this court must reverse and remand a decision of the district court disposing of mr shufflers case on a rule twelve b six mr scheffler states a claim that minnesota statute one seven one point zero nine subdivision  and minnesota seven five zero three point seven thousand nine hundred two thousand and ten violates the americans with disabilities act as amended facially and scheffler the state has made efforts to bring the court's attention to the new statute in the new rule it is improper to address the new statute because mr the underlying offense took place under the the old statutes regime to consider the new statute is irrelevant it's distracting and it is misleading under the b card violation regime prior to two thousand and eleven one who was on a b card who drank any time would lose his license or her license for six years just for drinking if somebody had even a homeopathic amount of alcohol in her system while driving the consequence was a gross misdemeanor and consequent and confiscation of the motor vehicle to give the court some background of  of the history that brings us here mr scheffler as a youth between the ages of eighteen and twenty one was found guilty of three driving while intoxicated offenses in ninety four ninety five stopped the vehicle and required mr schaeffer to submit to a test found that he had alcohol in his system and found him in violation of the be current mr scheffler signed an agreement that the state department of public safety imposed upon him effective in two thousand and two they appear at pending pages twenty two through twenty four he in this record requires him to undergo chemical dependency treatment the record treats him as an individual with chemical dependency and the state is requiring him to go through chemical dependency treatment that is abstinence based that the state approves in its content or allegation is that the state regards him as having a of abled and if so what's the disability the disability is a chemical dependency dependency specifically upon alcohol he he satisfies the record of disability element under and the references to them appear in the paragraph fourteen through nineteen of his verified complaint what he says there is that he was convicted paragraph fifteen to nineteen the facts that indicate the record of chemical dependency a pet exhibit number one and exhibit number two are the specific records to which he under the old regime for being found to have even a minuscule amount of alcohol one system one loses the b card for six years whether she drives or whether she just walked out of mass and having taken holy communion or whether she just had that ice cream sundae that had alcohol infused manilla was it really true that going to mass would trigger a violation you have authority for that or any precedent for that the plan we don't have any cases however the plain words of the statute say any all there is no there is no exception for religious purposes we make great argument on the face of the complaint and the briefs as to the application of the technical assistance manual pertaining to title two of the americans with disabilities act and twenty eight  section thirty five point zero one clue explicitly states that public safety regulations must satisfy the americans with disabilities act what accommodation are you seeking are all right you don't dispute that the state is allowed to have some kind of restrictions on a serial drunk driver correct do you agree that the state may certainly impose consequences on an individual who drives while drunk number one number two the court should have an appreciation of the history prior to the first decade of the twenty first century in minnesota mr drunk  greater consequence however the b card regime is a function of mis placed fears miss and stereotypes that the united states government's national institute of health some of the old statute and as we sit here before the court in two thousand and fourteen the he would get his b card back in twenty sixteen with six years from the alleged underlying offense but he'd be on  he'd be on the ignition interlock for three years so that's not really an accommodation and it's still improper to try to mix the new statute with the old statute it's a case where the collecting s s d i we're we're not making the argument that you're making your own or what we're saying is others saying well holism isn't disabled the alcohol is a disability according to technical assistance manual section t question for you where you reserve your time whether you're alleging that he's disabled because of alcoholism or that the state perceives him to be disabled did he do the scratch each involved here that that set up this regime for the for these penalties and for these restrictions did they say anything about alcoholism the or  key to the number of the you are convictions your honor we're attacking the the abstinence requirement and finding that abstinence requirement isn't compatible with what the n i h is finding that eighty ninety percent of people within four years are going to have a relapse so the statute is punishing people for an element or manifestation of alcoholism and abuse is not dependency as the age found in two thousand and nine we cited at paragraph forty nine of the complaint the new laws that increase the penalties for a subsequent alcohol driving offenses we don't dispute these barons will hear from you has led to consequences for his driving privileges but he failed to allege that those consequences have been based on any protected status the threshold issue for whether the eighty eight applies is the thing to pass to prove a present past or necessarily as a matter of law required to do treatment what he's required to do is participate in a moment and follow what's recommended in the assessment and in fact the rules contemplate that there may be cases where someone doesn't have to complete treatment under the rehabilitation i'll turn it over he has a part to it talks about variance as to the treatment requirements under the ignition interlock program subpart two d also contemplates that there could be situations where the assessment doesn't recommend further treatment but essentially the stance responding to his club were ok go ahead that eighty only prohibits discrimination on the basis or because of a disability here  the the regarded as provision doesn't apply because there's no allegation that any impairment caused by consuming alcohol lasts more than six months