The People appeal from the order of the Supreme Court, Bronx County (Caesar D. Cirigliano, J.), entered on or about February 8, 2012, which granted defendant's CPL 330.30(1) motion to set aside a verdict convicting him of driving while intoxicated.
Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for appellant.
Steven Banks, The Legal Aid Society, New York (Martin M. Lucente of counsel), for respondent.
Peter Tom, J.P., David Friedman, John W. Sweeny, Jr., Paul G. Feinman, JJ.
Does the failure of the police to administer a physical coordination test to a non-English speaking defendant of Hispanic origin arrested for driving while intoxicated violate equal protection and due process, where such tests are routinely administered to English-speaking defendants? For the reasons stated herein, we hold that it does not.
On June 26, 2007, at approximately 10:55 p.m., Police Officer Miguel Iglesias observed a 1992 Toyota Camry parked partially on the sidewalk facing oncoming traffic on Pugsley Avenue in the Bronx. Upon approaching the vehicle, Iglesias noticed the driver's side front tire was blown out. He saw defendant in the driver's seat, "slouched" over the steering wheel. Iglesias knocked on the driver's side window to get defendant's attention. When the door opened, Iglesias smelled a strong odor of alcohol coming from the vehicle and saw an open 40-ounce bottle of beer in the car. The keys were in the ignition, the motor was running and the dashboard lights were on. Iglesias asked defendant to step out of the car. Defendant was unable to do so by himself and had to be assisted by Iglesias. Officer Iglesias testified that defendant was unsteady on his feet, had bloodshot eyes, and appeared to be intoxicated. Iglesias asked defendant basic questions such as his name and address. Defendant began speaking in Spanish. Iglesias then asked defendant, in Spanish, if he was drunk and defendant replied, also in Spanish, "Yes, I am drunk. That's why I parked over here." At that point, Officer Iglesias placed defendant under arrest.
Police Officer Angel Padilla responded to the scene to transport defendant to the 45th Precinct for a breathalyzer test. Padilla testified that defendant was unsteady on his feet, needed help to walk to the police van and had bloodshot eyes with dilated pupils, and that his breath smelled strongly of alcohol. After arriving at the 45th Precinct, Officer John King, the breathalyzer operator, told defendant why he was under arrest and asked if he wanted to take the breathalyzer test. Upon realizing there was a "language barrier, " King read the information and question regarding the breathalyzer test in English and then played a Spanish-language tape that repeated the information and question. After watching the tape, defendant agreed to take the test. Officer Padilla assisted Officer King in explaining to defendant in Spanish the procedure required to take the test. The test results indicated that defendant's blood alcohol content was.21, nearly three times the legal limit.
Officer King, who had been specially trained to administer the standard physical coordination test and analyze the result, testified that he did not give that test to defendant because he did not speak English. He explained that, although Officer Padilla assisted him with the breathalyzer test, he did not want Padilla to translate the coordination test instructions since "[P]art of the test is following directions. There's subtle parts of the test and I wouldn't know if the officer truly and accurately described what I was saying" or whether Padilla was "using his own words or translating exactly what I said." Officer King also testified that the Police Department does not have a Spanish language tape of the coordination test instructions.
After a jury trial, defendant was found guilty of driving while intoxicated. Thereafter, defendant moved to set aside the verdict on the ground that the New York City Police Department policy of administering both breathalyzer and physical coordination tests to English-speaking DWI suspects while offering only the breathalyzer test to non-English speakers violated the Equal Protection and Due Process Clauses of the United States and New York Constitutions. 
The trial court granted defendant's motion, set aside the verdict and dismissed all charges. The court found that the procedure employed by the police department created a "classification predicated upon a person's Hispanic origin and their inability to speak and/or understand the English language and therefore discriminates against primarily Spanish speaking individuals of Hispanic origin" and thus, violated the equal protection clause under either a strict or rational basis analysis.
The court also found a due process violation, finding the procedures utilized deprived defendant of his liberty interest and that this deprivation could be eliminated by "additional or substitute procedures", i.e., by providing interpreters for non-English speaking suspects. It rejected the People's argument that such procedures would be cost prohibitive.
Much of the court's rationale is similar to its reasoning in a prior published decision (People v Molina, 25 Misc.3d 362 [Sup Ct, Bronx County 2009]). We now reject that rationale and find the court erred in concluding that defendant's constitutional rights to equal protection of the law and due ...