*1 480 appeal unresolved,18 now, and where been, until has this
the heart of judgment under appellant the benefit of not received has appeal.19 require Cherry upon a different do not relies The cases unpub- Hardesty20 example, Freemanville, anis LLC v. For
result. lished dismissal binding physical nor neither serves as order and zoning appealed appellants precedent.21 in those cases Moreover, the appeals zoning applications were while the decisions, filed new then declaratory judg- appeal pending. from a contrast, the instant judgment deciding case is a issues, the later-filed lien while ment malpractice attorneys. against And, & F Car unlike in J case filed accept appellant ofthe the benefits in this case did not Svc.,22the Care appeal judgment. is not moot. trial court’s judgment, need not court’s we ofthe trial Based on our reversal 4. judgment on the trial court’s to vacate Tunnelite’s motion address other concerning required grounds. Tunnelite’s contentions to reach Nor are we evidence. of certain testimonial the admission Eldridge Judgment Mikell, JJ., concur. reversed. 24, 2004 March Decided appellant. Tilley, Roger Land, Koski, for Robert C. M. G.
Vincent Chamberlain, Hrdlicka, Martin, White, L. & James Williams Stolz, Wmburn, Lewis, Welsh, & Irwin W. Paul, Barrow Michael S. JohnA.Ayoub, Shelby Outlaw, Shannon, Jr., Stolz, appellee. VernitiaA. A. STATE. v. THE A03A2059. HOWELL (597 SE2d
Phipps, Judge. driving appeals Hugh under the convictions of blood-alcohol his Lance concentration and ofalcohol with an unlawful influence beverage open being possession of an alcoholic of an container operating trial court contends that the motor vehicle. He while suppress (1) denying results of a state- his motion to erred in instructing jury that he had the breath administered 18 Ga., Pimper generally 626 v. State See Svc., supra. generally & F Car Care See J A02A1178-A02A1181, July decided Nos. Case (b). Appeals Court of Rule 22Supra. showing any burden of pretation human errors in the administration or inter- sobriety (3) denying plea
of field evaluations, and jeopardy. Finding double merit in error, Howell’s first claim of reverse his convictions. uphold findings review,
“On this Court will a trial court’s as to disputed clearly facts in a motion to erroneous, unless *2 application undisputed whereas the trial court’s of the law to facts is subject appellate to de novo case, review. In [Cit.]”1 this the facts are disputed. not February
State’s evidence showed that at around 1:00 a.m. on County Deputy Pope patrol 2002, Cherokee Sheriff Carl was on when operating he observed Howell a truck in violation of various rules of Pope stop. Upon speaking result, the road. As a initiated a traffic to Pope strong beverage. Howell, detected a odor of an alcoholic After Pope Pope Howell admitted to that he had consumed beer, some investigation by having conducted a DUI Howell blow into an alco- perform sobriety Pope sensor machine and various field tests. there- upon impaired operate concluded that Howell was too to a motor safely conducting vehicle tory and arrested him for DUI. While an inven- Pope open truck, of Howell’s found an can of beer.
