No Hablo Ingles - Implied Consent and Non-English Speaking Arrestees

posted by on Wednesday, September 24, 2008

One does not need to speak, understand or even read the English language in order to obtain a driver's license in the State of Iowa. The written tests are translated by the Department of Transportation into many of the commonly encountered languages throughout the State. What happens then when an individual who has obtained their license with little if any understanding of the English language, gets arrested for Operating While Intoxicated? By law, officers must read the arrestee the implied consent advisory which "explains" the consequences of their decision to take or refuse chemical testing. This advisory is difficult enough to understand with a solid understanding of the English language but what is to be done for those who have no such understanding?

This question was recently answered by the Iowa Supreme Court in State vs. Hector Garcia (http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080919/06-2110.pdf). According to Justice Baker and the rest of the Iowa Supreme Court, an officer must make a reasonable effort to convey the implied consent advisory to a non-English speaking person. What is reasonable and unreasonable will depend upon the facts of each case and will be determined on a case by case basis. In coming to this conclusion, the Iowa Supreme Court adopted the same standard as previously created by the Wisconsin Supreme Court in State v. Piddington, 623 N.W.2d 528 (Wis. 2001). Under this standard the arresting officer is required to utilize those methods which are reasonable, and would reasonably convey the implied consent warnings under the circumstances facing him or her at the time of the arrest. Pursuant to this standard making an interpreter available when possible is desirable however finding an interpreter is not absolutely necessary especially if it were to interfere with the evidence gathering purposes of the implied consent statute.

The Iowa Supreme Court's holding in Garcia is consistent with the fast majority of Operating While Intoxicated/Implied Consent cases discussing the duties of officers following an arrest of an individual who has been arrested for operating while intoxicated. Just like 804.20 (phone calls) and 321J.11 (independent testing) the officer is bound by the standard of "reasonableness." The difficulty with such a standard however, is the fact that what is considered "reasonable" by one judge may not be considered "reasonable" by another judge. This standard is subject to diverse interpretation and consequently diverse enforcement. This being the case, it is imperative for defense lawyers and defendants to make thorough and concise records regarding the options available to the officer in addition to the arrested individuals proficiency in the English language. In Garcia, the Court affirmed the trial courts decision, because Mr. Garcia communicated with the officer in English and appeared to at least grasp the concepts being relayed by the officer, including signing an English Miranda waiver form. In situations where the arrestee's proficiency in English can be questioned, defense attorneys should most certainly inquire of the applicable law enforcement agencies. the number and availability of interpreters at their disposal, and other services such as telephonic interpreters that are often used by law enforcement and other emergency service agencies when dealing with non-English speaking individuals. A good place to start would be with the county or local 911 operators's who would most certainly have access to interpreting services to assist with non-English speaking callers.

While the outcome was not what was desired by Mr. Garcia, the Iowa Supreme Court's decision in Garcia is a victory for the OWI/DUI defense community and individuals that do not speak English as their first language. Finally, an issue that was apparently not raised and thus, not considered by the Court was the possibility that the Equal Protection Clause may be violated if an officer does not make an effort to convey the implied consent advisory to an individual in their native language. With each case and each argument made always comes a different twist and different turn that may result in a more favorable outcome.