Thread: Rights in Spanish a must for DWI suspects?

http://www.herald-sun.com/durham/4-660030.html

Rights in Spanish a must for DWI suspects?

By John Stevenson, The Herald-Sun
October 23, 2005 8:36 pm

DURHAM -- As Durham County's Hispanic population grows, a new language dilemma is raising public safety concerns and pitting lawyer against lawyer and legal philosophy against legal philosophy in traffic court.

The question is this: Must Hispanic drunken driving suspects be informed of their rights in Spanish before providing breath or blood samples to determine their level of intoxication?

Prosecutors say no. Defense attorneys say yes.

Some Durham judges have accepted the defense position in recent weeks.

In one case, a blood-alcohol reading of 0.22 -- nearly three times the legal intoxication threshold of 0.08 -- was thrown out of court because the Hispanic driver was not told his rights in Spanish. In another case, a reading of 0.16 --twice the legal limit -- was squelched for the same reason.

"It's not a black-and-white issue," said District Judge Jim Hill, who sometimes sides with defense lawyers when the question comes up.

"There's a lot of gray there," he said. "I take driving-while-impaired offenses very seriously. On the other hand, I take people's rights very seriously, too. If the rights of guilty people are protected, you can be sure the rights of innocent people also will be protected if they get arrested. Otherwise, we would have a police state."

Implied consent

The rights in question say DWI suspects may refuse to give breath or blood samples, although they stand to lose their licenses for a year if they do.

In addition, suspects are informed they have a right to call witnesses for their breath or blood tests, and they also have a right to summon independent chemical analysts to check the results.

State law says nothing about providing the rights in a person's native language.

"There is no such requirement in the law," District Attorney Mike Nifong said. "I think the judges who require it are wrong."

Although precise numbers are not available, Nifong cited reports from the N.C. Conference of District Attorneys that more Hispanic DWI suspects get off the hook in Durham than elsewhere because of the language issue.

"You wonder what it is about our judges that makes them think they know more about the law than other judges," said Nifong.

Last week, Nifong drafted a six-page memorandum to make his position clear.

He noted that DWI was a so-called "implied consent offense," meaning that drivers -- merely by getting behind the wheel -- automatically agree to have their breath or blood tested if they are pulled over for suspected drunken driving.

To find that Hispanic motorists withheld consent because of language difficulties would create "a protected class" of drivers and make the state's roads more dangerous, Nifong suggested.

"It would insulate any impaired driver who has a limited command of English from full prosecution," he wrote. "This is directly contrary to the purpose of the Legislature's intent to maintain safe roads in North Carolina.

"English is the official language of the State of North Carolina," the district attorney added. "There is no statute or case law requiring any other language be used in the official records or procedures of the state."

Plethora of languages

The state Court of Appeals and Supreme Court have yet to address the issue. However, appellate courts in Georgia and Ohio -- where DWI also is an implied consent offense -- have ruled that suspects need not be informed of their rights in any language other than English.

"What if we pull somebody over for DWI who speaks only Korean?" Assistant District Attorney Stormy Ellis asked last week. "If we have to let him go because we can't provide his rights in Korean, it would send a message that we can only prosecute English-speaking people. That would really dilute public safety."

"If you give people their rights in Spanish, you also must be prepared to give them in German, French, Japanese, Korean, Czech and Russian," said another assistant prosecutor, Kendra Montgomery-Blinn. "It goes on and on. It would be a tremendous burden on law enforcement. But still, our judges often are siding with the defense. We are losing an awful lot of these cases."

More Hispanics

Durham's swelling Hispanic population lends added significance to the debate.

Between 1990 and 2000, the number of Hispanics living here shot up by 729.6 percent to 17,039 people, according to the U.S. Census Bureau.

Court computers are not programmed to confirm the estimate, but officials think that 40 percent of Durham's DWI cases now involve Hispanic drivers.

Public Defender Bob Brown said constitutional safeguards were in play.

"When a guy can't speak English and only speaks Spanish, you have to give him his rights in Spanish," he told The Herald-Sun. "Look at it this way: If someone doesn't speak Greek and you advise him of his rights in Greek, you haven't advised him of anything.

"This is a hot issue among attorneys right now," said Brown. "Even with implied consent, you still have to be advised of your rights."

"If these rights mean something, they must mean something to everybody," Assistant Public Defender Elizabeth Curran agreed. "Just because somebody doesn't speak English doesn't mean he can be railroaded. That would be very offensive."

Hummm. American rights for illegal aliens? Is it just me or is this an oxy-moron, or just a moron?

Aren't given their rights in Spanish? THIS IS NOT MEXICO! Law enforcement offers should read everybody their rights in ENGLISH. After all this is the USA.

People like this judge and public defender are only aiding these illegals. No wonder NC's the #1 destination of illegal immigrants. This judge should be removed from the bench immediately

This is just REVOLTING. If they can't speak ENGLISH, they shouldn't be in our country drinking and driving. That is one of the MANY crimes they are wont to commit. Do they intend to force law enforcement agents to learn to read the Miranda rights in every language on earth?? If they do it for one, they should be prepared to do it for all. And, I don't think they want to go there.