Pope gave implied warnings consent and asked him to Pope, submit to a state-administered breath test. Howell said no. through training experience, however, testified that and he has “always taught put been to them [DUI arrestees] in front of the machine to consider that a refusal. And I don’t take the answer no on Consequently, Pope placed patrol the scene.” Howell in his car and transported County him to the Cherokee Adult Detention Center City Holly Springs Rodney Campbell where he asked Police Officer Intoxilyzer Campbell to administer an 5000 so, test. did and Howell’s samples registered grams. Although Camp- breath 0.179 and 0.180 bell could not recall his conversation Howell, with he testified that he normally suspects Intoxilyzer advises that 5000 is a state they they that need machine, to blow into and that “if are not blowing, Campbell then that’s considered] a refusal.” did not recall protocol that he deviated from that in this case or that Howell refused cooperate. 2 (a) Highsmith, In reliance on State v. Howell first contends denying suppress that the trial court erred in his motion to the results agree. breath test. We Highsmith, arresting implied In officer read the defendant warnings consent and asked him to submit to a blood test. The officer Langlands, (1) (583 18) (2003). State v. having initially expressed reluctance the defendant that testified engaged testing, but him and refused stuck in needles persuaded consent. him to further conversation in proper “totality in Applying test as would be of the circumstances” voluntarily given, freely determining a confession whether Highsmith’s granted the results of motion to trial court test. reversed. blood We may Georgia, Highsmith recognized the state We sample constitutionally defendant without his from a take a blood suspect grants implied thus statute that our consent and opportunity, constitution, refuse to take a our afforded him improper apply a “total- Therefore, found it test.3 we blood-alcohol determining validity ity defen- of a test in of the circumstances” to state-administered his refusal to submit dant’s decision to rescind testing. Highsmith, issues to deter- “[t]he concluded implied suspect simply of his the officer told mined are consent whether suspect rights timely fashion, and whether the revoked in a held, however, “[a]s consent.”4 We further the procedure, the officer’sactions to determine the court must evaluate reasonably in the situation and whether if the officer acted procedure Finding applied it clear from the in a fair manner.”5 *3 unreasonably, Highsmith had not acted that the officer in record been admitted in of the test should have held that the results evidence. implied warnings by upon being one of case, read consent
In this arresting unequivocally officers, revoked his Howell Pope engaging discourse, in further ar- Howell him to a consent. Without police transported he directed station where rested him and the breath test. The second officer another officer to administer testing no into the breath device. There is instructed Howell to blow he asked a second time whether would evidence Howell was that he rescinded his to a state-administered test and no evidence refusal test a breath and thereafter consented. He was thus administered cooperate.6 simply to cannot deem because he did not refuse We an officer to by procedure be fair or such actions such a to denying Consequently, the trial court erred in Howell’s reasonable. suppress. motion testimony given by Campbell
(b)According dissent, could actually requested support finding the breath test. The that Howell 3 Id. at 839. 4 (Citations omitted.) Id.
5 Id. 720) (1983) (where Compare Deering drawn). signed his blood a consent to have actually requested court, however, did find trial that Howell argue requested The state does not test. Howell the test. Areview totality Campbell’s testimony why. reveals Campbell by prosecuting testified on direct examination attorney question at the detention center at the time in “requested by because he had been lyzer.” Campbell another officer to run the Intoxi- proceeded testify transpired that, then “[w]hat — Deputy’s Pope’s prisoner’s was, into the test arrest and ... his request Intoxilyzer.” point, certainly appeared At that it as though Campbell might testifying requested have been that Howell immediately interjected the test. But the trial court and asked Campbell exactly Campbell “what was said and who and what.” responded only then that he did not recall conversation and running response questioning by recalled the test. In to further “saying doing anything court as to whether he recalled Howell might give you an indication about whether he wanted to take test Campbell test,” or didn’t want to take the testified that he would not (which, Pope have administered the testified, breath test Campbell run) he had asked if had Howell refused to take the test requesting independent and that he did not recall Howell ever test. Campbell cross-examination,
Later on defense counsel asked Pope whether he would have Howell a test if had told him that previously testing. Campbell had refused to submit to re- sponded, requested yes, (Emphasis supplied.) one, “If he sir.” In the entirety testimony, certainly appear context ofthe of it would Campbell’s Pope utterance ofthe word “he” awas reference to and not Campbell, Nonetheless, Howell. defense counsel “Well, then asked requested (Emphasis sup- when was it that Mr. Howell the test?” plied.) Campbell responded approximately then that it 2:00 a.m. (Campbell) gave “they” requested and that if he it. interpreted Neither the state nor the trial court either the testimony given by Campbell ambigu- examination, on direct or his responses confusing questioning ous to defense counsel’s line of on *4 actually requested given cross, as evidence that Howell that he be the claims, breath test.7 The state record, without citation to the upon jail, again arrival at the Howell “was asked whether he wished state-administered to submit to a test of his breath” and that he ruling suppress, In consented. on Howell’s motion to the trial court 7 opinion, finding require change In our the existence ofsuch evidence would us to our “role appellate reviewing from disinterested decision-maker to advocate a trial record for error.” 