berliner in this case i'd like to start by clarifying a couple factual matters that i think are a little bit muddied by the briefing in this case page thirteen and fourteen of the state's brief  where they're discussing the potential that the that the attorney is concerned about the potential range of dissipation rates and says of which counsel was away or and then suggest that the number point twenty five dollars could be the dissipation rate in this case and that that would be a problem that's somewhat of a red herring the point twenty five dollars number is not relevant to this case the range the state talks about is the range across the population  so for the entire universe of people the range could be anywhere from point twelve point two five for an individual like mr berliner in this case on this day he would have one number a rate which  that that statement by counsel shows that counsel did not ask his expert about the forensic draw evidence so the record shows that excerpt of record page fifty counsel showed testimony needs to be read is that he had only discussed the hospital draws with graham's bow and that he was making his conclusions about dissipation rates only based on the hospital draws we know that had he actually educated himself about the two forensic drugs he would've had a lot of different information he would have specifically known his clients dissipation rate was point one that number could have been discerned from doing a mathematical calculation from those two forensic draws that well there's obviously an exhibit in the p c r record that's not part of this record that does say that it's it it's just a mathematical fact and if this attorney had educated himself about this information us yet that at that testimony needs to be it can only be understood to say he talked about the hospital draws with his expert because if he had talked about the other two draws with his expert he would have had more information and he would have known that his own client's dissipation rate was not the high end of the range as the briefing suggests but it was the low end of the bench a quite a few jumps and his testimony he was worried about the dissipate as judge says but you're saying well in your view if he understood them more than he would have asked and then he would have been advised why and they might have done attorney didn't look at this all of the evidence in this case appropriately from the beginning he never gave his expert all of the discovery in the case he only gave the expert the medical records so grim suppose opinion and advice to counsel about dissipating rates is only as good as the information he's given he doesn't know that there are two forensic draws you can see that the trial judge is over the course of forty or fifty pages in a tortured way trying to get this trial attorney to talk about the forensic draws because that was the key to making graham suppose opinion that the hospital draw was to be discounted by fifteen percent that was what was going to make it relevant if counsel for the defense was bringing in the forensic draws counsel didn't even think about those drugs for fifty pages the trial judge asked him did you research this and he says the trial attorney says no i feel it too so i don't know what you're talking about and everyone else in the room understood what he was talking about was if you introduce these two forensic draws that will make your expert's opinion relevant he would have been able to get graham's pose opinion on the discount of the hospital draw in but it also would have done more than that it would have cast doubt on the hospital draw because if you extrapolate backwards the hospital draw number seems to be an outlier how was how would this all been prejudicial was this likely to have resulted in the reasonably likely to resulted in a different outcome i think that well because this there was no no what is the the prosecution through their case just wasn't the alcohol correct and the only evidence in there that's another point that i want is that is your main defense was that he wasn't driving that is his main defense but that but the state was also introducing blood alcohol content evidence in order to show that he was acting with reckless intent which was the most important element on the most serious charge manslaughter so when the state comes forward with a blood alcohol content evidence to say that your client is in talks a k did and that goes to the most serious offense and you have available forensic draw is done by the oregon state police at the state crime lab where it's tested using the gold standard and those wrought results exculpate your client you're obligated to while there was other evidence that he wasn't driving so the state says in its brief that his testimony was necessary to his defense it wasn't strong the passenger who was in the back seat of the car testified that mr berliner was the passenger in the something that regularly occurs with this off roading vehicle so i don't think he's saying i wasn't driving because i was too impaired to drive he think i simply wasn't driving i also wouldn't have testified had my attorney brought forward this evidence that showed i was not intoxicated do you want to save your remaining i would like to yes thank you it please the court counsel joanna hershey on behalf of the respondent rank yours the issue in this case is whether the post conviction court reasonably applied the strickland standard in rejecting petitioners post conviction p and our position is that if you look at the main circumstances of this case the post conviction court's ruling was reasonable the three main circumstances i want to focus on our st to that petitioners primary defense as you noted was that he had not been driving the car at the time of the crash nd there was evidence that petitioner had already admitted to police and paramedics numerous times that he had been drinking before the crash and evidence that he officer was that he had been drinking i think more generally and then the rd circumstance that i want the court to focus on is the fact that the state did not present a per se theory of intoxication for any of the charges in this case the state's theory was that defendant was intoxicated to a noticeable or perceptible degree so the precise blood alcohol content number although it's relevant it was not the sort of the linchpin of the state's case  and i also want to start with clarifying some of the factual matters that was were discussed