dismiss on a twelve b six motion failure to state a claim upon which for relief can be granted and a denial of plaintiff's motion to amend the complaint what i'd like to address person is the to well we we spent the bulk of the time on the motion to dismiss but i believe we substantively argued that we should be allowed to amend and the reason we should be allowed women are just like to wear your briefs that argument so you're know i think it's very important that we look at the second amended complaint because that's the amended complaint that ultimately we were able to create after we had received a response from the gram our government records request and we have the and so that's why there was a change and that's where the second to amended complaint came from is that we had more facts once we actually have the video but the district court denied your motion to  and there's a standard review we have for that but that's never addressed in your review never argue why the district court was wrong to deny your motion to win again i understand your honor and i thought know it actually doesn't is independent i mean i see these as two different remedies for us either the motion to dismiss was wrong or the motion to dismiss was right and we would receive leave to amend it because lead to amend is generally from the grant and the whole point of the pleadings is to get to the truth and the justice and if the pleadings don't happen to address everything just perfectly rather than decide a case on th procedural niceties the court in the tenth circuit court would prefer and has indicated in several papers that they would prefer to decide a case on the merits well nobody's addressed the merits of this case where if you complaint in the in will he was arrested or she was arrested and i think that wrong she was arrested and she was taken into custody and she was she was taken into custody and taken to the police station and that well in the court's ruling is interesting because the court's ruling refers to both complaints in the footnotes they make reference to the second amendment plate as well as the first amended complaint that they refer to is the operative complaint and so they clearly have those facts in front of them and they simply chose not to consider those facts so they were really more the lower court to use the word in the tenth circuit court decided this on a procedural basis officers request to give the to take the portable breath test and right so you're doing you know i've been it in the first complaint it wasn't until we received the video from the government that we were able to see that it wasn't done that way that's what made it that moment of arrest what happened and the officer the way the officers do this typically is they ask them to perform a third test where they put their hands behind their back and then they place hand cuffs on so the answer is when the handcuffs on the handcuffs went on all right and you've referenced the video which be very interested to see which ses in the trial record but i don't see that in the record that's our mistake and your honor we should have sent that over so we're happy to make that available is in the trial record in the trial court that had the opportunity to with regard to the importance of this case the issues that we see this is important too is what we have here is an individual who was cited for dui who wasn't a drunk driver nothing about her conduct indicated that she was a drunk driver she had no driving patter she did not have slurred speech she spoke quickly that she was nervous i'm speaking quickly for us me there's nothing about me that is impaired at this point i'm simply nervous which is the same as her she didn't have red bloodshot eyes she didn't have a question she got out of the car just fine she was hoover compliant with the officers  she had the a one card which is she had met at the check and drinking she said that she had a drink at lunch it was approximately three o'clock in the afternoon and so lunch was at least a couple hours prior again she was simply trying to be very honest with the officer and not be deceptive anyway and when she opened her trunk for the officer and gave permission for the officer to find the correct license plate it wasn't until she had been stopped for nineteen minutes and a backup officer arrived that the officer makes any mention of the order about call after he's been with her in close proximity talking to her for nineteen minutes and then the and again those are facts that came from the video those are not facts that were available to us from this leon she doesn't know what the it what the two officers are discussing until we get the video so we certainly may be guilty of prematurely filed maybe we needed to wait until we got the video but we file enough of these cases that you know we thought we knew about what had happened and then when we got the video we saw that there were exceptional circumstances in this case and that's what caused us of concern for the rest of the public if summit county policy is simply to file the charges in the court immediately upon  citations from the officer that leaves a subset of people and granted it's a narrow subset because in most you i situations you're going to have a driving pattern or you're going to have obvious indicators of  intoxication the fact of the matter is it's not difficult to tell when somebody is intoxicated and when you see those things officers don't have i mean it's not a high burden when somebody actually intoxicated but in a situation like this where there was no there was no evidence referred to of actual intoxication observations of actual intoxication and even the standard ice builds right yes again as we're looking at the video which was only officer was nearly touching her nose which will in that manner this is in your complaint let's it is in the second to men don't like that that's a problem for you well let me ask you about the policy of the county this is another thing that's not in the operative complaint if you're playing the malicious prosecution that requires that your client have been put in custody under the charge in some way there's no fourth member malicious prosecution saying she was required to present herself in court three times so no she was never taken into custody she was required to appear in court three times right after the charges and she was then she was out back into custody and she was not incarcerated she was taken to the jail they took a blood test and then she was released to her husband so she wasn't actually taken into custody in the sense that she was incarcerated but she was taken into custody when the cost of r and ultimately the policy that out concerned about in this instance the officer i believe would be a bit i was probably imprecise came that airport charges were filed she was in court yes and she had posted bail yes so she was brought into court and was that right ok right is the no that could very well be my point was since it's not brief yes it's a no standards which is no anything i think the issue has been wait let's go back to really trying to simplify this case i think it's really a relatively simple  the six motions were filed based upon the original complaint and he amended complaint both granted basically why because if