way down and they allege divided highway but it's really a street with just a little boulevard a hundred feet on it mr bailey was asked a field sobriety test which at first he refused but then he did  chemical test which initially refused because unless he spoke to an attorney but then he clarified which tests that they were going to give him once lawrence told bailey that it would be the test at the jail bailey consented and that was some thirty eight seconds later all of that is on the video that i presume the court has he argued with the runs for a couple of minutes that he should be allowed to take the test runs refused but remained at the scene for almost ten minutes before taking bailey to the hospital for a blood draw search warrant to draw blood which had some errors and discrepancies in it and blood was undertaken multiple charges were issued including operating under the influence of liquor driving on the wrong side of a divided highway expired plates no insurance we eliminated the criminal things the o u i charge was dismissed driving on the wrong side of a divided highway was dismissed because the signage was improper there was no signage in fact the entrance to the driveway mr bailey left on is the only driveway on the street that drives into the boulevard other net there is not this divided it's like one hundred foot long strip of trees they decide to put down the middle of the road and the only driveway they left exposed that ran into this was this one driveway on the entire section of road they rebuilt mr bailey mr bailey paid tickets for expired plates no insurance and careless driving the claims on appeal still are th was wrongful an illegal search and seizure of the blood illegal seizure of his driver's license violation of due process license suspension malicious prosecution on the o w i malicious prosecution for the license suspension and injunctive relief in the motion for summary judgment the district court lawrence did not even argue at summary judgment the illegal seizure of his license for the violation of due process for the license suspension or the malicious prosecution of license suspension of the years we believe that district court did in its opinion an order the appear to create new duties under frank's hearing challenging works that a criminal defendant or civil plaintiff was also defend against new probable cause that the officer judge wants to add to the warrant as she was examining the work she created a new affidavit because she admitted that the exculpatory evidence that was left out by the rounds i e that he consented to take the chemical test that he passed the walk in stand that he passed the balance test or whatever that contradicted each other and that his last statement matched the video which in fact it didn't the court granted summary judgment and due process malicious prosecution for license suspension and illegal seizure of license claims despite absolutely munity came from the judge she's the one who brought it up and in fact lenses attorney at the time kept arguing qualified immunity and not absolute immunity the judge kept going back has been denied the right to respond to that or even give it was not given notice of absolute immunity was going to even be an issue until the day of the hearing it was not played as an affirmative defense it was not mentioned in the motion for their testimony but based upon one draw recently decided and whatever that he may have waved it up through summary judgment because he failed to raise it until then and it could still be raised as in the window case they said it could still be raised at trial but up until the point that it gets brought up they waived the right to claim it prior to that point the court did we also had a problem with the court where we were questioning whether the officer had training in the stigma switches the eye test of whatever he was asked in his deposition if he ever received any training at the academy and that he said no he was asked if he ever received any other specific training he said no he was asked to feed it and he finally testified that he got standard sobriety training he never implied that that includ testing and in fact the city of howl's own training manual under sobriety test and whatever does not even bring up in a statement as a training element for them to do with new officers yet the cordon furred implied that he must have threw out her opinion was in favor of the defendant whose motion it was rather than for us we believe that there was numerous facts that could have been in should've been left to the jury probable ok but the two questions and probable cause though if the two the two factors he would have for probable cause would have been wasn't in the war it's true it wasn't that wasn't in the war no no it wasn't in the war but she wanted to add that to the morrow ok so it's so if you get down to what would have been in there you'd have been the stigmas the smell of alcohol smell of alcohol is not enough i don't think so you are all end well he was leaving one to two o'clock who was driving and then when he was stopped there was a smell of alcohol that's not enough i don't believe so you know better because there's a lot of reasons intoxication that's why the charges were dropped but just are you saying that the largest i believe it takes more than one item id the smell of alcohol to get a warrant to draw someone's blood especially after he consented to take the chemical test which was also left out of the war after initially declining yeah within thirty eight seconds when he clarified the test he agreed to take it and the administrative law judge flat out ruled you should have given him the test which the judge just kind of brushed over that the administrative law judge made that ruling in the secretary of state you're going to say you want to say that there's no