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Appellate court throws out breath analysis in drunken driving case

A state appellate court has thrown out the results of a chemical breath test given to a Hempstead woman accused of driving drunk and killing a pedestrian, saying the woman was denied access to her lawyer before the test.

Without the test results, prosecutors have said their evidence against Jonai Washington, 28, is "so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed," according to court papers.

Washington was arrested Aug. 30, 2010, after prosecutors said she struck and killed Plutarco Caceres, 66, of Uniondale, as he was walking east across Uniondale Avenue near Coleridge Road.

At Nassau County police headquarters that night, Washington consented to a breath test, according to the decision. About a minute later, a lawyer hired by her family called and told police, "You have to stop all questioning, and we're not consenting to any form of testing whatsoever."

Washington was never informed that her attorney had called, and she took the breath test eight minutes later, according to the decision.

"This goes to who we are as a society," said Washington's appeals attorney Frederick Brewington of Hempstead. "When a person is in a coercive circumstance [following an arrest], law enforcement can't take it upon themselves to deprive them of access to counsel."

John Byrne, a spokesman for Nassau District Attorney Kathleen Rice, said they are reviewing the decision. Washington is facing manslaughter and drunken driving charges.

Caceres' relatives could not be immediately reached Wednesday.

There was one dissenting opinion on the Brooklyn-based Second Judicial Department's four-judge panel. Associate Justice Daniel D. Angiolillo said allowing a defendant to consent to a test, then revoke that consent, "goes too far" in expanding right to counsel.

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