ok thank you and i'm sorry i've had that problem before one of these days i'll figure it out and for the accolades appellate insights johnson else are you ready to proceed seal but also the procedures necessary to have by by the fourth the met by the mandates of the fourth amendment these procedures are well settled and yet these procedures were disregarded in this case turning to my first point you for example the state relies heavily on people versus apartment in one thousand nine hundred one illinois supreme court dates in that case to defendant was convicted after two separate stipulated and trials but the issue before the court in that case because what defense counsel i had conceded the sufficiency of the evidence to convict it was only an opposing arguments in self holding the court noted the defense counsel had preserved defenses specifically the motions  suppress identification evidence while there was no mention of a post child motion there was not the issue before the court and considering that burden occurred a mere three years after enough the reasonable and france is that where the a defense was preserved a pushkar motion must have been filed similarly in the other cases the state sites too just because a coach just because a post from motion was not mentioned does not mean that  specifically whether defense counsel had conceded the sufficiency of the evidence convict based on certain comments or terms counsel made very closing arguments based on my research no keys or no court has held that filing a pretrial motion to suppress or any pretrial motion automatically preserves that issue and back in i expressly states that in order to properly preserve an issue a defendant must file an attraction constitutional issue but the decision lies in whether a defendant is actually preserving an issue and whether the court may reach an issue a defendant only preserves an issue by filing an objection a trial or making an attraction of trial and piling brought up but the distinction there does lie between whether a defendant has preserved the issue and whether the or it may be changed and in this case dependent mr program did not preserve that issue because defense counsel did not file a post from  it should be noted in this case the not one of the fourteen officers present at the accident scene attempted to obtain a warrant in fact the record establishes that when officer sonders noticed the open alcohol bottles and smelled the exception however we ask that this court not rely on the medical records exception because for this court to rely on the medical records exception this court would have to find that mr probus fourth amendment rights were violated when he was subjected to the unreasonable pointless stipulated that the evidence was taken i call hospital thus the tough part air in denying a motion to suppress tainted the subsequent proceedings and that is why we asked this court we man for a new trial purpose for that stipulated bench trial based on the only way to go through a simulated an sheil was to preserve the issue of the motion to suppress but if the motion  been granted then the state would have been left to its burden to bring in the medical records exception which meant the state would have to prove that those that that blood test was taken within the proper means as required by the plus the passage of time i mean what i know that you know that that blood alcohol may dissipate so that is not per se that's just saying we can't rely on that along it's not saying that's not a factor bush he could have caused one of the other thirteen officers to obtain a warrant similarly when he reached sarah bush mr povey with being carried to be transferred to karl hospital at that time knowing that the hospital was forty five collected statements and while he was blacked in statements he was then directed back to the scene of the accident to take measurements and photographs at that time he could have asked one of the other thirteen officers to attain a war fact was that the officer had some car troubles which are unusual but some four hours later at the officers arriving at her bana he doesn't know at that point whether or not he needs a search warrant he doesn't know at that point whether or not the defendant was conscious and able to give simply was doing the best investigating he could the flyways that when the trial court looks to see whether there ice shouldn't circumstances to justify a warrantless blood tests the trial for his a duty to look at th circumstances and determine whether the officers determination was correct and in this case because most of those delays can be attributed to procedural red tape those delay should not have factored into whether the clean air review it is our position however that there was no error at all as counsel is already said the only issue in contention at this time scuse me is whether the defendant preserved a defen although the defendant argues that you did not preserve a defense for a feel the record clearly shows that a motion for reconsideration of sentence was filed admittedly that motion did not include the issues that are raised in the pre here but the motion was filed any defense was preserved for him to move forward with at that point what say we disagree with that what else if you disagree with that we also believe that case law supports our position that the issue of the warr blood draw was preserved as a defense based on comments that were made during the hearing on the motion to suppress and we cited in our brief case law from every of college board and from the illinois supreme court where the court's reviewed whether a stipulated bench trial was tantamount to a guilty plea and in each of those cases there was no evidence that a close trial motion was filed and i recognize counsel's argument is that in the absence of mentioning specifically a motion was filed it's speculation to say it wasn't similarly it's speculation to say it was but if you look at the language of those cases it supports our position that they considered verbal  or the either that a post from motion was filed but it does say when it was looking at the issue of a defense being preserved it makes reference to verbal comments that were made by counsel and then it found a defense had in fact been preserved that is consistent with what this court recognized in pollard and it found that defendant's comments to the court established defendant wished and intended to preserve a defense in hawkins the fifth district its apparent defendant had intention the language of these cases is significant because why would the courts be analyzing verbal comments to find what defense had been preserved if a post from motion have filed we