Thread: Durham DWI cases hit language wall

http://www.newsobserver.com/102/story/395512.html

Rights not always read in Spanish

Benjamin Niolet, Staff Writer

DURHAM -- A language barrier between the police and some of the drivers they pull over is blocking prosecutors from using one of the most important pieces of evidence in drunken-driving cases -- the breath test results.

Durham defense lawyers are successfully arguing that Spanish-speaking suspects do not understand the rights that officers are required to give verbally and in writing before administering breath tests. The results are often presented as proof that a driver was too drunk to drive.

But Durham's district attorney says that the law does not require the rights to be translated and that taking that step for one language would then require the police to have the rights available in every language that might be encountered in the cosmopolitan Research Triangle Park area.

"At some point what you can foresee is a situation where a person is charged with a DWI and there's no one who speaks that language available," Durham District Attorney Mike Nifong said. "Since we read rights to Hispanics, and we didn't in this case, the charges would be dismissed. That goes way beyond what the statute says and what the legislature intended."

Principle aside, the issue apparently has been settled in Wake and Orange counties. In Wake, a judge and defense lawyer said the police have translated the rights into Spanish and lawyers haven't been able to raise the defense in years. In Orange and Chatham counties, the chief District Court judge said the argument just doesn't come up very much.

But in Durham, the rights are still not always given in Spanish, though a Spanish-language rights form is available for use when DWI suspects are taken to the magistrates office for their breath tests.

A recent case illustrates how the problem is playing out in Durham County.

According to testimony in court, Monica Jacobs stopped her car at a red light on Holloway Street one afternoon in August. She saw headlights heading toward her car, and the vehicle did not seem to be slowing down. The old model pickup truck, driven by Francisco Elias Pereyra, 35, hit Jacobs' car.

She testified in Durham traffic court last week that when she got out of the car, she saw the truck's driver, Pereyra, putting a bottle or can behind his seat. When a police officer arrived, Pereyra staggered and swayed out of the car. His eyes were glassy. And then there was the open beer in the back seat, apparently the one Jacobs said she saw Pereyra hide.

Hand signals

Police Officer B.K. Mincey testified that he used hand signals and a limited command of Spanish to give the instructions for a field sobriety test. Pereyra couldn't walk a straight line, and he couldn't keep one leg raised for longer than two seconds. The officer arrested Pereyra and took him to a magistrate's office where he was to be given a breath test.

The rights were given orally and in writing in English. An hour after the accident, Pereyra's blood alcohol concentration was .15, nearly twice the legal limit of .08.

Implied consent

The prosecutor argued that driving on public roads implies consent to a breath test and that the state does not have to prove that the suspect understood his or her rights before taking a breath test.

"We're never going to get a prosecution in if they can always assert they have a language barrier," Assistant District Attorney Shamieka Rhinehart told a judge in a trial last week.

District Court Judge Richard Chaney threw out the test results, saying that the police have had plenty of time to figure out how to handle Spanish-speaking suspects and that the officers had a duty to give Pereyra the rights in a form he could understand.

"If you're talking about someone who speaks Chinese, you might have a different issue," Chaney said.

Even without the test results, Chaney determined there was enough evidence to find Pereyra guilty.

No statistics are kept on how many times the conflict has come up in Durham. Lawyers say winning the argument depends on the facts of the case and the judge. But it has happened enough times that lawyers on both sides have pre-written legal arguments ready to go when the cases come up in court.

"It's not trick lawyering," Assistant Public Defender Elizabeth Curran said. "The Constitution is here to protect all of us, and different rules should not apply just because you don't speak English."

Getting clarification

While the police are working on ways to make Spanish-language rights available, including producing a DVD in which an officer reads the rights in Spanish, Nifong said it will take a clarification or change in the law by the General Assembly before all cases are handled the same.

"What a judge says in that courtroom is the law in that courtroom," Nifong said. "The burdens that the local judges are attempting to impose are not required by the statute."

(Staff writer Cindy George contributed to this report.)

Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.

Durham defense lawyers are successfully arguing that Spanish-speaking suspects do not understand the rights that officers are required to give verbally and in writing before administering breath tests. The results are often presented as proof that a driver was too drunk to drive.

This is unbelievable.

Originally Posted by Scubayons

Durham defense lawyers are successfully arguing that Spanish-speaking suspects do not understand the rights that officers are required to give verbally and in writing before administering breath tests. The results are often presented as proof that a driver was too drunk to drive.

This is unbelievable.

I'd like to give them a hand signal..!!!

This is one of the NC counties where Hispanics make up about 8% of the population but make up about 25% of the DWIs.

Even without the test results, Chaney determined there was enough evidence to find Pereyra guilty.

This is the good news. What a lot of people don't realize is that the breathalyzer test is the icing on the cake. If the police have enough evidence to ask you to take a breathalyzer test, then they should have enough to get a conviction without the breathalyzer test.