Special Investigator Appointed To Investigate The

Nassau County Crime Lab

Drug Prosecutions and DWI Prosecutions Under Question

            Even though it has been only one week since the Nassau County Crime Lab was closed by Nassau County Executive Edward Mangano, the New York State Governor, Andrew M. Cuomo, has already appointed State Inspector General Ellen Biben to investigate the lab. Initially, Nassau County District Attorney Kathleen Rice tried to have Eric Dinallo, Esq., appointed special prosecutor to investigate the lab, but the proposed appointment was rejected by acting Supreme Court Justice William Donnino.

            Eric Dinallo is a partner in the Manhattan law firm of Debevoise & Plimpton, L.L.P., and was a Democratic runner last fall for Attorney General. Rice who had sought to appoint Dinallo, was disappointed earlier this week when Judge William Donnino, the supervising judge of the county court in Nassau, denied her request. Before deciding on the appointment, Judge Donnino pointed out that state law requires a special prosecutor to live in the county where he or she will serve or have an office in an adjoining county. Dinallo conveniently had obtained an office in Nassau County at RXR Plaza in Uniondale on Tuesday morning, the day before Rice requested that the Manhattan attorney be appointed special investigator of the crime lab.  Clearly, the office was set-up for the sole purpose of attempting to comply with the state law cited by the Supreme Court justice. Judge Donnino pointed out that in open-ended cases such as this, where the investigation could lead to criminal arrests, it is the governor’s office that should appoint a special prosecutor or special investigator, thus superseding the district attorney’s choice. However, it is not surprising that District Attorney Rice attempted to take it upon herself to name the special investigator with all that is on the line.  If the special investigator determines that any wrongdoings took place in the lab, it could lead to thousands of prosecutions handled under Rice’s administration being challenged and possibly overturned.

            Rice was quoted as saying, “We will continue to make sure this case receives the most fair and aggressive examination possible and this decision will not deter that effort.” She further stated, “We are moving quickly to ask the governor to appoint a special prosecutor so we can begin the process of restoring the faith that the public deserves to have in its criminal justice system.” At least implicitly in her statement, Rice acknowledges that the public has lost faith, to some extent, in the criminal justice system in Nassau County. How damaged the public’s faith in the criminal justice system is has yet to be determined, particularly in light of the police department lab being closed and its employees and supervisors currently under investigation.

            Following Judge Donnino’s rejection of Rice’s proposed appointment, Inspector General Ellen Biben was appointed by Governor Cuomo to investigate the Nassau County Crime Lab. Both the Nassau County Executive and the District Attorney’s office subsequently expressed approval of the governor’s “swift action” in the appointment. What choice did they really have, for Rice anything but approval would look like she was trying to hide something, especially after her own hand picked selection was denied.

The Nassau Count Crime Lab will now be investigated for known and suspected mistakes in lab analysis of evidence in both drug and alcohol related cases. Just who knew what, and when they knew it, is going to be one of the focuses of the investigation. Hundred is not thousands of Driving While Intoxicated and drug convictions could be affected by the results of the investigation.

            As for Ms. Biben, her credentials speak for themselves, as outlined below:

·      Named Inspector General on January 1, 2011 by Governor Guomo.

·      Served as Deputy Attorney General for Public Integrity.

·      Lead prosecutor against political consultant Hank Morris.

·      Served ten years as an Assistant Manhattan District Attorney.

·      Deputy Bureau Chief of the Rackets Bureau for five years while in the Manhattan District Attorney’s Office.

It is uncertain at this point what will be discovered during the investigation.  It will be interesting to see if criminal charges will be filed against any Nassau County police officers or supervisors in connection with the lab issues. The investigation should also reveal when the District Attorney’s Office learned about the problems at the lab and if they disclosed their knowledge in the appropriate amount of time.

At the Law Office of David Galison, P.C., we strive to ensure that your rights are protected. If you are charged with the possession or sale of any drug, or are charged with any alcohol related driving offense in Nassau, Suffolk or Queens County, contact the Law Office of David Galison, P.C. at 516-242-4477 to schedule a FREE CONSULTATION to discuss your case. Visit our website at: David Galison, P.C.