872, (1) 756) (1995). Rowland v. 874 just in a chair and told blow.” was “sat down remarked Howell grounds although suppress on denied the motion to The court although initially test, there was no to take the refused by actually requesting he rescinded his initial refusal evidence that taking the that he was coerced into there was also no evidence a ruling, specifically I noted that “while don’t have test. In so the court specifically any said now I want to [Howell] direct evidence contrary any that he was I don’t have evidence take pointed counsel out that or forced to do it....” defense coerced When presented no evidence that Howell had ever the State had changed mind, that he had ever the court officers indication denying responded, he took the test.”8 In the order “Other than suppress, the trial court ruled that he had “con- Howell’s motion to breath test. sented to” the state-administered Seay,9 Dept. Safety dissent, cited In Public testing refused but then reconsidered and made affirma untimely, requests requests denied as and the tive for a test. were suspended pro defendant’s driver’s license was in administrative ceedings to take the state-administered test. because of his refusal Considering that the defendant in fact had rescinded his evidence testing timely superior manner, to submit to in a court refusal reversed. affirming superior decision, court’s we noted that no any guidelines determining
Georgia decisions had articulated a refusal to submit to a state-administered chemical test has whether properly Seay approvingly been Dept. rescinded. In cited Standish v. Supreme Revenue, Div.,10 Motor Vehicle wherein the Court of Kansas subsequent effective,
declared that in order to be “(1) after a refusal to take a chemical test must be made: very prior short and reasonable time after the first within refusal;
(2) upon subsequent administered test when a (3) testing equipment accurate; consent would still be when readily (4) honoring request available; is still when would expense result police; in no substantial inconvenience requesting the when the individual test has argued Defense counsel then that actual coercion should not have be shown because a inherently setting. Although just police coercive Miranda v. Arizona is based on station is an theory, rejected argument. such a the trial court defense counsel’s 71, (1) (424 301) (1992). P2d 235 Kan. 902-903 *5 custody arresting
been officer and under obser- vation for the whole time since arrest.”11 adopted guidelines We these as our own. guidelines adopted Seay thus assume that in order for testing
rescission of a refusal to submit to state effective, to be affirmatively request given. defendant must that a test be Under Highsmith, requirement. High however, that not an inflexible requires only procedure by smith utilized the officer in attempting persuade a defendant to rescind his refusal be fair and Merely sitting telling reasonable. the defendant down and him that by he hardly machine, needs to blow into the as court, found the trial can procedure. be considered a fair and reasonable According implied dissent, to the Howell was informed warnings right testing. regard, consent Pope that he had a to refuse In this implied testified that he read Howell the consent notice for suspects age 21 or over. That notice is set forth in § OCGA 40-5-67.1 (b) (2), provides: which
Georgia requires you law to submit to state administered your bodily blood, chemical tests breath, urine, of or other purpose determining you substances for the of if are under drugs. you testing, the influence of alcohol or If privilege refuse this your Georgia driver’s license or to drive on the highways suspended of this state will be minimum for period year. required of one Your refusal to submit to the testing may you against you be offered into evidence at trial. If testing
submit to and the results indicate an alcohol grams your Georgia concentration of more, 0.08 driver’s privilege highways may license or to drive on the ofthis state suspended period year. be for a minimum of one After first submitting required you tests, state are entitled to your additional chemical blood, tests of breath, urine, or bodily your expense quali- other substances at own and from personnel your choosing. you fied own Will submit to the your (designate state administered chemical tests of tests) under the consent law?
(Punctuation emphasis omitted.) Howell said no. Unlike the Highsmith, defendant in he was not even asked to reconsider his simply told, later, decision. He was that he needed to blow into the 206 at 73 be considered a refusal. to do so would that his failure machine and hardly procedure reasonable, How- be considered can Because validly testing obtained. ell’s consent instructing the court erred in that the trial 2. Howell contends sobriety jury evaluations, other form as “[f]ield may subject in their administration or to human error evaluation, showing interpretation, such errors rests with the burden of argues weight party challenging said evidence.” Howell who is burden-shifting unconstitutionally jury charge under that this *6 argument. in this find no merit v. Montana.12 We Sandstrom Supreme Court held that a Sandstrom, the United States interpreted juror the instruction that the law could have reasonable presumes ordinary consequences person of his that a intends the ways.13 impermissible voluntary First, it in either of was acts two interpreted juror the instruction as held that a reasonable could have presumption mandatory the state or which would relieve a conclusive proving element of the crime. of the burden of an jury Supreme Second, in Sandstrom held that the the Court may interpreted find the instruction “as a direction to have upon proof voluntary (and intent of the defendant’s actions ‘ordinary’ consequences), proved their unless the defendant quantum proof may contrary the some of well have — considerably greater than ‘some’evidence thus effec- been tively shifting persuasion the burden of on the element of [Cit.] intent.”
