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DUI suspects who don’t speak English are not entitled to hear in their native language a common warning read to drivers before they submit to breath tests, a unanimous Georgia Supreme Court ruled Monday. The decision not only affirmed the DUI conviction of a Salvadoran man, but it also dashed the hopes of Hispanic legal groups that argued equal protection and due process guarantees required the state translate the warnings. Atlanta Braves shortstop Rafael Furcal, who is from the Dominican Republic, also could suffer from Monday’s ruling, since he is challenging his Cobb County, Ga., DUI conviction on grounds that his warnings should have been translated. In other decisions released Monday, the justices threw out two murder convictions because prosecutors in Fulton and Clayton counties failed to prove that the crimes occurred in their counties. Both judgments were unanimous, but the justices split 4-3 on comments made by the majority that exhorted trial judges to instruct juries that prosecutors must prove venue beyond a reasonable doubt. The court has reversed at least six other convictions on venue grounds since 2000, when it overruled a precedent stating that prosecutors need only show “slight evidence” to prove venue. DUI CASE In the DUI case, the high court rejected arguments by lawyers for Omar Rodriguez, who speaks Spanish but not English, that police should have used an AT&T telephone translation service for Rodriguez to hear required warnings given to DUI suspects. Before administering a test measuring blood alcohol concentration, police must tell drivers they may refuse to take the test but that their refusals may be used against them at trial and will cause their driver’s licenses to be suspended for one year. Even though DeKalb police had realized Rodriguez did not understand English, they read the notice to him in English, according to an amicus brief supporting Rodriguez filed by the National and Georgia Hispanic Bar Associations. The brief adds that police attempts to give Rodriguez a breath test were unsuccessful because Rodriguez did not understand the instructions on how long to blow into the testing machine. The state subsequently claimed Rodriguez refused to submit to the test, a fact used to convict him at trial last year. Represented by Norman H. Cuadra of Decatur, Ga., Rodriguez appealed to the high court, arguing that because state law requires police to get interpreters for hearing-impaired DUI suspects, equal protection guarantees require that non-English speakers be provided a translator, too. But Presiding Justice Leah Ward Sears, writing for the court, rejected that argument. She concluded non-English speakers were not in the same situation as the hearing-impaired because “non-English speaking persons such as Rodriguez have no hearing disability and have the potential to understand such a warning.” Sears also refuted Cuadra’s argument against a state precedent he said required police officers to read the notices only in English. She said the decision of the Georgia Court of Appeals in State v. Tosar, 180 Ga. App. 885 (1986), merely says police officers do not have to translate these notices for those who don’t speak English and that police may decide on their own whether to translate them. But the presiding justice said even if the court assumed the law required the notices be read only in English, that, too, would not constitute an equal protection violation against people based on their national origin because a language classification “generally is not equated with national origin or other suspect classification.” Presiding Justice Sears declared that a policy of reading the notices only in English was rationally related to a legitimate state purpose and therefore constitutional. Most drivers will understand English warnings, she wrote, adding that requiring officers to be equipped to issue warnings in any and every language spoken by drivers in the state would burden the police with heavy administrative costs. “The logistics of such a requirement would be extremely problematic in a society as pluralistic and diverse as the United States,” Sears wrote. Finally, she concluded, making an interpreter available could delay obtaining the driver’s blood alcohol level, which dissipates over time, and therefore could interfere with enforcing the law. Rodriguez v. State, No. S02A0412 (Sup. Ct. Ga. June 24, 2002). In a brief concurrence, Justice Carol W. Hunstein pointed out the growing international diversity of Georgia drivers and urged the General Assembly to consider requiring law enforcement agencies to provide officers with written foreign-language versions of the implied consent rights. With that aid, Hunstein added, “officers can make a good-faith attempt to inform non-English speaking drivers of these important rights.” Rodriguez’s lawyer, Cuadra, called the ruling “kind of disconcerting,” especially because the court did not address an argument he had made citing a decision by the 11th U.S. Circuit Court of Appeals that required Alabama to offer driver’s tests in languages other than English. That decision, Sandoval v. Hagan, 197 F3d. 484 (1999), was overruled last year by the U.S. Supreme Court, but on procedural rather than substantive grounds. Noting he has other clients in similar situations as Rodriguez, Cuadra said he appreciated Hunstein’s concurrence because “at least it calls attention that there’s something wrong here.” Assistant DeKalb Solicitor Akintunde Abiodun Akinyele argued for the state, but he could not be reached. PROVING VENUE In the first murder case, the court held there was sufficient evidence to convict Clarence Lynn of felony murder and aggravated assault, but Fulton prosecutors failed to prove the 3000 block of Martin Luther King Jr. Drive, where the murder allegedly occurred, was in Fulton County. Lynn v. State, No. S02A0677 (Sup. Ct. Ga. June 24, 2002). Fulton District Attorney Paul L. Howard Jr. said prosecutors “should have asked” witnesses to prove venue. But, he called the decision “an unfortunate victory of form over substance.” Herbert A. Adams Jr. of Atlanta represented Lynn. He could not be reached. Similarly, the justices held that Clayton County prosecutors showed enough evidence to prove Thomas Graham was guilty of malice murder, felony murder and other crimes, but they failed to prove the city of Riverdale, Ga., where the crimes allegedly occurred, is located entirely within Clayton County. Graham v. State, No. S02A0425 (Sup. Ct. Ga. June 24, 2002). Clayton prosecutors could not be reached. Lee Sexton and J. Scott Key of Jonesboro, Ga., represented Graham. In the Graham case, Presiding Justice Sears repeated earlier decisions stating, “Venue is more than a procedural nicety; it is a constitutional requirement that all criminal cases be conducted in the county in which the crimes are alleged to have occurred.” In the Lynn case, Chief Justice Norman S. Fletcher took note of several cases in which venue was a problem “because the State failed to put on direct evidence of venue, even though nothing about the cases suggested that direct evidence was not available or that the location of the crime was disputed.” “One way to encourage prosecutors to make sure they have proven venue,” the chief justice added, is to urge courts to instruct juries that venue must be proved beyond a reasonable doubt. Without comment, Justices Hunstein, Robert Benham and George H. Carley did not join Chief Justice Fletcher’s writing about jury instructions. The three did not join similar comments made by Presiding Justice Sears in the Graham decision. Justices Benham and Hunstein dissented from the court’s ruling in Jones v. State, 272 Ga. 900 (2000) that overruled the “slight evidence” standard for proving venue.

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