the morning or so before we start the clock i just want to note that you are handling this case as a part of the pro bono program and we always thank our lawyers we appreciate that mean we have to be nice  issues the st issue is whether an after the fact blood draws sufficient controvert in evidence to denials of certain signs of impairment and the nd issue is whether or not the vehicles wheels touching a curb unknown in disputed fashion constitutes all by itself sufficient probable cause to arrest somebody on suspicion of dui the tires are on the sidewalk the record isn't exactly clear about how well the tires made it onto the response because i see the the defendant statement of controverted facts but i didn't see the response to that so unfortunately in the district court there wasn't a clear response procedure like you would see in a normal case i  think that had more to do with the fact that it was a pro se litigant at that point but the flip side of that is the uncontroverted statement of facts of the city of tempe a fact of lee within themselves admit that there is  does not deny that his tires drove up onto the sidewalk can we are we supposed to assume that is a undisputed fact that the wider half of it would be undisputed about the fact that the vehicle ended up on the sidewalk said that the tires are on the sidewalk correct so that's two o'clock in the morning right wrecked question about reasonable suspicion they can they can write a pitch him it's a traffic violation to touch the curb so no we don't we have an appeal they have approached him and then everything gets contested about whether he i think the judge that he just denies it rocked any symptoms at all right and so now is that ok let's but if we're looking on qualified immunity there's two prongs so in terms of that let's just say you jump over the probable cause part of it but what a reasonable officer think they have  that's the catchall they're on a qualified immunity and it it's a it's a little bit of a it's an odd case in the sense that so you can just say nothing and you can say without any further evidence while there's no evidence that they even knew he was black you says i was arrested because i was black so it is just that always create a triable issue i don't think so i think what we have here is the fact that the only evidence in the record that is a stablished is the fact that the vehicle was on the curb and i don't think that you can say that a reasonable officer would say and every single circumstance regardless of any surrounding facts which are all in dispute that the   you know i think for probable cause it has to be what happened before but then the flipside of it is if if he has to put on something more than i would stop because i was black does that the  wasn't drinking this is subsequent tests being that he didn't meet that burden to create a triable issue i think it becomes a tribal issue because of the fact that the subsequent test and i believe what you're  what i'm just seeing here is that every i mean if you see the long view of it you look at it and you kind of go ok that since since you know that he does come you know it's not disputed that th validity of the test so that certainly undermines his credibility that he had been drinking as far as that goes better for going back to the probable cause and what the officers had in front of them what does he have to do you know if can anyone is it enough of every time says i don't agree with anything that they say and they stop me because i was black and there's nothing else and there's no evidence in the record they even knew who they they were they were stopping so it's like you have a nothing burger case but if you could just you know there are things in summary judgment that say sometimes you need more than just a flat out denial agree to create a tribal issues says tricky little case yeah i think the word that you used actually highlights the issue is that what this really comes down to his credibility doesn't have to be credibility we wouldn't we wouldn't condone making a credibility determination but i don't think that's what it was really saying by the time you get to summary judgment in your mind one of your point the st point i think is well taken the officers didn't have the blood test at the time of the arrest right right but at summary judgment the question is whether the should go to trial whether the should go forward so at that point we would assume the jury would have all of this evidence and i think the question is whether ask the question of whether or not a reasonable juror could find in your client's favor on this issue right yes all right and your client denied everything including that he didn't even smell like alcohol but at summary judgment the juror would know that he had zero point four nine  right but i would i would submit that there's never just said that the judge was correct this is what i'm really trying to get why was the judge wrong to say this isn't really a genuine issue of material i think the reason why the judge was wrong was the fact that effectively what we have here is that the officers are pointing to a number of different factors saying this is what we use to establish probable cause and the only point of evidence they have other than there are statements of that and mr williams statements  contradiction to that or the blood draw and i think it's inappropriate to say that any individual with a certain blood alcohol content would by definition have these signs of impairment to decide that at the end in order to take this to trial that there is a genuine dispute district court judge have to decide that a jury really could not find your client thievery i think the reasoning behind that would be it really to me just turns on whether or not a jury would say that this blood alcohol content we believe he would because mr williams testimony is that he was pulling over and wanted to get out of the street and that's why you know that's an article of recall on the curb i understood i'm not going to say i never have but it but you're not supposed to i interrupted judge who was trying to ask a question i think  y it's a simple thing one of our st of all there's two aspects of this there was reasonable suspicion to stop and the wheels on the curve definitely provides that yes but the other thing is he was challenging the probably cause to arrest him would probably cause the to arrest him they could not consider the blood test because the officers did know about the blood test and so therefore you can even use it for purposes of qualified immunity it just does not come in and that's the reason why the jury would never get it because of you know what might come in for something else but it would be used to justify the the basis for the dui and so therefore the issue is whether or not there is a material fact in dispute in regards to these other factors that were used or claim to be used by the officers in other words his fumbling with the license all those things which you could utilize and that i believe that there is a question of fact in relation to those issues because like you said if you don't want to step further even if you find probable cause the nd prong of soft ca says if a reasonable officer would have thought that they had that a reasonable officer would have thought there was probable cause agreed on what basis would he find probable cause because we can all the facts are in dispute except for the fact of the two tires on the sidewalk and that's the position that we're taking also is qualified immunity in the answer it is not and it's not something that was at issue directly in the district court the only