AT1 order dated March 23, 2015, reversing criminal court’s dismissal of accusatory instrument. Decision below: 47 Misc. 3d 126A, 13 NYS3d 851, 2015 WL 1295874. Pigott, J., granted leave July 29, 2015.

ISSUE PRESENTED: Due process and equal protection challenge to NYPD’s policy of administering both breathalyzer and physical coordination tests to English-speaking DWI suspects, while offering only the breathalyzer test to non-English-speaking suspects such as the defendant. (Assigned counsel: V. Marika Meis, The Bronx Defenders, 360 East 161st St., Bronx, NY 10451.)

Issue: Whether Mr. Aviles, whose principal language was Spanish, suffered due process and equal protection violations because, upon his arrest for intoxicated driving, he was not offered a coordination test due to a perceived language barrier.

 

Held: No. In evaluating the equal protection claim, the majority applied rational-basis review, finding that the NYPD’s decision not to offer coordination tests to non-English speakers passed constitutional muster. It held that because there was no facial discrimination—as the rule classified based on language, not national origin—nor intentional discrimination, no heightened scrutiny was required. Valid rationales for declining to offer the test with instructions in translation, according to the Court, included “ensuring the reliability of coordination tests,” that “translation of instructions cannot be delegated to a translator” who lacks the “requisite training,” and the financial burden of “employing translation services.” This was so even though Mr. Aviles blew a 0.06, a value below the legal limit, on his breathalyzer test; passing the coordination tests could thus further exculpate him in what was already a questionable case.

 

The Court also rejected Mr. Aviles’s due process claim, finding no police duty to assist defendants in gathering potentially exculpatory evidence, nor that the testing procedure was judicial, quasi-judicial, or administrative such that he had a right to an interpreter.

 

The dissent objected that language could be a proxy for national origin or race, thus requiring a more searching standard of review. Under that standard or even rational-basis review, the proffered rationales could not justify a policy that “potentially places certain individuals in a better position than others to defend against criminal charges.” Judge Rivera also criticized the assumption that the coordination test instructions could not be easily translated in light of “technological advances and increased human resources that address linguistic needs”—especially in a multilingual city such as New York. In fact, she noted, the NYPD regularly employs translation services in a number of contexts, including administering breathalyzers.

 

CAL Observes: Though the court rejected a facial challenge to the NYPD policy, it left open the possibility that an individual defendant could mount an as-applied challenge upon demonstrating that in his or her case ethnicity was the reason for denying access to the test.