an argument that i didn't make the court i failed well then i argued that my client was stopped for dui without probable cause and that's not the case my argument was i thought clearly made maybe not that there was no probable cause to stop him for any reason whatsoever and then after that even if he did have a  reason to stop him which we dispute that a viewing all the objective factors available to the officer at the time of the arrest he did not have probable cause to believe that his driving was impaired and that therefore either way he was liable for a constitutional leave bad arrest the reason that i say that there was no probable cause is i believe the record supports that the trooper who was very honest in his deposition admittedly that it was impossible for him to know for sure if the lane change that was observed on the videotape was actually illegal or improper and i submit if the officer can't tell lane change was illegal or improper no one can use it for the basis of probable cause to find that criminal conduct was afoot to justify the initial stop the there were two possible infractions traffic infractions in the record in this case the first was that my client's left rear tire allegedly touched the centerline this is mentioned in the officers report but it is not view it was not documented by the videotape and i might add that this entire encounter from when the trooper first saw mr killen to the time he was actually arrested was one minute and fifty seven seconds the trial court did not consider the lane change that was not documented by the the videotape it based its decision solely upon the allegedly illegal lane change i submit one crossing the sun or a lot of it was based on the line change getting between the two cars well actually it was two lanes and he went from the right lane to the left turning lane and the officer admitted that in circumstances when cars are that close that when some people put their blinkers on a courteous driver will often hit the brakes and let him in at the last minute and we submit that's what the tape shows and that there is no conclusion that  violation neither can the trial court he's conceded that this could be a legitimate driving and i submit a review of the entire video surveillance tape if you look at it will support our position now i also argue in my second the simon error that the trial court erred when it held that trooper kline could legally and justifiably be aware of and acknowledge all the exculpatory factors that he was aware of at the time of the arrest and disregard them when making his probable cause determination because that's what the trial court did it has permitted to proclaim to disregard any exculpatory factor which i submit is contrary to the law regarding qualified immunity and the other point that i would like to make today that dawned on me when preparing for argument the records replete with incidences i mean the probable cause process is normally pretty it's assessing what you do know on which you base probable cause it's not really an evident process i  i would respectfully disagree that to some extent i believe the case law is quite clear that that the officer cannot disregard the objectively exculpatory factors that are available to him and the as an obligation to even seek them out to some extent but trooper largest the biggest excuse the tory factor here would have been his assessment of the credibility of your client and that's people off too quickly eyes of minutes that he and all honesty he could not have done that either because he admitted that he couldn't tell if he cut him off or not well what he said was he couldn't tell if she let him in and that's a part of what happened but that's not it's unlikely that somebody in say estimating traffic moving with the chorus fairly close together it's pretty unlikely that somebody will would break before the person began to move into their line and that's not what the officer saw and he said that he couldn't tell at the end of the day whether she let him in or whether she brake because he'd already gotten in front of her but either w he's disrupting the normal flow of traffic in that line i think if you look at the video that that's not the case by client signaled she hit the brakes and let him in and that happens in this is it wasn't fast moving traffic everybody slowing down right there all waiting in line coming to a line for a red light but hadn't you account for the fact that your client even testified that she had to fate isn't two feet of space when he situation lined up and someone needs to change lanes that there there isn't a car length but i would consider even for the sake of this argument assuming he had reasonable grounds to stop him i think that that is one factor that's the only factor he had to show that this guy's was impaired every other factor that he admitted pierce and then he refused three times to take the test is it your position that a police officer cannot consider that in determining whether there's probable so even assuming that he did that i don't think the courts were going to hold but it sounds like it may be about to that anyone could stop or improper lane change that refuses to take a field sobriety tests is fair game to be arrested far as i know and so when you're confronted with a system that has two beers and honestly states so i understand that at times this man the troopers been lied to but if you looked at his speech was a third slur he was steady on his feet that that he is driving if you look at the cd isn't that bad and all the other factors that the state patrol has you look at pork in their procedure on this thing that you are obligated to consider all of that before you throw somebody in your car and a gain in ohio on their ohio law the odor of alcohol bloodshot eyes flushed face is not enough and the reason that's not enough is because that is also consistent with  are explanations for those things that that are consistent with the honest person driving their car unimpaired in i know no of the public safety exception or court which granted our motion for summary judgment and deny mr kenyon's motion for partial summary judgment because the district court properly found that there was probable cause for this arrest and even if not to climb would be entitled to qualified immunity trooper has probable cause for a dui arrest when he smells alcohol has an admission to drinking alcohol and has a refusal of a field sobriety test what's your authority for th  as i believe judge givens was mentioning that there that it's a totality of circumstances and so you have to judge whether or not probable cause existed from from this from the position of the law enforcement officer who has to make the decision at the time that he has to make the decision and we have to ask ourselves what do we want our law enforcement officers to do when they see two traffic violations they stop someone they smell alcohol the driver admits to drinking and then refuses field rosenbaum assessment of what the officer said about that in his deposition do i share what he says are you relying on the traffic infraction as a part of your probable