People v. Benedith (Onan)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 10, 2017
• Docket: 2017 NYSlipOp 50174(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Onan Benedith, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Carol R. Sharpe, J.), rendered June 12, 2015, after a jury trial, convicting him of driving while impaired and driving while intoxicated per se, and imposing sentence.

Per Curiam.

Judgment of conviction (Carol R. Sharpe, J.), rendered June 12, 2015, affirmed.

Resolution of this matter is governed by the Court of Appeals' recent decision in People v Aviles, ___ NY3d ___, 2016 NY Slip Op 07836 (2016), which is entirely dispositive of the issues presented. In that case, the Court rejected the due process and equal protection arguments that defendant now asserts in challenging the Police Department's policy of administering both breathalyzer and physical coordination tests ^[FN1] to English-speaking DWI suspects, while offering only the breathalyzer test to non-English speakers such as defendant (see also People v Salazar, 112 AD3d 5 [2013], lv denied 22 NY3d 1090 [2014]).

We are mindful that by administering coordination tests that require "specific clarity in instructions and interactions," the current NYPD policy seeks to "avoid delayed or erroneous results due to a language barrier" (Aviles, 2016 NY Slip Op 07826, *3). That said, the NYPD may wish to consider using the Kwikpoint Law Enforcement Visual Language Translator,^[FN2] test processes without any need to comprehend English.

[*2]THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

Decision Date: February 10, 2017

Footnotes

Footnote 1:The battery of physical coordination tests performed by DWI suspects at Intoxication Driver Testing Units in New York City are an expanded version of the three-part Standardized Field Sobriety Test approved by the National Highway Traffic Safety Administration: 1) Horizontal Gaze Nystagmus; 2) Walk and Turn; and 3) One Leg Stand. These three tests are typically administered by highway patrol officers outside of New York City and in most jurisdictions throughout the United States after a roadway stop to assess a driver's purported impairment. After laying a proper foundation, the results have been deemed scientifically valid and admissible as evidence in most state courts (see AAA DUI Justice Link, http://duijusticelink.aaa.com/issues/detection).

Footnote 2:A Visual Language Translator is a low-cost communication tool with different applications that has been successfully used by the United States military as well as by health care, safety and security personnel in overcoming language barriers, especially under emergent and time-sensitive circumstances (see https://www.kwikpoint.com).