Funes v. State

Citation469 Md. 438,230 A.3d 121
Decision Date30 June 2020
Docket NumberNo. 65, Sept. Term, 2019,65, Sept. Term, 2019
Parties Walter Elenils Portillo FUNES v. STATE of Maryland
CourtCourt of Special Appeals of Maryland

Argued by Brian L. Zavin, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Maryland of Baltimore, MD), on brief, for Petitioner

Argued by Menelik Coates, Assistant Attorney General (Brian E. Frosh, Attorney General, Maryland of Baltimore, MD), on brief, for Respondent

Barbera, C.J. McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Getty, J.

In the 1950s and 1960s, many states, including Maryland,1 passed "implied consent" laws to encourage suspected drunk drivers to submit to chemical testing. These statutes are based on the rationale that a condition precedent for the privilege of driving on a state road is a driver's consent to permit chemical testing whenever properly requested. If the driver refuses the test, the driver is deemed to have withdrawn his or her consent, which results in a violation of the condition precedent to a license. Thus, the state revokes the conditional privilege of driving. Maryland's current implied consent statute says that, by driving on Maryland's roads, a driver has consented to taking a chemical test when properly requested. After a police officer gives sufficient "Advice of Rights," a driver must choose between submitting to chemical testing or refusing and incurring administrative penalties. In most cases, an officer must merely read in English an "Advice of Rights" form, identified and commonly referred to as a DR-15 form, to provide sufficient advice of rights. Certain circumstances, however, can render advice of rights insufficient, even when the officer reads a DR-15 form. Today, we must decide if reading that form in English to a driver with limited English proficiency is such a circumstance.

In the early morning hours of October 14, 2018, police officers found Petitioner Walter Elenils Portillo Funes asleep at the wheel of his truck. The officers brought Mr. Portillo2 to the station after he failed several field sobriety tests. An officer read in English the DR-15 form to Mr. Portillo, who speaks Spanish. Mr. Portillo, by signing the DR-15 form, agreed to take a breath test, which he failed. The State charged Mr. Portillo by citation with various drunk driving offenses.

Before trial, Mr. Portillo moved in limine to exclude the field sobriety tests and the breath test. According to Mr. Portillo, he did not understand the field sobriety test instructions or the advice of rights because he has limited English proficiency. Without hearing any evidence, the trial court denied the motions, stating that the English comprehension issue was a matter of weight, not admissibility. At trial, the State presented as evidence the field sobriety tests and breath test. Mr. Portillo, on cross-examination, challenged the weight of that evidence on grounds that he does not understand English. Unconvinced, the jury convicted Mr. Portillo of several drunk driving crimes.

Because the trial court never ruled on the sufficiency of the advice of rights, Mr. Portillo brings that question before us in the context of the implied consent statute. We hold that, in giving advice of rights, officers must use methods that reasonably convey the warnings and rights in the implied consent statute. The officer in this case did not use reasonable methods. We will reverse and remand for a new trial at which the breath test evidence must be suppressed.

A. Roadside Stop & Standardized Field Sobriety Tests.

On the morning of October 14, 2018, shortly before 6:00 a.m., Montgomery County Police Officer Devon Sharkey was driving southbound on New Hampshire Avenue on his way to work when he observed a red pickup truck stopped in the right-most northbound lane. Officer Sharkey made a U-turn and pulled behind the truck. What happened next was captured by Officer Sharkey's body camera.

The truck's brake lights were on, and when he approached the passenger side on foot, Officer Sharkey noticed that the keys were in the ignition, the engine was running, and the gearshift was in drive. The driver, later identified as Mr. Portillo, had his foot on the brake pedal and was "slumped over the wheel, apparently not awake." An open can of Corona beer sat in the cup holder in the center console.

After backup arrived, the police woke Mr. Portillo, removed him from his vehicle, and escorted him to the sidewalk where he was able to stand without assistance. According to Officer Sharkey, Mr. Portillo gave off "a consistent strong odor of alcoholic beverage" and had "bloodshot watery eyes." Returning to the truck, officers found two additional cans of beer, one empty in the compartment along the driver's door and one unopened on the front passenger floorboard. Illuminated by streetlight, Officer Sharkey conducted standardized field sobriety tests at Mr. Portillo's location on the sidewalk. Officer Sharkey, a five-year veteran of the Montgomery County Police Department, began by asking background questions to Mr. Portillo. It quickly became apparent that English was not the primary language of Mr. Portillo. Asked where he was coming from, Mr. Portillo, who spoke with a heavy accent, responded, "El Salvador." When Officer Sharkey clarified that he meant "this particular evening or morning," Mr. Portillo again said "El Salvador."

