Providing Notice of Implied Consent Rights to Persons Who Do Not Speak English (Part II)

Part I of this post left for another day consideration of whether a defendant who does not speak English may be deemed to have willfully refused a chemical analysis when notice of the implied consent rights is provided only in English and whether providing notice only in English may violate such a defendant’s constitutional rights. That day has arrived. [Editor’s note: already!] Rather than considering notice of implied consent rights as properly provided when the rights are read as set out in the statute, even if they are read in English to a non-English speaking defendant, the appropriate focus may be upon whether the officer used reasonable methods to convey those warnings. The Supreme Court of Wisconsin in State v. Piddington, 623 N.W.2d 528 (Wis. 2001), employed such an approach to determine whether an officer appropriately conveyed implied consent warnings to a deaf defendant. The Supreme Court of Iowa adopted the Piddington approach in State v. Garcia, 756 N.W.2d 216 (Iowa 2008), determining that the officer in that case used reasonable methods to convey implied consent warnings to a defendant who understood limited English. If reasonableness is the touchstone, then it must require something more than stating the rights in English to a person who does not understand the language, though it may not require than an interpreter be provided in every instance. Cf. State v. Ortez, 178 N.C. App. 236, 245 (2006) (holding that grammatical errors in Raleigh Police Department’s Spanish translation of Miranda warnings did not render warnings inadequate as adequacy is determined by whether warnings reasonably convey Miranda rights). For example, providing a copy of implied consent warnings translated into Spanish for literate Spanish-speaking defendants—a practice already utilized by many chemical analysts—may be sufficient. But see People v. Garcia-Cepero, 2008 WL 4681928 (N.Y. Super. Ct. October 23, 2008) (holding that a defendant who did not speak English was not provided warnings about taking a breath test in “clear and unequivocal language,” even though the defendant, who spoke Spanish, was shown a video in which the warnings were translated into Spanish). Utilization of a telephonic interpreter service, such as that provided for use of judicial officials by the Administrative Office of the Courts, also might be a reasonable option for conveying the warnings, if such a service was available. Evaluation of the reasonableness of the warnings requires consideration of the fact that alcohol dissipates from breath and blood over time and that the very purpose of the implied consent law is to facilitate the gathering of evidence as to a defendant’s alcohol concentration. See Piddington, 623 N.W.2d at 542. Thus, it may be unreasonable for the State to delay testing for hours awaiting the arrival of an interpreter. Is it a violation of the constitutional right to equal protection under the law for the State to provide notice of implied consent rights solely in English since non-English speaking defendants, unlike their English-speaking counterparts, are unable to understand the warnings? State supreme courts in Georgia and Illinois have held that it is not. See Rodriguez v. State, 565 S.E.2d 458 (Ga. 2002); People v. Wegielnik, 605 N.E.2d 487 (Ill. 1992). The implied consent statutes in Georgia and Illinois, like North Carolina’s, are silent regarding the language in which the warnings must be given. Thus, the statutes, on their face, create no classification differentiating among similarly situated persons. Noting that a facially neutral statute violates equal protection only when enacted or applied with a discriminatory purpose, Rodriguez and Wegielnik determined that the defendant had failed to demonstrate any such discriminatory purpose. Rodriguez further held that even if Georgia’s implied consent law does classify defendants based upon whether they speak English, it nevertheless is constitutional. In so holding, Rodriguez rejected the notion that a classification based on language is a proxy for a suspect classification, such as one based on national origin. Other courts likewise have rejected this argument. See Flores v. Texas, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995) (en banc) (rejecting defendant’s argument that different treatment based on his inability to speak English is equivalent to discrimination based on race or national origin); Kustura v. Department of Labor and Industries, 175 P.3d 1117, 1132-33 (Wash. App. 2008) (“While there is some authority that singling out speakers of a particular language merits strict scrutiny, no case had held that the provision of services in the English language amounts to discrimination against non-English speakers based on ethnicity or national origin.”). Because language classification is not a suspect classification, the Rodriguez court determined that the statute need only survive rational basis review, a test it easily met on the bases that reading rights in English informs most drivers, providing notice of rights in each driver’s native language would impose severe administrative costs, and waiting for an interpreter could delay obtaining a driver’s blood alcohol concentration, which dissipates over time. The defendant in Rodriguez also argued that due process required that a driver be meaningfully advised of implied consent rights so that he or she could exercise those rights in a meaningful fashion. The court disagreed, characterizing implied consent warnings as “a matter of legislative grace,” and concluding that due process does not require that the warnings be given in a language that the driver understands. 565 S.E.2d at 462. The Weigelnik court likewise concluded that “[b]ecause due process does not require that the summary suspension warnings be given at all, it does not require that they be given in a language the defendant understands.” 605 N.E.2d at 491. This language brings to mind the North Carolina Supreme Court’s characterization of the right to refuse testing as “a matter of grace” granted by the legislature and not a constitutional right. State v. Howren, 312 N.C. 454, 457 (1984). Garcia-Cepero , an unpublished decision of a trial judge in New York, is the only opinion I’ve discovered that deems the failure to provide an interpreter to deliver implied consent warnings in a language the defendant understands a violation of the defendant’s constitutional rights. 2008 WL 4681928. The analysis in Garcia-Cepero is muddied by the court’s finding that defendants who did not speak English were given only chemical tests, while English speakers were given field sobriety and chemical tests, and by the court’s analysis of the due process violation as one of procedural, rather than substantive, due process. Nevertheless, Garcia-Cepero merits review for its conclusion that the failure to provide an interpreter for the chemical analysis and field sobriety tests violates a defendant’s Sixth Amendment right to present a complete defense. I previously noted that no North Carolina appellate opinions address the providing of implied consent warnings to persons who do not speak English. I’m guessing, however, that some readers have litigated this issue in district and superior court. I’d love to hear from you about how the issue was raised and resolved, whether there are procedures employed to advise non-English speakers of their rights that I have failed to mention, and your thoughts about the appropriate analysis.