An Intoxilyzer 5000 EN, which is the type of breath analysis machine used to test Jonna Kull's blood alcohol level and was later revealed to be contaminated.
An Intoxilyzer 5000 EN, which is the type of breath analysis machine used to test Jonna Kull’s blood alcohol level and was later revealed to be contaminated. ()

The Nassau County District Attorney’s failure to disclose that a breath analysis tool was contaminated has prompted a judge to give a defendant the chance to withdraw her guilty plea to a drunken driving charge.

District Court Judge Colin O’Donnell said it is clear that the prosecution knew prior to the defendant’s plea that there was a problem with the breath analyzer, and “failed to disclose this information to the defendant” until six months after the conviction.

People v. Kull, 2012NA023195, stemmed from Jonna Kull’s 2012 arrest in Hempstead for allegedly driving while intoxicated and making an unsafe lane change. Kull pleaded guilty on June 13, 2012.

In December 2013, the district attorney’s office notified the defense that routine maintenance showed the instrument used to measure Kull’s blood alcohol level had been contaminated. The office said it was unclear if the contamination affected the result of the test, but odds were that it had no affect.

Regardless, defense attorney David Mirsky of Mineola moved to vacate the conviction as one “procured by duress, misrepresentation or fraud on the part of the prosecutor.” The district attorney’s office opposed the motion, citing correspondence from the manufacturer that the contamination would not have affected the Kull case.

O’Donnell found the prosecution in violation of Brady v. Maryland, 373 U.S. 83 (1963), and granted the motion.

The judge said the evidence showed that a service order for the device had been requested six weeks before Kull pleaded guilty, and that a preliminary test indicated that the unit had been contaminated. O’Donnell said that if the information “had not been improperly withheld from the defendant and her counsel,” it could have been used “to evaluate the … reliability” of the testing device before she pleaded guilty.

O’Donnell added that the “court has difficulty following the reasoning and analysis of the people, which is based upon correspondence authored by the manufacturer of the contaminated instrument used in obtaining the defendant’s BAC.”

Shams Tarek, communications director for the Nassau County District Attorney’s Office, disputed the judge’s conclusion that evidence was wrongly withheld.

“Prosecutors disclosed all Brady material promptly when they learned of it and we are prepared to bring this case to trial,” Tarek said.

Mirsky was not immediately available for comment.

Kull is slated to appear in O’Donnell’s court on Friday, when she will have an opportunity to withdraw her plea or go to an immediate trial.