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 NASSAU COUNTY CRIME LAB

ORDERED CLOSED INDEFINITELY

 Photo credit: Newsday website, a file photo of the Nassau County Police crime lab in Mineola, edited.

            On Friday, February 18, 2011, the Nassau County Crime Lab was ordered closed by County Executive Edward Mangano. The closure of the crime lab is based upon allegations that Nassau County Police supervisors may have know, as early as September of last year, about inaccuracies in the testing of the drug Ecstasy. Kathleen Rice, the District Attorney of Nassau County, was quoted in Newsday as saying that she had asked County Executive Mangano to shut down the lab “because supervisory activity and potentially intentional personnel conduct relate not only to the drug chemistry testing performed at the lab but to the entirety of the lab.”

            Prior to the closure of the Nassau County Crime Lab, the lab had the dubious distinction of being the only police lab in the country to have been placed on probation twice. The American Society of Crime Laboratory Directors had placed the lab on probation back in 2005 and again most recently in December 2010.  The recent probationary status was due to 15 serious violations that authorities found in the lab. Among the violations listed were defects in the maintenance and calibration of the equipment that measures blood alcohol.

            The county’s Acting Director of the Forensic Evidence Bureau, Pasquale Buffolino, Ph.D., recently issued a letter to Mr. Robert Stacey, Staff Inspector of the American Society of Crime Laboratory Directors, which addressed the violations. To view the letter that addresses the labs deficiencies click on the following link: Crime Lab Issues

            As a result of the lab’s failure to properly perform drug testing, and maintain and calibrate the equipment used to measure blood alcohol, motions are currently being brought by Nassau County defense attorneys to set aside criminal convictions. Roughly 9,000 drug cases from between 2007 to 2009 are being called into question. The number of DWI cases that could be affected by recent revelations is unknown at this time but clearly it is significant.

            Driving While Intoxicated (DWI) cases where breath readings were taken using machines maintained by the Nassau County Police Department are particularly troubling since it has been revealed that the calibration devices in the police lab were not checked yearly as is required by national standards. The lab’s failure to adhere to national standards makes prosecuting these cases questionable, difficult and perhaps unjust.

            What is even more troubling for the Nassau County Police Department and District Attorney’s Office is that on Thursday, February 17, 2011, Detective Lieutenant James Granelle, former Nassau County Crime Lab Director, admitted while testifying before the Honorable George Peck that he had informed his commanding officer(s) about the problems at the lab as early as 2006.

Meg Reiss, Kathleen Rice’s chief of staff, indicated recently that U.S. Attorney Loretta Lynch, who heads the Eastern District of New York, will be keeping in touch with Rice and may step in if it becomes necessary. The Nassau County Police Department and District Attorney’s Office are each conducting their own investigations into the issues with the police lab, however many defense attorneys say this is not enough and that a special investigator should be appointed.

Newsday has had excellent coverage of the Nassau County Crime Lab fiasco, for more information visit the following link, Newsday Coverage

           

At the Law Office of David Galison, P.C., we strive to ensure that your rights are protected. If you are charged with the possession or sale of any drug or alcohol related driving offense in Nassau, Suffolk or Queens County, contact the Law Office of David Galison, P.C. at 516-242-4477 to schedule a FREE CONSULTATION to discuss your case. Visit our website at: David Galison, P.C.

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Leandra's Law

LEANDRA’S LAW

Driving While Intoxicated (DWI) With A Child In the Vehicle

Vehicle and Traffic Law Section 1192.2 2-b (Leandra’s Law) reads as follows:  Aggravated driving while intoxicated. With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.

Leandra’s Law was recently passed by the New York State legislature and went into effect on August 15, 2010. The purpose of Leandra’s Law is to elevate the crime of Driving While Intoxicated (DWI) from a misdemeanor offense to a felony offense when a child who is fifteen years of age or younger is a passenger in a motor vehicle being operated by an intoxicated driver.

