when approaching a green light intersection after that defended did not pull over for through about seven seconds he had travelled three to four hundred feet to the entrance to a subdivision and defend it could have stopped sooner since there was no traffic on his side of the four lane street at that time of night he drove over fog line when turned into the subdivision entrance he stopped into position so as to partially block two lanes he admitted he had drunk two beers earlier he had an odor of alcohol as a breath his eyes were red he believed it was one am was actually three am he failed an apple alphabet test he refused field sobriety test in his speech was s second officer moved toward definit only after defendant turned to put his hands behind your back in refused testing the four either officer displayed to see him close you're told to finish he was under arrest defendant reconsidered and offered to take the test arrested and officers who have no duty to halt an investigation when they have the minimum evidence needed to assist us in force the destruction gilbert noted that a reasonable person stop for a traffic violation would not be i'm self is being under arrest and this court in torture ricci found a stop was converted into an arrest when the officer handcuffed the defense said that he was under arrest and in smith this court said that the use of handcuffs is an indicator that a person is under arrest i defend i relied on the jackson factors in his brief and claims they showed that that it was under arrest but the jacks court applied those factors handcuffing have placing the jackson in a squad car were the factors that would have led jackson a believe that he was not free to leave the delaware case that was it quoted by jackson relied on this course decisions in multi and torture  free to leave if the officer was simply agreed to allow that but they didn't break in at the point they you know he said now your i'm going to have you do these tests right you know something of that that but he was not despite that he was not under arrest at this point no your honor you're not free to go into situations a little different in that that the officer was wanting to assure that the defendant was in fact not under the influence that he could drive safely in that was what he kept telling me you know when all the time is you know i just want to make sure that that you're ok to drive in you know i just want you to take these tests if you pass these tests you're free to leave they pulled him over the car you could leave it by the arm and pulling i think you're onerous is an overstatement of the actual facts if you view the the video that he did open the door he turns to me in one of the trial just found that it wasn't but i you know we can disagree about what's on the on the video and i'm not certainly not when they do that would be true you still have his license to even at the time of the ultimate arrest yes that time given back when it's all done they give that license back so they're holding the license while it is still part of the seizure is not in itself does not constitute an arrest comes when you say you're  hurting the field sobriety test of the shroud judge's factual findings or also against the manager of us with evidence and the drywall just found the defendant did a really good job on the awful bit even though he went further than he was supposed to driving under the influence in that reciting the alphabet in quickly and not saying is not relevant to the trial judge also found the defenders balance was excellent the video shows a defendant walked unsteadily from his car during the one leg stand to see he had to place one hand on the ground to prevent himself from falling and in the walk in turned to stone to defend and stumbled off you maginot line going in both directions and if people stand on every for all their argument would that would necessarily constitute an arrest it would be a factor that one would consider is you know whether or not he was under arrest but to say that one factor in and of itself constituted arrest and i don't believe that it would be accurate  rolls many many cases on point many meaning cases that aren't on point what the law has been developed is essentially saying these are facts fis if it circumstances that that turn on the facts of the case and so i think when we're looking at this case one of the things that's very important to deal with first is in in the underlying case the trial judge made a determination that he was arrested at a particular point in time and that particular point in time was when the defendant had turned around and the officer had approached him his hand on his hand cough or near his handcuff or on his hand cough and there was some gentle touching or or or an attempt to touch the video may have blocked a little  bit and that is the point in which judge goodman ruled that the defendant was placed under arrest and in so that was the reason why i want to bring this up is because this is an issue that's a that finding has to be against the manifest weight of the evidence in this case and i would just submit that the state has not demonstrated their when we take a look at this case there was a seizure pursuant to a traffic stop we weren't disputing that at the trial level approximately ten minutes of passed between the time of the actual stop as well as when this when this event took place which is between the three fourteen and three fifteen mark on the video in the upper left hand corner in the video is very excellent evidence in this case it's relatively clear and i think that any issues of ambiguity can be resolved by just watching the video it's very obvious that my client is now free to leave i was actually the attorney that did the underlying hearing mr nelson did ask a number of times if you could go home he wasn't allowed to leave and we know that not just because of what mr nelson asked and the statements that were made but because of the show of authority the use of lights not all traffic stops are arrests but the issue is is when does this traffic stop go from being a simple seizure to  but then what happens is after the deputy leaves his vehicle takes the documentation comes back then there's this encounter at the car if we watch the video we hear the defendant not exiting the vehicle at the officers requests the requests turn into commands we can hear what sounds to be a phone ringing from the vehicle then the officer is one who opens the door the officer does use some force some knock and say it was an excessive amount of force but he did apply his hands upon the defendant help him there or take him out of the car and then walked with him at least several feet to the area where the nouns of the encounter takes place there are four officers on scene at this particular point the lead officer never gets more than three or four feet away from my client there's another officer someone to the left of the camera his focus is on the interaction between deputy corrosion my client there are two other officers one officers intently focused on what's going on inside the car the other officer is kind of standing by a tree in kind of like shifting back and forth and one of the things that's very interesting is as this sort of encounter starts to progress and my client turns around and we start to fall  of typical fact pattern that we see in some of these cases of refusing to cooperate refusing to take tests wanting to take this to the next step that individual starts to move towards attention to get closer to deputy kirsan actually focuses attention away from the vehicle he he was up against a tree an obvious he or she tells is on the curb and we have deputy kirsch then making his approach with his hands on his costs physical touching the defendant and at this point even though it is not said you're under arrest this is if we just hit the pause gone right there we can see where it goes because my client then says ok well now i'll do it and the reason i says now i will do it is because the part that is unspoken is is i'm going to put the cuffs on you and place you under arrest i do not think that this