Mark Winters had just left Greensleeves Steakhouse in Redlands on Dec. 16, 2022, after having dinner with his wife and sister when he rolled into a DUI checkpoint.
The next 20 minutes would upend Winters’ life for the next year and cost him thousands of dollars in attorneys’ fees to clear himself — all because authorities at both the Redlands Police Department and San Bernardino County District Attorney’s Office badly misread a key piece of evidence: Winters’ blood alcohol level.
In California, it is illegal for someone to drive with a blood alcohol content of 0.08%. Winters, who said he had consumed a single glass of wine at dinner, registered a 0.013% blood alcohol content — nearly seven times less than 0.08% — on a preliminary field screening device.
Nevertheless, the 74-year-old retired Delta Airlines pilot and Air Force veteran was handcuffed, arrested and jailed. Even more shockingly, the District Attorney’s Office failed to notice the blood alcohol issue and filed criminal charges against him more than six months later.
“I am so pissed off over how I was treated,” said Winters, who lives in Arizona. “I spent a night in jail. I had a perfect record. I never had anything like that ever happen in my life.”
Why arrest was made
Audio and body camera footage of now-retired police Officer Eric Pendery, obtained by the Southern California News Group, provides some insight into the preliminary alcohol screening (PAS) test administered to Winters in the Kingsbury Elementary School parking lot about 8 p.m. that night.
After Winters blows into the electronic device, Pendery is seen in the video taking it from Officer Martin Gonzalez and walking back to his patrol vehicle while looking at the 0.013% readout on the PAS screen.
“Not what I want. That’s not what I was guessing,” Pendery is heard saying before placing the PAS device back into its case in his vehicle.
As he walks back to Gonzalez, Pendery’s body cam picks up the arresting officer informing Winters about the results of the field test.
San Bernardino County District Attorney Jason Anderson said his office made a “big mistake” in charging retired Delta Airlines captain and Air Force veteran Mark Winters with DUI, plus an enhancement, after misreading his blood alcohol concentration numbers from his toxicology report. (Courtesy of San Bernardino County)
“Unfortunately, at this particular time, you did blow over the legal limit. You did blow over a .08. You almost blew … double the legal limit,” Gonzalez told Winters, making clear the officer was mistaken about what the test showed.
Winters said he spent the night in a holding cell at the Central Detention Center in San Bernardino before he was released the following day.
A toxicology test on blood drawn from him that night revealed his blood alcohol content was actually 0.016% — exactly five times less than the 0.08% that qualifies for an arrest.
Criminal charges
San Bernardino County prosecutors nonetheless charged Winters in June 2023 — six months after his arrest — with two misdemeanor counts of driving under the influence of an alcoholic beverage and driving with a blood alcohol content of 0.08% or greater.
Additionally, prosecutors slapped Winters with an enhancement for driving with a blood alcohol content of 0.15% — nearly double the legal limit — subjecting him to even harsher penalties, including potential jail time.
Prosecutors failed to note Winters’ toxicology report showed his blood-alcohol content was 0.016%, not 0.16% as they believed. It took months before Winters’ criminal defense attorney, Ted Burgess, was able to get a prosecutor on the phone and convince them to take another look at Winters’ toxicology report.
Burgess said when he looked at the case on first blush, he immediately knew what happened, because he and some of his colleagues at his San Diego office made the same mistake when they first looked at the reports.
“It was obvious to me, from the get-go, what was going on,” Burgess said. He said the case should have never made it as far as the District Attorney’s Office.
“Ninety-percent of the problem in this case was these cops, because this should have never happened,” Burgess said. “It’s almost as if they were on a default setting.”
After realizing the mistake, prosecutors tried to persuade Burgess to get Winters to plead guilty to a “dry reckless” charge — essentially a misdemeanor reckless driving offense not involving the use of alcohol or drugs.
Burgess refused.
“There was no way they were going to get that. My client pulled into a DUI checkpoint, and there was absolutely no proof he was driving recklessly,” Burgess said.
‘We made a bad mistake’
Finally, in December 2023, prosecutors asked that the case be dismissed, and a San Bernardino Superior Court judge granted the request.
“We made a mistake. We made a bad mistake. We read the numbers wrong,” San Bernardino County District Attorney Jason Anderson said.
On June 4, the Redlands City Council unanimously approved a $150,000 settlement with Winters after his attorney, Dennis Wagner, sent the city a demand letter threatening to sue in federal court for violating Winters’ Fourth Amendment right “to be free from an unlawful arrest without probable cause.”
“The case was so on-its-face absurd that the city decided to settle just based on the letter because there was no defense,” said Daniel Moussatche, another attorney from the Riverside law firm Wagner Zemming Christensen who represented Winters in his civil case.
On Wednesday, Oct. 2, Anderson said he signed a petition of factual innocence on behalf of Winters, and Judge Cheryl Kersey granted the petition.
It wipes Winters’ slate clean, as if the arrest never happened, Anderson said.