wouldn't the courts would not be using the language apparent wish intended sought to preserve the language it just wouldn't happen that way this supports our reading of these cases even though we acknowledge that they don't say specifically there was a full trial motion filed perhaps recognizing this defendant attempts to distinguish the cases that we cite by saying that in those cases and an unambiguous statement made during those hearings that made it clear the defendant there's wish to pursue appeals of these issues here the defendant's argument seems to be that because defense counsel was not quite as vigorous in his statements as to the court at the motion that those statements were insufficient notably the defendant cites no case to support this contention what the record shows is that the defense counsel recognize the only viable defense here was to get the blood out content suppressed at the motion on the hearing to suppress the trial court was asking counsel if i've already made a finding of it exigency which is all i have to do i don't have to find multiple grounds for this if i've already found the exigency do i also need to find and imply consent ruling as well and the counsel responded defense counsel responded that it was their position be implied consent statute and the constitutionality of it was called into question and therefore counsel wanted the court to make an additional finding under the imply consent statute so that if a conviction followed the issue would be available on appeal that isn't any different than the cases that we cited even if it wasn't stated with this much bo so the cases support our position that this defense was preserved even in the absence of a post from motion and as you've you've noted and as i've noted in my brief enough is a general requirement and there are exceptions including the constitutional issue exceptions i also want to say that although defendant backed away in the reply brief a little i stand on the concerns that i raised that there allegations made that the trial court and that both councils somehow work together improperly in the hearings in the trial the court can read the brief itself you can see what the statements are and what defense brief statement says is that there was an across the board recognition that the stipulated bench trial was tantamount to a guilty plea therefore the court made intentional clarifications to the trial so i stand by that it is something that is improper to allege without evidence to support it the state would ask that you find there was no air no plain error and that you would have firm moving to the motion to suppress the defendant argues that the motion to suppress should have been granted because warrantless blood tests are a violation of or of men rights we argued in our brief there are exceptions two of them exigency and consent first here there was exigency mcneely identify a variety of circumstances not an exclusive list but highlighting certain circumstances that certainly are fair consideration for exigency findings those include and need to provide emergency assistance to engage in hot pursuit of a suspect and to enter a crime scene and investigate its cause significantly as justice connect pointed out mcneely also say you still get to consider the imminent destruction of evidence and the natural dissipation of alcohol from the blood means that it is destructing over time so it is not exigency which mcnealy made quite clear but it is not to be ignored it is a valid consideration with everything else that can be considered in finding and weighing exigency there was extensive evidence of accidents presented and i will not go through all of them but i will highlight certain parts first there was exigency based on law enforcement's need to provide emergency assistance again this was one of the examples specifically mentioned by m neely as fair for consideration emergency assistance at the scene pretty hard to help but to charleston police officers for private ambulances ten mattoon police officers to illinois state police officers nine mat department personnel for emergency medical technicians at the scene all of these responders were required to treat eleven victims out of four separate vehicles that had to be transported to the victims had severe injuries and had to be transported further from sarah bush by helicopter to carl clinic and one of the victims unfortunately died there was clearly compelling need for emergency assistance by these officers and that is a valid consideration  the time of the accident and the ready availability of law enforcement and judicial personnel for a warrant the state's attorney's office has procedures where when things happen someone is contacted just as the judicial officers have as well but it's being readily available the fact that an accident happens does not mean ten minutes later there are people available and i before i go on that further i want to mention that coun suggested the first thing you are to do when you have something like that is to go get the warrant cases have recognized not necessarily is that true you have the right to see if you can get consent from a defendant it is legitimate to do investigation before seeking the warrant so that you don't have to go get multiple warrants then to cover everything that you may discover during that investigation it's not an excuse to delay this and evidently but it isn't happened late on a saturday night and the defendant drove his car at ninety two miles per hour into four vehicles and injured eleven victims killing one that was a slight reduction from the one hundred eleven miles per hour he was travelling two point five seconds before the impact and it resulted in a chaotic scene that required a lot of attention officer saunders testified that at that time of the night there weren't detectives on duty they were available be called that they were not on duty so there would have been a delay to contact the officer to wait for the detectives to get there then warrants in illinois have to be complaints for warrants in illinois it must be put writing there is time that it takes to do that to fill out a complaint for a warrant you have to have some information so you can't do this without some investigation up front as to the facts that will support that want then you have to contact the state's attorney's office then you have to contact the judge it's a built in delay it is not intentional it's the facts of the case that we have then you have to continue with the fact that the defendant here had necessary medical care again the time it takes to transport a victim or a defendant for medical care is something that is considered when determining exigency and