sources testimony while he said he was essentially ignored in there during the question but ultimately said i'm going the paperwork after the field tests that officer roughing it after he passed a field test off after officer the detective c you not until the chief gets here the chief wants to talk to you that is you have to stay no reasonable person would think that they could say well i'm not waiting for the chief i'm leave this police station i'm not i'm going from here i think it's clear at that point either he passed and after the refusal he is sitting in that interview room and that's where he is three and a half hours or three hours later when the chief comes it sits down next to him and then notices with the chief that the chief testifies he notices things that none of the other officers noticed people in and out of that warm water he was walking in the police station in the lobby and in that room for a period of time and i think the record shows that that was prior to the field tests prior to the request to take the blood test that he refused and that after that he was not freely walking around you so much on good morning no i don't believe there's any evidence that he when told him he could i know that the record reveals that his wife is out of town i don't believe that there's any evidence in the record that anyone tonight him from calling anybody to come pick him up i don't know if there was anybody at that moment to come pick him up but i do know that that the police told him and it's reasonable i think  reasonable for any citizen under the circumstances to believe that initially they would have to remain to provide information police were investigated on the scene and i don't disagree that the officer saying look we're going to have to drive you you can't walk to the we have to do to make him take a blood test go ask me for the blood test document that he's refusing the blood test this is not a situation where they've just invited him to come along they're explicitly focused on him they're explicitly focused i'm the  you specifically on those statements this is part of the state's functional alcoholic theory if you will and it was the corner piece of their entire closing argument essentially if you inject in front of the jury repeatedly this is an alcoholic he has experience the specific quotes and in rebuttal are st he knows how to refuse to give blood he this is a functioning alcoholic he talks about absorption of morning he got out and drank an extreme amount of alcohol got behind the wheel of a car that that is what they are going for that it is the linchpin of their argument and it's not supported i would spend too much time talking about how i convictions i meant the word criminal to refer to acts of criminality that would reflect more specifically a criminal character or someone who had a complete lack of respect for the convictions and the distinction as i said should have been more the language is imprecise in the sense that it does not distinguish between a felony for the fiction's this is a conviction of the under the vehicle code it is a misdemeanor offense it is a criminal right there's nothing else in his background that would lead one to believe that this is someone for whom a sentence close to the maximum sentence would be appropriate in the and in the range so as i said i do certainly apologize for not being more precise than i was i did not in any way me home or to work or someplace else it was very clear because i read that as well that what they were asking him was whether they wanted him whether he wanted to be transported to the baron can hills police station or to some other police station which is to the police station and i think an understanding of the chronology is very important the defendant's own witnesses first witness at the notion was that one of the paramedics who after reviewing his report specifically said that he was with the defendant from nine zero one morning to min said in williams was that it and i guess is the best is to court to hold that such initial questioning is tantamount to arrest would hold any station house interrogation is necessary look this is a really custodial as to indicate that the person question has been placed under arrest that would mean that the police could not request presence of anyone even for non custodial questioning unless they have probable cause to arrest them when we see no reason to restrict investigate investigatory function of the police i think best that applies  perfectly to this case where they had this person and i'd like to point out that he was in the in contact with the police almost seventy five minutes before he was before the chief noticed that he had a hold of alcohol this isn't like some of the cases that you read or this court has had this occasion to decide words twelve hours twenty four hours thirty six hours forty eight hours where the person is cooperating and it's maybe a stretch to use that word under those circumstances but in this  going to be monumental for them to have completed their paperwork and in giving the defendant his in places that you know shoot him out of the police station would have been completely unreasonable i think now in fifteen minutes is i'm very sure and  something a little bit different saying that they asked him to wait and hear the trial court you know ruled against the defendant as most anything that he was completely incredible for not no the least of which reason was that he lied about having i'm not going to the labor them but he was not handcuffed he was not mirandized the weapon was never brandished even when he was sitting in the police car at the request of the paramedics mind you not the police the police and say go sit in my car it was a paramedic for his safety