court the issue here in this case is whether the evidence that was taken as a result of the blood draws should be suppressed under the force and managed what i would like to do is briefly summarize six points that i made in my brief and the st issue st point has to do with state action the th amendment applies to state action not private conduct the question here is whether the hospital personnel were acting with the endorsement support and encouragement in participation the police so the two cases that i rely on for this proposition are the skinner versus railway labor case that's the one nine hundred and eighty nine d the people vs skilled decision only court case which specifically cited skinner so under the state action doctrine there is state action because the actions of the hospital were done at the one of the nurses specific there's paling testified that the illinois state police requested the blood test results so the state action involved and then there there are a lot of factors here it is not just  didn't actually compel the private railroads to conduct a test but the supreme court and skinner how that that was not determinative the skinner court applied it totality of the circumstances test so the question is whether there was even though the regulations did not compel the taking of the test and even though the police did not specifically compel or forced the hospital to take the test there are still a lot of government participation and encourage them and under the skin or test and specifically with the skin or skin or case skin or case relied on federal section the statute which is intergroup here which is what we're looking at gas fired i'm sorry i don't want yet they did not have that in still so this is a little different in or well the statute we have in this case is similar to skinner because the kind of thread running between our statute and skinner regulations was that the private entity entity would be required to disclose the had to do with a different forth and an issue it had to do it was a michigan supreme court pearlie and a few other cases and those cases addressed whether the taking of a blood draw violated a reasonable to disclose the results to to the police and the reason for that under the quickly case is that these results will be useful to the police in determining whether there's probable cause to arrest for entity to take any tests that's life closely aligned with this case the regulations that he should skinner like this case involved hiring requiring the  in as you say it says they shall disclose upon request but that the the results might help the state however aren't they done for medical purposes isn't that the difference here you know under four point one and i rely on a quickly case there were the purpose is to assist the police determining whether to arrest for probably cost for court so the very st medical done as an individual comes into the hospital after for instance a car accident the medical personnel are doing that for the assistance of the step police in is that what you're saying while under the particular fetch in this case the defendant did not want to have any medical treatment at all she did not want to be transported to the hospital there's a minor injury yet she was still some very minor concerns they didn't even put the ambulance lights out when they transported her there was very little concern the injuries were quite minor and so if you didn't hear the testing the judge found that the testing by in more particular particularly by the doctor he faced found them credible as to his basis for taking the test taking the blood in that it was it was purely for medical and there was no state action if you will or or encouragement so how do we reverse the trial court's determination of credibility of these two witnesses when they say this was taken purely for the custody of the police because it had to be below a certain level so he was working in conjunction with the police and then rd mueller didn't want to go to the hospital she quickly case as i said indicates that the purpose of this provision is enable the police to the information that they need to make a probable cause determination so there are there is there doesn't have to be a police officer that orders or compels a private person or entity to do the testing it's of the tests is a lot looser s t d participation sent is an issue that was discussed in a breeze and there was no voluntary consent under the anthony and grant cases because she didn't want to go to the hospital in the st place when dr who wanted a tester for  her blood level she protested what she could gave an explanation that he was empowered to make the decision whether to consent to the blood test he because of her condition he was a power to make that decision for her and i take issue with that i mean we don't know that's what he testified to so that's what we're relying on here and that shows a lack of voluntary consent because blood draw i mean you have subsequent subsequent blood drive here and whether or not that subsequent bloods are outcomes than whether or not she didn't give consent to that if we find that the medical blood draw was valid that there's no issue with the medical why draw the subsequent blood draw on that perhaps there was no consent for and the police instructed or or somehow it had state involvement does it matter then whether or not the sex was nd one comes in if the st one did i mean isn't that kind of cumulative well  i would argue the st doesn't come either because there's no voluntary consent for that i guess my question is if the st does come in do we even need to worry about the subsequent what could have impacted the decision making of the court because under the harmless error test because what the judge relied on in finding the defendant guilty under count two was three blood draws and if we exclude two bl draws and state has to prove that the error and it meaning that blood draw was harmless beyond a reasonable doubt than i don't think the state would be able to meet that standards but more importantly to my argument is that i don't think any of the draws were miserable because he the st one was involuntarily as well involuntary as well because she's basically forced to go to the into the ambulance to the hospital she didn't want to alcohol level of an excess of point eight and for that conviction which is the only one that stands the the results of the watch draw are absolutely critical because without that before the court because the trial judge decided to merge three and wanted to t could you have any other questions thank you mr levin you have an opportunity to make rebuttal thank you thank you martin you may proce blood alcohol level above the legal limit and therefore the state is requesting that this court affirm the findings and judgment of the trial court now in case the timeline of events as they are again made clear up until this point i'd like to briefly provide a timeline for your hono s at seven fifty four pm the officers were dispatched to the vehicle accident there was testimony that there was airbags a claim and moderate damage to both vehicles defendant was described as unsteady that she spoke with slurred speech that there was a heavy set of alcohol around her ordered two blood tests only the st of those tests was admitted into evidence that blood test was completed at eight thirty two pm and it returned to be a c a point three hundred and seventy four then at nine fourteen pm after a defendant was behaved as an instrument of the state and where that determination is made according to the circumstances of the case there is nothing about the circumstances here to support that there was state action event it was taken to a private hospital she was treated by doctors and nurses that behaved according to their typical emergency room procedures when finding out