i think officer saunders and i think most people would say he was correct in saying as i ride and i see this defendant being taken by flight personnel and medical personnel to a helicopter because of the severity of his injuries it's not proper for me to haul back care to get this blood tests again not ideal situation the fact that the computers or the draft of the complaint for the warrant was kept in a locked to tight detective's office that's office management it's reasonable to secure your detectives offices and all of the things that they have with them and it is about four hours one hour was driving to karl clinic and then you have approximately three hours from the accident that that that leaves you with and based on the facts here your honor gets three hours there were and i want to address these were not as a ledge police created exigency it's the law means something when it talks of police created exigencies and what kentucky versus king has said which is a u s supreme court case law enforcement personnel acting in a lawful manner is not police created exigency it's when the police conduct by elise the fourth amendment or threatens to violate the fourth amendment the examples that are given here is that he was creating an exigency by investigating the accident that's not a violation of the fourth amendment mcneely says that's permissible for consideration next he says it was because the officers car was malfunctioning and that the officer followed command in ministration and administration rules well as i pointed out the officer had no choice but to all of  those are not examples of violating fourth amendment principles none of the examples that are provided violated fourth amendment principles and all of the examples the police were acting in a l and if you look at defendant's reply brief defendant even can see this quote officer saunders did not deliberately create exigencies in order to circumvent the fourth amendment and that was restated here today but kentucky versus king says it's what police created exigency is acting to violate the fourth amendment so there's no merit to this argument that these exigencies were police created and should not be considered by the courts the trial court considered everything the trial court considered the technology the officer testified that there was a streamline process and that tune but he also testified the call clinic is in champagne he has no knowledge at midnight of what champagne has available for him the court heard all of this and found that exigency existed and we would ask that you affirm that i want to address the medical draw  shortly you can address you can affirm on any basis in the record and here the defendant stipulated that there was a blood alcohol test that showed point one seven six two hours after the accident illinois law provides for the admission of that test into evidence and defendants stipulated to it which means we don't have to prove additional facts they stipulated to the fact it's in evidence it is available to be considered it does not mean that by including that in the stipulation this is now tantamount to a guilty plea if you recall defendant stipulated to the blood alcohol content test that was done based on officer  under the implied consent statute despite stipulating to that fact defendant maintained the right as they are here today to challenge the constitutionality of the statute that granted authority for that blood test a defendant just as easily could have challenge the constitutionality of the authority for admission of a blood test which is necessary for medical treatment they did not we are not as a state required to ignore facts stipulated to in the record and in evidence we just aren't the stipulation did not result in a tantamount guilty plea and we would ask that you affirm beyond exigency there was also this separate finding of consent that was made under the implied consent statute at the request of defense counsel and consent is a nother exception to the warrantless search although the defendant recognizes that they don't do any analysis under the implied consent law based upon their belief that that statute is unconstitutional officer sonders did testify he relied on the implied consent statute he arrived at the hospital he read the warning to motorists to the defendant there was no consent withdrawn and the blood test was taken and the court found that these facts are consistent with the impl consent statute and that the blood draw was taken with consent under that statute defendant argues though that the trial court's finding was an error and relies on mcneely and burchfield to make the argument but the problem is those cases did not address any analysis under an apply consent statute and specifically said that their findings would not implicate order as i believe burchfield of phrased it does not call into conduct the implied consent statutes of the other states so there is no defense that can be made for the argument here when you have two courts expressly stating we recognize all these states have by consent laws merely said we recognize that they haven't by consent laws and that you're not allowed to refuse but we're not addressing those facts here they're not properly before us burchfield though it was not a categorical statement that there would never be a proper way for an implied consent statute to tab a blood draw what it said is that in that case if the implied consent statute does not allow for the refusal without criminal penalties to attach then it's a violation but in illinois we have civil cala penalties and we have evidentiary consequences that come if you to preserve an issue for instance if the defendant other motion to suppress identification evidence or b s c evidence during a bench trial and then trying trial indicated that they wish to preserve that issue search warrant but an officer at the same time cannot wait for hours before determining if the individual is able to provide consent or whether there i didn't circumstances that is not within the meaning of the fourth amendment this case presents a question of consistency consistency in the manner in which issues are preserved on appeal and consistency in determining when a warrant must be of the state's argument is inconsistent the search may be reasonable when determining the totality of circumstances but if an individual with both consent under illinois implied consent then the search must be justified under one of the other exceptions the fourth amendment is section five a one point one subsection pete does not allow an individual to revoke their consent and then it allows the quake and the state to find that the fourth amendment search is reasonable under