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The Georgia Court of Appeals has overturned the DUI conviction of a deaf man because the arresting officer failed to follow procedures for communicating with hearing-impaired detainees. The ruling is important because the procedures apply to any situation where law enforcement is detaining someone who is hearing-impaired, says the deaf man’s lawyer, Marietta, Ga., sole practitioner Charles G. Harbin Jr. The ruling also sets a new standard for what constitutes hearing impairment under the law, he says. According to the decision, on Aug. 16, 1998, a police sergeant observed a van weaving on the road. When the sergeant stopped the van, its driver, Scott M. Yates, told the sergeant he could read lips. Yates acknowledged he’d been drinking and began to participate in field sobriety exercises. As part of the exercises Yates submitted to an “alco-sensor,” or a hand-held breath test. This is a different test than the state-administered chemical test, done at a police station, a hospital or in a mobile testing unit. Yates tested positive for alcohol and refused to continue with the field sobriety testing. The sergeant then arrested Yates, placed him in the police car and read him the implied consent notice for the chemical test. The notice informs detainees that they must take the test that the officer designates or they will lose their license for 12 months. If an arresting officer fails to adequately warn a motorist of his rights, the test result is inadmissible in court, as is the motorist’s refusal to take the test. Yates told the sergeant he couldn’t understand him. The sergeant asked Yates to read a card containing the implied consent notice along with him as he read the notice aloud. Yates repeatedly stated he did not understand the sergeant. Yates said he wanted an interpreter. The sergeant told him that an interpreter might be available through the 911 operator but Yates said he wanted his own interpreter, and he refused to take the test until his personal interpreter was present. SUPPRESSION MOTION DENIED Houston County State Court Judge Robert M. Richardson denied Yates’ motion to suppress the evidence that he refused to take the chemical test. In reversing Richardson’s decision, the appeals court outlined the statutory rule and its interpretation by Georgia case law. Under O.C.G.A. Sections 24-9-103, when an officer takes a hearing-impaired person into custody, the officer must immediately request a qualified interpreter from the Department of Human Resources. Until a qualified interpreter has been provided, the person is not to be interrogated or informed of his rights. If an interpreter isn’t available one hour after the request is made, an interrogation may be conducted in writing. A 1994 Court of Appeals ruling in Woody v. State, No. A94A1804 (Ct. App. Ga. Nov. 23, 1994) held that the statute’s requirements apply to “any hearing-impaired person taken into custody for allegedly violating any criminal law. Furthermore the requirements of the statute are mandatory, and if not met, the evidence acquired is not admissible.” Judge Richardson found that Woody didn’t apply since Yates “had some hearing ability.” But the panel rejected that finding, explaining the evidence didn’t support that conclusion since the state has expressly stipulated Yates was deaf. Moreover, an ability to read lips is not “some hearing ability,” it said. Yates v. State, No. A00A2245 (Ct. App. Ga. Feb. 12, 2001). Nevertheless, the distinction between “some hearing ability” and “hearing impaired” was irrelevant, the panel said, given the legal definition of hearing impaired. ” ‘Hearing impaired’ does not require a complete absence of hearing ability, but only an impairment that prohibits the person from understanding oral communications when spoken in normal conversational tone,” Judge M. Yvette Miller wrote for the panel that included Presiding Judge Marion T. Pope Jr. and Judge Charles B. Mikell Jr. Yates’ lawyer says this clarification is particularly important. “I see how there could be some dispute in regard to whether or not a person is really deaf or not. Now that establishes a standard for what constitutes hearing impairment,” Harbin says. “I think the opinion will apply to cases well beyond DUIs to robbery, murder, all those cases,” he says. The panel also found irrelevant Richardson’s finding that Yates failed to present any identification showing he was deaf, or that Yates did not agree to a state-supplied interpreter. “Yates’ statement that he wanted his own interpreter … certainly did not excuse the sergeant from complying with the requirements of [the statute], or excuse the trial court from enforcing its provisions,” the panel said. Harbin says he’s not aware of any other physical disabilities that would invoke similar “special rules” under the law.

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