Updated Nov. 10, 3:27 p.m. Francis found not guilty – Defense, closing arguments lead jury to reasonable doubt with DUI case elements
In the case of the People v. Chris Francis, which challenged Francis’ DUI charge and the breath test methodology that it was based in part on, defense attorney Dan Bartell, who represented Francis, made the defense’s case on Thursday. At about 9:30 p.m. Friday, after deliberating for almost seven hours, the jury returned a verdict of not guilty.
Bartell called a breath test device expert, Dr. Michael Hlastala, a retired University of Washington professor and pulmonary physiologist. Hlastala was called in to talk about gas exchanges in the lungs, and for his studies on breath tests and the properties of alcohol. Hlastala has also studied standardized field sobriety tests, and is a certified police instructor in them by the National Highway Traffic Safety Administration (NHTSA).
Hlastala took issue with what he indicated were assumed conditions consistent exhale from the lungs, on which he said manufacturers predicate the workings of breath test machines, such as the Alcotest 7410+ used by the MLPD in this particular case. An important assumption of any breath test, he said, is that the exhaled air gets out and into the machine unchanged, which he thinks is an oversimplification. As we breath in we pick up alcohol via our airways, and as we breath out, some of that alcohol is re-deposited along the airways, which is a concept that has only surfaced in the last few years, he pointed out.
The device has been certified for police use in California for the past decade or more. Hlastala, however, has been critical of many of these devices, particularly the “fuel cell” powered models such as the Alcotest. Infrared machines sample the breath every quarter-second, as opposed to only once with fuel cell models. This singular sample must then be extrapolated across the entire range of the breath being input to the machine.
Another factor he cited was Francis’s asthmatic condition, and (from reading his medical records) a diagnosis of GERD (gastroesophageal reflux disease), a condition in which stomach contents (food or liquid) can leak backwards from the stomach into the esophagus. The net effect on breath tests, according to Hlastala, is that asthmatics with narrowed airways have less volume, redeposit less alcohol, and have to exhale more breath to make a valid sample, thus increasing the alcohol rate to a higher level. He also posited that the GERD symptoms could lead to increased mouth alcohol content, which isn’t screened out by the Alcotest 7410+.
He further pointed to Francis’s rate of absorption, and said GERD patients often take longer to digest food, making for a “serious problem” with conventional breath tests. He also questioned Francis’s .20 and .19 readings from the breath test, and how he would have got there with 4-5 glasses of wine, which Francis told Hansen was the amount he had that night. “He would have need to have 10 glasses in him to get that reading,” Hlastala testified, adding that in his opinion Francis’ demeanor in the patrol car’s video recording wasn’t consistent with a person who would have blown a .20. “They would have had considerable difficulty standing,” he said.
During cross-examination, the People’s representative, David Anderson from the Mono County District Attorney’s office, grilled Hlastala on his being paid to appear only for the defense in DUI cases, which Anderson got him to acknowledge he has done 100% of the time. He also submitted that Hlastala makes a tidy income (well in excess of $100,000 annually), doing 2-3 cases per month at thousands of dollars each. He also charged that Hlastala, though heavily credentialed, isn’t a medical doctor, or licensed to practice or diagnose. He also hasn’t done any studies or published any papers on the 7410+ in particular. Hlastala did point out that the 7410+ is only used in California and not in any other states, due to what he said were its limitations.
“There should be restrictions on who can use it, but there aren’t,” he said. “Breath tests should be used as probable cause, but a blood test should be used for final determination.”
Anderson asked Hlastala about the long history of breath test devices, which date back to the 1870s in Sweden, and made their way to this country in the 1920s, becoming part of the police lexicon during and after WWII. On redirect, however, Bartell asked Hlastala about whether our knowledge and understanding of physiology has changed since the ‘20s. “Big time,” he replied. “The entire crux of the test is based on an assumption. There is no study showing you get consistent air on exhale. The technology is basically the same, but human understanding has changed.”
