Two earlier posts (here and here) explore whether North Carolina’s implied consent statutes or the U.S. Constitution require that notice of implied consent rights be provided in language that a person speaks or understands. As those posts report, the answer is unclear. There are no North Carolina appellate court decisions on point and courts in other states have reached conflicting results. Compare Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830, 831 (Minn. App. 1984) (rejecting the argument of a petitioner who “willingly blew into the testing machine” that he had a statutory right to have the implied consent advisory read to him in Japanese and finding that he “understood he was being asked to take the test,” which was the only understanding required) and People v. Wegielnik, 605 N.E.2d 487 (Ill. 1992) (explaining 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”) with State v. Marquez, 998 A.2d 421, 435 (N.J. 2010) (concluding that statutory directive that officers “inform” defendant of implied consent rights in the context of the implied consent and refusal statutes, means that they must convey information in a language the person speaks or understands) and People v. Garcia-Cepero, 2008 WL 4681928 (N.Y. Super. Ct. October 23, 2008) (concluding that the State’s 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’m blogging about the issue again, but it isn’t to report that matters have been clarified. Instead, I wanted to mention two recent state supreme court decisions from the west coast reaching divergent conclusions.
In State v. Cabanilla, 273 P.3d 125 (Or. 2012), the Supreme Court of Oregon held that the State was not required to prove that the defendant understood the information given to him about the rights and consequences of refusing to take a breath test in order for evidence of his refusal to submit to testing to be admitted against him in his criminal trial on charges of impaired driving and of refusing to take a breath test—a separate offense under Oregon law.
The defendant in Cabanilla spoke Spanish and his ability to speak and understand English was limited. Notwithstanding the language barrier, the arresting officer secured the defendant’s performance of field sobriety tests by asking him in English, using a few Spanish words, and by occasionally demonstrating the test. In the breath-testing room at the police station, however, the officer read the statutory implied consents to the defendant “‘word for word in English.’” Id. at 127. After doing so, he asked the defendant whether he would take the breath test. The defendant asked the officer what he would do, and the officer responded by stating that the defendant could choose whether to take the test. At that juncture, the officer believed that the defendant knew he was being asked to submit to a breath test. The officer reported that the defendant then “‘stated in substance that he did not want to take the test.’” Id.
The defendant moved to suppress the evidence of his refusal on the basis that because he could not understand English, he was not “informed” of the consequences of refusal as required by statute. The trial court denied the motion to suppress, relying on State v. Nguyen, 107 Or. App. 716 (1991) (holding that while defendant’s inability to speak English “may have prevented him from understanding” the implied consent rights, “[a]n officer is not required to determine how fully the arrested person is able to understand the information given,” and the officer “performed his statutory duty to inform” by reading the rights aloud in English). The defendant was convicted on all charges and the court of appeals affirmed. The Oregon Supreme Court granted review and likewise affirmed.
Noting that the “overarching purpose of the rights and consequences requirement is to coerce a driver to take the test[—]not to inform the driver of the specifics of the law,” the court characterized as “of little or no consequence” whether a driver makes a knowing and voluntary choice to refuse. Id. at 633-34. While conceding that informing a driver of rights and consequences in a language that he or she does not understand lacks any coercive effect, the court nevertheless declared that a driver’s lack of understanding “does not change the probative value” of the refusal as evidence of guilt. The court explained: “As long as it is clear that the driver knew that he or she was being asked to take a breath test to measure his or her blood alcohol level—and there is no question that defendant understood that much here—it is reasonable to infer from the fact of the driver’s refusal to take that test that the driver believed that he or she would fail it.” Id. at 632-33.
The Cabanilla court described the concept of implied consent as designed to “eliminate the right of choice and to recognize actual choice only in the sense of forbearance of physical resistance.” Id. at 634. (internal citations omitted). “Because the driver has only the physical ability, but not the legal right, to refuse,” the court explained that “the legal validity of the driver’s refusal does not depend on whether his or her decision to physically refuse is fully informed or voluntary.” Id. The court concluded that an arresting officer who reads to a defendant the rights and consequences set out in statute satisfies the requirement that the defendant be informed of implied consent rights and consequences. The officer need not inquire into whether the defendant understands those rights and consequences.
The Cabanilla court’s perspective contrasts sharply with the views of the Supreme Court of Washington as expressed in State v. Morales, 269 P.3d 263 (Wash. 2012). The Morales court reversed the defendant’s vehicular assault and impaired driving convictions after concluding that the trial court improperly admitted the results of blood alcohol tests without proof that the defendant was adequately informed of his right to obtain additional independent tests.
The defendant in Morales was arrested for impaired driving and vehicular assault based on impaired driving after he ran through a stop sign and collided with another vehicle, injuring one of its occupants. Upon his arrest, he was taken by ambulance to the hospital. Under Washington law, a defendant charged with vehicular assault based on impaired driving is required to submit to a blood alcohol test and is not advised of an option to refuse testing. Before such a mandatory test is administered, the arresting officer must, however, advise the person of his right to have additional tests administered by a qualified person of his or her choosing.
The arresting officer in Morales, who knew the defendant spoke Spanish, asked a hospital interpreter to read the implied consent notice to the defendant in Spanish. The officer said that the interpreter appeared to read the notice to the defendant and that the defendant appeared to understand it. Because, however, the officer did not speak or understand Spanish, he did not know if the notice was actually read to the defendant in Spanish. Shortly after the interpreter spoke to the defendant, the defendant signed the implied consent notice, and his blood was withdrawn for analysis. The defendant objected at trial to admission of the blood test results on the basis that the State failed to establish that he was advised of the right to independent testing. The trial court overruled the objection and he was convicted of all charges. The court of appeals affirmed. The Washington Supreme Court granted review and reversed the defendant’s convictions for impaired driving and vehicular assault.
The court noted that the statutory requirement that a defendant be informed of his or her right to independent testing provides the defendant with an opportunity to gather potentially exculpatory evidence and “‘demonstrates an important protection of the suspect’s right to fundamental fairness which is built into [the] implied consent procedure.” Id. at 569. The State must demonstrate that the implied consent notice was read for the results of a mandatory blood test to be admissible. Though Washington’s implied consent statutes apparently do not address precisely how notice is to be provided to defendants who do not speak or understand English, the state supreme court cited the legislature’s declaration elsewhere in the Revised Code of Washington that “‘the policy of this state [is] to secure the rights, constitutional or otherwise, of persons who, because of a non-English-speaking cultural background, are unable to readily understand or communicate in the English language, and who consequently cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them.’” Id. at 270 (quoting Wash. Rev. Code Ann. § 2.43.010 (emphasis added)). The high court concluded that the State failed to meet its burden of demonstrating that the defendant was advised of his rights and therefore the trial court erred in admitting the blood test results.
A dissenting justice noted that the notice was merely a statutory right and there was “no evidence that the requirement is grounded in due process.” Id. at 580 (J.M. Johnson, J., dissenting). Furthermore, the dissent concluded that the State met its burden of proving that, more likely than not, the defendant was informed of his statutory right to independent testing.
The irony in these divergent outcomes is that results were deemed inadmissible in the case in which the officer went to some additional effort to ensure that notice was properly provided and were deemed admissible in the circumstances where the officer provided notice of rights in a language the defendant did not understand. So, as I warned at the outset, the legal debate isn’t resolved by this recent jurisprudence, though each side now has another case to add to its string citation.