Maryland’s “implied consent statute” conditions the issuance of a drivers’ license on the licensee’s consent to submit to a blood alcohol concentration (BAC) test if suspected of driving under the influence of alcohol. Md. Trans. Code Ann. §16-205.1(a)(2). Before the results of the test can be used at trial, however, the State must prove that the suspect was advised of the right to refuse to take the test, the sanctions for a refusal, and the consequences of taking a test that reveals a high BAC level. Id., 16-205.1(b)(2). The Maryland Court of Appeals has now determined that when advising a non-English speaking suspect of these rights (commonly referred to as ““DR-15” ” rights), “officers must use methods that reasonably convey the warnings and rights in the implied consent statute.” Portillo Funes v. State (No. 65, Sept. Term 2019) (June 30, 2020). Slip Op. at 18; 23. An oral recitation of those rights in English to someone lacking proficiency in English, the court held, is not sufficient. Id. at 33
Portillo was found asleep in the driver’s seat of a car stopped on the side of a road with his foot on the brake, the engine running, and the transmission in drive. There was an open beer in the console and other indicia of alcohol use. After Portillo was removed from the car, it became apparent to the investigating officer that English was not Portillo’s first language and that his English comprehension was limited.
Unwilling to wait for an interpreter, the officer gave instructions for standardized field sobriety tests to Portillo in English. Portillo performed poorly on the tests and was arrested and taken to the station where he was read the DR-15 rights in English. Even though there was a Spanish version of the rights on the reverse side of the English form, Portillo was not invited to flip the page before being asked to sign, verifying that he understood and consented to the BAC test. When the results indicated a BAC over the legal limit, Portillo was charged and ultimately convicted of driving under the influence.
Portillo unsuccessfully sought to have both the BAC test and the results of the field sobriety tests suppressed at trial. As to the BAC test, he argued that because he did not understand English, he was not advised of his rights as required by TR §16-205.1(b)(2). Because the instructions for the field sobriety tests were given in a language he did not understand, he argued, the results were unreliable and their use violated his right to equal protection of the law. The Court of Appeals agreed only with the first argument.
The court had previously determined that “for a breath test to be admissible, police officers must strictly adhere to the procedural requirements of the implied consent and advice of rights statute.” Slip Op. at 17. The purpose of the advice requirement, the court has said, is to ensure that “the driver is fully advised and not impermissibly compelled to take a breath test.” Id. at 19, “The State must not mislead the defendant or construct road blocks, thus unduly burdening that decision-making.” Id. at 18 (citations omitted). The court concluded with the observation that “[w]e can think of few ‘road blocks’ more detrimental to comprehension than a language barrier.” Id.
Acknowledging that it had not previously written on what was required in the event of a communication problem independent of intoxication, the court analyzed cases from several other states before adopting an objective reasonableness standard: “the State has the burden of proof of showing, by a preponderance of the evidence, that the methods used would reasonably convey the implied consent warnings.” Id. at 24 (citations omitted). Whether the warnings were properly administered “must not depend on the perception of the accused driver,” but on the circumstances presented at the time of the arrest. Id. (citations omitted). It is, however, “a low hurdle, and is satisfied as long as the steps taken by the officer are reasonable….” Id. at 28.
The court offered guidance for the future by suggesting what the arresting officer might have done differently in this case, such as waiting for the interpreter, employing a telephonic language line service provided by the county, or playing an audio version of the advice available online from the Motor Vehicle Administration in Spanish. Noting that the MVA makes the driver’s manual and written tests available in seven languages, the court suggested that the MVA should also consider doing the same for the DR-15 rights. Id. at 24-5.
The court went on to analyze and then reject Portillo’s argument that the standardized field sobriety test results should have been excluded because Portillo did not understand the instructions. Although it agreed that adequate performance on the tests “requires a basic understanding of the tests… [a]s an evidentiary matter, however, unlike a breath test, field sobriety tests are not ‘protected’ by advice of rights requirements.” Id. at 36. Unburdened by a strict statutory predicate to admissibility, the trial court’s ruling on the instructions was simply a garden variety evidentiary ruling, not to be disturbed absent an abuse of discretion.
Finally, the Court agreed, perhaps only for the sake of argument, that discrimination based on language proficiency “may violate” the equal protection clause of the Fourteenth Amendment. Id. at 38. Without suggesting a remedy, the court refused to apply the exclusionary rule to such a violation, and concluded that the field sobriety test results would be admissible against Portillo, if he is retried. Id. at 39.