arguments today before we begin a word or two about our format just as you were and courthouse and elgin it leads have fifteen minutes for your arguments appellant will also have up to five minutes  republican you've heard the time or you know what it sounds like it will be operated by the clerk of the court you do not have to use all of your time however due to the format  you will not be asked questions during your present taishan you will have the full fifteen minutes and i know most perko you know that we've read the case we've read the facts we even have a memorandum so we are fully apprised of the issues and we may not be fully apprised of your priorities insofar as which of the issues you want to address st and foremost  not to be recorded the only party that's supposed to record this is the clerk of the court if you do either of you counsel have any questions prior to  appealing his finding of guilt and imposition of the period of supervision for driving with the substance in his red blood or urine resulting from the unlawful consumption of cannabis we maintain that state's evidence was insufficient to prove the elements of the offense just briefly mystery can stopped for speeding an odor of cannabis was detected in the vehicle he refused and he refused to exit his car and there you are was escalating resistance by mr  r with the underlying facts of this case and what we maintain is the primary differences in the precedents that have resulted in affirming as opposed to those precedents which have resulted in reversals the convictions are st of of canada in each of those affirmed cases the defense against me had misted the consumption of the substance the illegal substance that was involved in test that is missing in this case so the nature of an admission or the nature of the results  chad are particular forms of objective evidence and it is exactly objective evidence that is missing in this case in fact presence of an abyss on the breath but not necessarily in the breath more recent decision of our nd district in the mcpeak case sick connection needs to be from any circumstantial proof such as the leader of a substance and the actual conclusion that that sub didn't exist did the breast urine or blood and certainly indicates that in order the meaning  indicates that in order to prove an unlawful consumption there half to be some showing of  actually had admitted to using cannabis an hour or so before he drove his vehicle but mcpeak found this even that evidence was insufficient to show that the cannabis would have remained in the defendant the scope so in this case even in so far as there was an person about about around surrounding mr meekin says person it was not specifically evidence about his breath and there's a very specific discussion of those page citations regarding the alleged odor surrounding mr meek and but actually an absence of suspicion evidence showing that the odor was on his breath and that and assuming that this court except the reading of the evidence that we have described again it takes just one thousand and twenty of violation under fifty thousand one hundred and eighty six of the statute we are now looking at the question of whether we are not looking directly at the question of whether or not mr nikken may have been under the influence of some so there are dozens and the state relies on the sex that he had may have had blood shot eyes and  illegal use or ingestion of substance and we maintain that that was not proven beyond a reasonable doubt in this case and for that reason we ask for a reversal of the defendant's conviction well the courts it's my opinion that there should be expert testimony of some nature now that expert substance remains in the defendant's system so there has to be st christian evidence that there was some sort of unlawful consumption and that consumption needs to be recent ringback order to maintain to form a conclusion the staff substance remains in the system and alan makes clear that there needs to be some sort of a bridge there even if you even if the evidence is tending to prove consumption there needs to be of bridge to the conclusion that that the substance remains after a consumption so yes there needs to be some sort of evidence i mean it probably could come from a police officer if their police officer had there is our position that there would need to be some expert testimony to to bridge that spans from the defendant's conduct to the presence of the was talking about although that's a paraphrase on my part and so you know he said it's not happening yet we don't have an admission but we do have within his arm's reach something in the ashtray that could have then and the police officer basically said probably did create that order very strong or burnt cannabis how why is this are there any out of state cases that support your position that we need something more something that specifically links it at this you know puts puts the that you address this morning to support your position that he was not proven guilty and make pete but is there any and also an allen was there any evidence blood  classy constricted pupils or any evidence opinion evidence where the witness to opine that this person was under drugs as we have and our case whether or not there was blood shed blood shot eyes or constricted pupils in those other two cases but what i will say general in terms of you know have read any number of cases in and the recognition of the staff the bloodshot eyes are in constricted pupils can be evidence of many different situations including medical situations that would be unrelated to tax occasion but but what's really crucial here is