escott is asking this court to find today both of those courts ruled that the amendment to six twenty five i also yes eleven five twenty two which allows for probation only when the trial court finds quote extraordinary circumstances exi and that probation is required to pass constitutional muster there are a few reasons no your honor is why this court would be justified according to the contrary the first of those reasons is that including him and page four seventy nine there seems to have been goes on to say that it is only through the grazing money in the legislature that probation is now being offered but probation was always offered it would not be consideration under five six one understander seven three i  but in the previous version of the statute probation would have been the primary consideration under five five three it's required for a trial court to consider probation by looking at the history of the the offender the circumstances of the offense all of those factors tha those two cases discussed the burden of proof sooner occur until isn't it really not a burden of proof but more of the defense's opportunity to present evidence that is believes will rise to extraordinary circumstances not  defense attorneys in this area to handle this prosecution she's here today she did not know what she was supposed to present she presented this argument and quite candidly said to the court i don't know what's required of me if that person who  extent the fact that they were five victims in this case and as tragic as it was makes it different but in a drunk driving accident when there's a death of anybody it's a tragedy the fact that there were five people considerations in terms of probation otherwise they would have had probation available to them under the under five six more so it's a new story prison term that's on until one shows an extraordinary circumstance do not present extraordinary circumstances for moving candidly the only thing i can think of that would be even extraordinary circumstance is a month later with force an emergency a situation where it would be impossible to call specifically but that said nothing is been presented in this case to truly be extraordinary so it is your position in this concept of extraordinary circumstances this is not a call to a traditional sentencing hearing it simply gives an avenue by which the defense can argue for probation and otherwise now i'm provisional cases that basically your position exactly that you're on my other my other point being that in this case put it this way even if this court were fine extraordinary circumstances provision unconstitutional the only thing that could occur is for this case to go back to the trial court before recessing for the court to consider apparently everything the trucker did that in this case he felt a sense of the tribe or arguing many of the factors that would present to the sentencing hearing is within the judge's discretion to impose the sentence that he did absolutely but i would argue that this the judge did not give full deference to the fact that this sand head unlike many of our clients who have been convicted of dui she had a minimal prior history she had three speeding tickets that was it i think she had no seatbelt and then she had an ordinance violation when she was a few months before this happened and then something when she was a teenager in many of our dui clients backgrounds that are loaded with previous to my convictions  honestly you also can't forget the fact that sandra suffered some pretty serious injuries herself in this accident but you can also look at the certain states of this offense in that she was out there trying to help somebody and i know that's what  e court says that it considers but the fact is she was trying to help these kids get home safely and it was again i use the word tragic because i can't think of any other word that would fit on it is that's not clear because his ruling on the extraordinary circumstances language came toward the end of his ruling in the position of the sentence so it all has been combined in to use a phrase my son uses it there has to be better guidance from the legislature there has to be better guidance from the courts as to what is supposed to be considered and if it's going to be a bifurcated proceeding to consider the extraordinary circumstances of probation any different that is why we're asking you were asking you to give that definition because the legislature has failed and in the meantime what do you have any suggestions on what we should how we should define it i would say because the  therefore for purposes of the state and any rights that the state might the issue what is extraordinary seems to be rather confined to the trial court where definition of what is extraordinary measures gives the trial court the ability to grant probation but if for some reason it doesn't it gives you your client or the defense bar in general the opportunity didn't two percent as much evidence or burden on the defense attorney to present his much evidence video game as necessary to keep the client out of jail is it incumbent upon the court to tell him what to legislature could have told you differently than what you already presented to try to keep you climbing out of prison what's different about extraordinary versus the considerations under five six months this what they could have said this is what makes something extraordinary we already know you're going to present evidence about the history of the defender we already know you're presenting the circumstances of events we only know you present psychological or alcohol evaluations we know you're going to do that here's a list of things or you're asking us is the court to lay out what you should do with a defense attorney to keep your client out of prison insured mary circumstances isn't that your job to make a determination what those would be but due process requires a