Providing Notice of Implied Consent Rights to a Deaf Defendant

Several earlier posts address the requirement that a defendant be notified of statutory rights related to implied consent testing before being requested to submit to a test of his breath, blood or other bodily fluid.  Posts here and here address whether notification of those rights must be provided in language that the defendant understands.  A related issue is the manner in which a chemical analyst must inform a deaf defendant of implied consent rights. This analysis begins with G.S. 8B-2(d), which provides:

If a deaf person is arrested for an alleged violation of criminal law of the State, including a local ordinance, the arresting officer shall immediately procure a qualified interpreter from the appropriate court for any interrogation, warning, notification of rights, arraignment, bail hearing or other preliminary proceeding, but no arrestee otherwise eligible for release on bail under Article 26 of Chapter 15A of the General Statutes shall be held in custody pending the arrival of an interpreter. No answer, statement or admission taken from the deaf person without a qualified interpreter present and functioning is admissible in court for any purpose.

A “deaf person” is defined in G.S. 8B-1(2) as “a person whose hearing impairment is so significant that the individual is impaired in processing linguistic information through hearing, with or without amplification.” This blog post likewise uses the term deaf rather than the term hearing impaired to refer to people whose hearing is limited to this extent.

There are no North Carolina cases addressing whether an interpreter must explain a deaf defendant’s implied consent rights before he is requested to submit to a test of his breath, blood or urine to determine alcohol concentration, though notice of implied consent rights arguably is a “notification of rights” within the meaning of the statute. There likewise are no North Carolina cases addressing whether—if an interpreter is required—the failure to provide an interpreter requires exclusion of the results of a chemical analysis. Yet, chemical analysis results arguably are not an “answer, statement or admission” rendered inadmissible by G.S. 8B-2.

Other states have opined on the applicability to implied consent procedures of their statutes requiring interpreters for the deaf and their analysis may be instructive to law enforcement officers, litigants and courts confronting this issue.

In Commonwealth v. Mordan, 615 A.2d 102 (Pa. Super. 1992), the Pennsylvania Superior Court rejected the defendant’s argument that an interpreter was required to notify him of his statutory right to refuse a breath test and of the consequences of such a refusal as he was deaf. Pennsylvania’s statute required that an interpreter be made available to a deaf person placed under arrest before any interrogation and further required that an interpreter be appointed to assist a deaf defendant in any criminal proceeding. Mordan held that requiring a driver to submit to a breath test was not interrogation and that the conducting of such a test was not a criminal proceeding.

Similarly, the Supreme Court of Kansas held in State v. Bishop, 957 P.2d 369 (Kan. 1998), that a deaf defendant was not entitled to suppression of breath test results on the basis that a sign language interpreter was not provided for the test. The court held that neither the request to take a breath test, nor the test itself, were “interrogation” requiring the presence of an interpreter.  Moreover, the court held that the state statute requiring interpreters for deaf persons before any attempt to interrogate them did not require the appointment of a qualified interpreter to inform a deaf driver, believed to have driven a motor vehicle while intoxicated, of the consequences of refusal to take a breathalyzer test.

In Warner v. Commissioner of Public Safety, 498 N.W.2d 285 (Minn. Ct. App. 1993), the Minnesota court of appeals upheld the revocation of a deaf defendant’s driver’s license where no interpreter was present to convey implied consent rights. The court explained that “[w]hile making an interpreter available is desirable, it should not interfere with the evidence gathering purposes of the implied consent law” and held that the defendant’s “position that the statute requires an interpreter at the scene of the accident does not comport with the meaning or purpose of the law.” Id. at 288.

In Yates v. State, 545 S.E.2d 169 (Ga. App. 2001), in contrast, the Georgia court of appeals determined that suppression of the defendant’s refusal to submit to a breath test was required based on the arresting officer’s failure to contact an interpreter before advising the defendant, who was deaf, of his implied consent rights. The relevant Georgia statute provided: “No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided.” Id. at 171. The statute permitted an interrogation by writing if an interpreter was requested but was not available one hour after the request was made. The arresting officer in Yates did not attempt to obtain an interpreter. Instead, the officer read the implied consent notice, which the defendant told the officer he could not understand, and provided a written copy of the rights for the defendant to read. The defendant refused to submit to the breath test and moved at trial to suppress evidence of his refusal to submit. The court of appeals held that suppression of the defendant’s refusal was required as the arresting officer failed to comply with the law governing communication with the hearing impaired in providing notice to the defendant of his implied consent rights.

And in Allen v. State, 463 S.E.2d 522 (Ga. App. 1995), the Georgia court of appeals held that suppression of a deaf defendant’s breath test results was required where the defendant’s implied consent rights were not conveyed to her by a competent sign language interpreter, explaining that “the only means of conveying those rights sanctioned by the hearing impaired law is by a sign language interpreter.” Id. at 524.

As noted earlier, suppression of chemical analysis obtained when a deaf defendant is informed of implied consent rights without the benefit of an interpreter does not appear to be required by G.S. 8B-2, as arguably neither the act of submitting to or refusing a chemical analysis nor the results of such an analysis are answers, statements or admissions. This reading of G.S. 8B-2 accords with the well-established principle that taking of a breath sample from a defendant for the purpose of a chemical analysis is not evidence of a testimonial or communicative nature within the privilege against self-incrimination embodied in the Fifth Amendment. See State v. Strickland, 276 N.C. 253, 257-258 (1970). For that reason, no Miranda warnings are required before administration of a chemical analysis. Id.

The Supreme Court of Wisconsin’s analysis in State v. Piddington, 623 N.W.2d 528 (Wis. 2001), may provide a helpful framework for analyzing whether the result of a chemical analysis obtained from a deaf defendant without an interpreter are admissible, though Piddington addressed Wisconsin’s statutory requirements governing the provision of implied consent rights, rather than a statute such as N.C.G.S. 8B-2, which provides for interpreters in interrogations and criminal proceedings.  The Piddington court rejected a deaf defendant’s argument that the only manner in which law enforcement officers could comply with requirement that a defendant be informed of implied consent rights was to provide a sign language interpreter. Piddington held that Wisconsin state law required an arresting officer in light of the circumstances facing her at time of the arrest to use reasonable methods to convey the implied consent warnings to the defendant. The court explained that in determining whether the methods were reasonable, the focus is on the conduct of the officer rather than the defendant’s subjective understanding. Piddington found the law enforcement officer’s attempts to communicate with the defendant reasonable and held that the defendant’s breath test results should not have been suppressed. The court explained that an evaluation of reasonableness under the circumstances requires consideration of the fact that alcohol dissipates from the blood over time. The court opined that the State could not be expected to wait indefinitely to obtain an interpreter and risk losing evidence of intoxication, an occurrence that would defeat, rather than advance, the purpose of the implied consent law, which is to facilitate the gathering of evidence against drunk drivers.