that those constrict and therefore even assuming that there is such that there was in fact kind of evidence in the mix peak and alan the fact that there is such re the issue is not influence but whether the cannabis was in his bloodstream and he refused tests three exclusive of that invention is that correct correct and i'm not saying that there must be a scientific test in fact it would appear that the inference of a consciousness of guilt can be drawn pending obviously the news of the use and the refusal that i recall this case from the record ones that caused the descendants to take action to protect protect his private parts so i concert reaction to having what he apparently perceived as an involuntary draw from was there any testimony regarding the relative global smoke or particulate matter suspended in the air when the police officers came on the scene so i believe that would answer your question that my recollection from the records that there was no smoke present to process the fire that what he accompanied the defendant into the ambulance that he could smell is generally on the person i can't help the record exactly but he definitely did not testify that it was on his breath then there was an unfortunate question on cross examination  by defense counsel who said to fry did you testify on direct examination that it was on his breast to which fry answered yes well that's not what he testified to learn to direct examination i read that direct examination a couple of times and i feel very confident with what i respond pages nineteen and twenty of my original brief and then further cross examination he also says that there is no reference to the breath and gives police report so it is my position based on what i just described that fried does not buy that there was second hand i would submit that you would have to have let's say considerable evidence of aiding and abetting or a joint conduct or what ever and intent to on law someone smokes a cigarette or a blunt and then inhales what they that failed and continues to inhale exhale inhale exhale and then there is the situation which you refer to where somebody is in exhalations of some nd or rd party and i believe according to the facts in this case there was no other person in the vehicle which means that the probability that he was inhaling someone else's exhalations is somewhat dubious so i would like you to comment on whether you think that it's possible that if someone hypothetically lights up a blunt and smoked it and is done with it to the extent that it hasn't been completely consumed places it into an ashtray or tosses it out the window and leaves the windows close that they are not only inhaling the original graphic but they are also inhaling the secondhand smoke that remains or burnt cannabis that remains in the vehicle well i would answer that your hypothetical would apply to this case or could apply to this case were it not for the fact that the proof appears to negate the existence of any smoke so i don't thank you very much me please the court good morning justices st and foremost i believe it is important in a matter such as this case when reviewing the precedent it states that the people may use direct that we made director direct evidence which is just not the precedent in this state additionally justices in both pursue known case and they discuss that even with or without field sobriety tests there may be anough were sufficient circumstantial evidence to prove that a defendant in fact had a drug in his breath blood or urine such as such as in this case additionally i do believe it's important to note as i noted in my brief that people do not need an expert in the matter in this  even if charged for example in a a for a charge where you have to prove sold under the influence of the drugs our supreme court has held that experts are not necessarily needed st and foremost i think i've discussed at l the consciousness of guilt in this matter some not going to reiterate all of that but i do believe that the defendant's demeanor from start to finish in this matter is indicative of a consciousness of guilt starting with him rolling his window down only one inch that's not something that usually there on his behavior which includes not getting out of the car even being instructed approximately twenty times to do so by multiple officers from his resisting arrest to he had and in essence to refusals the police officers law enforcement had asked for a sample and urine sample which he refused and then specifically when he went to the st hospital due to his medical complaints medical professionals were seeking to obtain his urine for the course of their particular trying to determine if the defendant had any sort of medical issues not at the request of law enforcement and that's when he left a better terms had a form of a freak out and didn't want anyone coming close essence almost to refusals one from law enforcement and one from medical providers and then obviously his other conduct in terms of lying about having a broken back lying about being able to breathe those sorts of things when it comes to the evidence of cannabis in this case i know justice is already spoke in terms of some of this there was would have appeared to be a bird's blunt that there was only practically  with suspect cannabis and that the deputy testified that he believes that it was recent do the fact that there was such a small amount left on it additionally even though the window was only open an inch the officers testified that they could smell the strong odor of cannabis coming from that particular vehicle we had deputy crouse deputy fry in a firefighter also