JOSE V. LEMUS, Plaintiff/Appellee,
v.
STATE OF OKLAHOMA,
ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
ROBERT D. BELL, PRESIDING JUDGE:
¶1 Defendant/Appellant, the State of Oklahoma ex rel. Department of
Public Safety (DPS), appeals from the trial court's judgment overturning the
drivers license revocation of Plaintiff/Appellee, Jose V. Lemus. At issue is
whether a DUI arrestee must be given the Implied Consent Advisory, 47 O.S. 2011 §754(F)(2), in any
language other than English before his or her refusal to take a blood-alcohol
test may serve as the basis for a drivers license revocation. We answer this
question in the negative. Consequently, we reverse the trial court's
judgment.
¶2 On April 16, 2012, at 1:04 a.m., Del City Police Officer Kenneth Rogers
arrested Lemus for suspicion of driving under the influence of an intoxicating
substance. Lemus, an El Salvadoran immigrant who had been living in the United
States for eleven (11) years, first obtained a drivers license in Florida. He
later obtained an Oklahoma drivers license by simply filling out, with the aid
of an interpreter, a change of address form. Lemus is fluent in Spanish, but
speaks limited English.
¶3 Because Officer Rogers was having a difficult time communicating with
Lemus, he contacted fellow Del City Officer Liz Whittington for assistance.
Officer Whittington, who has limited Spanish speaking ability, arrived at the
scene and attempted but failed to read the Implied Consent Advisory to Lemus in
Spanish. She then tried unsuccessfully to contact a Spanish speaking officer
from both the Oklahoma City and Midwest City police departments. Officer
Whittington then read the advisory to Lemus in English. Lemus later conceded he
understood the officers asked him to take a test, he agreed to take the test,
and he was supposed to blow into the machine.
¶4 Lemus was administered the breath test three times. The first test showed
Lemus' blood-alcohol level was 0.10. The machine did not produce a reading for
either the second or third tests. According to Officer Whittington, Lemus
obstructed the testing by placing his tongue over the breath tube. Equating
Lemus' actions as a refusal to take the test, Whittington filled out and served
Lemus with an Affidavit and Notice of Revocation/Disqualification.
¶5 At the conclusion of an administrative hearing held on October 9, 2012,
DPS issued an order revoking Lemus' driving privileges for one hundred eighty
(180) days. See 47 O.S. 2011
§753 (mandatory revocation for DUI arrestee who refuses to submit to
intoxicant testing). Lemus then appealed the decision to the district court,
which conducted a trial de novo. Following trial and briefing, the trial
court issued a lengthy order reversing the revocation. Although the trial court
found Lemus "deliberately fail[ed] to perform the breath-alcohol test by not
blowing directly into the mouthpiece," the court concluded equal protection
jurisprudence demanded Lemus be given the Implied Consent Advisory in his native
Spanish. From said ruling, DPS appeals.
¶6 This case presents a question of law. "Questions of law are reviewed by a
de novo standard." Bank of the Wichitas v. Ledford, 2006 OK 73, ¶20, 151 P.3d 103. "When reexamining a
trial court's legal rulings, an appellate court exercises plenary, independent
and non-deferential authority." Villines v. Szczepanski, 2005 OK 63, ¶8, 122 P.3d 466.
¶7 In Hollis v. State ex rel. Dept. of Pub. Safety, 2008 OK 31, 183 P.3d 996, the Supreme Court
reiterated:
In order to revoke a license based on refusal to submit to a breath or
blood test [pursuant to 47 O.S.
§753], DPS must prove, by a preponderance of the evidence: (1) that the
officer had reasonable grounds to believe the person had been operating or
was in actual physical control of a vehicle upon the public roads while
under the influence of alcohol and/or other intoxicating substance; (2) the
person was placed under arrest; (3) the person refused to submit to the
chemical test; and (4) the person was informed that driving privileges would
be revoked or denied if the person refused to submit to the
test.
Id. at ¶9. Section 754(F)(2) states in relevant part that where a
drivers license has been revoked or denied "based upon the refusal of the person
to submit to a breath or blood test," the scope of the DPS hearing shall include
whether:
a. the person refused to submit to the test or tests, and
b. the person was informed that driving privileges would be revoked or
denied if the person refused to submit to the test or
tests.