After that, character witnesses appeared, including Jeff Casaw, a friend of Francis since 1993, who was in the vehicle’s passenger seat when it was stopped. He and his wife, and another couple, were with Francis that night at a wine pairing dinner, and testified that the five wines served at dinner were smaller pours, a la a “wine flight” sampling size, not full glasses. Robert Schaubmayer, who owns the restaurant that hosted the wine pairing dinner that night, confirmed that observation during later testimony.
He also recounted being with Francis two days earlier for a memorial hike to the summit of Mt. Whitney, honoring a late friend. Casaw said Francis was advised not to go on the strenuous hike, but went anyway, and that his own legs took a few days to fully recover from the trek.
Meanwhile, he also recounted that earlier in the evening, Francis had an asthmatic episode, which can be triggered by high altitude on occasion. He also said he didn’t notice any indications of intoxication, at least not of the nature described in the report.
During cross-examination, however, Anderson brought up that the time elapsed between the end of the dinner and the stop could not be accounted for, and that Casaw had no knowledge of what else Francis might have had to drink. Another witness who saw Francis during dinner said she didn’t think he was intoxicated, though she acknowledged in cross-examination that she couldn’t recall ever seeing him in an intoxicated state previously, and wouldn’t know what he looked like in that capacity.
Schaubmayer, during his testimony, said he saw Francis in the parking lot at about the time Hansen’s on scene interrogation was in progress, and said he couldn’t hear Francis very well, but didn’t recall seeing him stumble or stagger. On cross-examination, Schaubmayer told Anderson he probably left prior to Francis’ arrest and also didn’t see him exit his vehicle, and wouldn’t have seen him stumble or fall.
In closing arguments, Anderson focused on the letter of the law, and that breath detectors are an accepted, legally authorized part of DUI stops and in use in all 50 states, and have an excellent and perhaps perfect record of being used in DUI court cases. (Research revealed that the devices have been coming under fire in recent years as being inaccurate or otherwise unreliable in several U.S. states, as well as other countries also using them.)
Anderson also stood by his take that Francis was highly intoxicated that night, and therefore impaired enough to flunk the field sobriety tests, and simply have trouble standing.
Bartell’s argument asked the jury to focus on “everything … testimony, evidence … and also what’s NOT there.” Listed among other pieces he said are missing were video of the stop, but no audio and therefore no sound of what Francis said or how he said it; no video of the breath test being administered, and further no checklist present with the 7410+; no proof or documentation of how the device had been calibrated, what was wrong with it that required it to be sent to a lab for fixing the following month; no way to know if the machine’s barometric pressure was checked. “We’re just shown pieces of paper and asked to assume it’s right … that’s like me dialing down my scale to 180 pounds and saying, ‘Voila, I’m in shape,’” Bartell quipped.
Also cited as missing: no disclosing to Francis of his right to have a blood or urine test for evidence purposes; no testimony from Sgt. Mark Moskowitz, who was on scene that night, and could have testified to the staggering or how Francis sounded; no consistency in Hansen’s account of his training versus how Bartell charged the field sobriety tests were administered, as well as discrepancies in his police report versus his testimony (though this was attributed to a likely clerical error made when the report was written); no contact by Hansen with Schaubmayer regarding the amount of wine consumed at dinner; and lack of knowledge by Peoples’ witness Mike Appel, a state DOJ Criminalist, as to a DOJ internal memo showing the 7410+ could be improperly used and generate a false, higher reading.
He also referred to the police video from that night, suggesting that even Hansen had problems balancing when demonstrating a lifted leg test to Francis. And Bartell was particularly incensed about the so-called U-turn on the video, executed by Hansen just after Francis’ vehicle is seen passing. “If you drive at night, you are targeted,” Bartell blasted.
In rebuttal, Anderson said Bartell knew all the points to hit on, but called his arguments “a distraction” from the test results, referring to them as “red herrings.”
