Inability to Speak English Not a Suspect Class for Equal Protection and Due Process Violation

 

People v. Aviles

New York Court of Appeals

2016 Slip Op 07836

Decided on November 22, 2016

 

 

Issue: Whether NYPD violated a non-English speaking defendant’s equal protection and due process rights when police did not administer a physical coordination test due to defendants inability to speak or understand English.

 

Holding: The Court of Appeals held that defendant’s equal protection and due process rights were not violated when NYPD did not administer physical coordination due to defendant’s language barrier.

 

Facts: Defendant was arrested after striking a police car. The arresting officer detected alcohol on defendant’s breath, and defendant admitted to drinking “a few Coronas about 15 minutes ago.” Defendant consented to a breathalyzer test, which ultimately let to driving while impaired and driving while intoxicated charges. No physical coordination test was administered, as indicated on the officer’s report, which read “No coord test given and Language Barrier.”

 

Defendant moved to dismiss, arguing that NYPD violated his equal protection and due process rights when police failed to offer a coordination test because of defendant’s language barrier. Criminal Court granted defendant’s motion, but the Appellate Term reversed, holding that the Appellate Division had recently rejected a similar constitutional challenge in People v. Aviles (People v Aviles, 47 Misc 3d 126[A] [1st Dept App Term 2015], citing People v Salazar, 112 AD3d 5?[1st Dept 2013]). The Court of Appeals affirmed.

 

Legal Analysis:

Equal Protection

 

The Fourteenth Amendment of the U.S. Constitution states that “[n]o state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws” (US Const amend XIV, 1).

 

Equal protection violations are determined by review based on two standards: “strict scrutiny” and “rational basis.” Review under “strict scrutiny” occurs when a government action disadvantages a suspect class or burdens a fundamental right and will be upheld only if the government can establish a convincing justification for the action (citing Regents of Univ. of Cal. v Bakke, 438 US 265, 299-300 [1973]). A plaintiff is required to show intent to discriminate against a suspect class when attempting to prove that facially neutral conduct constitutes discrimination (citing Soberal-Perez v Heckler, 717 F2d 36, 42 [2d Cir 1983]). Here, defendant attempted to argue that the failure to administer a coordination test identified as facially neutral conduct that intended to discriminate against his suspect class. In cases that do not concern a suspect class or fundamental right, the government action only needs to be rationally related to a legitimate governmental purpose (id. at 41).

 

 

The Court of Appeals held that strict scrutiny is not applicable here because defendant failed to demonstrate that the NYPDs policy of only offering coordination tests in English singles out members of a suspect class, nor did he show intentional discrimination. First, because the challenged policy is only based on an ability to speak and understand English, and is not based directly on ethnicity or race, defendants language ability does not constitute a suspect class. Second, the Court held that the officer’s decision not to conduct a coordination test was based solely on a determination that a language barrier- not defendant’s ethnicity- prevented the officer from administering the test. The officer’s decision did not indicate an intention to?discriminate against the defendant but it, rather, indicated an intention to follow a procedure the officer found most efficient, given defendant’s language barrier.

 

 

The Court of Appeals held that the challenged policy does withstand rational basis review. The Court reviewed both the accuracy and clarity of the physical coordination test in relation to defendants assertion that the NYPD should provide a translator in defendant’s native language upon administering coordination tests. The instructions for the coordination test are lengthy at thirty lines and require a concise explanation of the tasks to be performed. Translation and the process of obtaining a translator on demand would add time to an already lengthy test that is time-sensitive. Furthermore, a translator does not have the training and expertise to administer such a test, which could result in inaccurate test results. The Court concluded that the NYPD policy rationally furthers the goals of avoiding delayed or erroneous results due to a language barrier.

 

The Court of Appeals also addressed the financial and administrative burdens that would result from the employment of translation services or multilingual officers for the 168 distinct languages spoken in New York State. Notably, the dissent contended that NYPD has the resources to address the unique linguistic diversity in New York City. However, the majority disagreed with the opinion and held that the dissent failed to take into account the realities of the preciseness of physical coordination tests or the identification of the languages that are in demand.

 

Conclusively, the Court held that the challenged policy is rationally related to legitimate governmental purposes and rejected defendant’s equal protection claim

 

 

Due Process

The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty or property without due process of law” (US Const amend V). The New York Constitution provides for similar protections (NY Const art I, 6) and “[w]e have at times found our Due Process Clause to be more protective of rights than its federal counterpart” (Hernandez, 7 NY3d at 362).

 

Defendant claimed his due process rights were violated under state and federal constitutions when the NYPD did not offer a physical coordination test because of his language barrier. The Court of Appeals held that the NYPD’s is not obligated to assist a defendant in gathering evidence or establishing a defense (citing People v Finnegan, 85 NY2d 53, 57 [1995]). Moreover, although a defendant has the right to an interpreter during judicial proceedings, he does not have the right to one before an investigation. A coordination test would be administered during the pre-arrest investigation and not during judicial proceedings; thus, defendant did not have the right to a translator upon administering the coordination test.

 

The Court of Appeals rejected defendant’s due process claim?and concluded by addressing the significance of the State’s interests. The Court held that changing the challenged policy by implementing translation services would burden the State fiscally. The States interest in providing accurate physical coordination tests would also be compromised if instructions were to be translated.