People v Dzvonyk

Court Discusses Whether the Defendant’s Constitutional Right was Violated after Failure to give Refusal Warning in his Native Language.

The defendant, who was a Russian immigrant, was arrested and charged with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, two counts of Driving While Intoxicated DWI, and one count of Aggravated DWI. The defendant was arrested after the police came to the scene of an accident which the criminal defendant was involved in. One of the officer observed that the defendant’s breath smelled of alcohol, bloodshot eyes, slurred speech and was unsteady on his feet. The defendant was arrested and taken to the precinct. At the precinct, the defendant agreed to submit to a chemical test where he registered a .233 blood alcohol content. The defendant then requested to suppress the results of the chemical test because it was involuntary as the police officer did not give the warning in his native language, thus violating his federal constitutional rights.

At the suppression hearing the defendant claimed that the failure of the police to provide a Russian interpreter during the blood test violated his right of due process and equal protection since he did not understand that he could refuse to take the test. The People admitted into evidence the video tape of the defendant being asked to submit to the chemical test along with the refusal warning and the arresting officer testified on behalf of the People. The police officer testified about his observations of why he arrested the defendant, mainly his bloodshot eyes, slurred speech, unsteady feet and alcohol on his breath. A video of the administration of the test was admitted which showed that the defendant was initially confused or hesitant when asked if he would submit to the test. The defendant then nodded yes to submit to the test. It took several attempts to provide a breath sample but there was no evidence on the tape that the officer coerced or threatened the defendant to take the test.

At the hearing, the People had the burden to show that the police had probable cause to act in the manner that he did. The burden then shifted to the defendant to show that the police acted illegal in arresting and charging him for the crime alleged. In determining whether there was probable cause to believe that the defendant had committed a crime, the observations made by the officer showed that the defendant show signs that he was intoxicated were essential. Therefore, the officer had probable cause to suspect that the defendant was intoxicated while driving. Further, the People proved that the chemical test was performed within two hours after his arrest in accordance with section 1194 of the VTL was violated. The defendant asserted that the results of the test should be suppressed because he was not instructed about his ability to refuse in his native language. While the assistance of an interpreter is preferred to speak to a person whose native language is not English, but the defendant appeared to have understood the request for a breath sample. The defendant clearly understood that request by the fact that he provided a breath sample. Therefore, the People met there burden in proving that the conduct of the officer was proper.

The defendant did not argue that the test was not conducted in compliance with the VTL but he asserted that the test is invalid because there was not a Russian interpreter or a recording of the request in Russian, thus violating his constitutional right to due process and equal protection. The argument was without merit. According to the People v. Smith, 18 NY3d 544, 548 driving is a privilege and not a fundamental right and, as such, a motorist does not have a constitutional right to refuse to submit to a chemical test. Whether the defendant’s right of due process and equal protection was violated after his right to refuse the chemical test was denied was addressed in People v Kates, 53 NY2d at 595. In Kates it was held that the distinction between the driver who was capable of making a choice and the driver who is unable to do so because he was unconscious under the VTL and thus such a distinction between drivers did not violate the equal protection clause. Kates can be applied to the instant case because the defendant’s argument was that he was incapable of refusing to submit to a chemical test because a language barrier prohibited him from understanding he could refuse to submit to such a test. However, according to Kates that did not violate his due process right and equal protection clause.

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