by giving a little bit of background on september twenty eighth of the year twenty thirteen if it was operating a motor vehicle there in the back of a motorcycle the driver of the motorcycle flew off the bike and then later died of his injuries that w subject of the litigation has before the court today deals with subsection a six and also d one after all part of the same charge which was aggravated you know why based on the allegation of up per se liability for dui for a controlled substance and not blood urine or raff the defendant was acquitted of the impairment charge but was convicted after the bench trial of that second charge under a sex she could not testify within a reasonable degree of scientific certainty that this controlled substance which mr hoar left was convicted possibly am or xanax was actually present what they did find was to is that it could be a metabolite of other sources so it may or may not have been a byproduct and if the court understands how this works at least my understanding is that say a controlled substance like xanax is consumed or ingested then it metabolizes it goes through a chemical process and then spits out what's called byproduct known as metabolize now there are substances presumably that produce certain metabolites but sometimes metabolites can be the product of other substances which may or may not be clear from the record is whether that's even a schedule one two three or four controlled substance in which case it may not have been illegal at all and then it goes to the issue of whether there is even sufficient evidence to prove him guilty of aggravated  that's only urine but then this is this is where it gets a little hairy ok so she does this test for urine and she conducts the gas test which is supposed to identify or qualify what substances were young later they do a test to quantify or quantity what terminology she uses so the way i'm looking at it if i could use an analogy it's sort of like the last test the liquid test as we call it which was immediately an experimental test which i believe from the record i was off the manual in other words that the state crime lab technician did not follow proper protocol was using something that they hadn't used before who stated that she believed that i what might have been xanax but it might have been something else that may not have been even a controlled substance so they are they're not part of parcel each other they're separate it's apples and oranges and if you go to the liquid has all that does it's perspective that's one one thousandth of a milligram so we're talking writing time tiny time and according to the defense's expert is within the margin of error so less all she could state with certainty with scientific certainty is that it was an amount less than twelve point fox which could be zero and so that's another issue too so we have a metabolite which may or may not be from a controlled substance we weigh it and we don't even know if we have an actual trace amount as the court just suggested or nothing and so that those two to me shoes that were of the three issues that were raised well really all three but mainly the foundation aspect of the chemist testimony and also whether there's sufficient evidence to prove this this name guilty beyond a reasonable doubt based on really their only evidence that they did have to support that claim which is d one half so it was the mere presence of a controlled substance then in that case that they were dealing with cocaine and what eventually happened is that the defendant's conviction was affirmed on appeal because the state's expert on cross examination stated that the metabolite that was found in that person's fascination could only have come from cocaine but that's very best distinguished from the case here which we have experts saying it could have and when you look at that case that was how they found this gentleman hilti that's that's because it howls with a of one other substance good a come from here we don't have that we also have an admission which you know some of the cases where there is a fault say that when there's some kind of faulty testing you can also go to whether admissions are or what not from the defendant that's not present in this case here those are the facts of this case in fact my understanding at that person is that we're right on the and we can you can show that this metabolite for certain from this controlled substance or to even say that it was even a trace amount it could have been zero then i don't see how the state prevails and so that's essentially my argument him because that's what the machine was the subject to look for and we know that the tests done on the blood was reliable because the test itself included performance tracks there were six standards of blood that were spiked with known lam it wasn't looking for anything else that could have that metabolite from the here and it wouldn't have detected a different molecule and at present it was not found in the playing which was one of the performers checks it was in the control and the six standards that were tested on generated a very linear standard per sub the data points fit what would have been expected to fit so we can control the blank in the standards all set up the she she didn't say that there was zero under twelve point five micrograms per liter didn't mean zero because she said it's present with a reasonable degree of scientific certainty and the reason to think this is that is that it was w against an internal standard and that number was two point seven seven five for the twelve point five micrograms per liter concentration the results for the sample was two point seven seven won reporting at enron under that amount but that's more than zero she doesn't say it could be easier out and that's because compared as compared to the blame on the results for the playing she could tell that it wasn't just background noise in the sample that the drug people was significant and it was something probably pretty close to the top of the top micrograms for later so she did know it was present even if she couldn't stick it in a particular amount because she had tested any if she had tested let's say up i don't like their names really there and then there had been more information on what the amount would be on the lower end of the spectrum and she would have been able say was over that but because it was on the lowest m s machine to determine the amount of oil present lamb in the blood was a publish my bed she did testify that it was scientifically acceptable with scientific literature approving such use it was she testified that it was included in the manual of the equipment that something she did testify that it was generally accepted in the scientific community and that it was a published method and that there was scientific literature ripping on the use of it  so i think that there's a difference in the space between what the left protocols are versus whether it's accepted in the scientific community and sure there were some left protocols that weren't followed but that doesn't mean that the test still wasn't now now and i would say that there's an indication it's not because they didn't agree with it because she did testify that it was included in the equipment man you won't be the piece of equipment used she did discuss it with your supervisor  and that she wouldn't have used it if it wasn't you know she didn't have the performance checks make sure that it worked so it's that so you're saying that that is that that was not sufficient the foundation objection that was made was sustained because the judge didn't know what test they were talking about specifically there's been a bunch of tests on the year and a itself so i think the parties i it seems to me that they're going under so they're talking about that specific test for that specific molecule but if not then i didn't see anywhere where i'm more specific  divine justice if i may i'd just like to address one thing it wasn't really hit on other than in no this states replied brief but if i get hit on it briefly and that's the issue the standard heard of review in regards to  one of our claims that there was inadequate foundation and that he had testimony should not come in at all and i would highly and refer you to the stafford case which was brief it is contained i believe establishing that the information upon which the expert basis is pinyin is reliable it is a function of the trial court to determine where the foundational requirements have been met that determination presents a question of law we point to it just the wrong house you assume the presence of the controlled substance when using a test the way you control substance when there may not have been a controlled substance at all not following your own labs procedure manual not being able to do after testifying that this is used in the scientific community not being able to actually say what publication this came from in support of one's expert opinion that's like saying that yes saddam shalt not kill this is contained in the ten commandments but when you ask them what are the ten commandments you can't say anything else and say anything is it saying something doesn't make it tru machine for that so even if you're following that you haven't followed the proper protocol for using even though the correct past assuming that the other tests were cracked which we have the urine test and that we have a metabolite of identification is that what yeah that and that goes back to my apples and oranges analogy there waiting the fruit but they don't know which for sure that their way because they used a hearing test to figure out which fruit it was except they didn't