A traffic officer responded to a radio run of an automobile accident at Roosevelt Avenue and Queens Boulevard. When he arrived at the scene, the accused was standing beside an automobile which had been involved in the car accident. The traffic officer testified that the accused had bloodshot eyes, was unsteady on his feet and had the odor of alcohol on his breath. A witness to the accident told the traffic officer that he had seen the accused driving the car. There was no testimony that any other person was observed to be in or around the automobile.
A New York Criminal Lawyer said the accused spoke Spanish and apparently understood little or no English. The traffic officer obtained a driver’s license and other documents bearing the accused man’s name but he was unable to recall whether the documents were given to him by the accused or if they were discovered in the automobile. The accused was placed under arrest and was taken to into the precinct.
A police officer testified that he was called to the precinct to conduct an Intoxicated Driver’s Exam on the accused. In the presence of the traffic officer and the police officer, the accused was shown a Spanish language videotape intended to apprise him of the charges against him and to inform him of the repercussions of refusing to submit to a chemical test analysis or breathalyzer test. The Spanish language tape was translated for the Court by the court interpreter. Such is the only interpretation before the Court as neither the jury nor the accused called an expert witness to translate the videotape.
The Court adopted the translation of the Spanish language video. It stated that if the accused refuse the chemical exam or whatever part, his license will be immediately suspended or revoked or he will lose his privileges even though he will be found guilty or not of the accusation because he has been arrested. It also stated that the accused should submit to the chemical exam or whatever part thereafter. It can be introduced as proof against him in a trial, process or hearing of the result of his arrest. A Long Island Criminal Lawyer said the accused was asked if he wants to submit to the chemical analysis in order to determine if he there is presence or absence of alcohol or drug in his blood stream and he responded not to take the test.
The accused testified that at the time of his arrest he was coming from a disco where he had imbibed five or six beers. He further testified however that he was not driving on the day of the accident and in fact he does not know how to drive. In addition he states that although he has resided in the U.S. for two years, he does not come into contact with English speaking persons and speaks absolutely no English. The accused testified that he was not even shown the Spanish language videotape and that no request was made of him to take the breathalyzer exam.
The accused contends that there was no probable cause for his arrest because he was not driving the automobile. As such, he argues that the evidence of his refusal must be suppressed as fruit of the poisonous tree. It is well settled that in passing on whether there was probable cause for an arrest, the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than that a crime has not taken place and that the one arrested is the person responsible for.
The accused further contends that the Spanish language videotape did not warn him in clear and unambiguous language which made him refused to submit to the test. The jury contends that the video shown to the accused and adequately apprised him of his rights and of the repercussions of his refusal.
Based upon the testimony of the traffic officers and the police officer, the court finds that the accused was shown the video. The law provides that evidence of a refusal to submit to a chemical test by a person suspected of DWI is admissible at a trial, proceeding or hearing only upon a showing that the person was given sufficient warning, in clear and unambiguous language which resulted of such refusal and that the person persisted in the refusal. A person arrested for violating the law must be informed that if he refuses to submit to a chemical test, his license is immediately suspended and subsequently revoked regardless of the ultimate disposition of the criminal charges.
Contrary to the jury’s assertion, the accused need not make a showing that he was confused or that he found the tape to be ambiguous. In fact, such a showing would not be a sufficient basis for suppression where the jury meets the burden of showing the tape to be clear and unequivocal. The translation given to the Court at the suppression hearing was provided by the court interpreter. The jury failed to present an expert who could have testified that, in his opinion, the language used in the tape was clear and unequivocal. Thus, the court can only base its conclusion on the rendition given by the court interpreter.
Several parts of the English translation of the Spanish language tape are confusing and unclear and do not meet the requirements of Vehicle and Traffic Law. While the vehicle and traffic law clearly states that a person arrested for such violation must be informed that his refusal to take the chemical test will result in his license being immediately suspended and subsequently revoked. The Spanish translation indicates that his license will be immediately suspended or revoked or the driving privileges will be lost. This is clearly not the same. Nor did the Spanish warning clearly apprised the accused of the fact that his refusal to take the exam can be used against him at a trial or hearing resulting from the arrest. It is unclear whether that portion of the warnings regarding the use at trial refers to the result of such test if it is taken, or to the refusal, if it is not taken.
As such, the court finds that the warnings given in the Spanish language tape are not sufficient and are not in clear and unequivocal language. The accused further contends that the jury has not met their burden of showing that the accused was persistent in his refusal.
The dictionary defines persistence as to continue steadfastly or often annoyingly, especially in spite of opposition. The language barrier prevented the officers from engaging in any further communications with the accused. There was therefore no opportunity for the accused to continue steadfastly to refuse to take the chemical exam. The simple mention of the no word by the accused does meets the persistence standard of the traffic law.
The requirement will never be satisfied when the accused is merely shown a videotape and cannot engage in conversation with the officer administering its exam. Unless the state assigns Spanish speaking officers to the Highway Divisions or shows a series of tapes to DWI accused persons, the jury will never be able to meet the persistency requirement with regard to the accused.
The Court believes it would be less burdensome upon the State while fair to the accused to require the jury to prove that the warnings were clear and unequivocal, that the accused indicated he understood the warnings and that he refused to submit to the test. However, the Court is bound by the persistency requirement and such burden was not met. The accused person’s motion to suppress the refusal is granted.
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