he doesn't even allege she's had a single drink other than the four impaired driving incident there's no evidence the assessment and follow what's recommended so it's going to vary by person on what's actually recommended and again there's no impairment that's lasted more than six months the states responding to its conduct state law that defines what driving while impaired is in section one sixty nine eight point two zero and the impairment in that context is defined with respect to conduct so the mere existence of a d w i on someone's imposed consequences for that conduct is not evidence of discrimination under the eighty a he's not being singled out he has the exact same opportunity as everyone else regain his driving privileges and then eventually potentially an unrestricted driver's license and for the same reason the record of allegation fails because in addition to not having an impairment there's no allegation of any substantial imitation on a major life activity his record is for impaired driving  statutes and the rules shouldn't be looked at but they should because they applied to him under chapter seventy five zero three point one six five zero even though his offense predated the change he has the option right now  has an opportunity to regain his driving privileges he can either participate in the ignition interlock program or follow their rehabilitation requirements under the former regime he's never permanently excluded doesn't have to be subjected to the b card are still abstinence requirements under the ignition interlock program he would have the inner lock ignition for three years after that she would still have a restricted license where there would be a use restriction and then after a ten years total a  he could reapply for an understructure driver's license so after the three years of interlock his seven more years of abstinence that's required correct and what do you say to his hypothetical run with your hypothetical or not his allegations that if you were to take holy communion or you heard the other exam that he would be subjected to these sanctions is that true is that how the state would apply the the department's position is that as the total abstinence the agreement he signs to get back his driver license driver's license would prohibit any consumption of a product containing alcohol as to pretentious religious claims that's obviously not part of this lawsuit and they're just part of the oh you mean as an allege judicial review under section one seventy one point one nine so if someone believes the commissioner has arbitrarily or improperly reacted responded to the driver's license restrictions or taken some action short their license  would physically have that device on his car for three years and then after that he would just have a restricted license so he still cannot use alcohol but he wouldn't hall concentration for the fourth offense it was a point one eight this wasn't a violation that occurred because of communion wine or eating a hot fudge sundae he independently committed and knew d offense regardless of any restriction his conduct was a crime and he he had a separate charge because he violated the use restrictions while driving but again the only reason he got his driving privileges back at all in two thousand and two was because he agreed to that condition he knew the terms and he violated it and similarly he refers to an alleged failure to an after rules quickly enough asserting he should have had an unrestricted license back in two thousand and ten arguments both legally irrelevant to an eighty eight claim and it's factually incorrect that legislation that added subdivision three to section one seventy one point zero nine did not become effective intel july first two thousand and eleven and his last offense was in december two thousand and ten so the statute that statute never applied to him which what subdivision three you know that's the one that says you can it regain an unrestricted license after ten years of abstinence and he had it he had claimed in his brief that the commissioner just didn't act or rules quickly enough otherwise he would have had its license back and even if he had he would have lost it again by december and i would be in the exact same position today and i do understand that one cont that you're making in this case is that under the idea of a public good to be under some circumstances we're not required to make accommodation under the regarded as prong because if the person is not actually disabled there wouldn't need to be any accommodation made or are altered to any changes to the program only under the only if he were an alcoholic would there be a potential accommodation requirement is that you under the record of pr strict driver's license not that's essentially what he's seeking here and because neither the law or the alleged facts can support that conclusion the district court appropriately dismiss unless there are any further questions that ask the court to affirm our i think you appreciate your argument   right mr nikita's you have two minutes fifty five seconds will hear rebuttal thank you honor number one as to conduct issues conduct under the b card regime no consumption of alcohol is is allowed that is not conduct accountability it is mistreatment of someone on account of their status as one with a record of chemical dependency conduct consequences are the d w i charges and with respect to the  not all your honor we're saying is that one when someone is charged with the offense they lose their license for for ninety days and then the prosecution ensues the other point where the state is failing is that the the state in opposing the b card an abstinence violation regime is failing to make the individual lies the cess meant that technical assistance manual for the eighty eight requires and the t m says if the state is not going to do the individual as assessment to sure that it's public safety regulations comply with the a da then they have to rely on us government authorities like the public health service the c d c or the hundred nine and in two thousand and nine and two thousand and six as we have cited here the mr scheffler is stating a claim for having a record of chemical the pendency that the state imposed upon him in appendix twenty criminalizes the status of being a drunk or an alcoholic paul against texas you're in the reply brief your honor if i can answer answer your question what even though my time is expired all i'll answer so