Concerned that "there may be a language barrier" and that Mr. Portillo did not speak English, Officer Sharkey contacted dispatch to make arrangements for someone to speak to Mr. Portillo in Spanish. He learned from dispatch that there was a translator available in the county who was "a distance away." Officer Sharkey later admitted at trial that he could have utilized Language Line, a telephonic translation service available to the police department. He opted not to call Language Line or wait for a translator to arrive and "went ahead."

According to Officer Sharkey, he decided not to use a translator because Mr. Portillo "insist[ed] that he understood English."

Footage from the officer-worn body cameras showed that Mr. Portillo was confused. During questioning, Mr. Portillo struggled to answer basic questions posed in English, including where he was located and where he was coming from. He was only able to respond to inquiries into how much he had to drink, where he lived, and whether he had a driver's license when an officer translated those questions into Spanish. Even then, he spoke in a mixture of broken English and Spanish.

When the police asked Mr. Portillo, in English, when he last drank alcohol, he responded "I don't speak English" and asked the police to "speak in Spanish." An officer replied, "Let me explain something to you. If you don't cooperate and answer our questions, you're just going to go in handcuffs and be arrested right now." Mr. Portillo replied, "Oh, my God." The officer then turned away and asked another officer which of them was going to administer the field sobriety tests. The officer to whom he was speaking responded, "It don't matter to me. Let's get this ball rolling." When the first officer explained that "we're waiting for a translator," the other officer stated, "Well, there isn't one."

Mr. Portillo protested repeatedly that "[m]y language is Spanish." At one point, he told an officer, "I don't like anybody, okay." When the officer asked him whether that was true, Mr. Portillo responded, "No, because my language is Spanish." Asked whether he spoke English, Mr. Portillo then gave a qualified and confusing response: "I speak English and I speak Spanish. I don't like anybody."

Proceeding in English notwithstanding his initial concerns, Officer Sharkey asked Mr. Portillo whether he had any medical conditions that could affect his balance, movement, or eyesight; whether he was diabetic, epileptic, or had seizure conditions; whether he was on any medications; and whether he wore contact lenses or eyeglasses. During this time, Officer Sharkey also asked Mr. Portillo multiple times to take his hands from his pockets but was met with blank stares and nonresponsive answers (e.g., "Let me know").

For the field sobriety tests, Officer Sharkey began with the horizontal gaze nystagmus ("HGN") test, which tracks involuntary movement of the pupils. At trial, Officer Sharkey explained the instructions he provides to individuals undergoing the HGN test:

So, first, we will instruct the participant to stand straight and tall, feet together. Hands straight down at the sides, instruct the individual to follow the movement.
I would hold a pen with my finger towards the top of it. I ask them to follow the tip of that pen and move their eyes only, do not move their head while they're following it and, just go through a series of tracking the pupils normally to see if they're moving together and then check different ranges of motion from the center to the sides.

Because Mr. Portillo did not object or ask questions in response to the instructions, Officer Sharkey proceeded with the HGN test, observing six of six possible "clues," or signs Mr. Portillo may have consumed alcohol. The video footage of the HGN test shows that Officer Sharkey had to remind Mr. Portillo of the instructions multiple times, at one point saying, "I keep repeating because you're not doing it. You understand that? You said you understood but you're not doing it."

Officer Sharkey next administered the "walk-and-turn" test. As with the HGN test, the walk-and-turn test begins with a series of verbal instructions. At trial, Officer Sharkey described the instructions:

The instructions are to stand straight and tall, facing the front, hands down at the sides, to place the right foot in front of the left, heel to toe, and to stay in that position, listening to the instructions and watching a demonstration.
Furthermore, from that stance, the individual is to look down at their feet, maintaining heel to toe positioning, taking a series of nine steps in one direction, looking down, counting

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