cause argument i don't believe so and let me say this while we did not believe that mr ken land had properly planned a challenge to the stop whether or not there was a reasonable suspicion for the stop however that came up in argument both at the at the district court and in briefing before this court so we did analyze whether or not there was reasonable suspicion for the stop so i'm not i'm not really asking about th what i'm really asking is when do you get the officer gets to the point that he's inquiring in his madness living that he's going through a legal estate formulation at that point and he's saying thinking about those things or the also thinking about the fact that in his he observed this individual commit what he thought was a traffic infraction which could be consistent with alcohol consumption i think i misunderstood your question so yes and this case trooper klein had that he did consider and i think it is important oh euro situation of that when you were giving a listing was not intentional it was not intentional except that if we were talking about the hypothetical situation where a trooper sees someone sitting in a vehicle and happens to engage with that person realizes that that person smells of clout have to stop the pull him over in the first place he clearly didn't have any inkling he was possibly intoxicated it was only because of the light change right that is correct and for what your opposing counsel says the video doesn't really support him and even his own deposition he says he admits that that wasn't really clear that your position or you agree with no i don't believe that that is what trooper klein testified and the testimony about that does go on for several pages so i won't say all of it but it comes down to so you're saying have you ever seen a situation where traffic is crowded like that sure and someone needs to get over at the last minute and they put their blinker on and someone lets them and we've all seen that yes that's not improper driving is it his answer is the patrol he uses every ten miles an hour forward speed there should be at least one car length in between he never admitted that that there was nothing wrong with that lane change he thought that there was something wrong with the lane change he didn't talk to the driver who mr can land you know says let him in all he can do is look at what he sees and he sees mr cannon leave his lane of travel and the driver that he's pulling in front of apply her brak klein was trying to be honest and he acknowledged he didn't acknowledge pacifically in his deposition that he didn't talk to that driver but i think in his mind he thinks i don't talk to her i don't know if she let him in and it you know he said he didn't think that she let him in based on what he saw and that's what his testimony was and then you know through additional questioning he acknowledges that he doesn't really know for sure because he didn't talk to her i mean do you a the video supports this position that it was too quick to close the call to make the lane change properly yes i believe it does and i believe we've provided sufficient copies for all of you to be able to take a look at that and i hope that you take the time to do it as i said there was but it does not show the other infraction the crossing of the line and i understand that the the other court may not have looked at that but is it part of your argument that the officer has to consider the totality of circumstances that would include he is statement that there were two traffic infractions yes and the record supports supports the traffic infractions the video doesn't show that second violation but the video does you can hear trooper klein when he pulls mr killen over he says do you know why i stopped you and mr can land says you know or whatever and tr immediately at that point in time right after happened says i saw two violations so probable cause exists when the the one that's not shown is at the one after he turned and went into the across the  when he would be cutting it there's also an incorrect where he went over the center line where he touched the centerline i believe it was right before the turn before the two are not after the tour i believe so you can't see it because the car that he that picks all of this up is actually closer to the passenger side of that the vehicle compartment i just can't i can't see what he sees isn't the existence of probable cause and in one thousand nine hundred three action usually a jury question of that there are a couple of cases that have said that there can be a jury question however i think that this is different for example there are some cases that say it is usually a jury question unless it's unless the facts are so clear based on the record then it wouldn't be and you know this is different than the green vs throckmorton case and that particular case you know after after the probable cause determination by the law enforcement officer there was a blood alcohol test that showed zero now i don't think that that should really weigh into the probable cause evaluation because probable cause has to be determined before that was known however and for whatever reason in that particular case that information was allowed and and the court at that time said well because it was a zero then the jury could question the the trooper's truthful we don't have that in this particular case mr killen actually did will but i think i wrote that opinion i think the real fact was the most rockmore green said told the officer she had not drunk anything as opposed to here where he says i had two beers and he question it's when there exists a genuine issue of material fact as to the existence of one of the factors that supports probable cause anytime you've got what's in an as in a centrally undisputed set of facts with those that x amount to probable cause is always going to be a question of law for the court i believe that's correct and that's what i think when there are plenty of probable cause cases where there are jury questions but there are also plenty or there are not where there's not a jury question i don't believe that there's a jury question here and for the reason that that the district court held that there are no genuine issues of any material fact you've got the factors that the trooper in this particular case looked at he had the two traffic violations he smelled alcohol the driver admitted to drinking alcohol and then refused the field sobriety test and what else what else could he have done  how do you treat mr kendall and change of heart while he's been at right after he's been told he's under arrest and his statement that alright i'll take the test wouldn't in many practical situations wouldn't the police officer then say ok do it i don't know the ne ohio state highway patrol trooper would on essentially an arrest someone you know and and that's because in these days troopers are trained not just about you know what constitutes probable cause to make an arrest and all of this kind of stuff but they're also trained on the other hand has nothing to do with this case but you know the potential liability of the state if you