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Georgia Breath Test Motion – Implied Consent and Non-English Speakers

Posted by Ben Sessions | Dec 03, 2014 | 0 Comments

OF COURSE A NON-ENGLISH-SPEAKING PERSON CANNOT FREELY CONSENT TO TESTING IN A GEORGIA DUI CASE

I recently had an interesting DUI motion hearing addressing my client's lack of consent to the state-administered breath test upon an Intoxilyzer 5000.  As the motion below discusses, my client was arrested for DUI and read the Implied Consent Notice, and he told the officer that he did not understand the notice.  However, the officer ignored my client's lack of understanding and performed a test without him ever consenting to it.  Below is an early draft of a brief that I will file in support of the motion:

IN THE STATE COURT OF GWINNETT COUNTY

STATE OF GEORGIA

STATE OF GEORGIA, :

:

vs. : Case No. DUIXX

:

DUI, :

:

Defendant. :

DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO EXCLUDE THE RESULTS OF THE STATE-ADMINISTERED BREATH TEST

On November 13, 2012, a hearing on the Defendant's motion to exclude the results of the state-administered breath test was held.  Prior to the hearing, the Defendant narrowed the issue for consideration by the Court to the following: whether the valid consent to the state-administered breath test was obtained from the Defendant.  Following the hearing, the Court directed the State and the Defendant to submit briefs on the issues raised by November 20, 2012.  In support of the Defendant's motion to exclude the state-administered breath test, the Defendant respectfully submits the following to this Honorable Court:

STATEMENT OF FACTS

1.

Officer DUI testified that after arresting the Defendant for DUI, he read the Defendant the Implied Consent Notice for supects age 21 or over.

2.

Following the reading of the Implied Consent Notice, the Defendant stated to Officer DUI that he did not understand the Implied Consent Notice.

3.

Officer DUI testified that it was his understanding that a non-English speaker is to be treated as incapable of refusing and he simply implies consent.

4.

Officer DUI testified that he had no further discussion with the Defendant regarding the Implied Consent Notice.  He transported the Defendant to the jail, set-up the Intoxilyzer 5000, and told the Defendant how to submit a breath sample.

5.

Officer DUI testified that the Defendant spoken in broken English, but he did communicate effectively in English during some of Officer DUI's interaction with him.

6.

Officer DUI testified that he requested a preliminary breath test from the Defendant, and the Defendant stated that he wanted a blood test.  Officer DUI testified that he explained to the Defendant that he did not have the means to provide a blood test at that time.  Officer DUI testified that the Defendant then requested that he be permitted to speak with an attorned, and Officer DUI informed the Defendant that he could not speak with an attorney at that time.

7.

Officer DUI testified that following this interaction regarding the preliminary breath, the Defendant stated that he was not willing to submit to the preliminary breath test.

8.

The Defendant testified that he has been in the United States for 5 years.  The Defendant received some education in the English language in school in Korea.

9.

The Defendant testified that he did not understand the Implied Consent Notice read by Officer DUI, and he received no further explanation or re-reading of the Implied Consent Notice after he expressed his lack of understanding.

ARGUMENT

I.  Whether the Defendant, who speaks “broken” English is “in a condition rendering such person incapable of refusal” for the purposes of OCGA § 40-5-55(b).

The State has adopted the position of the arresting officer that that Defendant is incapable of refusing to submit the state-administered breath test as a result of his limited English speaking skills.  The State and the arresting officer have taken the position that the Defendant did not consent to the state-administered breath and that no consent by the Defendant was required for the test to be performed upon the Defendant in this case because, according to the State, the Defendant was incapable of refusing the state-administered test.  The State's position is contradictory to the Court of Appeals's holdings in Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320, 325 (FN. 7) (2002) and Hernandez v. State, 238 Ga. App. 796, 520 S.E.2d 698 (1999).

The State's position is based upon O.C.G.A. § 40-5-55(b), which states:

Any person who is dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Code section, and the test or tests may be administered, subject to Code Section 40-6-392.

The State's position is directly contradicted by Georgia law on this issue:

We note that in State v. Tosar, we accepted the State's argument that a nonEnglish-speaking driver is “noncommunicative,” that is, “the same as unconscious,” but we declined to base our holding that the State-administered test was admissible on OCGA § 40-5-55(b). 180 Ga.App. at 887, 350 S.E.2d 811. We reaffirm today (and agree with Furcal) that a nonEnglish-speaking driver is not “in a condition rendering such person incapable of refusal” for the purposes of OCGA § 40-5-55(b). See also State v. Webb, 212 Ga.App. at 874, 443 S.E.2d 630 (hearing impaired driver's inability to understand the officer did not constitute a withdrawal of his implied consent). This is an important distinction because, under OCGA § 40-5-55(b), a law enforcement officer is not required to advise a dead or unconscious driver, or a similarly noncommunicative driver, of his rights under the impliedconsent law before administering chemical tests. Smith v. State, 143 Ga.App. at 349(1), 238 S.E.2d 698 (semi-conscious and noncommunicative).

Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320, 325 (FN. 7) (2002)(empahasis added).

The State's interpretation of O.C.G.A. § 40-5-55(b) and its application the Defendant who speaks “broken” English is also in contradiction to Hernandez v. State, 238 Ga. App. 796, 520 S.E.2d 698 (1999).  In Hernandez, the defendant was stopped for a traffic violation and the officer discovered that the defendant, whose native language was Spanish, spoke “broken” English.  A series of field sobriety tests were performed on the defendant, and he was arrested for DUI.  The arresting officer in Hernandez then read the defendant the Implied Consent Notice, and the defendant refused.  The defendant in Hernandez argued on appeal that the trial court erred in refusing to instruct the jury that a Spanish-speaking person is “the same as unconscious and therefore incapable of withdrawing his consent by refusing to submit to a State-administered test.”  Id. at 700.  The Court of Appeals disagreed with the defendant in Hernandez and held that the defendant was not in a condition that rendered him incapable of refusing the State-administered chemical test based upon his (albeit) limited use of the English language and his prior communication with the officer.  Id.

The State's sole basis for claiming that the Defendant in the instant case was incapable of refusing to submit to the State-Administered breath test because he spoke limited English is incorrect under Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320, 325 (FN. 7) (2002) and Hernandez v. State, 238 Ga. App. 796, 520 S.E.2d 698 (1999).  The Defendant did speak sufficient English to communicate to the arresting officer that he did not wish to consent to a preliminary breath test, he notified the arresting officer that he wished to speak with an attorney, and most importantly, he did not consent to the State-Administered breath test and notified the officer immediately that he did not understand the Implied Consent Notice.

II.  As the State has conceded, the Defendant in this case did not consent to the state-administered breath test.  Valid consent was not obtained for the state-administered breath and, therefore, it should be excluded from evidence. 

As stated above, the State has adopted the position of the arresting officer that that Defendant is incapable of refusing to submit the state-administered breath test as a result of his limited English speaking skills.  The arresting officer in this case never sought consent for the state-administered breath test because he thought it was unnecessary.  The officer's assumption is incorrect under Furcal-Peguero v. State, 255 Ga. App. 729, 566 S.E.2d 320, 325 (FN. 7) (2002), and consent to the state-administered breath test was required.

O.C.G.A. 40-5-67.1(d) states:

If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given….

Georgia law requires that a defendant consent to a designated chemical test before such test may be performed:

The word “ ‘[s]hall' is generally construed as a word of command.” Mead v. Sheffield, 278 Ga. 268, 269, 601 S.E.2d 99 (2004). The import of the language is mandatory. O'Donnell v. Durham, 275 Ga. 860, 861(3), 573 S.E.2d 23 (2002)Therefore, the statute plainly requires that if an individual does not consent to the designated chemical test, then no test is to be administered. This precludes any discretion on the part of the officer to attempt to obtain such testing.

Officer DUI never recognized the Defendant's refusal to answer his request for consent to the state-administered breath test as a refusal.  Refusal to respond to the implied consent warning, or silence in response to the warning is deemed a refusal under Georgia law.

In evaluating whether consent to a state-administered chemical test has been validly obtained, Georgia courts have evaluated whether the circumstances under which the state-administered breath test was administered are fair and reasonable.

Officer DUI testified that he never sought the Defendant's consent to the state-administered test because it was his understanding that consent was implied for a non-English speak.

Under Adams and Miles, supra, the Defendant's failure to the Implied Consent Notice should have been considered a refusal of the state-administered breath test.

In State v. Adams,

the defendant was arrested for DUI and read the implied consent warning.  After the reading of the implied consent warning, the defendant stated that he did not know how to respond.  The officer in Adams indicated that he could not indicate to the defendant whether he should take the test or not.  The officer in Adams started to re-read the implied consent warning but the defendant declined that reading.  At the jail, “[the officer] offered [the defendant] a chance to take the test, and [the defendant] complied.”

The Court of Appeals affirmed the trial court's order excluding the breath test results in Adams.

The instant case is a stronger case for exclusion of the breath test result than Adams in that (1) the Defendant did not ever verbally consent to the breath test, (2) the officer did not recognize that a refusal to respond to a breath test request is deemed to be a refusal, which is particularly significant in the Defendant's case where he indicated that he did understand the implied consent warning, and (3) Officer DUI testified that he had no further discussion with the Defendant regarding the Implied Consent Notice after the initial reading.  He transported the Defendant to the jail, set-up the Intoxilyzer 5000, and told the Defendant how to submit a breath sample.  As in Adams, the circumstances under which the state-administered breath test was administered in this case cannot be deemed fair and reasonable. Accordingly, the Defendant respectfully asks that this Honorable Court exclude from the trial of this case all evidence and testimony regarding the state-administered breath test results.

Respectfully Submitted, this ___ day of November, 2012.

This post is provided by:

The Sessions Law Firm
715 Peachtree St., NE, Ste. 2061
Atlanta,
GA
30308

Phone: 470-225-7710

About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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