existed in this particular case the officer pulled the defendant the car the defendant was driving over because of an equipment violation the car pulled into a gas station lot when that officer approached the car the driver of the vehicle the defendant didn't roll the window all the way down he only rolled it down a little bit which clicked in the officer's head that that might have been because the often thought that he was hiding something like the smell of alcohol is there a dispute about that it was below zero legal there is no dispute as to how cold it is now it's february twenty first of two fifty two am in the morning and i didn't go online to see what their temperature w i'm not sure so i'm not going to answer that because i can't tell you for sure if you want me to i'll look and file a motion to supplement ok that  conceded that the star was ok when he was making his rulings but he was bothered by the bloodshot effect of bloodshot eyes because he said it's two fifty two in the morning a lot of people would have bloodshot eyes them but he neglected to think about the fact that a lot of people who are drunk are out at two fifty two in the morning he also said that the defendant slurred speech the judge the officer should have really relied upon and because the defendant had slurred speech when he testified how he felt the officer would have known when he first met the man on a stop that the guy has a slurred speech i don't know because we're supposed to be looking at whether or not a reasonable man would think that the person was intoxicated i think if you meet someone at two fifty two am their eyes are bloodshot glassy and their speech is slurred and they can't perform any of the field sobriety tests you have reasonable doubt reasonable person would be led to believe that they were under the influence of alcohol or intoxication and to that that he asked of the defendant if he'd had anything to drink and the defendant said that he had a clue and cream and if you watch the videotape he has a defendant how long ago that was in the defendant says two hour administered after the defendant had been arrested well so have the breathalyzer test been administered after the defendant had been arrested but he used bad breathalyzer test to say that the officer's testimony was not credible because the officer said he smelled a strong odor of alcohol in the car did the judge didn't use a car with in the car in the car coming from the car he didn't consider the fact that there was another person in the car with the defendant who may have been drinking or that alcohol may have been still in the car yes the officer if you watch the videotape the officer talks about on the videotape the stronger of alcohol that's on a videotape not the of your getting to  r the courts factual findings and instances against the manifest weight of the evidence and it seems to me that in this case the issue on appeal hinges on the credibility determination that judge well i think with the judge does this he listens to the testimony i think there were three witnesses a any there's a video tape i don't know if you have the have to look at it but there's a videotape and he looks at me and he listens to all the testimony and he makes a judgment he says well based on what mr markey told me based on the officer's testimony based on what i see on this videotape i just have a problem with on officers conclusion that this person is under the influence of alcohol and it seems to me that the fact that i see here for example his performance on the field tests the officers uncertainty about a  things all of these factors say to me the trial judge that his inferences or his conclusions were not appropriate in seems to me that mr marker was not under the influence that's that's a determination counsel is it appropriate for the judge to use the brush marks your results coming after hours to determine whether or not it was probable cause based on this other stuff is approximate to say i can't believe introduced to show specifically that this person was or was now under the influence of alcohol as would be appropriate at the trial it was introduced for the purpose of same in teaching the officer who said in my opinion this person was under the influence and because he smelled alcohol etc etc and then the defense i think without objection puts this testimony in to say well you know this is why you're on in this is why you should question the officers conclusion how can you  want yeah i think i think the question of strong versus not strong is is much ado about nothing it was kind of interesting for me when i reviewed the case again to see that in the states there was another point in the testimony i thought he may have mentioned it again but in any event he mentions it someone approaches the vehicle he mentions and again saying something to the  says that he smelled the odor when he first approaches in the vehicle and he starts talking to the fans on the tape there's a couple of comments that he makes including i'm not sure sure whether you're tired whether you look this way because you're tired or you're does on the video then listen to the video i don't know if you had the opportunity to do that now when you listen to the video you can hear the defendant you can hear him speaking clearly and responsibly to the police officer he has i don't know if this is the right analogy to make but he has what i would call a louis armstrong voice he has a very deep grant only manner of his speech which you can understand everything he sang he's no more general with respect to mr markers performance on the field tests i think he mentions in general he says i've seen thousands of these things in my time he did ok he passed the various  defendant did all right and that the conclusion that was drawn was not the appropriate one now yes his performance is not perfect and there is a reference for example to  him standing near the squad car as he does one of these one or two of these attacks and my recollection is you look at his video and you see him in profile as he's either standing or moving ting that means that he has to accept the police officers conclusion and i don't think that's consistent with with the case law you know if you if you say that then the police officer becomes the judge point i would just respond to your question about whether the officer testified if there was a strong smell of alcohol i believe the only time that came out during the officers testimony was i had page record twenty five when he was asked by the state based on your initial observations did you ask him including the smell of alcohol did you ask him if he had been drinking the officer said yes i did do the admit that he  had drinking the officer testified yes he did the question why did he say he had been drinking your whole lot answer i believe he told me he had a clue and cream approximately two and a half hours prior to me making contact with him and i believe that