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The Habeas Citebook: Prosecutorial Misconduct

Maryland Court of Appeals Announces Reasonableness Standard in Providing Advice of Rights to Non-English Speaking Drivers

Before the Court was a petition for writ of certiorari filed by Walter Elenils Portillo Funes (Portillo), who was found guilty by a jury of driving under the influence of alcohol, driving while impaired by alcohol, and driving while under the influence of alcohol per se.

The charges stemmed from an October 14, 2018, incident in which Montgomery County Police Officer Devon Sharkey saw a pickup truck stopped in the right-most lane of a road. Portillo was in the running truck “slumped over the wheel, apparently not awake.”

An open can of beer was in the console, and Portillo gave off “a consistent strong odor of alcohol beverage” and had “bloodshot watery eyes.” It soon became apparent English was not Portillo’s primary language. An interpreter was not available. Portillo failed a field sobriety test.

At the police station before conducting a chemical breath test, Sharkey read in English the “Advice of Rights” form that had a Spanish translation printed on the back but was never assured that Portillo read the Spanish version. The form, known as a DR-15, contained “a lot to read” and it was “very long, tedious information.” The Court found Portillo exhibited confusion as he took several minutes to decide whether to take the breath test. Ultimately, he signed the form, and the test was administered, registering a blood alcohol concentration of 0.15 – nearly twice the legal limit of 0.08.

Prior to trial, Portillo moved to suppress the field sobriety and breath tests from evidence at trial, arguing he did not understand the instructions given him or the advisement of rights. The trial court denied the motion, finding it was a factual issue for the jury to determine. After Portillo was found guilty at trial, he sought review in the appellate court of the denial of his motion to suppress.

Following the Wisconsin, Iowa, North Dakota, and New Hampshire Supreme Courts, the Maryland Court of Appeals (the state’s highest court) announced its adoption of a reasonableness standard in conveying the advisement of rights in regards to consenting to a breath test. That standard focuses on whether law enforcement officers used reasonable methods that would reasonably convey the warnings and rights contained in Maryland’s implied consent statute.

The Court explained: “Sufficient advice of rights in a drunk driving case is a low hurdle, but we refuse to reduce that hurdle to a line on the pavement. Justice is not served if required advice of rights is debased to a formality satisfied by reading the advice in English to a non-English speaking driver.” The Court instructed that “[a] driver’s inability to understand English and consequent inability to comprehend the advice of rights is a factual issue when presented in a motion to suppress.”

The Court said its ruling will require police officers, as the Motor Vehicle Administration (“MVA”) has already done, “to acknowledge and accept the challenge of serving drivers who speak other languages.” It noted that the Maryland Drivers Manual is available in English, Spanish, Traditional Chinese, Vietnamese, French, Korean, and Nepali. It recommended that certified translations of the DR-15 – both in written and audio form – be provided and made available on the MVA’s website like it does for English and Spanish.

The Court advised it is not a “defense for a driver to claim that they were too drunk to understand the advice of rights and it is not necessary for the Stare to prove that the driver actually subjectively understood the warnings.” Proof to sustain a motion to suppress the breath test on sufficiency of advice grounds will depend on the facts of the case.

As to Portillo’s case, the Court found the trial court erred in several regards. First, it failed to afford Portillo a full suppression hearing. It also failed to make a finding on the record that “Sharkey provided sufficient advice of rights by reading the DR-15 form to a driver with limited English proficiency.” The record was replete with evidence that Portillo did not understand English and that Sharkey admitted he was concerned Portillo spoke only Spanish.

It would have cost Sharkey “near-zero time” to (1) indicate the Spanish version on the back of the DR-15 to Portillo, (2) dial the language translator hotline, or (3) play the Spanish translation audio file from the MVA website, the Court noted. As the trial record showed, the State could not meet the reasonableness standard, the Court concluded.

Related legal case

Funes v. State

 

 

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