problem cause to arrest for talks driving while intoxicated if the policeman for whatever reason that's that's not  i don't know about you your honor but a i've never been arrested for drunk driving b this is the first time mr bailey has ever been pulled over for it and he's not had experience in the back of a police car he's they had experience with the procedures they go through so when you look at totality or whatever is what's the common man or the average person going to do it whether it's reasonable not in this civil case isn't really up to isn't really a fact for the jury to decide not the judge if you're saying when i first got to law school i served as mantra straight in the same district court and i got some of these drunk driving trains and i could read to every drunk driving report i could it's like a format i could just tell you what they would say we followed the vehicle that we had within its way to a long time to pull hoping it's not that routine your honor and if i and i used to sign search warrants for the three years i did this part time and had somebody told me that they consented to to have to take the test and was still calling me for a search warrant two in course you're talking about the consent to take the chemical case yes which he consented to only after he found out it wasn't that he was going to be taken somewhere else but he found out that it wasn't the p b t on the road because people have been known to be somewhat unreliable when they aren't well they're just becoming admissible michigan court but they weren't now i mean they just changed the law of the last six months and once they found out it wasn't the breath test at the scene he said he would take the test at the station ok says my time's up anything else good morning your manners karen daily on behalf of officer of the rand i think this case is pretty clear there there's clearly probable cause to arrest not only did he smell of alcohol he drove the wrong way down a highway that then but this is this is too this is this is challenging just the arrest not the search warrant i'm referring just to the arrest right now he drove there the officer saw him drive the wrong way point of a field sobriety test i mean he's having a conversation with the guy he's not the speeches and slurred he does smell alcohol you don't have to be smelling out all means you drank it doesn't mean you're driving while intoxicated yes i'm out of the color and he has and do feel pretty surprised he says and he just fine well he first refused the field sobriety tests and he agreed after some back and forth the officer said look you have a chance to go home tonight if you do these tasks otherwise you're going to jail so he said ok i'll do the tests he failed to stagg must test except we don't know if he's qualified to give it well i would disagree with that because he said he was trained and standardize supplied and testing the national standards and the michigan standards for standard sobriety testing includes three sobriety tests the stagg most the walk in turn and the one like stand that's standard that's what standard sobriety testing is what about the manual that doesn't include that well the manual isn't the standard he said that he received the standard sobriety testing which is which is through  and and the national standard so that's used everywhere so the record what that he received a standard sobriety test standards are in the record yes yes that well if you could take judicial done a better job of explaining his his training sure but he implied that when he said standard sobriety testing he implied that he was trained what  stage in his deposition he was asked all after the fact right he was asked if he had received any training and the stag mass and he said i received standard sobriety training which i mean well hadn't been better if he had said yes i received it sure it would have been about act that he didn't say yes or no will me it doesn't mean i don't know it's only  what the smell of alcohol do you think that's enough absolutely he admitted he admitted to drinking it's not it's not that he said i did try was at the bar and i had a drink smelled on me that's why you can smell alcohol he smelled the alcohol when and you got to you've got to remember you saying if you stop a car for anything i mean a tail light anything and the person has you can smell alcohol there's nothing else were ok and you say to the person have you been drinking and the person said yes officer i have a glass of wine and then you ask the person to get out and they walk fine in there fine with their alphabet forward backward whatever that you can nevertheless arrest the person for driving under but remember this case different he wasn't pulled over for a broken taillight he was pulled over because he pulled out of a bar at two am quick driving the wrong way on a highway and i have to take issue with what counsel said that that's the reason the fact that the criminal charges were dropped there's absolutely no evidence that there was improper signage here none whatsoever so he drove out of a out of the bar at two ten am driving the wrong way on a highway when he pulled over the cop asked him asked him to roll down his window he immediately smelled alcohol his eyes were bloodshot and watery he said how much he had to drink tonight he said i've i've had a drink he asked him to get out of the car he says no and then he says i i need you to get out of the car he maybe he didn't say no he asked why i said i need you to get out of the car i may do some field sobriety tests he says no i'm not doing any field sobriety tests there was the exchange between them that he says look you might the cop do this whole thing was being very cordial you could tell he was he was suspicious he he doesn't have to confirm that he was drunk he has to have a reasonable suspicion