Limited English Proficiency and DUI Warnings

State v. Baraki, 2022 WL 16842263 (Iowa 2022)

An officer stopped Fethe Baraki for a red-light violation and for driving unusually slowly. Baraki is from Eritrea; his primary language is Tigrinya. After the officer noticed Baraki had signs of impairment, he called Officer Scherle, a member of a traffic unit handling impaired driving investigations, to the scene. Officer Scherle saw that Baraki had “red watery bloodshot eyes along with the odor of alcohol coming from his person.” He also noted Baraki “had a pretty distinct language barrier.” Notwithstanding, Baraki clearly understood many of Officer Scherle’s questions and commands.

Officer Scherle showed a preliminary breath test (PBT) to Baraki and asked whether he was “willing to do this test” for him. Baraki agreed. After some difficulty with the instructions, Baraki took the test as directed by Officer Scherle. The PBT showed Baraki was over the legal limit and Baraki was arrested and transported to the county jail.

Officer Scherle contacted the LanguageLine service to get a Tigrinya interpreter for the implied consent advisory. Baraki told Officer Scherle (in English) that his friend was coming, and Officer Scherle responded, “Unfortunately, you had too much to drink.” Baraki also initiated other conversation in English. After being placed on hold for several minutes, the LanguageLine operator told Officer Scherle that no interpreter for Tigrinya was available and they did not know when one would become available.

Officer Scherle knew the chemical test must be offered within two hours, so he went ahead and read the implied consent advisory aloud in English to Baraki. Officer Scherle handed Baraki his cell phone and told him he could call anyone he wanted to determine whether to take the test. Baraki kept the cell phone for less than two minutes. He tried to make a couple of calls but did not speak to anyone.

Officer Scherle told Baraki in short sentences in English that he was asking him, “Yes or no whether he wanted to take the chemical breath test.” Officer Scherle then tried an online translator but could not find an online translation for Tigrinya. Officer Scherle again asked Baraki whether he would take the test and Baraki confirmed that he would. Officer Scherle did not believe Baraki understood the entire advisory, but he believed Baraki consented to take the test.

Baraki provided a breath sample. The results indicated a blood alcohol content of 0.114, which is above the legal limit of 0.08. Baraki was charged with operating a vehicle while intoxicated. He asked the trial court to suppress the evidence of the breath test, claiming he did not understand the advisory warning. The trial court ruled the state failed to show that Baraki knowingly and voluntarily consented to the warrantless search of his breath alcohol and excluded the evidence.

Officer Scherle did not believe Baraki understood the entire advisory, but he believed Baraki consented to take the test.

The Iowa Supreme Court reversed the trial court’s order to suppress. The Supreme Court held that Officer Scherle complied with state law mandating that a driver “shall be advised by a peace officer” of the consequences on their driver’s license of both (1) refusing to submit to testing and (2) testing above the legal limit. The Court held Officer Scherle fulfilled the statutory requirement by making reasonable efforts and using reasonable methods to convey the implied consent advisory to Baraki.

Many states have similar provisions requiring an advisory or warning be given to a driver arrested for impaired driving and asked to take a chemical test. In a previous case, Iowa had taken the middle ground and required 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.”

In most cases, officers can readily obtain an interpreter to assist with the warning. When a bilingual officer or local interpreter is not available, the LanguageLine service can assist with translation for over 350 languages. Even though there are nearly 10 million native Tigrinya speakers in the world, there wasn’t an interpreter available at the right moment.

We live in a society that is more mobile and diverse than ever. Officers should learn what language resources are available before the need arises. Federal law requires police agencies that receive federal grant dollars to take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP). Become familiar with your agency’s LEP policy. Officer Scherle had apparently done so; he did his best to obtain language services for Baraki and the Court held that his best was good enough.

In some states, civil rights organizations have launched widespread audits of agencies’ compliance with federal guidelines. Resources to learn about federal requirements and assist in compliance are readily available from the U.S. Department of Justice and U.S. Department of Homeland Security.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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