you look at the facts of those two complaints you have a situation where you have a driver  not issue it was clearly a invalid registrations so that's not an issue so the question is the expansion of the stop after the driver says i had a beer at lunch the officer also smelled alcohol the odor of alcohol in the car he also had as he described his report which is alleged i think in the second complaint that she was talking in a rapid way  whether there was reasonable suspicion to justify the stop there was reasonable suspicion based upon the fact that the officer had as allege in the complaint to had to basically give expand the stop to conduct a field sobriety test fronsac the only thing the fellow said was i had a beer i had three or four hours before i had a third of it and the court said in that circumstance without any snout that entry else think what behavior talking too fast the last case was the defendant was talking too slowly well this was in there were reports it is in as alleged by the plaintiffs but any rely on wild or wild there is a situation where the fellow is going too fast fifty seven in a fifty he gets caught officer approaches him and basically says spells out call and see if you've been drinking he says yeah i ha glass of wine ten fifteen minutes before he then says ok we'd like to have you do some field sobriety tests guys nope not going to do it and he arrests them right then and there the issue in that case was was that adequate probable cause under those facts to make an arrest this court said yes so you had basically in that case you had an admission of drinking you had the smell of alcohol and you had you also he described some other sort of watery eyes and flushed face i agree that's in the in the in the case too but basically had a refusal and then and then refusal and that was adequate what do we have here we have i admit that i'm drinking and i'm spoke quickly odor of alcohol and she admitted she consumed one beer at lunch which was relatively close the time she was stopped that's that's with in here and then a field sobriety i believe they say she was she was given field sobriety test it's totally adequate so those are the two issues it's not that complicated it's different though wilder's different in that the drivers there acknowledge having drunk the wine fifteen minutes before and here i have never met him till the time the stop  said three o'clock the body with the body absorbed one beer and two plus hours well i'm i'm not a physician is i don't i don't know that about the well if it were but if it would and that was a true admission of drinking and the smell of alcohol in the car and the admission of field sobriety tests to her which the officer obviously determined she did not do well on and therefore one third so they were service to me that perhaps that was reasonable suspicion but it really didn't isolate and enhance the fact that maybe was under some influence of alcohol but in any event these are facts sensitive matters judge i realize that i just think that there's very much an outlook yes to the facts here and i think what you have here is definitive with respect to the probable cause and real suspicion as judge new for found the only final thing i sail prosecution by the way i think the list prosecution goes out because there's probable cause in what the officer did it and you have to obviously have no probable cause even at the first based on a malicious prosecution you're quite jurisprudence with respect was prosecutor therefore the list of prosecution claims is not valid frankly i don't think that's necessary to go there a i'm not sure there's any particular case that says that and see i think if we look at mo now liability the analysis is really quite a bit different then immunization adopted by a prosecutor so what i'm saying is there's adequate probable cause here and also seventy seven seven twenty which is the utah statute that based i'm sure this is true in every state but i don't know that they issue a citation if somebody comes in and contest a citation then they  they file an information of criminal information and then you go to go to mass on that basically same thing in your citation issued if you plead not guilty you can test the allegation that information is issued by the serial number of the particular defendant but also this is the crime that was committed by this particular individual so it's not it's not serving absent from even the cit some in d c of probable cause and good faith for doing it that's the other thing too obviously under this act battered you could not possibly say that any prosecution of miss lee on was somehow for an improper purpose or for some wrong purpose or for some any other purpose that is inconsistent with law enforcement the fact that ultimately case is dismissed which i think is reasonable and appropriate by some a county when the blackout came back point to one that's the way the system works as a practical matter i think that was an appropriate thing to do so that's how i deal with the malicious prosecution unless you have any other questions i have not thank you count great thank you for your eyes i just want to address a couple of things that he brought up first of all i would like to address the minter the tenth circuit court two thousand and six made the decision in the minter case and there if they made some important state or some important statements first of all they said that they wanted to end the sporting theory of justice in court so that it wasn't simply a matter of getting all of the procedural aspects right or who have the best race for us there's no question that as a small office we may not know how to do all of these things but we're here fighting for somebody who was arrested that didn't commit a crime that has been labeled as a drunk driver when she wasn't because she admitted to having consume alcohol in an effort to be very candid now the defense did they point to both the bond rack and the and the and the other the wilder case the bhangra case is distinguishable because the standards for d y in new mexico are different than the standards in utah and e u why what the statute says is that anybody who's impaired to the slightest degree can be guilty of a dui in utah the standard is him incapable of operating a vehicle safely now you can certainly be impaired to the slightest degree by simply admitting to having consumed alcohol but it is not a reasonable inference that you are going to be incapable of operating a vehicle safely because of the mere consumption or odor of alcohol so that's a very different standard and likewise in wilder the court recognize that there are a bunch of different factors there the red bloodshot eyes the driving pattern the flushed face your regular speech none of those things are factors in this case ultimately to answer your question from earlier on of the fact we've elected to with regard to the our arguments on the denial to amend our founding pages twenty five through thirty we've alleged all of those facts as facts that were in the second amended complaint which the which judge knew for references in his footnotes towards the end he says that he's considered those and even in the second amendment complaint there are no distinct facts that give us any possibility of recovery thank you that's