thing that was raised in the answer was effectively that the the district court ruling should be read to say that the blood draw was sufficient to affirm for any reason or great looking to see what happened and sometimes the orders don't maybe a little quick trial court to busy places but but i think that record might be a little different so i want to give you both a chance to respond because i tried to look at this i think that qualified immunity is not in the answer and not at the twelve b six motion but it was in the summary judgment motion but the judge didn't rule on the summary judgment motion and then i don't see it in the briefs on the th circuit is that right so it's a little bit inconsistent  i think it was closer to argued in the summary post in counsel committee mention this in this summary judgment motion the judge didn't rule on it perhaps because it's not in the answer but but you can help me out later perhaps but that's what i saw when i looked i think you ma regarding the qualified immunity yes it was raised in the summary judgment motion  maybe but i did not have to be honest i have not i did not look at the answer prior to preparing this and i haven't looked at that answer if it did you are you are going out on appeal no at least not yet ok at least not yet and the reason i really don't think a qualified immunity is necessary here and i think we've already addressed the one issue of it and i think the appellant has given up his reasonable suspicion argument regarding whether or not it was proper to initiate a traffic  driving on the sidewalk if that was the only thing that was there he would have been issued either a warning or be a citation then ok everything my next question so i just got you along but your time is ticking and i don't want to take too much of it that the next question i have is have these two statutes was he arrested for both of us he was ok so how do we get around not having since i think that's reasonable suspicion it's conceded how do you get around not having a dispute a fact at the you know at the moment of or is that what you're arguing w arguing your honor is that well a couple of different things is that probable cause at least according to you know and west be the police officers do not have to rely on the denials of the suspect in order to determine whether there is probable cause here you know they asked if he was drinking he denied that he was drinking that has been definitively proven false you know later whatever the time that's useful point that they didn't know that at the time but at the time of summ judgment right the question is whether we're going to let this go to a jury whether the judge must let this go to a jury and it just seems to me you've heard my spiel but i'll ask you the same question why would a judge think that any reasonable juror knowing about the blood test could really believe that your client has a fine in his favor sorry his client thank you but could find his favor on any of the point he denied everything that he didn't even smell like up but that finder of fact would know it had some alcohol that evening that is correct that would be my position your honor is that there would be the jury would hear all of that it wasn't enough for the rest on his blood level it was lower than the amount that was necessary to be arrested for the  well for any provision all they need is probable cause to think that he was intoxicated and that may have risen to the level to ring the bell they didn't have to be right about it that's crystal why i'm quite familiar with the california law but in this this  so if is if your point eight or what you know whatever that they say then there's a presumption that a person still can be intoxicated under that level if if they're impaired like if like i'm a really small person and i could be a point four but if i'm driving in an impaired fat you know in an impaired fashion because of the alcohol even though they wouldn't get a presumption i could still be found guilty what how does it work in arizona you can be found guilty if you have any discernible amount of alcohol in your system and it's determined that you were impaired and out of quote the statute to the slightest degree arizona has an incredibly strict  when i mean he didn't get charged and so there would be a way that you could look at it ok so he's got alcohol in him he he doesn't dispute that he went that is the tires went up on the curb but let's just assume all of that but then he doesn't get charged rather than writing a thank note for not being charged but the why he files a lawsuit because he says he got stopped because he was black right that's correct that so when does the presumption kick in when they're in arizona the really is i that he had been through he denied that he had alcohol as breath he denied all that stuff so therefore what is the undisputed facts other than the tires on the sidewalk that you're relying on the undisputed facts and i'm relying on it like didn't deny them at the scene there's no evidence talking about how he denied them at the scene so the police officers are the only one that had testified or the you know that were at the scene so the officers didn't hear his matter what the reason the reason why it matters is because i think when if you're looking at what the officers knew or believed or had reasonable to believe is that they were observing somebody in the late evening driving something up on the curb where they intoxication were denied by him he denied everything that's correct and he denied everything but i think that because the blood test he refused a field sobriety test he did not deny that ok he did he part of the record and he denied all of that but i think that opposing counsel are one of his arguments is that it's very tempting to treat this as a credibility issue right if it's sort of lends itself to that of course we all know it is part of the record so his denials you know even at the summary judgment stage that i did not consume alcohol and i think you can extrapolate as to the other fact that you know that i didn't smell of alcohol and i mean  blatantly contradicted by the fact that he actually did have alcohol and so what i'm positing is that it's not necessarily the case that's tempting it's close it's not necessarily case that there has to be couched in terms of jurors not believing him or making it  ther fact that seems to be skipped over the one thing that is not contested that at the time that the officers made contact with him he was chewing gum which is another classic sign of at that time of night is to mask the smell of any alcohol but that's the policeman's expectation that it does not necessarily show the basis of problem no i mean it is another but it's it is part of the circumstances which goes into making the determination of probable cause thank you thank you very much we'll give you one minute thank you appreciate the extra minute i think just briefly what i think this really comes down to and i think that's where the most of the questions of then is this this idea of where this line needs to be drawn and effectively what this comes down to to me is the fact that  believe that the blood draw and the jury would automatically say that mr williams is not credible because of this blood draw would effectively be saying that every single person with this blood alcohol content exhibits these signs of impairment and i don't think that as a matter of law would find in his favor i mean essentially this dog don't hunt this case can you put it down yes but i would think that in order to have that determination you would have to be able to say that at this blood alcohol content