Thus, the Court indicated that it would not be constitu
tionally impermissible merely
require the
to
contrary
presump
come forward with some evidence
producing
place
tion, i.e., on the defendant a burden of
production.
Supreme
However,
or a burden of
the
evidence
jury
Court held that
in Sandstrom’s case could have
complained-of
interpreted
presumption
referred to in the
meaning
upon proof by the State of the
instruction as
“that
establishing
slaying, not themselves
of additional facts
intent,
the element
the burden
shifted to the defen
of
prove
requisite
[Cit.]
dant to
that he lacked the
mental state.”
constitutionally
presumption,
Court,
in
Such a
said the
is
Mullaney
York,15
firm
and Patterson v.New
under
Wilbur14
2450,
(99
39) (1979).
The in did not element instruction this case relate merely application principle, of as contained the crime. It was proving generally 24-4-1, fact § that the burden a lies OCGA shifting party asserting charge upon The burden it. was not who Sandstrom. under jeopardy plea
3. that his double should have Howell contends necessity sustained, the trial court without manifest been because ordering a at the first instead of a continuance. declared mistrial trial September initially on for Howell’s case came trial in prosecutor’s During trial, office came into course possession booking of an form in which one the law enforce- arrest had ment officers at the detention center noted that Howell did not drugs. appear prosecutor of alcohol The under influence promptly provided exculpatory defense counsel with this material. Upon being immediately matter, informed court told grant it defense counsel that was inclined to a continuance but not thereupon counsel mistrial. Defense moved for continuance. After going discussion, some the court that it announced to excuse the jury jury. and call back the case for trial October before another jurors then court summoned the into the courtroom and excused Afterward, them. the court conferred defense counsel to ensure *7 following he month, that would be available for the call ofthe case the and defense counsel assured court the that he would. But defense jeopardy. a counsel later filed motion to on of dismiss account former beginning plea. the of trial, At the second the court denied the Although grant court the announced its intent a continuance by excusing jury trial, the first at it effect declared a mistrial the ordering jury. and that the case be retried before another jury impaneled jeopardy sworn,
Once a
is
and
attaches
acquitted
and a
entitled to be
or convicted
jury.
If a mistrial is declared without the defendant’s
objection, may
only
consent or
his
he
over
be retried
if there
necessity
was a
the
manifest
mistrial. If a defendant
may
jeopardy.
mistrial,
consents to a
he
not later use the mistrial as the
plea
grant
basis of
a
double
Consent to the
of a
express
implied.18
mistrial can be
Following denial of his motion to the trial court’s Intoxilyzer appeals, contend- results of his 5000 breath housing ing being Intoxilyzer (1) the room that: taken into stop machine after his refusal to take the test at the scene of the subsequent inherently pro- consent to coercive and invalidated sample; the State failed to show that he vide a breath stop unambiguously his initial refusal at the scene of the retracted below, For the reasons set forth these take the 5000 test. contentions are without merit. suppress, reviewing grant
“In or denial of a motion to favorably uphold findings must construe the most evidence judgment findings disputed court, as to of the trial and that court’s credibility adopted clearly facts and must be unless erroneous.” Viau supports finding of record v. State.20 If there is evidence *8 19 showing implied suppress, the burden of that consent a motion to the State bears On See, State, warning requirements e.g., App. have been met. Miller v. (b), implied the time a Under 40-5-67.1 consent notice must OCGA § “[a]t case, requested.” no contention that the In this Howell makes chemical test or tests are any argument support warning given improperly, such and the record would not consent made. even if it had been Viau v. voluntary consent, affirm, we must even close cases such as this vigorously disputed one where the facts were in the trial court below. undisputed proper implied addition, In warning as it is narrowly Howell, was read to we must focus our review on supports whether evidence of record the trial court’s factual determination that the defendant’s decision to consent to the breath voluntary. test was explicitly order,
In its the trial court determined that “[Howell] breath, consented to a State administered test of his which Officer Campbell Intoxilyzer administered on 5000 at the Cherokee County proper light Adult Detention Center.” Viewed and standards, under the correct that, evidence of record shows during early morning February Deputy 8, 2003, hours of Sheriff Pope stopped operating operable Carl Howell for his car without an tag light weaving driving. Deputy Pope approached and for while As strong beverage, Howell, he detected the odor of an and, alcoholic upon questioning, drinking Howell admitted that he had been evening. Deputy Pope step car, then asked Howell to out ofthe and as empty ground. so, Howell did beer can fell to the A later search of produced empty partially cans, the car five beer one can, consumed twelve-pack. and a new sobriety car,
Once out of the Howell consented to certain field agreed tests, addition, which he failed. Howell to an Aleo-Sensor III produced positive consumption. test21 which this result for alcohol At point, Deputy Pope impaired concluded that Howell was too operate safely placed Deputy a motor vehicle him under arrest. Pope correctly statutory implied then read consent warn- ing requested that he submit to the State-administered breath appeal Deputy Pope properly It test. is uncontested on read requisite warning appropriate Howell the at the time.
