so relevance is quite clear and i got our other squad pulled up during the course of the stop according to what i remember from the evidence did that on have it's a dash cam the defendant in this case mr alcott testified he had testified that he did not believe he was impaired and there are some differences between his testimony at trial and the arresting officers testimony at trial regarding the sobriety tests and the results of the sobriety test so we do believe that they have the squad video as well as the booking room video would interrupt because i want to point out something that i think the record reflects in the record reflect that not only the information on the video in this particular case wasn't on the card they couldn't find anything on the memory card in other words they couldn't find the prior stop before this particular stuff and they couldn't find anything after the star was one yes correct in fact so therefore it's not that they just was this one episode or this one scenario to the car was it was working and therefore was working to capture the scene if you reject the at in points and i mean that you know the state is kind of be indicates that the court doesn't know what happened or the court isn't sure what happened the court is not saying that the evidence exists to prove that squad video was not captured it's just saying if there isn't even proof one way or the other guest whether it is captured or not he captured but even now if you are going to argue that there was a discovery violation because the protocols were followed all that and therefore there was a little we report prepare best somewhat different than making the argument which seems to be what you're doing which is you know what really happened was the police officer did make it  but he destroyed it because it was so exculpatory and the police were going through the charade of order to rationalize to destruction of the police report because your premises there was a police report so to speak there was a video and you said as the judge said he said there is no proof that there ever was a video and i'm conceptualizing in my mind if i were the trial judge i would say did anyone ever see a rendition i e did the cop pardon me the police officer pushed a replay button on the camera and he actually saw an image and then he went into the police station and then it disappeared because i don't think happened did it that it disappeared or they know it's young but then he actually played it back and replay or a video image correct correct but with reference to the hypothetical that you are proposing i mean that hypothetical can be used in the context of the very discovery problems because the case law i'm just in the discovery area has made a distinction between those cases in which that evidence never existed so  example of you know some electronic interference or whatever some mechanical call it a mechanical or electrical malfunction that is inherent to the machine in question but it's a very different question if there is you sir if it is a fault of human error and we don't know this the state produces absolute we know evidence he retrieve the sim card from the squad purse got you scots the arresting officer although anyone can access that card only nice and cook have the authority to pull it in so that again if your partner facia that they're the only two that ca if they deal with where the memory is going on the smartphone does it go into the sim card or do they put it on a i don't dish no chip or s d card it's in the phone and so there there's a a level of intellectual knowledge that suggested by using my common sense in everyday knowledge i understand that the sim card is where the memory is i have a dash disposed to record people running into me and i read the directions in a tells me the sim card is supposedly where all this resides i'm supposed to disregard all the knowledge that i've acquired over over three quarters  cases where that evidence never existed i won't i mean i will recognize that this is a rather lengthy technical question and it's our position that it really is that really it is not here to use the sim card comparison from a cell phone i mean i've used the sim card in the cell phone i use it in  camera i understand that but at the i was using it that was not equipment that was thinking to transfer the information from my sim card to a server which is what what we're seeing now and i am not at all sure in fact i knew this well agreed that either when the vehicle came with name proximity of the police station either the information that the recorder records either is uploaded from the sim card or it's uploaded from some other memory ca the only evidence one is the sim card or the fact that the police officer attempted to comply with discovery by uploading the sim card and was unsuccessful and claimed that he was said there was nothing at the sim card here's the question i say out and the proof there is another piece of testimony that says that where the squad comes in and the server army at least removes the information in the squad and a racist the information because it's now in the server so charade in order to establish the premise of your suggestion which is when it was uploaded it was destroyed because it was taken off the sim card and only telling what the  attempting to testify this is evidence no but this is the logic of your rationale or your argument that this is only reasonable or rational if you buy the argument that they're trying to hide the fact that they're suppressing the evidence well because i don't know how you can claim that it was anything but malintent to quote unquote go through the process of fishing through the sim card and then claiming that there's nothing on the sim card and therefore we can't produce it because if it's someplace else and he's lying well you know with  mode obviously not necessarily something that we have to prove it and particularly not have to prove in this discovery violation context where the court's bay of the government so we don't have to show this and we don't have to have that motive but never last that having  it is really rather