sufficient evidence before the truck court to convict jackie pairs of driving under the influence of alcohol i've seen it in my brief analysis that basically states if you look at the evidence before the the only evidence amounted to a stipulation nothing more no witnesses recall the question then becomes based upon the stipulation was there sufficient evidence to convict jackie here i know the argument is very technical pads but i do think that the words this case do have this is the meaning and i think it's incumbent upon this court to look at what was present if you look at the evidence presented all of the stipulation sentences the stipulation basically says if such a witness recall then that witness was testifying in a certain manner if you look at that particular additional sentence you talk about the conditional or dependent phrase then you have the main clause with the consequence the consequence doesn't come before the court unless the condition is m basis and in this the state would typically say yes judge if you if someone so recalled as a witness they would testify in such a fashion that is principally appropriate for a guilty plea because the basis of the guilty plea is the defendant contain any agreement then the evidence presented in the stipulation was sufficient to convict i maintain a defense throughout the entire time i used the exact argument i set forth in the brief in which i advanced today that the conditional conditional sentences set forth by the state are not evidence before the trial court upon which a conviction can be made so there's no question that the attempt here to show this or to to convince that this was a guilty plea was mistaken i remember do this this court in daily case judge posited a very similar thing you may recall the daily case where this was a young lady who had pled guilty to reckless homicide and judge did not look at what was in the context of the stipulation and just assume that this was a guilty plea my argument does have support and frankly until the state quarter of the case and it's brief i didn't find this case but you of undisputed facts when it clearly shows that it was only a recitation of statements to which each person would testify to if called is a witness well that's exactly what we have here the only thing before judge judge klaus had a sufficient basis to say i submit to you that he clearly did not there was no fact there were no facts set forth look let me ask you if you if the parties intended to proceed in this man bet that was insufficient i argued that this was a conditional sentence nothing more it was a conditional statement in the stipulation that the state said they could call witnesses who could or might testify as files and that was made clear to judge klaus right there but you have to understand because josh powell started giving an admonition prior to the actual hearing that he believed there this was a guilty plea i don't think you consider this at all i think the language might testify  arguments thus we've accomplished the goal of the stipulated bextra i don't think so because it is absolutely the consequential main cause if you look at any of the stuff it put in the bre to the state that this deflation that you've prepared doesn't make sense to me i mean i would commit malpractise in terms of representing my clients alex i've never stated anything and never misled anybody i never told the state what to do this was they presented stipulation actually i looked at it i signed it and read this this is what the state wants to produce and the state didn't produce a stipulation this is clearly a situation where the state opinion that there was no evidence based upon the stipulation to convict my client i don't think i have a duty back if i became a practice if i buy the state hey look you really didn't do this right that's estate strout they have to put this together i simply signed the stipulation so i know it's real tactic argument and when i made it at first i thought well maybe i'm just stretching this family but when i saw the base case where now i have a seventh circuit opinion squarely on point i mean it couldn't be more a point in terms of how you interpret that right there this is the seventh circuit in chicago said you can't use that this is stipulation of facts because it's not it's a stipulation only yes to water argument which is troubling to me because this argument whether i lose or win whatever you do this is brought good faith in this is there a lot of plot in this state i don't think the state paid any attention to it i don't think judge klaus i don't think that's the basis upon which a conviction in this state should occur it wasn't this sort of stipulation that set forth those facts from each region i grew this state officer so and so saw now any other questions on that aspect let me turn to the sentencing asked because i do think i want to raise that a little bit this is a case where once again we have someone who  fifteen years with the state attorney only ask for eleven years when jackie puts on a lot of witnesses and you have all of this incredible mitigation that basically is before the court and i think completely ignored by the you have to ask whether or not this sentence is appropriate or whether it's it's excessive yes he had been sober for about ten years he was involved in the master's program he's from illinois university he continued have physical problems resulting from fourteen years of service in the military it had a stroke which would and dr bernstein testified to letter that it affected his physical cognitive secular line in terms of making decisions his brother had just died his mother was  in need he took care of his mother there were just substantial medication helped in the community he was then then when he didn't have medication dr bernstein said there was a screw up and the lack of medication the veterans administration substance of abuse program in danville so this is a gentleman who in fact clearly has a bad record and clearly has an alcohol addiction no question about that i  references daily but i think it's similar i don't think judge ploughs really gave much thought or consideration with respect to the mitigation and daily this court says this specifically found that it was that he had a predisposition to harsh sentences that doesn't consider all of the mitigation and that's what really happened here i mean this is a gentleman who did have substantial mitigation there was no accident there was no personal injury there was no property damage the fact that he with much better mitigation but this is a case right thing that court again just basically ignored the minute it looked at this from his own personal views as to what people with dui should be charged not charged with but sentence in the brief an issue with respect to whether or not this corps should expand the concept of voluntary consensus after the mcnealy case and whether or not the second talk about how this is an incredibly invasive procedure that the constitutional expectations of the fourth amendment certainly require a warrant and if she looks at the missouri statute and that statute specifically talks about the officer telling the defendant that peace these test results may be used against him and try so those are the backdrops against which i'm asking you to consider that you know i think that frankly if an officer doesn't say anything just asks him to consent that's even better because i think once you got this reason plighted sense pension most people who listen to that think well the consequences are certainly going to be my loss of license by not saying anything about the fact that this could be used against different types of stipulation that the rest case recognized stipulations to be admission of evidence such as testimony and stipulations to the truth of facts and like in the base case there is the misconception with respect to the nature of that stipulation but that doesn't mean that others kind of stipulation the one involved in this case stipulation to the admission of testimony and placing it into evidence is not an actual valid effective form of of entering evidence into a trial so that's why the defendant doesn't really have any authority that would show that this is not at least especially now annoying which recognizes these forms of stipulations as fact of stupid lation is to place testimony into evidence despite the fact that the witnesses not the witnesses not being called to testify so there were additional sends such as the one used in this case  this situation is a proper form for the parties to stupidly that such testimony referenced in the stipulation is going to be admitted into evidence and considered by the charter facts it does not however it extends to the truth of the matter here because mcneely dealt with whether exigent circumstances are necessary in a nine and this is a case actual consent not implied consent so therefore because the existence of voluntary and it was pretty mcneely so i mean the other thing about that case is that that now repealed statute did require consent to analysis not just the blood drive self that statutes no longer issue in this case the defendant only had to consent to the to be valid and meaningful with respect to sentencing thirteen years for a class one felony is a substantial term and is specially given the fact that the defendant does have a lot of mitigation  obvious that the defendant was going to drink and drive again and that because of his multiple relapses because prior revocations of probation in this past he did the last again here despite it being after a lengthy period of  through the state relies on russ that's a first district case one nine hundred seventy five but what's important is this the language that the state relies upon his language in this supplemental pinioned under denial of the there was never in ross any issue with respect to the state sufficiency of the stipulation that was not raised this is complete what would have been them this was simply language and discussion concerning the process that has to be used to last something to appeal so there 's no support in my opinion that russ gives them ross has no bearing on this case at all because it doesn't involve the issues before this court big case that does have a bearing is the case that the author of the supplemental