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People v. Claros-Loor

Criminal Court of the City of New York, Bronx County

January 24, 2017

The People of the State of New York, Plaintiff,
Flavio Claros-Loor, Defendant.

          For the People: Bronx County District Attorney's Office by ADA Ketaki Chakrabarti, Esq.

          For the defendant: Bronx Defenders by Melissa Lee, Esq.

          Elizabeth N. Warin, J.C.C.

         Defendant, a non-English-speaker of Hispanic origin, moves to dismiss the charges against him pursuant to CPL § 170.30(1)(f) on the ground that the New York City Police Department's ("NYPD") failure to offer him coordination tests after he was arrested for driving under the influence of alcohol and drugs violates the Equal Protection Clause of the United States Constitution and is thus a legal impediment to his conviction. [1] For the following reasons, defendant's motion is DENIED.


         Defendant is charged with driving a motor vehicle while intoxicated and/or impaired, in violation of subsections (1), (2) and (3) of Section 1192 of the Vehicle and Traffic Law ("VTL"). The information alleges that on March 15, 2015 at approximately 1:40 a.m., Officer Sonny Ramcharran observed the defendant operating a motor vehicle while having bloodshot, watery eyes, and slurred speech. He detected a strong odor of alcohol emanating from defendant's breath, and observed that he was unsteady on his feet. At the Huntley/Dunaway/Johnson hearing held on October 15, 2015, Officer Ramcharran testified that he initially spoke to the defendant in English, but when the defendant did not respond, he called over his two Spanish-speaking partners to speak with defendant (see Minutes of October 15, 2015 suppression hearing "Hearing Tr." at 41). Officer Ramcharran testified that he speaks conversational Spanish, but is not fluent [2] (id.). The information alleges that the defendant admitted to Officer Ramcharran that he drank two beers.

         After his arrest, defendant was taken to the 45th Precinct for "a DWI investigation" (id. at 29). [3] The IDTU videotape shows Officer Delacruz, the ITDU technician, asking defendant in English whether he consented to a breath test, and then playing a Spanish language video that asked for defendant's consent. [4] Defendant consented to the test, and thereafter Officer Delacruz spoke to defendant in Spanish and performed the test (id. at 30, 59). The Chemical Test Analysis form filed in this matter indicates that defendant was administered an Intoxylizer 5000 breath test at 3:37 a.m. by Police Officer Delacruz with the result showing defendant's blood alcohol content as.148 of one per centum by weight.

         The IDTU videotape further shows that after the breath test was performed, Officer Delacruz stated that he would "skip" the coordination tests because there are no Spanish language instructions for the tests. Officer Delacruz also stated that no Miranda warnings would be given as there were also no Spanish instructions for the warnings and the arresting officer was not fluent in Spanish.

         It is not disputed that the IDTU technician in this case is fluent in Spanish, as the People concede as much, and it is apparent from the IDTU video the officer easily conversed with the defendant in Spanish (see People's Resp. at 3). Further, while the NYPD Patrol Guide adopts a permissive approach to bilingual officers to utilize their language skills to communicate "if he or she reasonably believes that his or her level of language proficiency is sufficient to accurately interpret given the totality of the circumstances, " [5] it is also not in dispute that it is NYPD policy to offer coordination tests for intoxicated/impaired drivers only to arrestees who can communicate in English (see Def. Motion at 8; People's Resp. at 3). Lastly, it is not disputed that pursuant to the same NYPD Patrol Guide, for intoxicated or impaired driver arrests, an IDTU Technician is to perform coordination tests in the presence of the arresting officer (see NYPD Patrol Guide Procedure No. 208-40, ¶ 28). [6]


         The Fourteenth Amendment to the United States Constitution provides "[n]o State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws." Equal protection violations are analyzed under either "strict scrutiny" or a "rational basis" standard of review (see People v Aviles, 2016 NY Slip Op 07836, *4 [Nov. 22, 2016]). When the challenged action disadvantages a suspect class or burdens a fundamental right, the conduct is subject to "strict scrutiny" and will be upheld only if the government establishes compelling justification for the action (id.). Where a suspect class or fundamental right is not implicated, the action need only be rationally related to a legitimate government purpose to be upheld (id.; People v Salazar, 112 A.D.3d 5, 9 [1st Dept 2013]).

         In Aviles, the Court of Appeals upheld the NYPD practice of not administering coordination tests to non-English speakers from an equal protection challenge under a rational basis review. The Aviles court found that the NYPD policy was based on a person's ability to speak and understand English, not on any of the suspect classifications of race, religion or national origin, and was therefore facially neutral (see Aviles, at *5; s ee also Salazar, at 9-10). In applying rational basis review, the Court held that the NYPD and the public have a substantial interest in ensuring the reliability of coordination tests, an outcome which is largely dependent on the clarity and consistency of the instructions provided by the officer (id. at *7). Further, the length of the instructions, the requirement of interaction with the arrestee and assessment of his or her responses to the instructions, render the coordination tests ill-suited for delegation to either a translator or video instructions (id.). In addition, the Aviles court held that the NYPD had an interest in avoiding the "heavy financial and administrative burdens of employing translation services or multilingual officers qualified to administer coordination tests in the myriad languages spoken in this State." (id. at *8).

         Defendant first argues that the reasons set forth for the Aviles decision upholding the NYPD policy denying coordination tests to non-English speakers are not supported by the record here, as a trained IDTU technician fluent in Spanish was available and competent to administer the coordination tests (see Def.'s Motion at 9). However, the absence of a language barrier between an individual officer and an individual non-English speaking arrestee, coupled with the decision not to administer the coordination tests in accordance with the NYPD policy for all non-English speakers, does not render the Aviles holding inapplicable to this situation. Regardless of whether in some instances the officer may be able to communicate fluently or whether the NYPD has determined officers may utilize their language skills in other situations (see e.g. Salazar, at *11), there remains a substantial state interest in reliable coordination test results that are not subject to the variances of particular degrees of language competence, and/or in avoiding the expense of providing either translators or multi-lingual IDTU technicians to meet the language requirements for New York city's entire diverse population of arrestees for intoxicated driving (see Aviles, at *5, *9; Salazar, at *12 (citing to data from 2007 identifying 170 distinct languages spoken in New York courts). That some officers will be fluent in the language spoken by a particular arrestee does not render the policy irrational or unrelated to the state's objectives, nor does it change the well-established rule that the Court is not permitted "to substitute [its own] judgment for the discretionary management of public business by public officials" (Salazar, at *12).

         Facially neutral conduct may still violate a suspect class's equal protection rights if there is a showing of intentional discrimination (see Aviles, at *4; Salazar, at 10; Soberal-Perez v Heckler, 717 F.2d 36, 42 [2d Cir 1983]; People v Pelegrin, 39 Misc.3d 788, 794 [Crim Ct Bronx County 2013]). Intentional discrimination requires a showing that "the decisionmaker... selected or reaffirmed a particular course of action at least in part 'because of' not merely 'in spite of' its adverse effects upon an identifiable group" (Soberal-Perez, at 42, quoting Personnel Administrator of Massachusetts v Feeney, 442 U.S. 256, 279 [1979]). As the Aviles court acknowledged, "upholding the facial validity of the NYPD policy does not preclude all challenges to the policy as applied to a particular defendant, where, for instance, the defendant was denied a coordination test on the basis of his ethnicity, as opposed to any language barrier" (see Aviles ...

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