the next case on for argument is ok ando versus city of new york so we'll let the courtroom clear before we start th ok morning mr burke's good morning stephen burke scene for the plaintiff the jury may find that the plaintiff was falsely arrested and maliciously prosecuted on the charge of driving while intoxicated because the record shows a factual dispute whether the officers reason to believe that plaintive was in fact intoxicated there were three primary reasons for this number one the timing of the plaintiff's alcohol consumption that night he had three drinks the second drink he had no later than ten thirty pm tonight before the third drink was sometime that morning so if you didn't drink in excess and it was talking wine here if you didn't drink in excess then by six thirty in the morning a jury can find out sergeant ch did not could not have had a good faith belief that the plaintiff was intoxicated it's our child no no but if the plaintiff didn't drink in excess then it stands to reason the plane would not have appeared to be intoxicated and he would have had a basis to bring that circle at the offices so or was a man who had been sitting in a car in the middle of the street for twenty minutes sleeping with an open container of appear to be intoxicated he didn't act intoxicated we have five or six officers in the record either at the scene or at the station who testified either they didn't smell alcohol on his breath he didn't appear to be intoxicated he wasn't acting like somebody who they said he didn't sleeping in the middle of the street with the with the car engine going that doesn't car in here that means it doesn't give rise to probable cause that he's  toxic it means something is going on but you can't just look at a person in that situation and say all right come with me you have the right to remain silent we're going to the station now you size him up are his eyes red do i smell alcohol on his breath or is he slurring his words you don't have that here you have an unusual situation and i agree the optics aren't very good but it doesn't mean that's probable cause fifty w why not when you have five or six officers at the station or on the scene who say he wasn't there was no indication that he was intoxicated you even have a report from who deemed plaintiff fit for duty no odor of alcohol on his breath his eyes were normal his balance was ok so you have on one hand now at his fingertips it doesn't mean he was intoxicated it doesn't mean any because he wasn't acting like he was intoxicated otherwise you have this but that's speculation it's speculation regularly they came up and found him asleep say it again i'm agreeing with judge parker i thought they came up and found him asleep correct but what he called in there you got a guy asleep in a car at a stoplight but that doesn't mean any but that doesn't mean he's intoxicated if you have a problem you have a different i was in dr who was and it was a very correct again the optics aren't very good but to arrest him on that basis alone is supposition because you don't know enough what does he look like how is he talking to us knock a hole in the car that was mulatto hold his breath you don't have that and he hadn't even been drinking much so on these facts well but if he wasn't drinking then he wouldn't have appeared to be intoxicated which means sergeant wouldn't have had a basis to think that he was under the influence because we do with the with the container that's not a factor the open container in the it's a factor but i don't think it's enough to say he was driving while intoxicated that past the sleep you could have minutes in the middle of the street i agree this is supposed to do you give him a field cool us a cup of  starbucks give him a field sobriety test on the spot we see it all the time on the highway and he passed a field sobriety test and in the in the police station what's the relevance of refusal to take a breathalyzer very relevan like it's admissible at trial but what about here isn't it something at least as to the motions prosecution cause of action is relevant to whether the probable cause was sustained continued well again he passed a field sobriety he doesn't he doesn't give the breathalyzer pursuant to a legal principle in new york that's been in place for fifty years that you can invoke the right to counsel and they can't have you submit to a breathalyzer until the attorney but you suppress the scientific evidence if they violate that principle but he was permitted to make phone calls he called his wife and he called the union but they wouldn't let him contact his attorney but more important he passed a field sobriety test so again the object asking is it relevant i mean the fact i don't know if it's relevant if you passed a field sobriety test my point is that i asked whether it's relevant that he wouldn't take a breathalyzer because you get a false arrest because actually a malicious prosecution to correct the  case you can factor it in to the part of the case but also consider the other facts it suggests that people at the station did not believe that he was exhibiting any signs of intoxication so at that point you proceeding with an and with a prosecution approximately twenty minutes the car was in gear in drive his foot was mercifully on the brake at any time this car could have spent for the new intersection number two there was an open bottle of beer half drank in the center console in his reach number and there was in the center of it was an order of alcohol on his breath he admitted there was an odor of alcohol and dating from his car some approximate twenty minutes earlier than contended that it had dissipated over the windows to his car was rolled up and he had been asleep during that entire time so many of the hallmarks of intoxication were present and under the circumstances a reasonable officer certainly could have concluded that he had either been under the influence or driving while intoxicated what appellant is attempted to do he said he removed his firearm at the scene that we know is driving back in the car in the front seat of the fire about those five or six things that everybody agrees were really accurate well absolutely our first panic characterized this is falsified testimony i'd be made a determination there was no in ten for him to mislead anyone of that at most some of his testimony was in an inexact whether or not he was slumped over his wheel is subject to interpretation you couldn't really see from the video what his body undisputed facts that he laid out at the beginning of my argument in addition your honor once he was brought to the intoxicated driver's testing unit he refused if a breath in custody or other it's just you know the pelham makes much about him passing the field sobriety test some two hours after he had been found asleep at the wheel but not only does intoxication sort of wear off over time and that his condition would have improved some two hours later but his refusal to take a breathalyzer coupled with his pre arrest evidence establish probable cause for the most prosecution case for the murders f time but we have four officers on the scene as i said earlier who flores daily braille past the mirrors who did not smell alcohol on his breath one of them transported planted to the police station so he was in close proximity to the p of did not smell alcohol on the plane of breath where's the objective basis beyond him sitting in the car in that circumstance that he was driving while intoxicated with an open bottle of beer right there's a wreck but no one smelled anything on him people who sat right next to him brought him to the station interacted with him personally four different officers on the scene and a reasonable explanation what could have been a more reasonable  this he could have had a health condition on the spot who knows he could have had an all nighter you can't even you know what you might think he might be drinking but that's supposition i mean obviously you would consider alcohol at his fingertips ok but that based on the other facts that we know doesn't mean he was intoxicated your first instinct would be oh he's been drinking ok we have a problem then you get out of the car you get to me once all these factors are here you may not have you could easily parent you didn't have proof beyond a reasonable doubt but that's all we talking about here we're just talking these offices police officers come up and see a parked car on the street for twenty minutes been asleep for twenty minutes middle of the road car engine running i gree alcohol at his finger at first glance you think he's been drinking and then the more you you spend time with him you do your job you have the field sobriety you realize he's not intoxicated something else is going on here we can't arrest him for d w i that's our point thank you thank you thank you both will reserve decision in this case