Lawyer wants DWI conviction thrown out

Attorney Brian Griffin outside courtroom in the DWI

Attorney Brian Griffin outside courtroom in the DWI vehicular assault case. (Feb. 17, 2011) (Credit: Patrick E. McCarthy)

A Garden City defense lawyer asked a judge Friday to toss his client's drunken-driving conviction, arguing the Nassau police crime lab's staff was "so tainted that a jury will not believe a word out of their mouths."

"This isn't baking a cake. It isn't a car inspection. It's forensic science," said Brian Griffin, whose client, Erin Marino, 30, of Hicksville, was convicted of aggravated vehicular assault and DWI in a bench trial in August. "It's people's liberty."

Nassau County Judge George Peck is expected to rule Monday. He will be the first county judge to decide whether a conviction should be thrown out because of problems at the lab. If he vacates Marino's conviction, it could set the stage for other defendants whose evidence was processed by the lab to successfully challenge their convictions.

The police crime lab was put on probation Dec. 3 by a national lab accreditation agency that cited 26 violations. County Executive Edward Mangano and District Attorney Kathleen Rice closed the lab's drug-testing unit on Feb. 10 and then shuttered the entire lab Feb. 18 after revelations about police managers possibly failing to disclose inaccurate testing.

In her closing argument, Maureen McCormick, chief of the district attorney's Vehicular Crimes Bureau, said however troubling the lab's problems are, Marino's case is not affected.

"Obviously, conduct at the lab is of great concern to the district attorney," she said. "But this hearing is about the justice, and the real people involved in the Erin Marino case."

While the lab device used in Marino's case to measure liquid in her blood-alcohol test had not been calibrated in several years, McCormick said, it was functioning properly when scientists did test it. McCormick said that meant the device, called a pipettor, was functioning the entire time because it could not have corrected itself.

She said even if the pipettor had been improperly measuring liquids, it would not have affected blood-test results, because it would have measured the same amount of each solution, so the proportions would have been correct.

But Griffin said it is disingenuous for Rice to publicly announce that she has so little faith in the lab that she wants it closed, while arguing in court that some test results from there should be trusted.

He said that is even more true in light of recent revelations affecting blood-alcohol tests in particular. On Thursday, prosecutors revealed that in nine blood-alcohol tests in drunken-driving cases on a single day last fall, defendants' paperwork had been attached to the wrong test results.

Separately, prosecutors on Friday told Griffin that they had learned that an alcoholic beverage had been tested improperly in a drunken-driving case in which a defendant was convicted last year. They would not give further details, saying they were still investigating.

Peck said in court he is very concerned about the impact that the lab's troubles will have on cases. "Even as a judge, you never questioned results in the laboratory," he said. "You took them as truth."

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