“That’s what we’re hearing … a lot of things that are relevant, but don’t change the results,” Anderson submitted. He stood by Hansen, saying the officer’s credibility was on the line. There is, he added, no indication of any deliberate lying, and said Hansen is trained in noticing slurred speech, though that is somewhat subjective, he acknowledged. Anderson disqualified Casaw, saying that after dinner he admitted going home and having more wine with his wife, causing him to ride with Francis, since Casaw thought himself too intoxicated to drive. “Is he the best judge?” Anderson asked, rhetorically.
There was, he said, no conspiracy to nail Francis. The Alcotest 7410+ had two good tests. Francis has a mild form of asthma … so what? It’s a common thing, and is not a problem for the instrument. If it were, he asserted, there would be regulations for it.
Speaking of lack of testimony, Anderson said there is no requirement for either side to call all witnesses. There was, he mentioned, no testimony from anyone regarding whether or not Francis indeed has GERD. Sgt. Moskowitz wasn’t called, he said, because he had nothing to do with Francis’ examination on scene. He didn’t, however, speak to whether Moskowitz had heard or seen anything relevant to Francis’ other external, observable conditions, including revelation on the video that Francis was holding a testing pose for all or most 30 seconds at one point.
Yes, the advisement about Francis’ right to a blood or urine test should have been given, he conceded, but added that they didn’t change the test. Hansen also might not have remembered being versed in the theory of operation of the device during his training, but wouldn’t have been given a DOJ-issued access card to it had he not at least heard the lecture at some point.
The standard of intoxication, he suggested, is not based on relative drunkenness, but against a sober person. He finally contended that the doubts raised by Bartell were “imaginary,” not reasonable. “Either he is the unluckiest man in the world, where everything coincidentally went wrong on the same night, or he is guilty,” Anderson concluded.
Imaginary or not, the jury apparently disagreed. Afterward, Francis said he was very pleased by the verdict.
A case began Tuesday afternoon in Mono County Superior Court that could raise questions regarding police methodology and procedure involving citations for Driving Under the Influence (DUI) in Mammoth Lakes. In the People v. Chris Francis, the defendant and his attorney, Dan Bartell, are contesting a DUI charge, challenging everything from the veracity of the initial stop to how the breath test was administered and whether it was entirely accurate.
Francis, who has previously lived in town, who has worked as a ski instructor at Mammoth Mountain Ski Area as well as a bouncer at the former Ocean Harvest, and whose family has had a second home here for some 40 years, was pulled over just before midnight on Aug. 19, 2010. During testimony before presiding Judge Stan Eller, Mammoth Lakes Police Department Officer Dan Hansen said he was on “routine patrol” that night, and was traveling east on Main Street. Hansen said he then made a U-turn heading west, after which his attention was drawn to a red Suburban, driven by Francis, that Hansen said was “straddling the #1 and #2 lanes.”
Hansen has been with the MLPD since August 2008, with no prior police experience, and has assisted or been involved with some 100 DUI investigations, at least 50 on his own. “Most drivers will cross over lane lines, make wide turning movements,” he described. “Not all stops result in arrests.”
As the trial continued Wednesday, under questioning by prosecutor David Anderson from the Mono County District Attorney’s office, Hansen said the vehicle approached the intersection of Main and Minaret, and made a right turn from the #2 (right hand) lane, without using the designated turn lane. After that, it continued to straddle the lane line.
“A turn from the #2 lane is sometimes consistent with a person driving under the influence,” Hansen said. Video from the patrol car that night does indeed show the vehicle making such a turn. Not mentioned, however, was anything regarding the fact that, at the time, much of the turn lane was coned off. The video of the drive up to the intersection is also a bit grainy and dark, though Hansen maintained he had a clearer view of Francis’s vehicle that night.
