and i quote that like that's the thank you very much let me say what we're not here to discuss everybody agrees mr burns drove under the influence of alcohol everybody agrees that the he pled guilty to a slightly different charge but in essence the same charge everybody agrees that it was a crime everybody agree is that he should receive some kind of punishment or penalty count what we don't agree about is whether or not the the penalty listen appropriate their constitutional requirements and statutory requirements which in fact the m s p be discuss in a report that the issued an ins and that is why i quoted it extensively in my brief there is also the algorithm for determining what the penalty should be and that algorithm is will be called douglas and there were many complaints and in terms of what the deciding official believes that the mr parents did an awesome many aspects of the douglas analysis which is that's clearly what i think the emphasis of the argument in your brief is if we find for instance that that we would disagree with the order and one of the factors is that enough for us to send it back now that would that well they they took that to move some sort of asking for special treatment a take out what what my own what i find important in this case goes to vines was holding up he was standing up in the state overturned car and holding up his police credentials before there had been any request for identification is that in my is my recollection correct was that primarily what the police officer was thinking about when this what he said is well in the car he said how are you going to take this twice several times which is essentially twice and then that is report this to the to the officer in charge and if in fact he and wanted not to have some kind of penalty imposed he would have done that in his testimony as well  particularly the fact he didn't say he didn't pursue it he immediately told his agency that he had been arrested on this what was the officer's perception as the letter of the crime and i am not nobody  question douglas factor analysis it's usually because they either completely didn't weigh a factor or there was absolutely nothing to support where they waited not and i've rarely seen a responsibility it's necessary if it's a rational connection between the facts found the and one of the facts was that the that particular officer immediately thought that he was for me to buy the argument that the results of what happened after that that voluntary action shouldn't being able to be voluntary because he was intoxicated who were intoxicated you don't have control over your that i still drove i would not i would not think that i would meet the standard to be arrested and there's no evidence that he understood that that he was prefer if you go to a restaurant you see people finishing off two people finish off the bottle of wine that probably would be enough to impair their driving but but they don't think that they meet the does have to do is whether he was immoral and so immoral that he could not be a police officer and and that's what the deciding official said he said i'm going to impose my own morality on this and he intentionally themes first that he had based on the decision very poor decision to drink and drive based on his conduct during his arrest and subsequent hearing fall an individual who is charged with public safety putting the public in danger by his by his actions it involves law enforcement officer showing this regard to other law enforcement officers and to legion how many law enforcement officers are convicted of domestic violence all the time and charged with misdemeanors and they never lose their jobs and never lose their right to carry their guns so why is it that here you never considered the fact that that he had never been in trouble with the law before and he went through that the alcohol rehabilitation programs earlier on or first i think the design official did consider those factors there documented in his his douglas now says that he discussed them both in his decision and before the ministry of judge but he felt that they were outweighed by again  his essentially lack of trust in mr francis judgment going forward in the fact that i don't care that's the fair characterization because when you go through which ones they found to be factors they found to be mitigating which ones they found to be neutral they actually found the ability factor to be an aggravating factor without having having considered the of the of those things that i pointed out so i guess so it's not really fair to say that he considered those but they were outweighed he actually said it was aggravating because he couldn't be he couldn't do the the misdemeanor charge your honor well first of all i don't think that the the fact of not being able to undo the church itself was the sole concern in the in the rehabilitation category the deciding fishel also discuss the public's trust in the pentagon police force by having an officer with this kind of conviction on his record also discussed that safety of the public that rehabilitation did not necessarily go specifically to the individual but w discussing the mission of the force as a whole as well and again even bringing that factor down slightly taking that the goal here is to determine whether the penalty was totally unwarranted in light of all of the factors considered even lessening the rehabilitation factor slightly the nature and seriousness of the offense be consider the fact that the penalty was within the range the reasonable range the fact that mr barnes was clearly on notice as to the the type of violation he was judgment while intoxicated the issue that it's a fact deciding officials like me out here is not a legal definition of intent whether mr bines intended to disrespect a police officer he is looking mr branson judgment during this entire process his decision to drink and at several alcoholic beverages knowing as he is a police officer their effect on his ability to drive and the fact that his impaired ability to drive would be a danger to himself and the public but he did exercise at least some element of judgment in this interaction with the other law enforcement offic true your honor that the agency does not have a per se rule with this particular deciding official did it he said so he said it a number of times in the in his douglass analysis that i cannot i cannot have faith in anybody who violates the law any police officer who violates the law he even went so far as to say it would be ok if the doctor did it i would think he should you lose his license but a police officer a police wait so this is discussed in the opinion pages forty through forty one and my takeaway from that was that you were given the identity of several people  and it turns out that none of them had equivalent situations right i mean this is you know the section of the opinion of talking about where the human relate resources specialist was asked to come up with either through settlement or through being removed for fourteen days or twenty five days but there were details of these other individuals and their situations but they just were it one involved not securing it service revolver adequately well there was only one person and they did two things domestic violence and an misuse of w and then his penalty was reduced from i believe it was twenty one days to fourteen days because he was seeking alcohol counseling and but but but there were other examples  and the court if we point out to did not allow us to call those people did not allow us to to do anything except have their records looked at in also in terms of the seriousness or the judgement and one thing if you pointed out to joe malley it's strictly a morally ship this person is not morally able to be a police officer  human fact have several drinks whether you intend all the consequences of what's going to happen and and for the police officer or for the deciding or the a j to say well it's a matter of common knowledge police officers that if you have over a five hour period three drinks in a beer there that you are violating the law and you are a danger he had no idea is going to be a danger and in fact he wasn't