that someone's being brought in from a car accident where there's been air back to and the doctor was even asked during the suppression hearing whether there was any sort of police involvement whether he was asked by the police what were the tests and he said no only that he believes that defendant may have suffered some sort of head injury and he needed to know her blood alcohol level in order to be able to better interpret the tests now while defense counsel  completely different types of actions gets involved the search of i believe a trunk the search of a defendant's pockets but more importantly in both of those cases it was a police officer conducting the search there was no question about state action in either skinner there was a read you a state regulation by a state actor which mandated that a private actor do something that they typically do not do which is test their employees whereas in this case we have hospital doctors and nurses doing what they do every day test patients and figure out what is the best course in being able to treat them and that doesn't amount to state action it wasn't done for the purpose of aiding the state at all it was not for the also draw this court's attention as was mentioned earlier that there are several cases cited in the state's brief such as will car upon car get to ruin brooks that all supports and stablished that there's no for the men violation when you have doctors and nurses doing what they typically do and treating a patient where they take the sick the patient's blood but it's done for the purposes of treating patients not to aid the state in any way and even if we don't pay attention to the blood test results there were still evidence from the nurses that defendant told them she had caused the car accident and told them that she had been drinking earlier that day and testimony from the nurses that they had spoken with the other motorist let me ask you a quick question and i think this is what you're what the defendant was trying to stay say there is a medical test because if so you're saying the th amendment doesn't apply because state actors were involved in that medical test aiding the state in any way they did it because they were interested and their main focus is on treating patients and stuff it also says that it should be it shall be reported but upon request so there's nothing about you know what is typically happening in influence of alcohol and other evidence was presented to support those counts therefore the state requested this quarter from the findings and judgment of the trial court and i will reserve the remainder of my time for any additional questions from well your honor i would i would disagree because once again skinner you have basically an instance where an employer is being asked to do something that they typically don't do which is something that's very distinct about this instance we have a hospital doing something that there may be a case out there that as you know that supports that there's a special need exception but as i cited in the states brief i'm not even sure most courts even get to that point because where they find that there's no state action in the st place we don't even get to the point of i have one question i know you're saying that the nd test isn't that relevant but you say that there was consent if the warning was improper that was given in order to receive the consent if that morning was improper which was alluded to in in the trial court then isn't a consent not valid but yes your honor the state did concede that an improper warning was given to the one in three were merged into count two when that's really all we have play in this case i think the state mentioned during its argument that there was state action as to the nd test so that  test should be suppressed under the state's argument and that would affect the outcome in this case as well now as the st test i believe the deck should be suppressed as well because now under the under the st talking about the st test that state relies on the walker case which is a lot of the facts are very similar to the facts that we have here how do you distinguish that  defenders coming close to conceding that there is no agency relationship and here the facts are much different because we have nurse pailin stating in his testimony that the police  cut that there is no agency relationship and i don't think the defendant they recently argued that there is any kind of state action that case and the facts here or are significantly different  decision was its reliance on three out of state cases curley hardy and changes but those cases are a lot different from this case because those cases do not involve an analysis of the state action issue they involve and the helplessness of whether an expectation of privacy was violated and they were decided without the benefit of the us supreme court decision in mcneely so there is a g from the state to do any testing and the four point one was mentioned very indirectly i think is like one single sentence the core interest four and four point one the core interest four in some depth of four point one the court did not address whether that would should be a triple whether four point one as opposed to forty four point one is a factor among many as i have argued as to why the state action up the court walker just didn't address that issue so and i would like  the other counts would have been not beyond a reasonable doubt and therefore they should have been reversed as well  and they didn't make any argument and i don't think they addressed it today but my argument was even though i'm not required to raise the issue i raised it anyways on my own and i are good because the  seem to recollect that that argument my understanding is if there are three convictions the fact that two merge in to one of the three that the defendant must attack all three and they  defendant must st start out with attacking the conviction that the sentence was imposed and then added that if that fails and they also must fail because of ins then explain why is whether the hearers harmless beyond a reasonable doubt the state has the burden on the ad and the heat it's not harmless because a trial judge decided to sentence this mueller to eight years based on count two and the evidence is certainly not harmless as to count two so the sentence of eight years is a material factor in this issue she was prejudiced because of the or are incorporated into the one conviction that count two so those two convictions are one and three are no longer relevant and state hasn't rebutted yeah in the brief or today in oral arguments my recollection belief seems like there are two elements your one is in capacity has of course noted and the other element to sea level the blood alcohol level so the state has to mean both elements and after the nd element without the blood draw results without the numbers it cannot possibly establish the nd element so the the suppressed evidence does make a difference it can't be harmless to cuz they can't prove that she had a blood alcohol level point a way without those results and i don't recall the case either and  based on the record itself i would argue the state has not sustained their burden to prove harmless error beyond a reasonable doubt and their burden not mine and they didn't sustain the burden i could have been silent the issue is whether to suppress the evidence and or reversal so i would argue that i would request that the court do that that that is an issue that the state of the defense could address and remain but i don't think that's an issue the court needs to address right court level on remand and other questions thank you sir your time is expired and we have no care the question is we will take the case under advisement and render maybe disposition a nap time mr clerk you may close out the proceedings thank you thank