“I think at each stage, there were honest mistakes that were made, that’s all I can surmise,” Anderson said in a telephone interview. “There’s nothing other than everyone looking at the numbers and reading them incorrectly. We should have seen it when it came over, and that this wasn’t right.”
Totality of circumstances
The circumstances of Winters’ arrest raised several questions, none of which the city nor its police chief would address, maintaining that complaints or investigations against police officers are confidential.
“The city will not respond to questions seeking information that is exempt from disclosure under the law,” city spokesperson Carl Baker said in an email.
Gonzalez and Pendery, according to the body camera footage, told Winters that the field sobriety test was not solely dependent on the the PAS device reading but on the “totality of circumstances” of the field sobriety test.
Gonzalez’s report noted several factors justified Winters’ arrest. He said Winters could not stand on one leg for 30 seconds, had “red and glossy eyes,” and did not have his foot securely on the brake when he was retrieving his wallet from his back pocket, allowing the vehicle to jerk forward about a foot.
Then, Winters handed Gonzalez a credit card when asked for his license, which Gonzalez believed was a sign of impairment, according to the report.
Gonzalez said Winters began to shake and lose his balance while trying to walk heel-to-toe on a painted white line, and was unable to walk heel-to-toe for several steps. During the one-legged stand, Winters placed his foot on the ground five times during the 30-second duration of the test, according to Gonzalez’s report.
At the time, Winters — who stands 6 foot 3 inches tall and weighs 240 pounds — told Gonzalez he has balancing problems due to his age. “I’m 72 years old. I just want you to know when it comes to balance and all that,” Winters told Gonzalez.
In his April demand letter to the city, Wagner noted Winters’ age and size, saying studies show that people over the age of 60 have balance issues.
Winters’ toxicology report also was included in Gonzalez’s report that was approved on Jan. 12, 2023, by Sgt. Jeremy Floyd, now an interim deputy chief at the Police Department. The file then was sent to the District Attorney’s Office for consideration of criminal charges.
In his own defense
Winters said his eyes are usually red because he rubs them a lot, and that his wife always tells him his eyes are red. Furthermore, he said he was dog tired the night of his arrest, primarily because he had just driven from Arizona to Redlands to visit his wife’s sister and her family for Christmas
“They were red and glossy at the time because I was 72 years old and up since 2 a.m. getting ready for the trip,” Winters said. “That whole timeframe — I had been up approximately 18 hours. I was dead tired.”
He said there was even a box in Gonzalez’s report that asked, “When did you last sleep?” but Gonzalez didn’t bother to ask Winters that question, nor did Gonzalez fill in the box in his report, drawing a horizontal black line through it.
As for handing Gonzalez a card rather than his driver’s license, Winters said he had accidentally placed his Visa card in the wallet slot where he keeps his driver’s license after paying for dinner.
As for his problems balancing, Winters said he suffers from vertigo, a condition he developed from many years working as a commercial airline pilot.
Internal investigation
In his April 4 demand letter, Wagner told city officials to consider the letter a citizen’s complaint for misconduct against Gonzalez, Pendery and Floyd for violation of Winters’ civil rights, failure to perform duties and false arrest.
The city would neither confirm nor deny whether it was conducting an investigation. Baker said Gonzalez and Floyd remain on active duty, but Pendery retired last year.
Moussatche said the city is required by law to investigate once a complaint is filed, and the demand letter qualifies as a complaint.
Winters said he reached out to Cmdr. Esteban Valenzuela last month inquiring whether there would be an investigation, and Valenzuela asked Winters to provide his version of events.
In a Sept. 20 email to Valenzuela, Winters accused Gonzalez of “lying to his face” about the PAS results.
“If for some reason he says he made a terrible mistake, he could have corrected those mistakes prior to Commander Floyd having to get involved,” Winters said in his email.
Winters said he noted more than a dozen instances in Gonzalez’s report where he checked boxes indicating Winters blew over a 0.08% blood alcohol concentration and broke the law.
“By the time (Gonzalez) wrote his report, he knew the true breathalyzer results and could have stopped this terrible decision but he decided to push on,” Winters said in his email.
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As to Pendery, Winters said: “The body cam evidence showed he saw and understood that the (PAS) clearly registered a .013% result and his body cam picked up the lies that (Gonzalez) was telling me concerning the breathalyzer result. Once again, Officer Pendery could have done the right thing and objected to the arrest or taken (Gonzalez) aside and tell him what he saw on the screen as .013%. Instead, he participated in the arrest.”
In a subsequent telephone interview, Winters said, “I can understand how a police officer maybe had his mind on something else, or could have sworn it was a .13% and not a .013%, but for the other guy to have done the same thing, that’s kind of weird. They didn’t even correct it. They didn’t care to correct it. They could have stopped this right then.”
On Friday, Oct. 4, Winters said Valenzuela followed up with him to say the department is only investigating Gonzalez and Floyd, not Pendery, because he no longer works for the department.