Following warning, Deputy Pope asked Howell to submit to initially a State-administered breath so. Howell was then taken to the but Howell refused to do police completing station. After booking process, Rodney Campbell Howell was turned over to Officer Deputy Pope some time after his initial arrest. testified that he Campbell turned Howell over to Officer in order to allow Howell a general second chance to submit to the State’s breath as was his procedure. Deputy Pope Campbell anything Neither nor Officer said to Howell which could be considered coercion to consent to the test. Campbell accompanied
Officer then Howell to the Campbell among things, Howell, where Officer advised other screening making The Aleo-Sensor III is a field device used to assist officers in preliminary findings investigation. in a DUI *9 properly machine, into the it would be did not blow if he time, course, At that a refusal to take the test. considered right already refuse, and once that he had the to so been informed had indicating absolutely that Howell did of record there is no evidence right. fully understand this Campbell questioned During examination, direct Officer transcript surrounding testing. The trial Howell’s about the events states: approximately Okay. [February 8, a.m., 2002,] at 2:15
Q. On you the Defen- administer an 5000 test to did at the table? Mr. Lance Howell here [,] dant Yes, A. sir. brought Okay. you explain will, to the Court what
Q. If County Why you A.D.C., at the the Cherokee about. were brought Center, Adult Detention at that time and what your Mr. Howell into direction. reasons, I at the Adult Detention Center for one oftwo
A. was exactly why. being I cannot recollect The first transport prisoner my being own, second, Intoxilyzer. requested by to run the another officer right. Q. All Deputy Pope’s transpired was, into the test arrest
A. What —and (Interposing) Sure. Q. — request Intoxilyzer. prisoner’s
A. for the (Emphasis supplied.) during Campbell
Then, Howell, cross-examination Officer further testified as follows: you, today, February now,
Q. remember the 8th when [D]o jail? Mr. Howell came into the yes. face,
A. I remember his Okay. you [Deputy] Pope[, remember Q. But do what
arresting you? told officer,]
A. No. Pope you [Deputy]
Q. [to Did tell that he had refused take the out on the street? test] State-administered breath don’t recall. I don’t remember. A. I Okay. you [Deputy] Well, him a test if
Q. would have
Pope you he had told refused? requested yes one, sir.