know they allow someone that is in their custody you know out of out of their control and then there's some other kind of a problem you know we've had those cases too you know and i think the tr testimony in his deposition was that you know he's he's in the custody of the state he's my responsibility at that after he's arrested and you know so he didn't think that there was any way that he could arrest him to allow him to do the field sobriety that point in time but even if you disagree on on the question of probable cause you must affirm on qualified immunity because there's no clearly established law that shows that these particular facts that we have here in this case are insufficient for that determination you need to ask yourselves would a reasonable trooper standing in trooper klein shoes at the time that he had to make this determination believe that he had probable cause to make this arrest and you know considering the state of clearly establish law and the answer is yes and that's because qualified immunity is intended to shield federal and state officials for money damages unless a plaintiff can show that there that the official violated a statutory or constitutional right and that the right was clearly established at the time of the challenge conduct and mr ken lynn cannot point to any clearly established law that says that a law enforcement officer needs to walk through this l different factors that he claims are exculpatory i mean some of those factors is that the from the highway patrol policy all the different things that they go through in his deposition those are factors that a trooper has to consider killen was driving under the influence at the time that he stopped and he developed that afterwards and i just since i have a minute left i do want to take a minute just to talk about the state cases because i do disagree with mr rosenbaum about the state of ohio law on this issue the cases that were cited can be distinguished from the case that we have here one was a state versus morelock that particular case didn't even involve a challenge to probable cause the state versus cooper case there was no field sobriety test ing that was attempted so i think that that's a big difference from what we have here in this particular case that was the same case for state versus fin and that case an officer walked up pulled the keys out of the car and the court of the state court said that that constituted an arrest in the officer didn't have probable cause what he had was a strong odor of alcohol bloodshot eyes flushed  and slurred speech but he never attempted any field sobriety now there is a case that is a little bit closer to what we have here it but i did find that there was probable cause and that was the state versus blake case probable cause for dui arrest at an accident scene based on apparent intoxication admission to drinking an inference that defendant caused the accident by leaving his vehicle in the middle of the highway so again it's a little bit different different ok i submit that the case law is clear this court case law is clear that an officer in these situations cannot ignore exculpatory evidence would have negated a finding a probable cause you respond to your opposing counsel explanation that the factors that you listed were not factors relative to a traffic violation but were factors for developing probable cause to pull someone over for dui respond to that as even assuming just for the sake of argument that troop that that even though trooper klein could not say that the driving was improper and he could not say that she let him in which i think if he can't say it it can't be probable cause even assuming probable cause for the stop that's the only factor that this trooper had that pointed to the fact that there should be an arrest for dui that's the only factor all those other factors that apply to when someone is under the influence of alcohol or a pair driving do come into consideration and trooper klein admitted that you know let's just assume for the sake of this argument that there was a legitimate traffic stop and let's just assume that a person had two beers made a bad lane change he has a ticket coming now how do you get from where you have the ticket coming to your liberty is going to be destroyed when you're drug off the street in handcuffs or of the back of the car and it's towed and you're take  to the state patrol post to do that there has to be probable cause to believe that the man was guilty of impaired driving and all of the factors then as trooper kline considered that the state patrol lists that weren't in this case that usually are accompanying a dui arrest or support probable cause he had to admit weren't there and when you have a situation where at best your traffic and back fraction which i agree should be considered as to whether or not there's probable cause for a dui arrest but when your traffic infraction is conceded that you don't know it's a fraction and then the only thing you have is the guy saying i've had two beers and this case it turned out to be the truth and then you have any of those other factors that the state patrol recognizes and you have face to face confrontation with a man who is steady on his feet his speech aren't isn't slurred he signaled his turn he responded appropriately to all questions you can't just say that ok i'm going to go back to the three factors that i have which may or may not be consistent with the under ohio law or being impaired and say i'm forgetting all those other factors you know it's not the law it's not your law are you familiar with any of the authorities from other circuits that would seem intention with your position well i  tension with the general proposition that an officer can't turn a blind eye to what standing him you have in that same to be on point with respect to innes the specific context of an arrest for circuit case from two thousand and six not quote a prudent officer could conclude from a refusal to take a test coupled with the smell of alcohol that the driver had in fact been drinking you know if that's the case anybody in this state that has two beers is fair game there's no probable cause that's probable cause then then all is you've got to do is you could sit outside any restaurant you want asked if i had two beers he says no you presume he's a liar and you haul him off well i know he's got to be behind the wheel or been gazing at some traffic violation or refused to take a sobriety test anybody that comes out of us you know i thought that you didn't have to prove yourself innocent in this country that you had a right to view someone the request an unreasonable request to take field sobriety tests as an affront to your liberty maybe that's not so but you get you get the chance to the side that right here and right now well this truthfully it turns out as judge gilman pointed out there's nothing wrong with driving that would lead me to believe he's impaired and because you say i don't want to take a field sobriety test on the side of the road that's probably as now probable cause and that's the only case that this afternoon the major in court this honorable court