How far must a police officer go to assure that a suspected drunk driver understands the legal consequences of agreeing or refusing to take a breath test when the suspect does not speak English?
That is the question posed in an appeal to the Iowa Supreme Court by Fethe Feshay Baraki, who claims he did not knowingly consent to taking a breath test later used as evidence against him in Woodbury County District Court on a charge of second-offense operating while intoxicated.
Iowa law requires that a drunk driving suspect be advised by a police officer of the legal consequences of agreeing or refusing to submit to a breath test. Refusing the test results in revocation of the driver’s license whereas taking the test could result in admission of the results in a criminal prosecution.
Baraki, who is from Eritrea and speaks the Tigrinya language, claims he did not understand the officer’s recitation in English of the implied-consent advisory. No Tigrinya interpreter was available, and Google Translate did not translate from English to Tigrinya.
Baraki thus argues that because he did not knowingly consent to the test, the results should be suppressed in court.
The Supreme Court, in a unanimous decision handed down Nov. 10, disagreed. The Court, in its opinion written by Justice Edward Mansfield, said an officer must make a “reasonable effort” to obtain consent in such situations, but that “Iowa law does not require the impracticable.”
In previous decisions, the Court has adopted a standard that requires an officer “under the circumstances facing him or her at the time of the arrest, to utilize those methods which are reasonable, and would reasonably convey the implied consent warnings.”
Based on the record in this case, the Court concluded the officer made the necessary effort and that Baraki had some understanding of English.
“We believe he understood he had a choice whether or not to provide the sample, and agreed to do so,” Mansfield wrote. “We do not believe he understood the entire implied consent advisory, which includes an explanation of the specific consequences of refusing the test as compared to the consequences of taking it and failing it.”
The question then is what happens when a non-English speaker does not understand the implied-consent advisory despite an officer’s reasonable efforts to communicate? Under that circumstance, Baraki argued a breath test cannot be performed.
“We decline to adopt this position for several reasons,” Mansfield wrote. He noted that the Court in an earlier decision made clear that “a non-English speaker should not receive an exemption from chemical testing or the consequences of refusing to submit to chemical testing that no English speaker would receive, just because an interpreter is unavailable.”
Moreover, Baraki’s approach would result in “two disparate legal regimes,” Mansfield wrote. “Apparently, intoxicated motorists whose English is limited and for whom no interpreter is available would not have to undergo breath testing at the peril of losing their driving privileges. This would put this category of motorists in a better legal position than all other motorists.”