            The elevation of DWI from a misdemeanor to a felony results in substantial sentence enhancements. A misdemeanor is punishable by up to one year in jail whereas an E felony is punishable by up to four years in state prison. Additional sanctions for a violation of Leandra’s Law (§1192.2 2-b) include the following:

·      Automatic license suspension pending prosecution

·      Installation of an ignition interlock system for at least six months*

·      Up to 25 years in state prison when a child passenger under age 16 dies in a DWI crash

·      Up to 15 years in state prison when a child passenger under age 16 is injured in a DWI crash

·      Reporting by arresting agency to Statewide Central Register of Child Abuse and Maltreatment

·      A fine of $1,000.00 to $5,000.00 plus state surcharges

In light of these potentially serious consequences, it is important to retain the services of a qualified attorney to defend your case, even if you are a first time offender. The Law Office of David Galison P.C., will explore every defense to an allegation of DWI and will vigorously defend all charges against you. Just because you are alleged to have committed the offense of drunk driving (DWI) does not mean that you are guilty. People and equipment can make mistakes.

At the Law Office of David Galison, P.C., we strive to ensure that your rights are protected. If you are charged with an alcohol related driving offense in Nassau, Suffolk or Queens County contact the Law Office of David Galison, P.C. at 516-242-4477 to schedule a FREE CONSULTATION to discuss your case.

See the NYS Division of Criminal Justice Services Website for additional detailed information.

           

For a complete reading of the DWI Statute for the State of New York visit: Consolidated Laws of The State of New York

*Links to ignition interlock device companies, with demonstration videos:

• SmartStart Ignition Interlock Device Video
• National Interlock Device Video
• Intoxalock Device Video

CELL PHONE TICKETS

CELLULAR PHONE TICKETS IN 

NEW YORK NOW CARRY THREE (3) POINTS

     Think twice before answering your cell phone if you’re driving a motor vehicle in New York. A motorist who is ticketed for talking on the cell phone without a hands free device will now receive two points on their driver’s license if they are convicted.  While three (3) points may not seem like a lot consider the following:

• Insurance carriers can raise your premiums for years based upon the amount of points on your license.

• Your license can be suspended or revoked if you receive more then 10 points on your drivers license within an 18 month period of time.

• If you receive six (6) or more points on your drivers license within an 18 month period of time you are subject to the Drivers Responsibility Assessment Act. *

      Nassau, Suffolk and Queens counties are sure to start issuing traffic tickets for these cell phone driving violations, as part of a show of force in support of the new legislation. These enhanced efforts to ticket drivers who do not use hands free devices can be expected to last for the foreseeable future in hopes that it will create a deterrence effect. According to Newsday on February 16th, 2011 Suffolk County Sheriffs issued 19 cell phone tickets in the morning rush alone, while Nassau County Police issued 3 cell phone tickets as of the afternoon.  

      Given the potential serious consequences outlined above it is extremely important to retain the services of a qualified attorney to defend your case. Traffic tickets can be dismissed if the police don’t prove every element of the offense alleged. At the law office of David Galison, P.C., we strive to ensure that your rights are protected, and we explore every possible defense available. If you are charged with any traffic violation, please call the law office of David Galison, P.C. at 516-242-4477 to setup a Free consultation to discuss your case. Law Office of David Galison, P.C.

      The office of David Galison, P.C., routinely defends drivers charged with the following traffic related offenses: speeding tickets, red light tickets, stop sign tickets, cell phone tickets, failure to signal tickets, failure to maintain lane tickets, driving on a suspended or revoked license, driving while intoxicated and driving while impaired.

      In Nassau County the majority of traffic tickets are handled by the Nassau County Traffic and Parking Violations Agency located at 16 Cooper Street in Hempstead, New York. In Suffolk County the majority of traffic tickets are handled by the Department of Motor Vehicles Traffic Adjudications Bureau located at State Office Building, 2nd Floor, Veterans Memorial Highway,
 Hauppauge, NY 11788.