A. If he requested Well, it that Mr. Howell the test? Q. when was — gave time a.m. ticket. If I A. Whatever around 2:00 on the they requested it. them the (Emphasis supplied.) conducting
Next, the trial court asked the officer the test a series questions as follows: — Right. Okay. you you So, Q. don’t do recall Defendant refusing your A.D.C., ever to take the test at the — presence, you refusing you? ever take it sample. No, refused, A. had there no sir. If he would be *10 Applying say facts, standard to our of review these we cannot erroneously voluntarily the trial that court determined that Howell consented to the breath test. question matter,
As an no initial there is in this case whether undisputed Howell consented to the breath He did test. so. It is fact Intoxilyzer he that made the decision to blow into the 5000 and provide sample being the State a breath after told he twice that right the had to refuse to do so.At the moment Howell that blew into only machine, he, fact, the consented to the test. The relevant remaining question is test, whether Howell’s consent to take the undisputed, voluntary product is was and not the of duress (affirming coercion at the time the consent. See Leiske v.State22 trial of suppress court’s denial motion of to where defendant read was warning supported twice and evidence in record finding voluntary consent). ultimately Thus, of it is our irrelevant to explicitly requested subject test, determination whether Howell the long voluntary. as as his consent was initially
Howell’searlier refusal the to take test when his car was stopped also does not control the ultimate conclusion whether his voluntary. consent was Highsmith,23 rejected argument
In State v. this court the that suspect once a indicates to an that officer he refuses to submit rigid test, to a blood-alcohol the matter is “Such a closed. approach rule,” said, “wouldnot be consistent with the our applying courts have followed in the . . .” statute. Id. at 839. Georgia recognizes possibil- It is therefore clear that law ity may that an individual rescind his or her refusal to submit to' an intoximeter test. App. Leiske v. 255 Ga. Highsmith, State v. Seay.24 Highsmith, Safety
Dept. we affirmed In where Public v. plaintiff to submit to a blood three times conviction, the was asked Again, initially refusing we must resolve test. issue test after voluntary time the at the the test was the consent to take is whether was taken. test supports the trial court’s record cited above
This evidence of right finding been refuse and had of his Howell, who knew that Intoxilyzer voluntarily twice, consented of it reminded no evidence and there is consented to test. Howell requires that result, ofreview As a our standard coerced to do so. suppress. denial of Howell’s motion the trial court’s we affirm finding support testimony that record could also Moreover, the finding although actually requested this would not voluntary finding necessary the consent was the trial court’s and not coerced. Nonetheless, that his consent to take Howell contends involuntary, arguing must be considered 5000 test initially being Intoxilyzer 5000 room after he taken into the
the act of stop inherently coercive. We refused the test at the scene of agree. cannot Supreme ruling State,25 instructive Our Court’s Woodruff filed motion to the defendant a search, Woodruff,
on this matter. contending following found in a car a consent evidence by wrongdoer appre- upset experienced “the natural emotional police, is sufficient to render hended in her automobile *11 response, involuntary any given Id. at 844 In search.” agree Supreme that this is a correct our Court stated: “We cannot present duress, here do not show statement of the law. The facts totality circumstances, did not the trial court err under the voluntarily given.” concluding Id. that consent was principles apply above, As noted the record The same in this case. contrary, To the the record before us does not show duress. now finding rights supports at the time the breath that Howell knew right test, administered, and, he submitted to the he test was before possible. This to take the test were was reminded that refusals inherently fact, situation, therefore, coercive. actually any time, and the he felt coerced at never testified that they nothing performed did the breath test testified officers who court, evidence, the trial under to coerce Based on this Howell. 301) (1992). (1) (424 Dept. Safety Seay, 206 SE2d Public v. Ga. Woodruff totality by concluding circumstances, did not err that Howell’s voluntarily given. supra. consent was Woodruff, by denying 2. Howell further contends that the trial court erred prove his motion to because the State failed to unambiguously retracted his refusal to take the breath test. This argument wholly misplaced, comport however, itas does not applicable question previously, of law now before us. As stated there is no issue of whether Howell consented to the breath absolutely ambiguity only there is no about his decision to take it. The remaining voluntary issue is whether that consent was at the time unambiguously taken, the test was not whether he retracted a refusal By taking some time earlier. thereto, Howell consented support and there is no evidence to a claim of duress or coercion. The denying suppress. trial court did not err in his motion to transcript provides supporting clear evidence the trial court’s explicitly determination, and the trial court found in the text of its order that “the Defendant consented to a State administered test of only supports his breath.” Our concern is whether the evidence voluntary. trial court’s determination that this consent was This explicit finding supported by Only of fact is the record. the written ruling. order of the trial court Here, constitutes its we are bound to affirm the trial court. Presiding Judge joins
I am authorized to state that Andrews this dissent.
Decided March George Jeffrey Floyd, appel- Weaver, Weaver, Weaver & W. L. for lant. Barry Cannon, Jr.,
DavidL. Solicitor-General, Hixson, W. Lawrence appellee. Silverman, A. Solicitors-General, Assistant A03A2164. GEORGIA DEPARTMENT OF HUMAN RESOURCES
v. ODOM. Judge.
SMITH, Chief appeal *12 ruling This arises out of the trial court’s reversal of a (the board) regard entered the State Personnel Board employee Hospital (the hospi- dismissal of an of Southwestern State tal). erroneously Because we conclude that the trial court substituted judgment its board, for that of the we reverse.