highly suspicious that the most important evidence that we've been talking about which is the evidence of a field sobriety test was lost but not only that but virtually the entire segment of the book in the room procedures which is less important as a proof issue but there is no explanation for any a decision of this chord there we rely on the amnesty to say is it correct to say that your argument your position is that if something is not produced then it is presumed to be a violation and as you said just now it's irrelevant as to whether or not the state did or did not intentionally fail to preserve i'm not going to say it's a relevant because the bad day of the state is an element in assessing what remedies should be it's a factor in assessing what remedy is appropriate for a discovery violation but i mean we did more in this case then just say you didn't produce something to show us what god i mean we card that the blank that the blanks than the sim card indicated that that recording was never captured and i don't think that you can make that conclusion  this record when you have a piece of testimony that is saying that when the squad enters the range of the server the server up load if what you just said was the norm because if supposedly that car was used once within the prior eighteen days at least whatever number of days that curve was previously used if  come in it should have been raced whatever particular days that it came in most recently and wiped off everything that was on that sim card so to hear him for it seems to in the squad so ok there it is that piece of testimony that causes me to believe that my understanding of the sim card which is similar to your honor's and that i say i you know experience with  upon what you just said the nd implies now that the sim card is a backup cache of information i'm guess and if it's a backup cache of information and there's nothing on it then with that was nothing but there were things before the magazine so there were things on that same card and they were not recorded is the only inference that can be believed in this record and it is the inference that the court except there being more than one source of memory in the dash cam the way i read the testimony is that the only source of memory is the sim card that's the way i read it because there's no reference to anything else what about that this video ever existed i feel i can't there is no evidence that we possess a recording of this stuff it's any time and that's where this whole analysis ends there's addressable question whether there was a discovery violation and then then maybe it was technical but it's rather strangely coincidental that the two pieces that relate to this case are either not available or incomplete  account was dismissed the relief any relief the defendant could have got with regard to the book you know video was made it was obvious when the court directed the verdict on the person account that is so burden shifted to us to help her prove that there was a discovery violation we are responsible to produce relevant discoverable evidence within our possession so not that well then what's the bridge going to prove for what you're on that it was a technical issue well if we're talking about whether there was a discovery violation i think defense counsel disappeared and someone we have some knowledge of the ball it could have been examined the police car in the same car and could have done all those things which i believe it was her burden i believe the case of course that because it's our obligation to turn over discover difference why it doesn't exist well that's actually a really good question and we know from the case law that if the officer forgets to turn on the switch to do the recording that's ok test we know that that's not a violation so if those two things are a violation how can it possibly be so that a technological failure is a violation when we have officer scott saying how beautifully he went through to check to see if the camera was working and he soon as he came back to notice it had been uploaded and so we immediately emailed the supervisor to check the same card car in such a way that it doesn't capture in the video but the lesson learned here this was a reversal is it's better not to have to turn on the switch it's better not to point your car at the field sobriety test because if a my point is there are things in the heavens that may or may not exist if they don't exist we don't really ask questions about why don't they exist or if they ever existed why did they cease to be so when you say that it's a technological problem my point is why do we go there if sanctions are you aware of any case where the question seems to be so paramount obvious which is in order to establish a discovery violation the responsibility to establish why the water is in existence or why it hasn't there resided under the case law if it came into existence and we did not turn it over it would be a discovery know there are i believe there's case law that indicates that you destroyed it before the motion to produce was made and therefore when the motion to produce was made it wasn't in existence and therefore it wasn't a violation so i guess really what we're talking about is it not only has to be in existence it has to be in existence before the motion to produce is after motion to produce that it was destroyed when it was destroyed before the motion to produce your exonerated is that correct well i think we have to learn to hold o to prove the existence of the day on the recording was captured would have been for us to be calling the manufacturers or the suppliers or some expert who would have some knowledge about the proof so usually we know if something existed in all those examples of the cases where the stay had the evidence and then w the only solution to your broaching is well every police officer and anybody involved with the inspection testing or whatever of that machine would have to come in and testify during this trial that they did not remove or erase or alter the sim card in any way shape or form in order to establish that the evidence never exist