Governmental action which provides benefits or privileges to some but not to all persons or which denies benefits or privileges to some but not all persons can violate the U.S. Constitution’s protection against the denial of equal protection. In a 1983 case, the Court considered whether a federal agency’s failure to provide social security benefit instructions in the Spanish language violated equal protection guarantees and stated: Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action. Where a suspect class or a fundamental right is not implicated, the challenged action need only be rationally related to a legitimate governmental purpose.
The Highway Officer’s decision not to offer defendant an opportunity to perform coordination tests was based on the officer’s belief, formed from attempting to converse with defendant, that defendant did not speak and understand English and, therefore, the highway officer determined he was not able to personally communicate to defendant his instructions concerning the correct manner to perform the tests. The defendant’s national origin had no bearing on the Highway Officer’s actions. For example, for many Hispanics born in the United States English is their first language or, if not, they nevertheless do understand English. Accordingly, English speaking Hispanics are offered the coordination tests. Likewise, people of many other non-United States national origins who do speak and understand English are offered the tests. Rather, it is those persons who do not understand English to whom the highway Officer did not offer the coordination tests. The officer’s actions in not offering coordination tests because of a language barrier would have also been the same had the defendant been deaf or too intoxicated to understand English, regardless of defendant’s heritage.
Accordingly, the actions of the Highway Officer did not single out defendant for denial of the opportunity to perform coordination tests because of his ethnicity. Nor did the officer’s actions result in denying those of a particular ethnicity the opportunity to perform coordination tests, as many of defendant’s ethnicity do speak and understand English and are given the opportunity to take the tests. The class of persons thus affected by the Highway Officer’s actions is simply those who do not understand English. Yet, governmental actions based on classifications which are not on their face based on a suspect class, in this case ethnicity, could result in disadvantaging a particular group.
Here, this court finds that the Highway Officer’s decision not to offer the coordination tests to defendant because of the officer’s perception that defendant did not understand English was not an action based upon ethnic classification, but rather based on ability to understand the English language. Furthermore, defendant does not even claim that the Highway Officer had intent to discriminate against Hispanics.
Accordingly, that action must satisfy the legitimate governmental purpose test. The Highway Officer testified at trial that he did not offer the coordination tests to the defendant as defendant clearly did not understand English. He testified that he did not attempt to explain those tests in English because the coordination test instructions were very specific and required contemporaneous demonstration of the tasks to be performed. Indeed the coordination test instruction sheet used by the Highway Officer contains 30 lines of instructions to be read to the person being asked to perform the tasks. The Highway Officer further testified that he could not rely on another person who might speak defendant’s language to translate his instructions to the defendant because he could not be sure the translator would be sufficiently fluent in defendant’s language and be able to accurately translate the instructions or provide the required demonstration. The Highway Officer testified that he had to determine whether defendant was able to perform the coordination tests and could not accurately do so under these circumstances.
Further, the People assert that, for the New York City Police Department to be able to offer coordination tests to non- English speaking arrestees, the Department would have to have interpreters fluent in many different languages available at all times of day or night who are able to be dispatched quickly to the DWAI testing facilities in each borough of the City when needed. Multiple interpreters of each language would be needed because there may be a number of tests to be administered at a particular time in one particular borough while interpreters of the same language may be needed in other boroughs. The cost for establishing such interpreting services would clearly be substantial.
Additionally, even though a Spanish speaking officer, the arresting officer, was present at the DUI testing facility, the Highway Officer explained that interpreting the coordination test instructions was far more complex than his asking the Spanish speaking officer to explain to defendant that he has to blow continuously into the Intoxylyzer machine to accurately obtain a breath sample. As stated above, the written coordination test instructions consist of 30 lines of instructions with simultaneous demonstration by the officer. Accordingly, the Highway Officer explained that he could not be sure that the Spanish speaking officer could correctly translate the coordination test instructions without his having been properly trained to do so.
Defendant contends that the failure of the New York City Police Department to provide translation services to non-English speaking persons in order to perform the DWI coordination tests violates his right to due process. It is well established that “procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” While the determination by the police that an individual has been driving while under the influence of alcohol or drugs can result in an arrest and deprivation of liberty, the investigation of suspected intoxicated driving by the police, in the field or at the intoxicated driver testing facility, is not a judicial, quasi-judicial or even an administrative proceeding. Accordingly, there is no authority for the proposition that due process applies to the conduct of such investigations.
Wherefore, the court held that the defendant’s motions to suppress the videotape of the breathalyzer test and to set aside the verdict of guilty are in all respects denied.