Advising a Defendant Who Does Not Speak English of His Implied Consent Rights

I almost missed this one. While I regularly monitor the published opinions of our state’s appellate courts, I generally skip the unpublished decisions. So I initially overlooked the court of appeals’ opinion in State v. Martinez, ___ S.E.2d ___ (N.C. App. Jan. 5, 2016) (first released as unpublished, but later published), which addresses a recurring question in DWI cases: Must a defendant who does not speak English be advised of statutory implied consent rights in a language that he or she understands?

No, said the court of appeals.

Facts. The defendant in Martinez was stopped after he attempted to evade a checkpoint. When the officer approached the car the defendant was driving, he smelled alcohol. The officer asked the defendant to get out of his car. He complied, but stumbled while doing so. The officer then asked the defendant to perform field sobriety tests. It became clear to the officer at that time that the defendant “did not fully understand English.” The officer called his dispatcher, who spoke Spanish, and put him on speakerphone so that he could translate the officer’s commands into Spanish for the field sobriety tests. The officer eventually arrested the defendant for DWI.

Before conducting a chemical test of the defendant’s breath, the officer read the defendant his implied consent rights in English and gave him a Spanish version of the rights in writing. The officer again called his dispatcher and placed him on the phone to answer the defendant’s questions in the event he asked any. The defendant signed the Spanish version of the form and submitted to breath testing, which revealed a breath alcohol concentration of 0.13.

Procedural History. The defendant was indicted for driving while impaired and habitual driving while impaired. He was convicted at trial and sentenced to 16 to 29 months imprisonment. The defendant appealed on the basis that G.S. 20-16.2, which mandates that a defendant be informed of certain statutory implied consent rights before being subjected to chemical testing, requires that a motorist be informed orally of his or her implied consent rights in a language that he or she fully understands. The defendant argued that because he was not so informed by the officer, the breath test results were inadmissible.

Analysis. The court began by noting that the purpose of the implied consent statute “is to promote cooperation between law enforcement and the driving public in the collection of scientific evidence.” Slip op. at 4 (citing Seders v. Powell, 298 N.C. 453, 464-65 (1979)). While recognizing that G.S. 20-16.2 requires that an officer who administers a breath test under the implied consent laws inform the defendant orally and in writing of his rights and the consequences of refusing to submit to testing, the court observed that the statute contains an exception that allows testing of a person who is unconscious or otherwise unable to refuse testing without requiring that such a person be advised of his or her rights. Thus, the court reasoned, neither the plain language nor the statutory purpose of G.S. 20-16.2 “disclose a legislative intent by our General Assembly to condition the admissibility of chemical analysis test results on a defendant’s subjective understanding of the information officers and chemical analysts are required to disclose before conducting the testing.” Slip op. at 4.

Holding. The court held that the notice requirement of G.S. 20-16.2(a) was satisfied in Martinez even though English was not the defendant’s primary language. The court concluded that the General Assembly intended to require disclosure of the information set forth in G.S. 20-16.2, it did not intend to condition the admissibility of the results of a chemical analysis on the defendant’s understanding of the information disclosed. Plus, the court remarked that the written version of the notice was in Spanish—and nothing suggested the defendant was illiterate.

Open questions. Martinez is significant not because its holding is surprising (it isn’t), but because it is the first appellate court case in this state to address the issue. Martinez does not, however, answer the harder question (discussed here and here) of whether a defendant who does not speak English may be deemed to have willfully refused a chemical analysis when he is informed of the rights in a language he does not understand.

Moreover, though Martinez relies for support on the exception of unconscious defendants from the advisement-of-rights-requirement, there is some doubt as to whether the routine testing of such persons without a warrant runs afoul of the Fourth Amendment. Indeed, the Court of Appeals of Wisconsin took a break last month from the ongoing saga of Steven Avery and Brendan Dassey to address another hot mess, certifying to the Wisconsin Supreme Court the question of whether similar provisions in its state’s implied consent laws that allow the warrantless withdrawal of blood from an unconscious impaired driving suspect are unconstitutional. State v. Howes, No. 2014P1870-CR, 2016 WL 325521 (Wis. Ct. App. Jan. 28, 2016).