All states have “implied consent laws” that require drivers lawfully arrested for driving under the influence (DUI) to submit to chemical testing for the purpose of determining the amount of alcohol or drugs in their blood. An officer that stops a driver for DUI must warn the driver of the implied consent laws and the consequences for refusing a chemical test.
In many cases, an implied consent warning given by an officer orally in English will effectively communicate the necessary information to the driver. But what if the driver doesn’t speak English or is hearing impaired? States have taken different approaches in resolving this issue.
No Accommodations Required
In Illinois, Ohio, and a number of other states, the law doesn’t require officers to make any special accommodations for drivers who might have trouble understanding an oral advisement in English. Officers can read the same advisement (in English) to all drivers. In these states, a driver who refuses testing after receiving such an advisement can be punished for refusal regardless of whether the driver actually understood the officer’s warning. (See People v. Wegielnik, 152 Ill. 2d 418 (1992), and State v. Hurbean, 23 Ohio App. 2d 119 (1970).)
Georgia has a similar rule for non-English speakers—officers are obligated to read implied consent advisements only in English—but Georgia law is slightly more accommodating toward hearing impaired drivers. A Georgia officer who stops a hearing impaired driver for DUI must attempt to find a sign language interpreter to communicate the advisement to the driver. If an interpreter isn’t available, however, a written advisement will likely suffice. (Rodriguez v. State, 275 Ga. 283 (2002); Ga. Code Ann. § 24-6-653 (2015).)
Officers Must Make “Reasonable Efforts”
Most states require officers to make “reasonable efforts” to communicate implied consent advisements in a language or manner that the DUI suspect is likely to understand. The laws of these states focus on the efforts the officer makes, not necessarily on whether the officer ultimately succeeds in getting the driver to understand. (See State v. Piddington, 241 Wis. 2d 754 (2001), and State v. Garcia, 756 N.W.2d 216 (Iowa 2008).)
What qualifies as “reasonable efforts” will depend on the facts of the case. For example, if an officer stops a person who’s hearing impaired, providing a written advisement to that person might be enough. But for a suspect who understands only Chinese, reasonable efforts would probably require that the officer try to find a translator (assuming the officer doesn’t have an advisement written in Chinese). As long as the officer makes reasonable efforts, the suspect can be punished for refusing a chemical test—there’s no defense based on lack of understanding.
The Suspect Must Understand the Advisement
In some states, reasonable efforts might not be enough. These states require prosecutors to prove that the DUI suspect actually understood the officer’s advisement. Otherwise, the driver can’t be punished for refusing a chemical test. These states differ, however, on what level of understanding prosecutors must show.
For instance, in Nebraska and Minnesota, it’s enough if the prosecution shows the driver understood that submitting to chemical testing was required. Prosecutors don’t have to prove that the driver knew what the consequences of a refusal would be. (Martinez v. Peterson, 212 Neb. 168 (1982); Yokoyama v. Comm'r of Pub. Safety, 356 N.W.2d 830 (1984).)
In New Jersey, however, prosecutors must prove the driver comprehended the entire advisement. This means that New Jersey officers have to give implied consent warnings in a language that the driver will understand. An officer might accomplish this by using an interpreter or by giving the suspect a written copy of the advisement (translated into the suspect’s language). (State v. Marquez, 202 N.J. 485 (2010).)
(Read more about what the prosecution must prove in a DUI case.)
Speak to an Attorney
DUI laws—and more specifically, the rules of implied consent advisements—vary by state. If you’ve been arrested or charged with a DUI, contact an experienced DUI defense attorney in your area to find out what the law is in your state, and how the law applies in your case.