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Georgia’s appeals courts are wrestling with a language barrier in DUI cases that has drawn the attention of Hispanic legal groups and challenges by two Spanish-speaking drivers, including Atlanta Braves shortstop Rafael Furcal. The issue stems from this: Police officers are required to tell DUI suspects, among other things, that they may refuse to take a test that measures blood alcohol concentration but that their refusal may be used against them at trial and will cause their driver’s licenses to be suspended for one year. A 1986 decision of the Georgia Court of Appeals, State v. Tosar, 180 Ga. App. 885, says police officers do not have to translate these notices for those who don’t speak English. Furcal, a native of the Dominican Republic who was arrested in Cobb County, Ga., in June 2000 for DUI, has challenged the Tosar decision as an unconstitutional denial of his equal protection under the law. Among other things, Furcal, through his lawyer, William C. “Bubba” Head, argued that treatment of non-English-speaking drivers differs from that of hearing-impaired defendants who are entitled to interpreters. Head said officers failed to use a telephone translation service to read the required notice in Spanish. So, Furcal’s breath test, which showed he had a blood alcohol concentration above the legal limit, should not be admissible in court, he argued. But last week Furcal struck out before a three-judge appeals court panel that upheld Tosar. “The law does not require the arresting officer to ensure that the driver understands the implied consent notice,” wrote Judge John J. Ellington for the panel, which also included Presiding Judge J.D. Smith and Judge Frank M. Eldridge. Furcal-Peguero v. State, No. A02A0792 (App. Ct. Ga. May 21, 2002). Head said he will ask the appeals court to reconsider the ruling. Meanwhile, the Supreme Court of Georgia heard arguments earlier this month in a similar case, in which a Salvadoran man is fighting a DUI conviction by arguing that the Tosar decision violates his due process and equal protection rights, using the rights of hearing-impaired defendants as an example. Norman H. Cuadra represented the defendant, Omar Rodriguez, while Akintunde A. Akinyele of the DeKalb County, Ga., Solicitor’s Office represented the state. Rodriguez v. State, No. S02A0412 (Sup. Ct. Ga. arg’d May 2, 2002). That case drew an amicus brief from the Georgia Hispanic Bar Association and Hispanic National Bar Association, which support Rodriguez. Decatur, Ga., attorneys J. Antonio DelCampo and Keri P. Ware wrote for the groups that reading the notice in English to a driver who does not speak English would make the notice “worthless, as he would be granted a ‘right’ he could not exercise.” The groups said such a policy “is irreconcilable with the way the statute is applied to English speaking drivers.” The groups added that the Hispanic population of Georgia increased by 300 percent in the 1990s, according to the 2000 census. “In a state with a burgeoning Hispanic presence, it is particularly important to ensure that Spanish speakers understand their rights and are provided equal treatment under the law, despite the language difference,” the groups concluded. Despite its celebrity value, the Furcal-Peguero case has drawn no briefs from interested friends of the court, but Cobb County Solicitor General Barry E. Morgan has tapped some outside help. Lance J. LoRusso, a former policeman and lawyer with the Cobb Solicitor’s Office, occasionally helps Morgan with appeals cases and is doing so in this one. LoRusso said he asked one of his former law professors, L. Lynn Hogue of Georgia State University, to help with some of the constitutional questions. In their brief, Morgan, LoRusso and Hogue argued that Furcal’s situation is not similar to that of hearing-impaired drivers or that of any protected class, and the Tosar decision does not violate Furcal’s due process or equal protection rights. They point out that officers handling DUI cases must obtain tests as soon as possible, as blood alcohol levels drop quickly. They added that using a telephone translation service, such as one provided by AT&T, would not be reliable or practical. Assuming the translator properly interpreted the language of the notice, the officer still would not be able to testify that the notice was read correctly, because he would not be on the telephone with the suspect nor would he understand the translation. Finally, the state would be required to bring the translator to trial, which would place “an onerous, if not impossible, burden upon the State” because they do not know where the translators from the national service are located, they wrote. Morgan, LoRusso and Hogue pointed out that in a similar case, the Illinois high court held that that state’s law also did not require that the driver understand the consequences of refusing to take a blood-alcohol test. In footnotes to their Furcal-Peguero decision, Ellington, Smith and Eldridge commented on the Tosar decision, which was written by now-Presiding Judge Marion T. Pope Jr., then-Presiding Judge William L. McMurray Jr. and now-Justice George H. Carley of the state supreme court. The Furcal-Peguero panel noted that the Tosar panel had accepted the state’s argument that a non-English-speaking driver was in the same position as an unconscious driver, who is not required to be notified of his right not to be tested. The Furcal-Peguero panel said it agreed with Furcal’s argument that a non-English-speaking driver is not in the same position as an unconscious driver. But the panel nonetheless affirmed the Tosar result. The Furcal-Peguero panel added, “To the greatest extent possible, every driver suspected of DUI should be given the opportunity to exercise the choice of withdrawing his consent to testing.” That meant that officers are required to read the notice in English to every conscious driver, the judges said, but not necessarily to find translators for those who don’t understand the language.

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