there is absolutely no evidence in the post conviction record that defendants had a point one percent per hour disappeared rate there is no evidence from an expert that the rate is steady throughout time what we have is a bit of conjecture from post conviction counsel and petitioner himself they don't even agree about what they think is just a patient rate is and the post conviction court noted this in his decision that there is simply this record he said this record is cold on issue the one piece of evidence that has any sort of scientific potentially scientific merit was not admitted at the p c r trial it is not part of the evidence here record and under a  is not before this court and then another thing i'd like to point out is that the primary crux of this case from petitioner's perspective is that conviction trial itself and there's three questions from the petitioner himself that they are on this he asks did you look at the crime lab results and counsel says yes these are those are the whole blood test results he asks were  aware that with dissipation it puts my blood alcohol content at point thirty five and counsel responds i don't necessarily agree with that certainly my expert didn't suggest that as a possibility and i'm not certain that's actually correct i don't think the distribution rate has been established and then the rd question isn't that something you should have discussed with your client and counsel answers i discussed it with the expert so there is absolutely evidence in the record to support the post convictions implicit because implicit finding that counsel did make a reasoned investigation into that and shows after speaking with his expert not to pursue that avenue and i think beyond the fact that it's our position that counsel acted reasonably in preparing his defense which primarily did not revolve around attacking the state's blood alcohol evidence there's really a failure to prove any prejudice in this case that's what the district court found and i  think that's where this court's analysis really should start and counsel made a number of arguments about prejudice i want to just briefly mention that i think two of those arguments are not properly before this court those are that admitting the whole blood results would have helped counsel move to exclude the plasma results and the nd is that they would have helped counsel lay a proper foundation for the expert testimony that he ultimately was unable to present this is the st time those arguments have ever been fleshed out in any way the post conviction court certainly didn't consider those in rendering its decision and there's no record development about those had he known about this whole blood test results the post conviction court explicitly rejected that contention the court found that counsel's statements that post conviction that he absolutely would have had  petitioner testifying that petitioner was going to testify no matter what the court credited that and the court found real concern with petitioners credibility because his his sort of excuse kept changing at one time he said he wouldn't testify at all and another time he said he would have testified that he was not intoxicated and i understand that counsel counsel put on other evidence to show that the defendant was not the driver but without defendant's testimony to support that i think that defense would have been far weaker and one of the key facts that the defendant testified to was that he often leaves his car keys in his car and allows his friends to drive it frequently and that's really important to support defense that he wasn't driving at the time of the accident because without that sort of leaves the jury to speculate will how did this happen it was clearly his car was somebody else sitting in the driver seat and then the remaining prejudice argument sort of rests on counsel's opinion that the whole blood test results were somehow exculpatory and that counsel failed to acknowledge the exculpatory nature of the evidence i don't think that there has been any evidence to establish that those whole blood test results are exculpatory as we discussed there is no real evidence about the discipline rates of this defendant which is why both parties on appeal are sort of citing case law about the average range which isn't even consistent within the case ought to be perfectly honest  what we know from that case law is that it's more than just basic math there are other factors to consider were there other drugs in the defendant's system we know he admitted to smoking marijuana could that affect medications food is it really a steady disposition rate throughout i know that and what about the defend his drinking history there are so many factors that we don't have in this record to be able to conclusively determine what that dissipation rate is and so we don't even know if this evidence really is exculpatory in that sense so for all those reasons i think the post election court correctly determined that there's an automobile in the record if you're talking about the part of the record where petitioners asking his own attorney and the post conviction trial did you look at the crime lab results the attorney says yes i was indiscernible lab test showed that's all he says so it's not clear if he's saying i was aware of what the hospital lab tests showed or if he's saying i was aware of the forensic draws you can tell from what he continues to say that they could be totally talking about different things two ships passing in the night where he's so unaware of the forensic draws and their relevance which is clear from the way he presented himself in both the trial court and in his post conviction deposition where he repeatedly says i don't remember that stuff i don't remember that stuff that he's not necessarily on the same page but the judge heard the wor group different i don't think the judge found that the attorney was credible he found a harmless error because of the fact that the client the attorney said he had to testify and that's simply not borne out by the record that is an unreasonable determination of the facts in light of the record to say that this defendant had to testify i think we have that point in mind so you may want to sum up as you've exceeded ok counsel doesn't have for the court have any benefit of that so i don't think it helps to argue it if you want to submit a twenty a j lead and you're welcome to do that thank you case of berliner versus piers is minute thank you for your arguments