A Suffolk judge will decide Monday whether to dismiss four of 16 charges against a Holbrook man accused of driving drunk into a group of Boy Scouts, killing a 12-year-old, citing concerns the motorist's blood-alcohol level may have been below the legal limit to sustain the counts.
Judge Fernando Camacho indicated he's seriously considering dropping the four charges — aggravated vehicular homicide, first-degree vehicular manslaughter, first-degree vehicular assault and driving while intoxicated — against Thomas Murphy because they are no longer "legally sustainable."
"I don't know why these counts are in the indictment," Camacho said after the prosecution rested its case Thursday.
The four charges rely on Murphy's blood-alcohol content being 0.18% or higher at the time of the crash.
Murphy refused requests by police to take a Breathalyzer test at the Sept. 30, 2018, crash scene in Manorville. Police eventually obtained a warrant from a judge to collect the defendant’s blood nearly four hours after the crash. That blood test showed Murphy had a 0.13% BAC, prosecutors said.
Dr. Michael Lehrer, Suffolk’s chief toxicologist, testified that he used a scientific technique known as retrograde extrapolation to determine Murphy’s BAC was 0.19% at the time of the crash.
But under cross examination, Lehrer revealed he had prepared notes — which were not turned over to the lawyers for both sides, as the law requires — showing that based on the margin of error, Murphy’s BAC could have been as low as 0.17%.
“There is no factual evidence basis to support these essential elements,” said Steve Politi, Murphy’s defense attorney, arguing for Camacho to dismiss the four charges.
Assistant District Attorney Brendan Ahern, chief of the Vehicular Crimes Bureau, said all blood-alcohol tests have a margin of error. Dismissing the counts, he said, could set a precedent allowing drunken driving suspects with BACs at or just above the legal limit of 0.08% to avoid prosecution.
While Ahern said it’s “possible” Murphy’s BAC could have been below 0.18%, “that does not equate to reasonable doubt.”
Camacho disagreed and said dismissing the counts was “part of the remedy for not turning over a crucial document you should have known about.”
Ahern said he was not aware of Lehrer’s notes but took responsibility for the error.
“The buck stops with me,” he said.
Politi asked Camacho to dismiss eight other counts, arguing the state did not prove Murphy had driven “recklessly” and some of the victims' injuries did not support the charges.
Those charges include two additional counts of aggravated vehicular homicide, second-degree manslaughter, second-degree assault, two counts of third-degree assault, reckless driving and second-degree reckless endangerment.
“They offered no evidence that he was aware and consciously engaged in that risk,” Politi said.
Ahern said “there is overwhelming evidence that the defendant drove recklessly.”
Camacho plans to render a decision on Monday when the defense is scheduled to begin its case.