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Nassau DWI defendant allowed to withdraw guilty plea due to contamination of blood-alcohol content device

A Nassau judge, saying he was acting in the interest of justice, let a drunken driving defendant withdraw her guilty plea Monday in a case involving contamination of a device police used to test her blood-alcohol content.

District Court Judge Colin O'Donnell ruled in July that prosecutors didn't disclose what they knew about contamination of the Intoxilyzer 5000 EN machine before the plea deal with Jonna Kull, 26, of West Hempstead.

He said then Kull could withdraw her plea -- but let the Nassau district attorney's office reargue its opposition -- before repeating the same conclusion in a December decision.

In it, O'Donnell cited "circumstances presented involving the subsequent revelation of a possible trial issue concerning the Intoxilyzer results."

Police arrested Kull in October 2012 in Franklin Square, charging her with misdemeanor DWI and an unsafe lane change.

O'Donnell set a court hearing for Jan. 20, after which Kull's case should go to trial.

Kull's attorney, David Mirsky, said he expected contamination would be an important issue at the hearing, when he hoped to learn how widespread the problem was with that particular Intoxilyzer.

"I think a hearing will help us and possibly some other defendants who may have other cases pending in this court," he said.

Prosecutors told Mirsky before Kull would have been sentenced that they had learned contamination was found on the Intoxilyzer during routine maintenance. They later argued Kull shouldn't be able to withdraw her plea because the machine's manufacturer found the contamination "had no effect" on her test.

District attorney's office spokesman Paul Leonard previously said prosecutors notified attorneys for other defendants with pending cases involving the same machine, but his office hasn't answered questions about how many other cases were involved or their outcomes.

Leonard has said prosecutors didn't know about a machine problem until months after Kull's plea, and found out when a prosecutor requested documents from police in another case and learned of a work order detailing issues with the machine.

On Monday, Leonard said prosecutors were "pleased the judge granted our motion to reargue and that his prior decision was 'vacated in its entirety' along with all allegations of impropriety."

He added: "Our office maintains that there is nothing wrong with the results of the Intoxilyzer. We are ready to try the case."

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