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Judge says Nassau DA withheld information in DWI case

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A Long Island woman will be able to take back her guilty plea to a drunken driving charge after a judge found that a Nassau County prosecutor withheld information that a device used to test her blood-alcohol content was contaminated.

Nassau County Court Judge Colin O’Donnell said that prosecutors failed to disclose that an Intoxilyzer – a breath analysis machine typically used to measure blood-alcohol content in DWI cases – was contaminated. He said prosecutors knew about the issue before Jonna Kull, 26, pleaded guilty to the misdemeanor charge.

“Clearly, the police department and District Attorney had knowledge of a contamination issue…prior to the defendant’s guilty plea, and failed to disclose this information to the defendant,” the judge wrote in a July 24 decision.

Kull had been arrested in 2012 for allegedly driving while intoxicated and making an unsafe lane change on Hempstead Turnpike in Hempstead. She pleaded guilty in June 2013 and about six months later, in December 2013, a prosecutor sent a letter to her lawyer, David Mirsky, saying that the machine used to measure Kull’s blood-alcohol level “had a contaminant on it.” At the time, prosecutors said they weren’t sure if the contaminant affected Kull’s test results, but insisted that was unlikely.

Kull’s lawyer asked the court to vacate her conviction, citing the new information. Prosecutors opposed that request and pointed to a letter from the testing device’s manufacturer, which found the contamination had no effect in Kull’s case, according to court papers. The judge found that prosecutors failed to appropriately inform Kull – before she pleaded guilty – about the issue and ruled that she can withdraw her guilty plea.

“The District Attorney’s office brought the information about the Intoxilyzer to the attention of the court and the defense bar,” said Paul Leonard, a spokesman for Nassau County District Attorney Kathleen Rice. “The office disagrees with the judge’s characterizations in this case and is considering our options regarding the court’s ruling.” He said prosecutors hadn't been informed about the alleged contamination until October 2013 - after Kull had already pleaded guilty – and then informed the defense.

But O’Donnell, the judge, said in his ruling that preliminary test results – ordered six weeks before Kull pleaded guilty – showed there was a possibility of contamination. He said that if prosecutors had not “improperly withheld” the information from Kull and her lawyer, it could have been used as part of their defense.

Kull, who could not be reached for comment, is due back in court on Friday. She will be permitted to withdraw her guilty plea and the case is expected to continue – possibly to trial.

Leonard said that “in an excess of caution,” the district attorney’s office has also informed lawyers whose clients were tested with the same machine about the issue. Prosecutors did not immediately provide information about how many other cases may be involved. The circumstances of those cases were not known and it was unclear if any other individuals have filed similar motions with the court.

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