In setting aside Lemus' revocation, the trial court focused on the word
"informed" in subsection 754(F)(2)(b) and concluded: "Since Oklahoma issued a
driver's license to [Lemus], despite [his] inability to understand English, then
Oklahoma must assure such person that notices required by law must be given in
the language [Lemus] understands."
¶8 We begin our analysis, as did the trial court, by recognizing that Article
XXX, §1 of the Oklahoma Constitution mandates "all official actions of the state
shall be conducted in the English language, except as required by federal
law."1
Clearly, the officers in this case were taking official state action when they
arrested Lemus and attempted to test his blood-alcohol level. The question
before us, therefore, is whether federal law requires Oklahoma's Implied Consent
Advisory be given in any language other than English. For the reasons set forth
below, we hold it does not.
¶9 Oklahoma, like every other state in the Union, has an implied consent law.
"Under this scheme, when a driver turns his vehicle onto a public road, the
driver has automatically consented to being tested for intoxicants by blood or
breath." Cheryl F. Hiemstra, Keeping DUI Implied Consent Laws Implied, 48
Willamette L. Rev. 521, 522 (2012). Oklahoma's implied consent law is set forth
at 47 O.S. 2011 §751 et
seq. Specifically, §751(A)(1) states in relevant part:
Any person who operates a motor vehicle upon the public roads . . .
within this state shall be deemed to have given consent to a test or tests
of such person's blood or breath, for the purpose of determining the alcohol
concentration as defined in Section 756 of this title, and such person's
blood, saliva or urine for determining the presence or concentration of any
other intoxicating substance . . . , if arrested for any offense arising out
of acts alleged to have been committed while the person was operating or in
actual physical control of a motor vehicle upon the public roads . . . while
under the influence of alcohol or other intoxicating substance, or the
combined influence of alcohol and any other intoxicating substance . . .
.
¶10 In Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321
(1979), the United States Supreme Court held a state statutory scheme similar to
Oklahoma's implied consent law did not, on its face, violate due process. The
Court later reiterated that revoking the drivers license of a DUI arrestee who
refuses to take a blood-alcohol test "is unquestionably legitimate, assuming
appropriate procedural protections." South Dakota v. Neville, 459 U.S.
553, 560, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983). The Oklahoma Supreme Court
has specifically determined Oklahoma's Implied Consent Law does not violate the
due process provisions of the United States Constitution. Robertson v. State
ex rel. Lester, 1972 OK 126,
¶¶7-12, 501 P.2d 1099. Although
the United States Supreme Court has not addressed whether due process requires
that an arrested driver be advised of the consequences of refusing to consent to
blood-alcohol testing (nor whether equal protection requires the arrestee
comprehend any such advisory), the Neville Court held it was not
"fundamentally unfair for [a state] to use the refusal to take the test as
evidence of guilt, even though [the driver] was not specifically warned that his
refusal could be used against him at trial." Neville, 459 U.S. at 565,
103 S.Ct. at 923 (addressing self-incrimination concerns).
¶11 Like Oklahoma, most states have enacted statutes "requiring law
enforcement officers advise suspects of their 'rights and consequences'
regarding the blood or breathalyzer test" and provide for various consequences
for refusing to take the test. Hiemstra, 48 Willamette L. Rev. at 524-5. As
previously set forth, Oklahoma's Implied Consent Advisory mandates a DUI
arrestee be "informed" that his or her driving privileges will be revoked if he
or she refuses to take a blood-alcohol test. The exact statutory language of
each of the other states' "rights and consequences" advisement provisions vary.
Id. at 525. Such a procedure safeguards against potential "violent
confrontations" where police officers "administer a blood-alcohol test against
the suspect's will." Neville, 459 U.S. at 559, 103 S.Ct. at 920. Title 47 O.S. 2011 §753 contains
Oklahoma's prohibition against forced blood-alcohol testing of a conscious DUI
arrestee absent special circumstances.2
¶12 According to Hiemstra, there have emerged three approaches to determining
whether DUI arrestees have a legally enforceable claim to comprehend the "rights
and consequences" advisement:
The first . . . requires suspects to fully comprehend the advisement. The
second . . . requires law enforcement to reasonably accommodate suspects'
comprehension. The third . . . requires law enforcement to recite the
advisement, but the suspect need not comprehend.
Hiemstra, 48 Willamette L. Rev. at 525. Hiemstra concludes, and for the
reasons stated hereafter we agree, "the third approach is the most logical in
light of the policy underlying implied consent law." Id.