finding was against the manifest weight of the evidence when we start to consider the factors of jackson's address the issue of the reasonably innocent person in a moment with the exception of no use  formal in dish over rast meaning handcuffs or being placed in the squad car all the other factors are present and weigh in favor of eros this is a traffic stop this is a seizure he's not free to leave therefore police officers there the subjective intent of the defendant is very clear he believes he's going to get arrested when he puts his hands behind his back that i think very clearly shows that the intent of the officer is also quite clear to aside from the fact that the testified that he believed he had enough probable cause at that point to place my client under arrest that the the approaching the mannerisms in which he used the attention that the other officers kind of step it indicate he's being about to be placed under arrest even though he was not told he was under arrest he was never told he was free to leave while there is a dispute as to what his understanding was of if he could leave it was always qualified he was first told he didn't feel the austrian feel like you're safe to drive he was told that he wouldn't be allowed to leave if he didn't take the test i will concede that the officer did say that if you pass these toss all that you go none of those though amount to you know if you did pass  test on the officer still russet him does that mean there wasn't probable cause no it's just a statement that a police officer can make they are in fact allowed to lie while the officers language was mild he did use authoritative commands he did not ask the defendant to take tossed he said now do this put your feet together like this you know at some point he says man to man come on do these tests we know exactly what the officer was trying to do here which is trying to get the defendant to undertake these tossed in so i would argue to the court that at this point he is placed on the or us and that finding is not against the manifest weight of the evidence one of the things that the state brought up was there was a point where he took the one  that kind of lost his balance and put his foot on the ground the court very clearly said that this was after the point harassed and so as it relates to the issue of probable cause to arrest it needs to be gauged at the time the arrest took place so in this case the op the court decided that the arrest took place at the three fourteen mark not when he took this one legged stand to us the final issue to consider is whether or not at the point of arrest was there probable cause to arrest and again many of the things that the court said were not against the manifest weight of the evidence the courts was officially said she didn't find erratic driving in this case a traffic stop was based off of speed speeding has never been one of the classic indicators of an impaired driver bad driving is the hallmark of any dui investigation and even though it may have offered grounds for a stop it has rarely if ever been considered for the purposes of intoxication the issue about the fog line again the officer did not know that in his report and did not claim to see it until he was watching the video widen court and even with what we see on the video the defendant's vehicle the us the ester side of the rear tires touch the fog line do not cross over it is during the course of the turn into the residential subdivision this day wants to make an issue of the delay or the length of time that it took the vehicle to stop the court saw the video any expression of familiarity she has with the area she may have said it but more to the point she did not find an issue with where he chose to stop his vehicle that should be a finding that is given great deference by this court and it's a very simple reason it was a four lane highway even though it was late at night it was still in it highway there was not a shoulder area just a one foot wide area when you turn into the residential area you're going it definitely blocking engross into the residential area and eventually pulled in stop at the stop sign he uses signal while turning in there were no no significant issues i i do disagree with the characterization that he blocked the intersection or that his vehicle was somehow improperly part as part of the traffic st he did have to stop at some point and he stopped in an appropriate place he produces his documentation without any particular issue his balance aside from what may have taken place after the arrest is very good the judge calls it essentially perfect she's not just winning performance on field sobriety tests she's placing what weight on those that she chooses to which is her right she was also watching this encounter which takes many many minutes outside of the car and does not make any negative fine as it  relates downs she's in court when he testifies my client testifies she's in court when she watches the video and she does not know any issues with the speech and so based on this which essentially has is we have an order of alcohol in admission and we have some speeding that's that's what she found to give weight in this particular case and in this particular case she said that it simply wasn't enough one of the issues that the state brings up is the jackson factors may not be applicable because it is based off of the standard of the reading a reasonable person innocent of any crime and the defendant himself sure is acting like a guilty person well the court never made any particular findings to suggest that that's why he was acting in a particular way or not he has a right to refuse field sobriety test thing he doesn't have to comply with the officers required but beyond that he stands accused of a crime he's always innocent until proven guilty so even if for some reason questions about the driver's license or your honor to ask questions about the physical touching when he was removed from the vehicle those things by themself don't elevate it necessarily from the seizure to harass they are absolutely factors to consider i'm sure we can find case law that says when an individual's hand after placing a squad car say when an officer arrives on the scene of a bar brawl he's going to say i put him in handcuffs for us your safety he was under arrest at that point and the reason large men could exist is that he was not in fact under arrest at that point it's more than just simply those specific issues he's not free to terminate the encounter and so you can under lead him in when we're at this position that we're at this officers about to arrest him if my client didn't say anything at that point and ultimately didn't himself may have said i'm not taking any breath test he was offered a portable breath test at the scene by the officer when he's in this hands behind your back phase before he's placed under arrest i understand the state is trying to argue that his discuss in our briefs that even in the statute it says you can refuse to take the portal bruff so i don't believe any negative inference should be drawn from that ultimately i think i think this case kind of pulls down to the the the the long standing principle that the trial court is t but that it only shows an intent to arrest that doesn't show a completed arrest doesn't equal arrest the defendant believed it was going to be arrested he presented himself arrest in oh here arrest me go ahead all right but this does not show that he was actually arrested the officer himself dictates when the the person is arrested not the defendant and the officer encouraged him to to do the field sobriety test ing no test would be needed if you was already under arrest the test only good for probable cause so the officer was offering his test feet past those test drive home go by but fail it just as probable cause then time for the rest and if people have none or you did speeding it is an after he pulled into that subdivision or was no were eventually part he was partially blocking that circular drive in his park with partially blocking the cross street to came along in the trial just did not consider that