People v. Burnet

In People v. Burnet (24 Misc 3d 292 [2009]) the defendant argued "that the refusal warnings administered to the defendant were not clear and unequivocal" and in addition, that "even if the refusal warnings were given in 'clear and unequivocal language,' evidence of defendant's refusal must nevertheless be suppressed because he did not understand them." (Id. at 299, 882 NYS2d 835.) The court, relying on the record, determined that the warnings were clear and unequivocal and the defendant's refusal was persistent. In Burnet, the court was asked to determine whether non-English-speaking defendants constituted a "suspect class." The court ruled that non-English-speaking defendants are not a suspect class and thus are not entitled to a strict scrutiny analysis. However, the court went on to state that "of course, that does not necessarily mean that such a classification can never be the basis of a finding of discrimination. Obviously, where it creates a discriminatory result against all persons who do not speak English, rather than persons of any particular nationality, strict scrutiny may very well be appropriate. For defendant to succeed on such a claim, however, he would need to demonstrate that the members of this so-called suspect class, non-English-speaking criminal defendants, have been the subject of discriminatory behavior based on race, nationality or ethnicity." (Id. at 301.) In Burnet, the court made two separate statements, one stating, "merely because, as counsel suggests, English-speaking defendants may be offered both chemical breath and physical coordination tests but non-English-speaking defendants are only offered a chemical breath analysis does not entitle him to strict scrutiny" and that "all defendant has shown is that the non-English-speaking defendants are not offered the option of taking a physical coordination test so as to avoid confusion and complications due to any language barrier. And the method chosen here to achieve that result is indeed rationally related to that purpose, which is simply to avoid administering that particular sobriety test." (Id. at 300-301.)