search warrant and damage to his property if he didn't consent yes the the the concern in this case was it was voluntarily given there was no threats no course no it's imitation whatsoever when the cases use those language they speak to people who have actually been threatened scientists or else with the threat of physical violence and i'm not saying that it couldn't under some circumstances involve a threat to intentionally damage a defect in individual property although i point out the defense has a good cases that support that but in this case there wasn't even there was even a threat to intentionally damages property is the actual language the uses there might be some damage going in so informing the language that the cases using the the police me information of an individual something is simply informing them out for example that they will obtain of a campaign or the intent to seek a search warrant informing them what is seems to be circumstantial evidence of a propensity to prove to be closely drank heavily in the past the obviously drink that we understand what this evidence because i don't understand what it is well i think it wasn't any secret that the defense was going to be that he wasn't drunk yet that was the whole defense knew the state knew that the defendant was going to call an expert had heard an expert and was going to testify that the alcohol had not absorbed been ingested a large amount of vika at about eight thirty in the morning was still drunk at nine o'clock in the morning there about it whether or not he had absorbed into his system his own statements that he's a functioning alcoholic that he had you know you know diagnosed where there is an alcoholic over a long period of time is able to consume you know greater amounts of alcohol and not exhibit a certain kind of absolutely i would say the one hand in hand that his own stated that he is a function alcoholic and that he only drinks vodka and then the state's expert that actually testified that it has a peculiar ability to to not be detected it doesn't have an order admitted to it it's on video that he admitted he drank with it was going to sing this part of his statement to prove that he drank on this day and therefore he's guilty but that he's an alcoholic and he has a bottle biological body that react i'm asking what they objected to in terms of the course the redaction that they asked for that they did not get that's what i thought of her but that with all due respect there were five of them there were five separate ones i guess i guess i'm not clear which particular incorrect in the review of their arguments the review of how they used the evidence when they used it shows and the fact that they specifically asked in this interrogation session he didn't just volunteer that he was an alcoholic and he specifically said some oh so this is a man that's tell us about your out completely unsupported the evidence that they got from the statements of mr o'mara is not that that he's capable of drinking alcohol and passing field tests he didn't say that there's no evidence to support that their expert said functional michael holick or second that there's any medical or other basis for this theory that all alcoholics have a tolerance to alcohol that is increased that is completely false and everyone's common experience with different kinds of close this is not a case that is just so overwhelming we have two experts who differ in the question of what was his b a c at the time is right we have retrograde extrapolation being used here and there is a different knee condition his medical condition that his absorption or his elimination both of which are affected arguably had been altered by his the effects of his alcohol then i suppose theoretically with that level of expert evidence you might be able to argue that somehow this actually does rebut but i would also point out that there was dispute over how much alcohol was consumed it is not it is undisputed that mr omer admitted he drank but he does say there is a dispute over how much of that bottle he drank that morning right before dr and the and that the argument between the experts was where does this bell curve set up is it on the way does he just consume alcohol he's ten minutes from home when this accident or ten miles from home is that it is still going up and then he peaks while he's nightly station and he's on the way back down and a point one zero with three and a half totally insufficient it does not support the expert's opinion it doesn't support the argument and more importantly it's the use of this term alcoholic the state is wrong when they say oh this is not as bad as it midden a conviction in violation of my gunnery it's worse it's admitting that he has an uncontrollable disease that stops him from being able to drink that's the problem that's why this is unacceptable if he says every day of my life i drank a bottle not a case that is so overwhelming that that this kind of hero could be harmless especially when it was so aggressively hard on through the case and all through rebuttal closing the suggestion to this jury is that he's an alcoholic they found a creative way to use it but the problem is the linkage isn't there it's not sufficient and it does not require the the evidence that he was  they stay are if he knew how to put his feet outside the car so that the officer couldn't smell him there explicit argument to the jury is that he has priors they say there's just no two ways around it and they did it  and you know our position is because there was a close question on the entire this case because they didn't have evidence of what his behavior was like that supported it when he drove because they were they didn't have a blow close in time you don't usually have three and a half