that he was drunk he talked to him he did it you can see in the video he spends a lot time doing the eye test he even tells the cop afterwards the other cot you can hear on the  you with respect to sufficient evidence for a warrant now are you are you know i'm still i'm i'm still referencing just the arrest as far as the warrant goes here it's it's the same thing there are cases that see a warrant doesn't have to be perfect they don't have to include every single item in the warrant they have to include enough to give that to give the judge the action to sign the warrant or not with respect to the arrest we can take into account that he was driving the wrong way on well yeah but he could have that's what the judge did be you can't do that he could have put that stuff in about oh about the blue shot eyes and you know these these warrants are forms a lot of times they check boxes you know  sobriety no yes and the judge bases it on that he has to do enough to get the judge to sign the warrant and also under the chemical test statue in michigan it does not have to be a breath test so the fact that he claims he consented he didn't even need a warrant because under the chemical test it can be your blood your breath it does not specify which one i'm saying if he know he got a warrant because it was his understanding that he refused the test but if you were to say he didn't refuse the test he still wouldn't have needed a warrant because he consented to the test are you saying that he that he did not do the war draw the blood if you would have consented to the test no the chemical test under under the statute a chemical test can be a test of urine blood or our breath it doesn't have to be a breathalyzer ok so are you saying that if the officer had listened to him where oh it's the one that's back at the station yes i'll take that  and if he turned the car around he could have taken him to the station and stuck a needle in his arm without a warrant he could have had his blood drawn if that if he consented to the chemical test he didn't you answer my question yes  the chemical test then yes he could have done that it has to be done by a nurse or doctor so he would have had to take him to the hospital ok so if somebody says yes i will take  chemical test just without knowing which chemical test it is then they can go ahead and just the blood is on his he as long as he can sense if he refuses a blood test then yes they would need a warrant but he's saying he consented to the chemical test and that i guess that's my point i mean the argument here is that he didn't consent as far as the officer goes the totality of the circumstances mr bailey had been uncooperative from the beginning he didn't want a rose window down he didn't want to get out of the car he he originally i'm talking yes i'm talking about the totality of the circumstances right he had probable cause to believe that he had been driving while intoxicated order to get the work in order to get the warrant dishonest if you watch the video there there's a point where actually i watched the video and i said while he was a little off balance there why wasn't that in there in the report it was in the affidavit he does what's necessary to get the affidavit it's three o'clock in the to get the war the notion that that's what his task is or that you think that's what it is a little distressing his test is to give the judge the full story accurately and then it's up to the judge to decide whether he gets the warrant you don't do what's necessary to get the war but what you do it's necessary to show probable cause not to show guilt or innocence this is a lower standard this is he says he's suspicious that this guy is drinking and driving so he wants a warrant to get a test to confirm that generally blood draw were simple blood draw is the last word that's why you have other tests other chemical tests and that's why you let the person agree to it so to tell the judge that this person refused the chemical tests when the person in fact when they found out that it wasn't being given by this officer in the field and that it was going to be in the at the at the precinct and there was going to be something objective about it and they say i'll do it and not tell the judge that in just decide well you know you missed your chance your tiny little window and i'm going to tell the judge you just you refused it but again i think you need to look at the totality of the circumstances here with regard to the with regard to the field sobriety him refusing him and basically having to get talked into doing them the p b t he refused and then so he said ok turn around you're officer alarms thought he was playing games he's if you refuse fine we'll take you to the hospital will get a blood draw you know could he have given them the test maybe maybe he could have what doesn't rise to a level of constitutional violation i would say absolutely not he had probable cause to arrest he had probable cause to request a warrant the want was based on probable cause so with that unless there's any other questions i would ask you to aff from how their manual doesn't even listen to stigmas is one of the subjects to cover again he avoided that to no end i believe that he has a duty to tell the judge everything when asking for a search warrant especially to draw blood and that would be the things that are good and things that are bad and that's what judges are supposed to do is make up their minds and i think you have a duty to schools all of us in the courts deliberations or whatever i'd like you to take notice of all the things that there are going to appeal are many which were not even included in the motion for summary judgment and i will admit with hers that the state law does say that they can do one of three different tests for chemical testing and i will say that my client specifically