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Because the Commonwealth Court has ruled that Pennsylvania’s law enforcement officers don’t have to provide interpreters to non-English-speaking drunk driving suspects, a DUI suspect who was assisted by an interpreter can’t raise the defense that his arresting officers had no way of knowing whether or not his interpreter gave him an implied consent warning, a Philadelphia judge has ruled. According to the opinion in Son v. Pennsylvania Department of Transportation, Korean immigrant Young Son had spoken with an interpreter over speakerphone in the presence of Philadelphia police following his DUI arrest on Christmas Day 2005. The officer present during that conversation later asserted that the interpreter claimed to have told Son that refusal to submit to a chemical test would result in license suspension. Son told the court during a hearing this May that he had spoken with the interpreter via the receiver, and not on speakerphone, and that he had only been informed he was under arrest for DUI and of the right to consult with an attorney. “Even if Mr. Son was not informed of everything that the officer told the interpreter, the fact that [the officer] read the warnings in Mr. Son’s presence is enough to satisfy the law,” Philadelphia Municipal Court Judge Alan K. Silberstein wrote. “After all, many, many defendants did not understand the warnings because they were too inebriated to do so. Who is to say whether Mr. Son’s limited English proficiency, intoxicated state or some other reason precluded him from understanding[?]“ According to the opinion, the officer who pulled Son over smelled a strong odor of alcohol when Son put his window down. He also could not stand on his own when he got out of his car, the officer later testified. That officer then began to explain the implied consent law to Son and asked him to agree to take a blood-alcohol test. Son responded that his English was limited. Son was taken to a detention unit, where another officer arranged for an interpreter to translate for Son a reading of the warnings given to DUI arrestees, according to the opinion. PennDOT assistant counsel Marc Werlinsky, who represented the agency in Son, said that the Philadelphia Police Department has contracted with a private company that makes available speakers fluent in various languages at short notice. The interpreters typically communicate with DUI suspects and their arresting officers via speakerphone, Werlinsky said. Son’s trial-level attorney, Philadelphia solo practitioner Kenneth Chotiner, said that he argued during this spring’s hearing that having the officer present during the speakerphone conversation testify as to what the interpreter told him Son had said amounted to hearsay. But Silberstein found that the crucial question is whether an officer reads the warnings aloud in a DUI suspect’s presence, not whether an officer confirms that the suspect has understood what he or she has been read. “[The officer] and the police department bestow a courtesy by contacting this [interpreter] service. It is not required by law,” Silberstein wrote. One case precedent cited to by Silberstein in support of his conclusion was the Commonwealth Court’s 2005 opinion in Martinovic v. PennDOT. The three-judge panel in Martinovic ruled that officers in Cumberland County were not obligated to enlist the services of an interpreter in processing a DUI suspect who claimed he spoke only Serbo-Croatian and some German. “Basically how the caselaw comes down is that somebody who has a Pennsylvania driver’s license has agreed under the implied consent law that he will take a breathalyzer” test if arrested on suspicion of DUI, Chotiner said. Chotiner also said he believes that neither PennDOT officials nor the courts “want to create an immigration immunity” to DUI charges. Son is being represented on appeal before the Commonwealth Court by David Chandler and Hae Yeon Baik of Baik & Associates in Philadelphia. Chandler said the firm does not wish to comment on Silberstein’s decision. Werlinsky said the appeal in Son “will be pretty interesting, because either the Commonwealth Court will confirm Martinovic and take it one step further, or carve out an exception to” that decision. Copies of the five-page opinion in Son v. Pennsylvania Department of Transportation, PICS No. 06-1623, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) �

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