¶13 We reiterate:
The operation of a motor vehicle on a public highway is not a natural,
absolute right, but a conditional privilege which may be granted, suspended,
or revoked under the police power of the state. A driver's license is not a
contract or a property right in the constitutional sense, . . . The
privilege is granted to those who are qualified, who comply with reasonable
police power requirements in the interest of public safety and welfare, and
is withheld from those who do not.
Robertson, 1972 OK 126
at ¶9.
¶14 The State of Oregon's implied consent statutes are similar to Oklahoma's.
In particular, Oregon Revised Statutes (Or. Rev. Stat.) §813.100(1) mandates,
"Before the [blood-alcohol] test is administered the person requested to take
the test shall be informed of consequences and rights" of refusal as set forth
in Or. Rev. Stat. §813.130. In analyzing this provision, an early Oregon Supreme
Court opinion held:
While the statute recognizes that a person may refuse to submit to the
test, the legislature could hardly have contemplated that it was necessary
that there be a completely knowing and understanding submission. If this
were the case, the only people who could be tested would be those who were
not sufficiently intoxicated to interfere with their mental
processes.
State v. Fogle, 459 P.2d 873, 874 (Or. 1969). In State v.
Nguyen, 813 P.2d 569, 570-1 (Or. Ct. App. 1991), the Oregon Court of Appeals
held, "Although the statute requires that a person under arrest for driving
under the influence of intoxicants be 'informed' of the consequences and rights
described in ORS 813.130, it does not require that the information be
understood."
¶15 More recently, in State v. Cabanilla, 273 P.3d 125 (Or. 2012), the
Oregon Supreme Court detailed, in a case substantially similar to the instant
appeal, that the use of the word "informed" in §813.100(1) does not require the
state to prove DUI arrestees with limited English-speaking skills understand the
"consequences and rights" advisement. In Cabanilla, the defendant was a
native Spanish speaker with weak English language skills. Cabanilla, 273
P.3d at 126. He was arrested after law enforcement officials discovered him in a
wrecked vehicle, smelling of alcohol with blodshot, glassy eyes. Id. at
127. Notwithstanding the existence of a language barrier, the officers were
able, through a few Spanish words and hand gestures, to have the defendant
perform various field sobriety tests. Id.
¶16 After being transported to the police station, an officer read the
defendant the Oregon implied consent advisory in English and asked him whether
he would take a breath test. Following some discussion, the officer came to
believe the defendant understood he was being asked to submit to a breath test.
According to the officer, the defendant then stated, in substance, that he did
not want to take the test. Id. The defendant later moved to suppress the
evidence of his refusal to take the test on the ground that, due to his
inability to speak English, he was not "informed" of the consequences of refusal
within the meaning of §813.130. Cabanilla at 128.
¶17 The Cabanilla Court first commented:
Defendant may be correct that the common understanding and dictionary
definition of the word "inform" is, generally, to impart information.
However, it is not necessary for us to resolve the parties' dispute about
the meaning of that term, because even if the term means what defendant
contends, a failure to "inform" a driver in that sense does not result in
the exclusion of evidence of his refusal to take the breath
test.
Cabanilla, 273 P.3d at 131.
¶18 After discussing the intent of the advisement statute and the inference
of guilt that arises from a test refusal, the Cabanilla Court held:
More importantly, under the [implied consent] law, a driver already
has consented to the test. The driver cannot legally refuse. As this
court has stated, the purpose of the reference to "refusal" in the implied
consent statutes "is not to reinstate a driver's right to choice, let alone
a voluntary and informed choice, but rather to nonforcibly enforce the
driver's previous implied consent." Thus, when a driver is asked to take a
breath test, his or her only decision is whether to physically refuse. That
is, "[t]he very concept of implied consent . . . was intended to eliminate
the right of choice and to recognize actual choice only in the sense
of a forbearance of physical resistance." The driver may choose to
physically refuse, and the state will not force the driver to do what he or
she is legally obligated to do. However, because the driver has only the
physical ability, but not the legal right, to refuse, the legal validity of
the driver's refusal does not depend on whether his or her decision to
physically refuse is fully informed or voluntary.
As is evident from the foregoing, the overarching purpose of the rights
and consequences requirement is to coerce a driver's submission to take the
tests; it is not to inform the driver of the specifics of the law. As this
court stated in [State v.] Spencer[,750 P.2d 147 (Or.
