question is whether you were under the influence while he drove arriving same day that once you out the hall is not driving under the influence well here can i ask you a question all of these things could be established hypothetically all of these things can be established circumstantially camplin they could be at lest circumstantially but they would being used the that brings up another question what exactly was he charged with in count one of the information driving under the influence you're on right and under believe that everybody thought it was under subsection four under the influence right yes your honor i believe which is a different chart yet but everybody here seem to believe that he that the evidence required the state to show that he was under the influence and other words that he was in fact affected by whatever substance he and his system and that was prizing and when he was arrested at i mean in those five hours where no one testified that they saw him he could have smoked methamphetamine and that had the  very reasonable probability that it would have odd thing that the state had no other evidence to offer on what time what time of day whether it was before five  perhaps meaning that there was yet another officer who was on a midway person between the computer check and officer jones am pretty indicative it only said yes it revealed that he had a revoked driver's license was checked but he doesn't say through what or that he verified that it was the correct mr wells was that there was any sort of indication of any other information that would render the results reliable such that the entire from and why it's authentic nine and we would be able to rely on it here when i have and even if you have the driver's license we don't know who ran it we don't doubt having done so again this conviction should be reversed outright if the court declined to do so it was still in effect of as justice department pointed out the council counsel starting with the last issue discussed st hagberg of course was a case in which the supreme court reversed based on evidence that was brought out in cross examination of the police officer  and that case involved d an officer who testified he couldn't remember the name of the test the instructions for performing the test a color that indicated the substance was cocaine or the color the substance actually turned merely asserted that the substance somehow turned the right color whatever the color might be we don't have any sort of test a phony testimony like that in this case the officer testified on direct as to the field test talked about the circumstances of the testing there's nothing in any of the authority that the defendant cites or that state was able to find that requires anything more hagberg certainly easily cured that's well recognized so it's a deuce of a prostitute in fact of assistance of counsel because there's no question as to the the test there's no prejudice there's no showing anything beyond this general response essentially that yeah i tested him yeah that's the procedure reuse yeah it's an approved kit and it's positive for methamphetamine didn't explain what the test didn't explain which kid it was didn't explain what the procedures were didn't explain how you read to determine that it's a positive test it's about as general as you could yeah well that's true your honor i'm not aware of any authority that would that would require more than that and if there was why would we find that there's prejudice there that's not enough at the as well as as far as i would be necessary to establish there was methamphetamine hedberg says that the fact that a test is a field test is not enough to make the test insufficient and able to answer sufficiently as shepherd and i ask you what if we had even less than we have here what if it was just simply a question by the state to the officer did you feel tested what did it feel test had and you have nothing more establish prejudice i'm not again your honor i'm not aware of any authority that would require more than that that certainly might be something the defense counsel might want to explore but says the fact that it's a field test by itself doesn't make the test insufficient and then as far as foundation you know there's no authority cited by  certainly that would require anything more and such a deadly i guess the answer is no i don't i don't see that that would be a problem thank you certainly so as to the  checked and it revealed that he had a revoked driver's license contrary to opposing counsel representations didn't testify that he read a statement that you were a statement from a computer that the system reveal that he had revoked license that he interacted with the computer system or even that is investigation you know that information and the entrenched records are statements were revealed during the check of defendant driver status does not make his have independent evidence of defendant's statements and evidence is an independent of defendant's statements which needs to only correspond with the circumstances re cited in his statements and which tend to connect him with the crime so and again not only as just the arm and pointed out was the arch it only required that he had any amount of math and his system but also the driving part of that he would be guilty if he drove or was an actual physical control the one lawyer and so of course the evidence showed that he was an actual physical control of the seat or any of those things so it showed that he was in actual physical the evidence showed that he was an actual physical control at the time the deputy arrived and he drove a lawnmower in the one hundred dollars block he drove it from day paces hose he also admitted to smoking methamphetamine and he said i'm not drunk i smoked map but i'm not drunk so i think that we could also consider the fact that the defendant did not protest he could protesting that he wasn't drunk any but he he did smoke meth which to him meant that he wasn't driving under the influence he never protested that he didn't drive so that's something else that i think the court could consider so there was enough evidence to show to to to show that it was not that th not evidence to survive motion for finding not guilty at the close of the state's case which is the equivalent of a motion for a direct verdict directed verdict in the trial and defendant relies heavily on the court's statement and find him guilty saying well you know there was some doubt as to whether or not he was under the influence at the time  that only goes to prejudice it doesn't go to whether counsel had any duty to make this motion at the close of the state's case and the record clearly shows that there was no basis for that  that foundation maybe it's true that the op for jones could have stored it up maybe it would have revealed a little flaw in his logic that he was educated ten years ago on how to conduct testimony as a matter of the burden of proof the have to prove every element and while feel cats are absolutely sufficient or can be i believe that the burden to then i can't remember exactly when the scene in his mind very firmly differentiate between alcohol and methamphetamine and would have been proud of the fact that he continued not to drink that does not indicate that he smoked methamphetamine before he began driving the lawnmower there's still that hole in the states that no evidence is ever close up which is why i point so heavily to the court saying that there was a real question a undeniable question of the clothes evidence about when he injected any methamphetamine whatsoever