have a timing issue here that's very very important in this case i don't think that it's reasonable to make an inference that because a person has a blood alcohol content of point one one one right now that two hours earlier they had a blood alcohol content of point zero four or higher i could stand right here and drink six beers sure mr bradley stated during the course of the traffic stop if you want to call a traffic stop that he was at a truck stop down the road about ten fifteen miles down the road and that he had i think he said two small pitchers and two beers such thing as was in the decision or so the important point is i'll get to the collateral stoppel issue very briefly what would you think i mean just hypothetically i can only speak for myself just hypothetically i think you're right on the but i think you have no chance on the problem because if you want to have it go back because she already kind of said that kind of she did say that she didn't you could i think you can argue she didn't rule i mean i think that's within the range of fair argument but you know i guess hope springs eternal but it doesn't it's her skin no chance and as i said my first instinct is this is very hard on that issue your honor it's an excellent question  first of all she did provide sort of an advisory opinion or opinion it's not on the issues involved in the appeal or or on the most recent ruling on the advisory opinion here well i would i would ask the court not to because it has not been fully briefed there is some discussion of that issue in the briefs only because the judge put it in his decision saying that that you have additional things that you would say about the issue of probable cause were we would or band at the district court yes your honor for example as i said the timing issues very important the state has no the defendants in this case have no evidence that simply because he had point one one and in the present that he had a point zero four higher than we have you would you put in evidence i mean right now you were you were not aware that the merits of probable cause was going to be decided by the district judge because the defendant's motion only was brought basis collateral stop so therefore you were not on notice to bring evidence in support your position your honor we have your answer there's no more evidence but you have other arguments we have other arguments are not saying they have ever well on summary judgment the burden of proof is on the move to establish that there is no issue of material fact in this case i believe that there is an era an issue of material fact and that is that they cannot establish and could not have established during the criminal case that mr bradley's blood alcohol content was point zero four at the time he was driving he was not observed driving us that all they had to do was have reasonable probability and that kind of reasonable your honor i respectfully disagree i do not think that a person a lay person can extrapolate back into the past over the course of one two or three hours and determine what a blood alcohol content expert experts can but i kind of agree with i don't i don't think that that's subject to lay testimony lay opinion testimony but i would assume that they would produce an expert to say that and i guess my question as well would you be able to rebut that or search their burden of proof if there are not able even if they the evidence show what they want us to show where they deficient in coming up with an expert to have admissible testimony as to that then you would win anyway because the person or insufficient we do make people prove their cases even if it looks like it's not going to be winter it's part of our system and to address that point as i'm sure the court is aware experts can have differing opinions and one expert might say yes you can extrapolate this back giving these factors in another expert would say no you can't so again i don't think that there would be a material issue affect an issue of material fact on that on that issue however in this case procedurally i think that's very unlikely because even though the motion for summary judgment was filed very early in the case the district court took many many months to make a ruling on it and during that time courting the case management order lay discovery close expert witness discovery closed everything closed now i think we're in the dispositive motion stage they reserve the right to file a motion for summary judgment on issues other than collateral stop when the court allowed that you know in a prior order and then schedule for trial they have no expert the bottom line like when i thought oh stop on the like another shot at the problem cause back in the district court is there's also several other issues that i think they plan on addressing in a subsequent motion for summary judgment such as qualified immunity i think  that the court made a very brief mention of qualified immunity and and not intending to bring it up with the court if it doesn't want to address it but none of that was briefed because the only issue on the motion for summary judgment was collateral st good afternoon your honour's may please the court position or bradley's false arrest claim is procedurally barred by collateral stoppel because he had a full and fair litigation of the issue of probable cause in his state criminal case even though he had no opportunity to appeal it it's not so much and the united states supreme court has set in standard for versus united states that collateral stop or predicate of that is not the opportunity to appeal it's more about having underlined confidence in the original action that they substantially got it correct that a pretty serious factor in that case the restatement judgment section twenty eight whether the order was a i mean if your point is it's not always outcome dispositive in every single case you're right but i thought it was a pretty important feature of one it applies some circuits have not however this circuits you started stand for that was the that's the s supreme court you mentioned that to start doesn't it say it's an important factor it does it says it's but it says it's not a predicate necessarily for collateral estoppel to apply and in this  about pardon me first let me say that yes ohio does not permit an interlocutory appeal but that does not mean that that issue could never be fully and fairly litigated what i was getting to is in coogan and the court said where the state don't permit an opportunity to appeal but if for instance smith versus thornburgh that's a tennessee case from one thousand nine hundred eight that involved a preliminary hearing where the court i guess it would be the equivalent for me in ohio we have been this book or to misdemeanor courts that judge had a hearing decided that there was enough probable cause to take it to the grand jury so that case was presented to the korean jury it came back and no bill in that situation there's no opportunity to appeal that decision from the no bill similar to an acquittal however in thornburgh the court upheld that collateral stoppel and said that the issue of probable cause had already been fully and fairly those cases of knowledge this nor that you know this reflected the restatements i think in standard for that yes the test is full and fair opportunity but usually a pretty significant indicator of full and fair opportunity sufficient for collateral estop is whether there was a right to appeal the first the first judgment i don't i'm not certain if that came up in thornburgh but i do know in low