Wednesday, August 17, 2005

LEP - license suspension - refusal to take breath test - inability to understand O'Connell warnings

Martinovic v. DOT, Bureau Driver Licensing -- Commonwealth Court - August 17, 2005

Driver's license suspension by DOT for licensee's (L) alleged refusal to take breath test upheld by the court, despite his apparent inability to understand the required warnings about the consequences of failure to submit to the test.

L's native language was Serbo-Croatian. All interaction between L and police was in English or by the police acting things out. The police officer said there was "no protocol" for dealing with a non-English speaker in these cases. L was not successful in producing enough breath for a valid breath test, which failure is assumed to be a refusal, absent an inability to provide enough breath.

L testified in court through a translator. He said that he didnt understand anything the police said but tried to figure it out from their gestures. The trial court found L to be credible and, based on a videotape, held that L had met his burden of showing the he didnt speak English well enough to have understood warnings about the consequences of refusing a breath test.

Case law holds that DOT has burden of proving that a) L arrested for DUI by a police officer who had reasonable grounds to do so; b) L was asked to submit to chemical test; c) L refused to do so; d) L specifically warned about the consequences of a refusal. Once that burden is met, the L has the burden to show he was physically unable to do the breath test OR that his refusal was not knowing or conscious

Citing prior cases, the court said the "most cases hold that a failure to understand English provides no foundation for an argument that the licensee was unable to make a knowing and conscious refusal....[W]hether Licensee understand the...warnings or not is inconsequential. An officer's sole duty is to inform motorists of the implied consent warnings; once they have done so, they have satisfied their obligation....[O]fficers ghave no duty to make sure the licensees under the O'Connell warnings of the consequences of refusing a chemical test....It is equally not the officer's duty to enlist the assistance of an interpreter to make sure a motorist understands implied consent warnings." (emphasis in original)

The court also said that "whether Licensee fails to understand English is not automatically outcome determinative....[S]imply because Licensee spoke Serbo-Croatian and did not speak English does not mean that he cannot act knowingly and consciously. The court used the analogy of a drunk person whose voluntary intoxication prevents him/her from conscious and intentional actions. "The same is true for language barriers; when motorists are limited by their understanding of the English language, thereby allegedly preventing them from 'knowingly' refusing the test, we still hold that those motorists 'knowingly' refused the test absent some other verifiable impediment....Otherwise, anyone who speaks little or not English can automatically claim that he or she did not understand the ....warnings and avoid the consequences of refusing a chemical test, just as anyone who is drunk could automatically claim that he or she was too drunk to understand the....warnings and avoid the consequences of refusing a chemical test."

Wow !

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg