Arresting Deaf Person for Drunk Driving
X was arrested on suspicion of driving while intoxicated. X is deaf, and he asked for an American Sign Language (ASL) interpreter.
The Anchorage Police Department has enacted an official procedure (Operational Procedure 3.07.045) which requires arresting officers in these circumstances to contact their dispatch center to determine whether an interpreter is available.
But X's arrest took place in the early morning hours, and the police were unable to locate an interpreter who could communicate in ASL.
They did, however, locate an on- duty officer who could finger-spell in ASL. This officer, Rhonda Davenport, volunteered to assist X during the DWI processing.
The DWI processing was recorded on tape. During this processing, Davenport communicated with X through finger-spelling and through pantomime; X responded in writing and by using his voice.
X repeatedly asked for an ASL interpreter, and Davenport communicated these requests to her fellow officers, but each time police dispatch reported that there were no interpreters available.
X ultimately submitted to a breath test; this test yielded a result of .179 percent blood-alcohol. Davenport explained to X that he had a right to an independent blood test, but X orally waived this right. He explained to the officers that he was concerned that a blood test would reveal that he had recently smoked marijuana.
After X was formally charged with driving while intoxicated, he asked the district court to suppress his breath test result. He argued that the police had violated the Americans with Disabilities Act (the ADA) when they failed to provide him with an ASL interpreter.
District Court Judge Peter G. Ashman denied X's motion for two reasons. First, Judge Ashman found that, despite X's disability, X did have a basic understanding of his right to an independent blood test when he waived this test. Second, Judge Ashman found that the police had not violated the ADA because they made good-faith efforts to obtain an interpreter for X and because their alternative efforts to communicate with X were ultimately successful -- that is, X did understand his right to an independent blood test.
On appeal, X does not dispute Judge Ashman's finding that X understood and knowingly waived his right to an independent test. X nevertheless contends that, even if he did understand his right to the independent test, the police still violated his rights under the ADA and, for this reason, the breath test result should be suppressed.
Because X concedes that he understood his right to an independent test, his case is governed by our decision in Nathan v. Anchorage.
In Nathan, we held that the ADA is not violated when, despite the absence of an ASL interpreter, police officers are successful in communicating with a deaf arrestee and explaining the arrestee's right to an independent blood test.
We also held that, even assuming there might be cases where the ADA was violated even though the defendant acquired a basic understanding of their right to an independent test, such a violation of the ADA would not entitle the defendant to exclusion of the breath test evidence.
That is, the crucial issue for suppression purposes is not whether the police violated the ADA, but rather whether a defendant understood and knowingly waived their right to an independent test.
On appeal, X asserts that the Anchorage police routinely and repeatedly violate the rights of deaf arrestees, and that we should therefore re-evaluate our decision in Nathan that a violation of the ADA does not, per se, require suppression of evidence.
But the record does not support X's assertion. As explained above, the officers who arrested X made several attempts to locate an on-call ASL interpreter.
Although they could not find one, they summoned an officer who could finger-spell in ASL to assist X. Moreover, the Anchorage Police Department has adopted a policy that requires officers to try to locate an interpreter when a deaf person is arrested.
X argues that the officers' efforts in his case were insufficient. He further argues that the police department's policy fails to satisfy various aspects of the ADA.
But whether the police department's policy completely satisfies the ADA or not, it is apparent that the police department recognizes and is attempting to accommodate the needs of deaf arrestees.
We therefore re-affirm our decision in Nathan. If a defendant, because of deafness or any other language difficulty, fails to have a basic understanding of the right to an independent blood test, then the defendant's ensuing "waiver" of this right will be invalid and the defendant is entitled to suppression of their breath test results.
But if, despite a language difficulty, the defendant has a basic understanding of the right to an independent test and knowingly waives this right, then the defendant is not entitled to suppression of the breath test results even though the police may have violated the Americans with Disabilities Act.
The judgement of the district court is AFFIRMED.