1988)],
"The history and development of the implied consent law . . . suggest
that the advice to be given an arrestee was intended to provide an
additional incentive, short of physical compulsion, to induce
submission."
Thus, whether a driver makes a knowing and voluntary choice to refuse is
of little or no consequence. "[T]he [implied consent] statute's references
to a driver's 'refusal' do not evince a legislative concern that the driver
make a voluntary and fully informed decision whether to submit to the
test."
Cabanilla, 273 P.3d at 131-2 (emphasis in original, citations and
footnote omitted).
¶19 The Cabanilla Court concluded the mandate of the Oregon advisement
statute is satisfied where "the arresting officer complied with the requirement
to read the driver the rights and consequences substantially as set out in
[§]813.30." Id. at 133. "The officer need not make a separate
determination whether the driver understood those rights and consequences."
Id.
¶20 We find Cabanilla persuasive and hereby adopt its rationale. In
the present case, Lemus consented, as a matter of law, to intoxicant testing
when he chose to drive on Oklahoma's roadways. Our Implied Consent Advisory does
not provide drivers arrested for DUI with the legal right to refuse such
testing. Rather, the Advisory only authorizes DUI arrestees to physically
refuse to submit to testing. We also believe Oklahoma's Advisory, like Oregon's,
"was intended to provide an additional incentive, short of physical compulsion,
to induce submission" and it was "not [intended] to inform the driver of the
specifics of the law." Id. at 132.
¶21 The above conclusion is also supported by 47 O.S. 2011 §751(D), which states
in relevant part:
Any person who is unconscious or otherwise incapable of refusing to
submit to a test of such person's blood or breath to determine the alcohol
[or other intoxicant] concentration thereof . . ., shall be deemed not to
have withdrawn the consent provided by subsection A of this section, and
such test may be administered as provided herein.
This provision helps demonstrate that the Implied Consent Advisory was
designed primarily as an incentive to submit to testing, not to inform of the
specifics of the law. Reciting the Advisory to an unconscious driver is akin to
reciting the Advisory in English to a driver who speaks none. However, both
drivers are deemed to have consented by law to submit to intoxicant testing when
they elect to operate a motor vehicle on an Oklahoma roadway.
¶22 The above discussion also vitiates the trial court's equal protection
analysis. "The Equal Protection Clause of the Fourteenth Amendment mandates that
no state 'deny to any person within its jurisdiction the equal protection of the
laws.'" Gladstone v. Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30, ¶9, 66 P.3d 442. "[I]t is intended to
safeguard the quality of governmental treatment against arbitrary
discrimination." Id. In the present case, Lemus' language barrier does
not implicate equal protection considerations because the legal validity of his
refusal did not depend on whether his decision to physically refuse was fully
informed. See Cabanilla, 273 P.3d at 132. Regardless of their language,
every driver on an Oklahoma road has, by law, implicitly consented to
intoxicant testing.
¶23 We also find that Hollis v. State ex rel. Dept. of Pub. Safety, 2008 OK 31, 131 P.3d 145, on which the trial
court relied, distinguishable. Hollis addressed a licensee's incapacity
to refuse intoxicant testing, due to alleged emotional distress, under §751(D).
The inability of a driver to speak or understand English is not comparable to
one incapacitated for medical or emotional reasons. As DPS correctly asserts,
non-English speaking licensees voluntarily drive on Oklahoma roadways fully
aware of their language handicap.
¶24 The Oklahoma Constitution mandates all official state actions be
conducted in English, except as required by federal law. We find no federal law
requiring that Oklahoma's Implied Consent Advisory be given in any language
other than English. Furthermore, in light of the fact every driver on an
Oklahoma roadway has already consented to intoxicant testing, we hold DUI
arrestees have no legally enforceable right to comprehend the Implied Consent
Advisory.
We recognize that, in this digital age, it may be a simple matter for
police departments to have computers programmed with prerecorded
translations of the implied consent advice in almost any language police
officers might encounter in a given jurisdiction. However, this case is
about what the statutes require, and not what this court thinks is advisable
or convenient for police departments to do.
Cabanilla, 273 P.3d at 133, n.12.
¶25 The judgment of the trial court is reversed.
MITCHELL, J., and GOREE, J., concur.