Saturday, November 10, 2012

California DUI Lawyers Association President Donald Bartell successfully obtains a Not Guilty Verdict late last night in Mammoth drunk driving case


President Don Bartell of the California DUI Lawyers Associationwon an alleged Drunk Driving charge Trial last night.  Not Guilty is what the Mono County Superior Court jury said not long after the “Lt. Colombo” of Mammoth California DUI Defense closed.   Reasonable Doubt existed.

Questions involved police methodology and procedures in this Driving Under the Influence (DUI) case in Mammoth Lakes, California.  Chris Francis was found not guilty after the top DUI attorney in California (and most likely the country) successfully challenged his DUI charges.   “Just one more question,” California DUI lawyer Don Bartell would ask. 
 
The Notre Dame Law School graduate questioned everything from the circumstances and claims relating to the initial stop to administration of the acrobatics and gymnastics, from the accused’s physical condition to the insufficient police DUI investigation, from the unreliability of a breath test machine to how this breath test was administered, and from discrepancies between the video and the police report to discrepancies between the purported inaccurate breath test numbers and the circumstantial evidence of the accused’s physical state.
 
The innocent Mr. Francis, a former ski instructor at the renown Mammoth Mountain Ski Area, was pulled over just before midnight a little over two years ago.  Mammoth Lakes Police Department Officer Dan Hansen claimed the accused was “straddling the #1 and #2 lanes.”
 
A California DUI cop with MLPD beginning in August 2008, the cop claimed participation in about 100 DUI investigations, including 50 or more himself. “Most drivers will cross over lane lines, make wide turning movements. Not all stops result in arrests.”
 
The innocent accused’s vehicle came up to the intersection of Main and Minaret, and made a right turn from the #2 (right hand) lane, allegedly without using the designated turn lane, then allegedly continued to straddle the lane line.  There were problems with this misallegations of drunk driving. Video from the police car shows the turn but fails to show the fact that, at the time, much of the turn lane was coned off. The video of the drive up to the intersection was also a little grainy and dark.
 
At the location of the stop Francis, who has asthma, was having trouble breathing.  Hansen added that while continuing to speak with Francis, he noticed an “odor of alcohol,” and claimed his eyes were bloodshot and his speech seemed slurred, walked with an unsteady gait and “had a hard time standing up, purported indicators of possible intoxication although there are - and actually existed - many innocent examples of explanation behind such observations.
 
Unfortunately, no audio was available on the video because Hansen claimed there was some sort of microphone failure.  The oral DUI interview included  whether Francis was diabetic or epileptic (no), had he slept recently, had he eaten recently (ribs, about three hours earlier), had he been drinking (4-5 glasses of wine). Francis had reportedly been on a strenuous hike in the Mt. Whitney area earlier in the day.
Hansen maintained Francis thought he had his last glass of wine at 11 p.m., about 50 minutes prior to the stop, and reportedly thought it was still about 11 p.m., which Hansen felt “didn’t add up,” since it was almost midnight.
 
The cop began the acrobatics, claiming Francis was said to be “swaying” during an FST while the video was inconclusive on that point. After an improperly administered eye test, the DUI cop claimed the accused soon declined to conduct any further California gymnastic tests, citing his condition after the day’s hiking.
The accused was arrested for a California DUI and later released.  Prior to his release, he was given a breath test at the station.  The Peter Falk of California DUI defense attorneys pointed out an assisting officer on scene had a portable breath test kit with him in his patrol car but it was apparently not given to the accused.
 
As required by California Code of Regulations, Title 17, the DUI cop claimed the accused was placed under 15 minutes of continuous observation…to ensure he didn’t burp, belch or regurgitate, which could adversely affect the test.  He was given two tests, beginning at 1:08 a.m, .20% and at 1:13 a.m,.19%.
 
While conducting extensive cross-examination, California DUI attorney Don Bartell displayed his conversational, fireside, easy-going manner not unlike that of TV’s Detective Colombo but without a trench coat and cigar.  Don vigorously challenged the DUI cop’s misuse of words like “staggering” and “swaying,”  using the video.  Don was able to show the accused did not displayed either of those traits.  Even the drunk driving cop conceded.  “He wasn’t staggering or falling down, even though he was supposedly 2.5 times the legal limit, blotto drunk,” Bartell pointed out in front of a fine jury.  The DUI cop, for the most part, did not dispute this fine lawyer’s corrected observations.  Yet the cop subsequently somehow insisted he though he saw the accused “swaying.”
 
