Posted on 11/13/2003 6:51:13 AM PST by mykdsmom
The light turned red just as Carlos Estudillo Pineda drove through the intersection, and within seconds the flashing blue lights were behind him. The Raleigh officer who pulled him over early one morning in September 2002 spotted three Bud Lite cans in the car's rear and smelled alcohol.
Officer Mike Inguanta had Pineda perform the usual battery of sobriety tests, which the 27-year-old Chapel Hill man failed miserably.
Walk nine steps in a straight line, turn around and walk back, Inguanta ordered. Pineda cried as he continued past nine steps without turning. Stand on one leg, Inguanta instructed. Pineda lifted a leg -- and marched. Next was a trip to the Wake County Public Safety Center, where he was cited for refusing to take an alcohol breath test after none of his three attempts to blow into the machine registered.
On Oct. 31, a judge found Pineda not guilty of all charges. Defense attorney Scott Holmes successfully argued that Pineda, a restaurant worker who barely speaks English, didn't understand what police asked him to do that morning. Inguanta even noted in his report, "Did not understand English."
"I was scared," Pineda said through an interpreter in an interview last week. "I was trying to do what he wanted, but I didn't understand."
Across the Triangle, judges are finding motorists not guilty of drunken driving and refusal charges because law enforcement officials weren't able to read their rights or guide them through sobriety tests in Spanish. No one keeps statistics on how many cases are lost because of language barriers, but police, judges, prosecutors and defense lawyers say it's increasingly common.
"[Police agencies] should be aware of this because there are enough of these legal challenges on a regular basis," said Dewey Brinkley, a Wake County assistant district attorney who has handled about 15 language barrier cases this year, including some in which drivers were provided with Spanish forms outlining rights. "The only thing a lawyer has to do is put their client on the stand and have him say he can't read Spanish or English."
Defense lawyers say that all motorists, regardless of their English-speaking abilities, should be given the opportunity to understand their rights and the instructions of police. Leonor Ortiz Childers, a Durham defense lawyer who worked with Holmes on five such cases, said police departments seem reluctant to inform non-English speakers of their rights in their own language during the most incriminating steps in the process -- when they are stopped, told of their rights and tested.
"How would they like to be treated if they were in a foreign country and someone took them to jail?" Childers asked. "But after he's charged, the magistrate provides information in Spanish, and when he goes to court, there's an interpreter."
Despite some hiring of bilingual officers and Spanish-language classes for employees, law enforcement agencies in the region haven't kept up with the huge growth in the Hispanic population. A 2000 University of North Carolina study shows Hispanic drivers are more than twice as likely to be involved in alcohol-related crashes as non-Hispanics and about 3 1/2 times as likely to be charged with drunken driving. Researchers say these phenomena can be explained in part by the lack of enforcement of drunken driving in some of the immigrants' countries of origin.
"If you have a language barrier, you're waiting for trouble," said David Harris of the University of Toledo College of Law, an expert in constitutional law and police accountability. "Police departments have to face demographic reality."
N.C. precedents lag
Some states have clarified non-English speakers' rights, ruling that the law only requires a person to know a test is being administered, not what it means, said James Drennan, an expert on DWI laws at the Institute of Government at UNC-Chapel Hill. Some courts have ruled that defendants who don't speak English are incapable of refusing, but North Carolina appellate courts have not issued clear precedents.
"This issue is certainly not going to go away," Drennan said. "People will raise the issue of the fairness of the proceedings."
Prosecutors are relying on a strict interpretation of the law, arguing that police have complied if they read drivers their rights in English. But defense lawyers contend the language barrier deprives drivers of their rights to refuse the test, or call a witness or a lawyer to prepare a defense. Even when drivers were provided with a written copy of rights in Spanish, some were found not guilty because they were illiterate.
During a hearing in Wake County Court in September, Holmes argued that a driver must understand the choice to refuse or take the test. Sergio Robles, 38, of Durham didn't refuse the breath analysis test, Holmes argued, but simply didn't understand he had to blow hard enough to sound a tone. Robles said recently that he tried to mimic Cary Police Officer Tom Stewart, who blew into the breath analyzer.
"He kept showing me what to do, and I tried many times," Robles said through an interpreter. Police records say he kept spitting into the tube. He was marked down as refusing, which, by law, results in a one-year revocation of his driver's license.
Holmes called the written Spanish rights form given to Robles a "half-measure."
Polyglot argument
But Brinkley, the Wake County prosecutor, argued that police and the chemical analyst complied with the law. "If we're going to take the step of making these chemical analysts take Spanish class, we might as well make them start studying Magyar, Yiddish and Chinese," he argued.
District Court Judge Don Overby suppressed the evidence from the test, making the refusal charge impossible to prove, but convicted Robles of driving while impaired based on other evidence.
In August, Durham District Court Judge Marcia Morey convicted Cristoval Rios Ortega, 26, of Durham on a hit-and-run charge but found him not guilty of DWI or refusal after Holmes argued Ortega didn't understand the test or his rights. "There was no indication he knew any English whatsoever," Morey said last week. "It was not a willful refusal."
Robert Willis, a Raleigh defense lawyer who has Hispanic clients as 80 percent of his clientele, said the language barrier argument doesn't always work. "You don't need a whole lot of tests if you open the door of the car and the guy falls out and there are beer bottles in his car," he said.
Prosecutors and troopers agree there is a problem but also think word is spreading about how to beat the charges. "They act like they're blowing," state Highway Patrol Sgt. Frank Pierce said. "Their face is getting red, and their cheeks are swelling. You know the instrument isn't blocked, and it's not hard to blow. So you have to cite them for refusing."
The only way to remedy the problem, he said, is to close the language gap, which the patrol is trying to accomplish with intensive Spanish classes and recruiting of bilingual troopers.
"We understand there is a big Hispanic community, and therefore we are trying to train as many [troopers] as we can," Pierce said. "But it's just going to take a long time."
So, ignorance of the language allowable in the ignorance of the law? What a flipping joke. Do you think Mexico would return the favor if they caught an American, who didn't speak Spanish, driving drunk?
Afraid it's too late for that, there are tens of thousands of them already out there.
Plus they've shown they are willing to break the law by coming here illegally, why not drive w/o a license too?
MKM
Who make mistake? When I live in Germany, I work hard to learn German...so I not become some stupid foreigner. This silly...besides, why not have picture book to explain to illiterate idiots how it work? Besides, ignorance of language not excuse for breaking law, especially law of common sense.
The Police cannot jump to the PBT, they must first establish probable cause through the Field Sobriety Tests. If the driver cannot understand English, then how can he follow the instructions for the officer to say the driver failed the FST?
Perhaps we should make it a crime for a person not to speak English. Then we wouldn't have to worry about the silly Constitutional protections.
Flame suit on.
MKM
Don't know about Mexico, but I can vouch for the system in Germany. Ignorance of the language is no excuse under the law.
I would say a whole lot of Chapel Hill residents have an equal protection argument if their Spanish is good.
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