has the smell of her cannabis coming from the defendant and even though i don't miss her go disagrees with this there is evidence in the records to civically were deputy frye testifies that can is this coming from the press and defense counsel and the original case tried to cross examine further the deputy and had said you didn't clue that in a report yet you still are testifying today that it came from the press and the deputy said yes and so from that the jurors are allowed to decide whether they except their answer from the deputy or they don't but obviously in this situation they found him guilty of further that same deputy deputy fry he specifically testified that he believed that the defendant was under the influence of kennison even though this is no obviously that opinion testimony from the deputy who previously stated that he had training and detecting intoxicated motorists that goes towards more circumstantial evidence to prove that the defendant had cannabis in his blood brother urine at the time to the fact that that abbe believed he was under the influence further there was other things testified to in terms of bloodshot glassy eyes the firefighter also testified that he saw that the defendant had constricted pupils which miss pacifically indicative of someone being under the influence of drugs i think that's important testimony because that firefighter he's not law enforcement per se and as a matter of fact  his capacity at that time he was trying to medically treat the defendant so for him to make such a statement i think it's really important he also observed that order canvas and he also testified that he believed that the defendant was painting  unconscious story and i think it's important and i've already discussed in my brief why i believe the percent ok's and casino case are more akin to this but i think it's important to point out wind peak in alan are not so in mcpeak much like this case there's not your stereotypical bet driving and there an order of cannabis coming from the defendant however he minute to taking only two hits out of his pipe within the last hour or two which is not in the extreme an ounce there was personal and cannabis found the car however there is no bloodshot or glassy eyes there is no constricted peoples wasn't asked to do field sobriety tests there was no mention of blood or urine testing or refusal there was no law enforcement saying that the defendant in the peak was under the influence there wasn't multiple witnesses testifying about the odor of cannabis there was no order  beginning to the very end when he was taken to the jail it is safe to say that the deal to bryce tests were not to be able to be performed based upon his his behavior and his demeanor with the officers and alan that he's also started with  no paraphernalia in the car no cannabis however the most important part of why that case is so distinguishable from our case is the officer on cross examination specifically stated he could not tell if the defend zero or one hundred milligrams of an amount of cannabis on his breath or blood that's completely different than what happened in our matter and i think based upon everything that i just did about alan alan is not really controlling  d his slow motors scalpels and even in that case he didn't happen paraphernalia but he was combative with officers to see know that that matter was a heroin case the defendant was given different answers as to when he left us here when there was in the car there were track marks the defendant did have constricted peoples and according to the officer who had specialized training under the influence detecting murders under the influence bill sobriety test did indicate that the defendant was under the influence of heroin and in that manner the defendant like in our matter also refused urine testing justices i just believe that based upon everything that all of the evidence in this matter that the jury came to the correct you the state relies pretty heavily on the fact that there is according to the officers a strong odor of this substance in the vehicle it's a contain space the window was open the little bit before the officer actually approached the vehicle according to him we have any cases that indicate that a strong order within a contained space is evidence of current or recent use not to my knowledge not guy that that sort of evidence is basically the only evidence to find someone guilty of and i don't recall reading any cases that that strong odor specifically itself determines recency of use i think that's just something that the jurors can draw a conclusion based upon personal and it's that's used to show that it was maybe recent is there anything that would indicate that in terms of case law or something that we could put our finger on to say oh yes this is this is good circumstantial evidence so this is solid circumstantial evidence in terms of that for example i know that some of the cases like mcpeak and alan they did briefly discuss paraphernalia and so i would say that the cases that discuss personality that is of importance even though those cases reversed the convictions i would note that obviously the courts do make note of whether there's paraphernalia in the field goal and so i do believe that that is indicative of recent use because for example i mean i don't know how clean of a car the defendant keeps but for example ashes are something that dissipate and go away or can be cleaned out and so i my last question kind of relates to during the struggle or the escalation of his not wanting to get out of the car he was placed on the ground we don't know how but he was placed on the ground probably face down and then his body went limp what does that have to do with this particular case and proof of consumption in terms of the descendent when he was faking his consciousness or glenn smith as you heard there was testimony from a firefighter who came and said that you know he checked the descendants vitals and that he didn't believe the defendant went unconscious or land as the defendant was pretending so in this sort of situation the defendant that kind of behavior demeanor is not the kind of behavior or demeanor of someone who's thinking and acting with ordinary care additionally i do believe that had the defendant just been speeding or doing this speeding in his car he wouldn't have escalated and had the sort of behavior that he did further out to believe that in addition with that going limp on the scene taking not being able to breathe faking being unconscious is continued that behavior at the hospital and i think it's important to also stress that when the defendant was told that he was going to be basically cleared for incarceration he then started faking the story about having a broken back which he in fact did not have a broken back and i think all of that all of that behavior goes to the defendant just not wanting any sort of blood or urine draw from himself him trying to basically out of trouble by faking having these illnesses or being unconscious i think all of that further also helps i had spoke about earlier debbie frye testified that he believed the defendant was actually under the influence of cannabis and like i said someone who's thinking or acting with ordinary care would not act the way the defendant  cannabis from his breast was there any evidence introduced as to how long it takes for cannabis to enter one's blood after use or even how long it will remain in one's blood  was any of that introduced there's no no evidence of that that's all the questions but thank you  response this morning for instance the state argues that we don't know how well will help clean or whatever mr meek and keeps his car i believe the evidence would show significantly on mystery can conduct well mr me can conduct the scene he has was found by the jury to constitute the behavior at the scene in his response to the officers was obstructive or resisting arrest but the connection this resisting conduct or obstructing conduct to a conclusion of the presence the sissoko e of cannabis in his system at that time  use is not something that can be made beyond a reasonable doubt it is precisely this unusual conduct and the staff that conduct was found by the jury to be to have been committed to resist arrest certainly then does not support a conclusion specifically that it was present by cannabis and with reference to the state suggestion here that we don't need direct evidence of an offense in order to prove guilt certainly that is well established but the point to be made regarding  cademy of the affirmed cases versus the were versed cases is that in those reverse cases there is some of jeff's evidence in which to make the conclusion that the substance still existed in the dependent system and that objective evidence is the defendant's admission or the results of field sobriety tests it is very significant we submit that there is nothing that kind of objective evidence in this case no and no evidence of for instance the police officers expert's opinion about how we would make a connection between an odor of cannabis and the presence of cannabis it is the individual's breath blood or urine and for all the reasons that we presented in our brief this morning we request that again i go back to the blood in the car isn't that some objective evidence especially in the state it was in and described as it was well it's more than objective evidence cannabis is does not connect to the consumption of cannabis and the presence of the cannabis substance in the defendant's person in his system and so i mean yes it is it's a ject of evidence but it's objective evidence of something that is not in issue and not an element of the offense that we're dealing  with thank you and you seem to indicate that the the fact that you're not challenging the struction a resisting somewhat forecloses the state's argument that that evidence also has relevance to consciousness of guilt can't elements sufficient to prove one charge also be used again to even circumstantially to establish another charge yes it can but at that the evidence of his conduct i mean as it would have applied of drug charges or the field of of drug charges that we're dealing with in this case at best that's proof of conduct showing some sort of intoxication and i mean is not very well put to say some sort of intoxication but what i'm eating is it's it can show intoxication from some intoxicating substance of which there are a myriad of intoxicating substances but the question here is whether or not he is showing  cannabis and that is what is sadly lacking here is an indication that there was an unlawful consumption of cannabis yes you know the the fact that his conduct might be attributed to intoxication that's a fascinating it's not is totally other managers the mere male of cannabis i mean all of these pieces of evidence yes they are miscible items of evidence but even taken all together they are insufficient to show the lawful consumption of cannabis and remaining evidence of the f consumption in the physical system course and thank you very much thank you thank you thank you mr caplan what's next and so far as procedures concerned i will stop the meeting right here everyone is free to hang on and thank you very much like you think you can point by i know