A top graduate of University of California at Berkeley, the relentless attorney Bartell showed how the thirty minutes amount of time spent on the sobriety tests and DUI questioning, as noted by the video’s time code, might affect on how someone stands.
 
A master of trial preparation, handsome Don utilized the Standardized FST manual to show this California DUI cop might have abbreviated, changed and even skipped parts of a proper eye test procedure.  The DUI cop responded indicated he was only doing it the way he was trained and admitted to maybe doing some of the administration parts his own way.   This cop was caught on video doing the test improperly.
 
California DUI defense lawyer Donald Bartell fairly inquired as to why there was no follow up with the restaurant where Francis had eaten regarding the number of glasses of wine he had, and what wine he had drunk.
 
Don challenged why the accused’s strenuous and lengthy hike was not brought up more during follow up police questioning.
 
Perplexing was the fact that no video of the blood alcohol level breath tests existed.
 
Don pointed out the officer failed to follow the California Vehicle Code, in that because breath tests do not keep breath samples, the cop is required to inform defendants that they have the right to blood and urine tests for evidentiary purposes. That did not happen.
 
Bartell’s aggressive cross-examination challenged “probable cause” for the police stop.  He questioned whether Hansen’s U-turn on Main Street was really unmotivated, and whether Francis was “straddling” the lane line.  “He was never in ‘a lane’ of travel,” Hansen testified. Bartell showed how the cop’s testimony contradicts the description in his written statement made “under penalty of perjury” which makes no specific mention of the lane line situation.   Cop responded the sworn statement “wasn’t as detailed, which was probably a mistake on my part. If I see a car at night, I follow it. I do that all night long.”
 
The accused thought his car had been targeted earlier in the evening, and suggested the rate of speed at which Hansen came up behind him qualified as a pursuit.  The accused also maintains that since the incident, the subject Suburban has been pulled over several more times, though he wasn’t behind the wheel during any of those.
 
The State of California’s other witness was Mike Appel, an 11-year Criminalist with the Department of Justice, who testifies regarding forensic alcohol analysis in part for DUI court cases. Appel testified that generally speaking breath tests tend to underestimate the blood alcohol level. “Blood tests are more accurate,” he said, adding that in his opinion .06 should be the point at which it’s unsafe to operate a vehicle, as opposed to the current .08 standard.  He ruled out residual alcohol in the mouth as having any impact on the test, saying that it dissipates too fast, and that the results wouldn’t be that close together if there had been any “mouth alcohol” present.  The “Preliminary Alcohol Screening” device used that August developed some type of “issue” the following month, and was sent to the DOJ’s Fresno office for maintenance. Service logs are required for each device, and Appel indicated that as long as the devices are maintained, they are assumed to be accurate. In his opinion, it was working properly, he stated.
 
On cross-examination, California DUI Lawyers Association President Don Bartell made conspicuous mention of Appel’s considerable training in firearms forensics, but noted that he hasn’t had any formal training in alcohol since 2005. Bartell correctly brought up the fact that if a tube on the PAS device is loose, it could lead to a erroneous, lower reading.  And he also used a DOJ internal bulletin, which Appel apparently was somehow not familiar with, that indicated mistakenly covering an air exit port on the device can lead to an equally misleading higher reading.
 
Top California DUI Defense Attorney Don Bartell then successfully challenged Appel’s practical knowledge of field sobriety techniques, again mentioning that no breath test video exists.  He also took to task Appel’s lack of knowledge of Francis’s asthma condition, though it might not have played any significant part in the breath test process, according to Appel. Title 17 requires PAS devices to be calibrated every 10 days or 150 subjects, whichever comes first,; Appel claimed the machine was in “full compliance” with Title 17’s regulation.
 
Bartell correctly pointed out these breath test machines do not have a slope detector, designed to guard against mouth alcohol interference, nor does it have a way to do an on site calibration check at the time the test is conducted.
 
Colombo of DUI defense lawyers then questioned whether the device has a barometric setting, since Mammoth Lakes is at high altitude, and whether it had been checked for accuracy as well.
 
Next in the President’s line of questioning was the accused’s physiology with respect to his body’s rate of absorption, suggesting that breath tests might not be entirely accurate during the body’s alcohol absorption phase.
 
The prosecuting attorney rested its DUI case.  Then this legendary DUI criminal defense attorney put on their case the next day. 
 
2 nights later the jury found the accused Not Guilty of DUI.
 
[Note: This fine publications' writer posted the DUI Prosecutor's case in this ultimate Not Guilty case.]