* If you receive six points on your driver record during a period of 18 months, the annual assessment is $100. The minimum amount that you must pay each year is the annual assessment. The total assessment for the three years is $300. If you receive more than six points on your driver record during a period of 18 months, the annual assessment is $25 for each point more than the original six points. The minimum amount that you must pay each year is the annual assessment. The total assessment for the three years is $75 for each point more than the original six points. (See the DMV website link provided above for further information)

Chemical Breath Testing - An Imperfect Device

CHEMICAL BREATH TESTING

And

Driving While Intoxicated

Blood to Breath Partition Ratio

In New York State, a person can be charged with Driving While Intoxicated pursuant to section 1192.2[1] of the Vehicle and Traffic Law if they operate a motor vehicle while having .08% or more of alcohol in their blood as shown by chemical analysis of their blood, breath, urine or saliva.

Breath testing is based upon the correlation between the amount of alcohol in a person’s breath and blood, and the ability to measure that amount accurately for each individual. In order to convert the breath sample into a blood alcohol percentage, all machines utilize a “Breath to Blood Partition Ratio” of 2100 to 1.  This partition ratio essentially states that the amount of alcohol in one milliliter of blood is 2100 times greater than the amount of alcohol in 1 cubic centimeter of expelled breath.

The problem with the 2100 to 1 breath to blood partition ratio used by breath testing instruments is that it does not take into account individual ratios, but rather assumes that everyone has the same partition ratio.  Studies have proven that individual breath to blood partition ratios vary among individuals with a range of approximately 1000 to 1 –to- 3000 to 1.  What is even more troubling is that the breath to blood partition ratio varies within individuals depending upon which phase of alcohol absorption they are in.

Studies have shown that in the absorptive phase of alcohol digestion, the breath to blood partition ratio is often less than the standard 2100 to 1 figure. Therefore, if you were apply the standard 2100 to 1 breath to blood partition ratio during this phase, it would result in a false high reading.  For instance, if an individual submitted to a chemical test that resulted in a reading of 0.10% and the individual had a breath to blood partition ration of 1000 to 1, the actual blood alcohol percent would be .05%.  A person who operates a motor vehicle with a blood alcohol level of .05% is not intoxicated and cannot be charged with Driving While Intoxicated.  Conversely, if a person’s breath to blood partition ration is greater then 2100 to 1 the actual concentration of alcohol in their blood would be underestimated if the standard breath to blood partition ratio is used.

So where does all of this leave us? It leaves us guessing as to a person’s true alcohol to blood concentration.  The solution to this guessing game is a blood test. The only accurate way to measure the concentration of alcohol in someone’s blood is to test the person’s blood.  Hospitals test blood everyday, all day long, and the police have the ability to take and test blood as well.  In fact, the police have special blood testing kits that come with instruction cards for drawing and preserving blood for alcohol testing.  When a person’s life, liberty and reputation are on the line, we believe that the most accurate testing available should and must be used, and the use of anything less is an injustice.

Filters, Bells and Whistles

Breath testing equipment has been utilized by police departments since the early 1970’s and has been deemed reliable for courts since that time.  And yet, the science underlying the equipment still has not been perfected. As I’ve already mentioned, the equipment uses a presumption about an individual’s breath to blood partition ratio, which, depending on the individual and/or the phase of alcohol digestion, may not be accurate.  In addition to that, CMI, Inc., the manufacturer of the Intoxilyzer series of machines utilized by the Nassau and Suffolk police departments, currently has twenty-four (24) versions of its Intoxilyzer series listed on the New York State Breath Testing Instrument List.  Link To NYS Breath Testing Instruments List.  If the breath testing equipment is as accurate as it is purported to be, then why do twenty-four (24) different versions of the machine exist?  Why isn’t one standard machine used?

The answer is simple.  Breath testing has not been perfected, and the companies that manufacture the breath testing machines are continuously trying to discover new ways to improve them.  Imagine convicting a person of the crime of Driving While Intoxicated based on the results of the breath machine which indicated that the person was intoxicated, only to find out that a more accurate version of the machine was introduced a week after the person had submitted to the test.  Given the very real reality of that situation, we cannot conceive of relying on a machine that is constantly being replaced and updated by new and improved versions when it comes to determining a person’s freedom.