mass versus tennessee in that case there was a footnote that this this circuit actually recognize that said that there were other circuits that believed the quintessential part of having a full and fair opportunity to litigate included having that right to appeal not foreclose any and all opportunity to really to get the issue for somebody who received an acquittal when certain circumstances have to apply that full and fair opportunity to litigate has to witnesses arguments cross examine that kind of thing which is which is exactly what happened here i took judge moore to be saying something else so maybe maybe i misunderstood i thought the idea to ask the question myself is that for side on this issue it could have really serious consequences for counties and cities and so forth in the state because what would happen is every time you have one of these probable cause rulings in state court for example and if there's an evidence that there has been a problem caused terminations but the issue is whether that is conclusive or not because there was no right to appeal well i think that just the mere fact that as your brother judges this claim you have to fully i think really get the issue start from square one and that creates potential inconsistent judgments that kind of flies in the face a little bit of fun if it may but that you would have it let's just say you do have to put all this evidence and but it is a hard case to win if you have you would be able to put in the fact that the state officials did think this this is what they did and then the state there's a state court judge that blessed that if you yes it's not conclusive because it was an appeal and it couldn't be appealed but that usually is a pretty relevant indicator i would think that be quite a lot of weight to that the jury would give it quite quite a lot of weight on whether the officers acted reasonably when you have a state court that ruled that they did i right but i think just for the sake of looking at what the law says in a full and fair opportunity i don't even think we would need to get there because if you look at what the state court did blow up procedures it to to make sure that this probable cause was sound valid was without misrepresentation false statements from law enforcement and i think that that's that is collateral stoppel apply in other contexts where there is no right to appeal i mean say it's a civil context or i mean something that's not criminal and not probable cause but would it would it apply when there's no appeal i don't think it would i have been i'm not sure the answer that question again the law of kugan versus the city of which some it was based in michigan law but there have been other states in the six circuit that have cited that general proposition with your clients position b if this was a little different so what had happened was you' your right to appeal now we have the one nine hundred eighty three action and the defendant now plaintiff says hey exhibit a here is i got a collateral the stop will issue a finding by the trial judge that they violated the fourth amendment would your position be i guess to her i have thought about that i believe that what from what i've read i think that mutuality of collateral stoppel is a thing of the past i think it's starting to only be applied to  where you tell me the same rule would apply in both directions i'm just from what i've read and may not necessarily i'm saying in this circuit but i'm saying in other circuits i've seen you're talking about a mutuality of it i'm just taking this it forget that term right i know what you're talking about but for asking with the same principle apply in reverse could this plaintiff had you lost in state court and probable cause have said hey this is over i win i'm probably one of the one nine hundred eighty three case this is a violation because the state court said so if he is suing the individual prosecutor i think there's an argument that collateral stoppel would apply absolutely might be different though if you're suing a law enforcement officer because the there might be some party there is an argument to be made that they were not a party because they're not even though they're arresting it's the same officer the officers the one who thought there was probable cause district court says sorry no there wasn't he was the evidence but i mean no no matter that if i could just speak for a few moments about the just the probable cause here i think that this core is within its round to just reference right i mean it was an advisory it wasn't a ruling it was if you file a likely grant or even i will grant that it's not a ruling correct however at each stage of the the pleadings the petitioner has opened the door he ha brief sixteen brady's second round for relief was not properly before the district court for decision is not properly before this court i mean you you concede that it's not proper proper the merits of probable cause right that's the end of it isn't it i was just addressing your question to opposing counsel you said would we be able to review this and decide this on the merits anyway or do we have to send it back that recognition in the brief was simply to to recognize that i knew what the just your course order was with the original summary judgment motion she wanted to keep it within the confines of collateral stoppel yet opposing counsel in his breviary his response to summary judgment began to merits discussion to which we've responded and that's seems to be the continuing trend we've also done that it will continue in trying to not you you concede that the issue is not before this court that's what i mean you changed your position today it so you could bring your second motion for summary judgment based upon the merits of probable cause is that there now that i said i don't agree with because there's nothing left i mean discovery's been closed there's no way to win we don't decide issues that are only mean we're limited to cases and controversies and we have a limited jurisdiction here and we don't have the power to render advice raping is doing ok what i think we've heard your  i would answer that no it will not because there are plenty of cases where there is probable cause for an arrest but not sufficient evidence is presented at trial to get a conviction and there's a big difference between probable cause and beyond a reasonable doubt this is not one of those cases this is a case where there was not sufficient probable cause so each case needs to be analyzed on its own merits to determine whether or not there was probable cause and a very important part of a  citizen's procedural due process rights in order to be able to bring a civil rights action under section one hundred eighty three and not have it barred by collateral stoppel is to have a full final judgment in a prior case if it's going to come it in a riff ohio courts well first of all federal courts are supposed to apply the law of collateral stoppel that applies in the jurisdiction where the original case came from what is the house a bit ohio says that collateral  disfavored in use from a criminal case using it in a civil case it is disfavored we have the citations in our brief and as a matter of fact a revised code or revised code section two five zero five point zero two  three states that a decision on a motion to suppress is not a final issue so ohio and ohio courts have said we're not going use collateral stoppel in that circumstance all of the cases that are cited in and will work through the case it will be submitted in the clerk manchin court