NMS Lab Results Indicate Nassau County Police Department Overstated BAC Results

Nassau County police officers taking breath samples from motorists accused of driving under the influence of alcohol use the Intoxilyzer 5000 EN to measure an individual motorist's blood alcohol concentration (BAC). The Intoxilyzer is calibrated through the use of a Five Point Calibration.   In doing so, five different solutions containing five different known amounts of ethyl alcohol (.05, .10, .15, .20 and .30) are introduced into the machine through a device called a simulator. The simulator solutions as they are referred to are identified by Lot numbers.

After the Nassau County Crime Lab was shut down in February 2011, the Nassau County Police Department sent samples of Lots for verification. In a case I recently tried in Nassau County District Court, People v. Zalewski, Docket 2011NA002314, I came into the possession of the results of testing done on Lot 88 by NMS Labs. The results were exculpatory and though in the possession of the District Attorney all along they were not turned over until after trial commenced and then only after I discovered their existence on my own, despite a court order directing the disclosure of any records related to the testing of the simulator solution.

NMS Labs measured the samples to quantify the amounts of ethyl alcohol in each Lot. The analysis from NMS Labs showed that all five solutions contained an amount of ethyl alcohol that was lower than the target concentrations used by the Nassau County Police Department to calibrate the Intoxilyzer. Every sample was off.

The average overestimation was 3.086%. Since the Lots were sent to NMS Labs for verification it is reasonable to conclude their data was correct. If one were to rely on NMS Labs data the conclusion one could draw is that the machine was set to generate BAC readings that would give falsely high measurements and overestimate the true BAC for every test done using the machine by approximately 3.086%.  

This is important for a number of reasons. There may still be some cases where defendants are charged with DWI offenses in Nassau County that involve these simulator lots that were made by the Nassau County Police Department. If so I would be happy to share the discovery I have concerning the NMS Lab data as well as my expert's reports. This information could also provide the basis for a motion to vacate a conviction or to collaterally attack a conviction later used as the basis to elevate a misdemeanor to a felony. While the percentages that the results would be off may only be exculpatory where the BAC readings border on .18 or .08, it is indicative of the fact that the process is unreliable and we are not being given the discovery we are entitled to in these cases.