Md. high court weighs language barrier’s effect on DUI case

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A police officer’s failure to advise a Spanish-speaking motorist of his rights in his spoken language and give directions in his native tongue should have rendered his failed breath alcohol and field sobriety tests inadmissible at his drunk-driving trial, a defense attorney said Monday in urging Maryland’s top court via videoconference to overturn the man’s conviction.

Once Walter Elenils Portillo Funes’ “limited grasp of English” became apparent to the officer, he should not have administered the tests until a translator arrived to ensure the motorist understood the directions for the field test and his right to decline the breath test, albeit under penalty of having his driver’s license suspended, attorney Brian Zavin told the Court of Appeals.

Giving the advisement and direction in English to a Spanish-speaking motorist was “the functional equivalent of not providing them at all,” said Zavin, deputy chief of the Maryland public defender’s appellate division.

But Assistant Maryland Attorney General Menelik Coales pressed the high high court to defer to the trial judge’s conclusion that Portillo Funes’ sufficiently understood what he was being advised of and directed to do. Coales noted Portillo Funes’ signature on a standard police form – with English and Spanish language sides — stating he had been advised of his rights in both languages.

Zavin responded that no evidence was presented that Portillo Funes’ had read the document’s Spanish side, adding that the signature line is on the English-language side.

In keeping with Chief Judge Mary Ellen Barbera’s administrative order, the argument session was conducted not in person at the Courts of Appeal Building in Annapolis but by videoconference as part of emergency measures to stanch the spread of the COVID-19 virus. Barbera played the role of moderator, informing Zavin and Coales whenever a high-court judge had a question.

Judge Robert N. McDonald, noting the prevalence of Spanish speakers in Maryland, asked Zavin whether his proposed spoken language requirement would apply to motorists who speak a less commonly spoken language, such as Croatian.

Zavin responded that Maryland law “respects the dignity of foreign languages in this state” and foreign speakers have the same rights and must be given “the same opportunity as someone who speaks English”

“If they (police) don’t get a translator, the evidence (from the tests) is inadmissible,” Zavin said.

Judge Jonathan Biran asked Coales if evidence was presented that the officer had shown Portillo Funes the Spanish side of the document detailing the motorists’ rights regarding breath-alcohol testing.

Coales responded the evidence was “inconclusive.” However, Coales said there was “plenty of evidence in the record that he could understand English.”

For example, Portillo Funes counted in English when told to count his steps as part of the field-sobriety test, Coales added.

At about 6 a.m. on Oct. 14, 2018, Montgomery County police officer Devon Sharkey pulled up near a pickup truck stopped but with the engine running in the right-most northbound lane of New Hampshire Avenue. Sharkey testified that saw a person slumped in the driver’s seat with his foot on the brake pedal and the gear shift in drive.

An open can of Corona beer was in the cup holder in the center console, the officer added.

Sharkey and fellow officers woke the driver, later identified as Portillo Funes, and escorted him to the sidewalk where he was able to stand. Sharkey testified that Portillo smelled of alcohol and had bloodshot and watery eyes.

The officer decided to conduct a field sobriety test, which began with background questions that Portillo had trouble comprehending and said in broken English that he did not speak the language. Sharkey, who testified that he believed Portillo Funes understood English sufficiently, proceeded with the test.

The field test requires motorists to follow several directions, including that they follow the movement of a handheld pen with their eyes only, walk heal to toe in a straight line while counting steps and stand on one leg.

Portillo Funes failed the test, a failure he and his attorneys resulted from the language barrier but which the police and prosecution attributed to drunkenness.  Sharkey arrested Portillo Funes and took him to the police station for a breath test.

Before administering the test, Sharkey handed him the advisement-of-rights form written in English and Spanish, which Portillo Funes signed. Portillo was then administered the test, which registered a blood alcohol concentration of .15, in excess of the legally drunk standard of .08, according to court documents.

In April 2019, a district court judge found Portillo Funes guilty of driving under the influence of alcohol. On appeal, a Montgomery County Circuit Court jury also convicted him of DUI last summer after the presiding judge rejected a defense request to suppress the breath alcohol and field sobriety tests.

Portillo Funes was sentenced to a year in jail, with all but eight days suspended, and two years’ probation. He then sought review by the Court of Appeals.

The high court is expected to render its decision by Aug. 31 in the case, Walter Elenils Portillo Funes v. State of Maryland, No. 65 September Term 2019.