Manufacturers of the breath testing equipment have still not discovered ways to address the following issues:  

·      Mouth Alcohol – If a subject has undigested alcohol in his mouth due to a burp, dentures, regurgitation or acid reflux, the breath testing machines can be thrown off or fooled into giving a false high reading.

·      Breath Sample Duration and Flow – If a person is permitted or instructed to blow into the machine for too long a period of time or with too much or too little force, the machine can be thrown off or fooled into giving a false high reading.

·      Trace Contamination – Most breath testing machines use infrared analysis to test for alcohol in the breath, but the infrared wave-lengths that are used test for the methyle group, rather than for the alcohol specific ethyl molecule. Therefore, if a person has a methyle compound in his system, the breath-testing machine will detect alcohol even though the subject has no alcohol in his system. This can occur when a person is exposed to certain paints or wood stains in addition to other compounds that contain molecules in the methyl group.

·      Sample Temperature – If a person is sick and his breath sample is even 1 degree above 34 degrees Celsius, it will produce a reading that is approximately 7% higher than his actual reading. Despite this fact, the breath testing machines do not have safeguards to test the temperature of a person’s breath sample and the police do not check a person’s temperature before a breath test is administered.

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[1] 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

DWI ARRESTS = MASSIVE OVERTIME SALARY FOR POLICE

On January 30th, 2011, Newsday published the Nassau County Police Department salaries and overtime pay for the year ending 2010. Newsday Article 

Many officers earned substantial overtime pay as a direct result of arresting individuals suspected of DWI (Driving While Intoxicated or Driving While Impaired).

One officer whose base pay is $106,698.00 earned overtime pay in the amount of $111,508.00. The officer actually earned more money in overtime than he did in regular time, and in total earned $218,206.00 for the year.

Another officer earned $102,970.00 in overtime in addition to his base pay of $106,698.00, for a total yearly income of $209,668.00. 


For a complete list of officer income for 2010 click the following link. Newsday Published Salaries


These massive overtime figures lead one to consider the following questions:

• Are motorists actually committing the underlying offenses which justify a stop of their motor vehicle in the first instance, or are officers stopping random vehicles on late night shifts trying to score extra overtime? 

Imagine the following scenario:  A motorist is driving late at night without committing any visible vehicle and traffic law violations. An officer looking to increase his or her salary by earning overtime pay stops the vehicle and asks the motorist where he is coming from and if he has been drinking. If the motorist displays no signs of alcohol consumption, the officer indicates that he or she is going to let the motorist off with a warning to slow down, or to make sure he signals. The motorist is happy that he did not get a ticket and goes home on his merry way, unaware that his rights were just violated by being stopped without cause. On the other hand, if the motorist had displayed signs of alcohol consumption he would have been detained and then arrested. The point is that an officer merely has to say that the reason for the initial stop was speeding, running a stop light or stop sign, or any other vehicle and traffic law violation and the stop is then justified, regardless of whether the motorist actually committed the traffic violation.  

• Why is the police department scheduling shifts that result in massive overtime pay?

If the vast majority of DWI stops occur in the late evening into early morning hours, why not schedule an officer's tour of duty so that an early morning arrest will not more likely than not result in overtime? If an officer starts his or her shift at midnight, an arrest made during the shift would be processed before noon which would eliminate the need for overtime for the officer to complete arrest paperwork. Obviously, a situation may still arise where an officer earns overtime because of the time of the arrest, but the current tours that are in place almost guarantee that overtime will be paid on every late night/early morning arrest made by an officer.

Only time will tell how the county will solve this massive overtime crisis but one thing is for certain, the current situation needs to be changed as it is ripe for abuse. The taxpayers of Nassau County cannot be expected to continue to foot the bill for officers' exorbitant and unnecessary overtime pay. 

At the Law Office of David Galison, P.C., all clients are presumed innocent. The massive overtime pay that some officers make is troubling and the recent article that appeared in Newsday should open people's eyes to the financial incentive behind initiating unjustified traffic stops and the resultant bad arrests.