During the stop in a nearby parking lot, Hansen recalled that Francis, who has asthma, said he was having trouble breathing, though this reportedly cleared up later. Hansen added that while continuing to speak with Francis, he noticed an “odor of alcohol,” and that the defendant’s eyes were bloodshot and his speech seemed slurred, both indicators of possible intoxication. “He was walking with an unsteady gate and had a hard time standing up,” Hansen said.
No audio was available on the video recording, due to what Hansen said was some sort of microphone failure, but the officer said he asked the standard raft of questions: 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 said 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 said “didn’t add up,” since it was almost midnight. He tried to conduct a field sobriety test, during which Francis was said to be “swaying,” though the video is somewhat inconclusive on this point. After an eye test, Hansen said Francis soon declined to conduct any further tests, citing his condition after the day’s hiking.
He was arrested and cited, and later released. Prior to release, though, he was taken to the MLPD station and given a breath test, which Francis selected as opposed to a blood test. Later in his cross-examination, Bartell made mention of the fact that an assisting officer on scene had a portable breath test kit with him in his patrol car. Under California Code, Title XVII, Francis was placed under 15 minutes of mandatory observation to make sure he didn’t belch or regurgitate, both of which could adversely affect the test.
He was given two tests, one at 1:08 a.m. and another five minutes later. Francis reportedly blew a .20 and .19, both about 2.5 times the legal limit of .08.
During cross-examination, Bartell, whose conversational, easy-going manner is not unlike that of TV’s Detective Colombo, took issue with Hansen’s use of the terms “staggering” and “swaying,” playing the video and contesting that Francis displayed either of those traits. “He wasn’t staggering or falling down, even though he was supposedly 2.5 times the legal limit, blotto drunk,” Bartell noted. Hansen for the most part took his point, though he later insisted he saw Francis swaying.
Bartell went on to dispute the amount of time spent on the sobriety tests and questioning, and asserted that 30 minutes, as noted by the video’s time code, might have an affect on how someone stands. He also used the Title XVII manual to question whether Hansen might have abbreviated, changed and even skipped parts of the eye test procedure, which according to Bartell’s use of the manual was “standardized.” Hansen said he was only doing it the way he was trained, though he did admit to perhaps doing certain parts his own way, as seen on the video.
The defense then raised concerns 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. Also mentioned was why the hike Francis had been on wasn’t brought up more during follow up questioning. Further, Bartell was troubled by the fact that no video of the blood alcohol level breath test exists, even though Hansen testified that one was made.
As if that weren’t enough, he also took issue with the fact that, as per the state’s Vehicle Code, since breath tests don’t keep samples, law enforcement is required to inform defendants that they have the right to blood and urine tests for evidentiary purposes. That reportedly didn’t happen in this case.
Bartell next went after “probable cause” for the stop, questioning 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 countered that his testimony contradicts the description in his police report, filed under penalty of perjury, which makes no specific mention of the lane line situation.
“It wasn’t as detailed, which was probably a mistake on my part,” Hansen responded. “If I see a car at night, I follow it. I do that all night long,”
Francis reportedly thinks 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. Francis also maintains that since the incident, his Suburban has been pulled over several more times, though he wasn’t behind the wheel during any of those.
Anderson’s next witness was Mike Appel, an 11-year Criminalist with the Department of Justice, whose field of expertise also includes forensic alcohol analysis in part for court cases such as this one. 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, 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 also brought up the fact that if a tube on the PAS device is loose, it could lead to a erroneous, lower reading, but also pointed to a DOJ internal bulletin, which Appel apparently wasn’t familiar with, that indicated mistakenly covering an air exit port on the device can lead to an equally misleading higher reading.
Bartell also 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 XVII requires PAS devices to be calibrated every 10 days or 150 subjects, and Appel said the machine was in “full compliance” with Title XVII regulations.
That didn’t satisfy Bartell, who also said the particular device in question doesn’t 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. He further 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. He also brought up Francis’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 prosecution rested late Wednesday, and the defense was to present its case Thursday afternoon. We’ll have more on the case online and in our next issue.