BOSTON (CN) — Nearly two years after a Massachusetts judge threw out a drunken-driving case because of an inaccurate and coercive Spanish-language notice of rights, and police promised to fix it, the city of Methuen was still using the same “unlawful” form, a woman claims in a federal class action.
“The Methuen Police Department has used the unlawful Spanish language advice of rights form for years despite having knowledge that the form was erroneous since at least May 2013,” says the Oct. 5 lawsuit against the city and the Essex County district attorney.
Patricia Pimentel is represented in the case by Howard Cooper with Todd & Weld in Boston and Murat Erkan, of Andover.
Methuen, a town of 49,112 near the New Hampshire border, is 18 percent Latino and 75 percent white, according to city-data.com. Its median income is right about at the state median.
In addition to class certification and a corrective injunction, Pimentel seeks damages for violations of equal protection and due process, other state and federal civil rights violations, and intentional infliction of emotional distress. She nearly was deported because of the coercive translation, she says in the 56-page complaint.
Pimentel was pulled over on suspicion of DUI in October 2014. Nineteen months before that, on March 14, 2013, a Spanish-speaking DUI defendant had filed a motion to suppress his breath test results “due to the Methuen Police Department’s use of the unlawful Spanish language advice of rights form, which motion the commonwealth conceded and the court allowed,” Pimentel says in the complaint.
“At that time, the Essex County District Attorney’s Office took note of the issue and on May 10, 2013, explained that it would ‘be working with Methuen PD to rectify’ the problem,” the complaint continues.
After citing Methuen police correspondence to substantiate this, Pimentel says: “To date, however, the Methuen Police Department has not produced any evidence that it did anything to rectify the situation at that time or at any time since.”
The Spanish translation is riddled with inaccuracies, Pimentel says. Among them:
- that the legal limit for DUI is blood alcohol content of 0.10 “and there is no ‘presumption’ of impairment under 0.10, despite the ‘per se’ theory of criminal liability for a BAC of 0.08 or more.”
- that “a BAC of 0.05 or less will ‘liberate’ the person from the charge.”
- that “a license suspension for refusing the breathalyzer will last only 120 days, not 180 days or longer.”
- that if the arrestee refuses to take a breathalyzer, the jury in a criminal trial will be informed of the refusal.
“Taken separately or together, the errors in the Spanish language advice of rights form render it not only erroneous and misleading, but also unconstitutionally and unlawfully coercive,” the complaint states.
“Class members are falsely presented with what they are led to believe is a Hobson’s choice of submitting to the breathalyzer and possibly failing, or refusing the breathalyzer and having the jury learn of the refusal. The law does not require a defendant to make that choice. Indeed, the law forbids it.”
Pimental says this coercive inaccuracy is compounded by the inaccurate descriptions of blood-alcohol content, the false claim about being “liberated” and the inaccurate description of penalties.”
When Pimentel was pulled over in October 2014, police persuaded her to take the breathalyzer. She was convicted of operating under the influence. Her conviction prevented her from renewing her immigration status under the Deferred Action for Childhood Arrivals program.
She was not deported because she obtained a new lawyer and successfully applied for retrial because her previous attorney had failed to inform her that a guilty plea would put her immigration status at risk.
In the new trial, Pimentel was able to suppress the breathalyzer test and was exonerated.
The Methuen Police Department did not respond to an emailed request for comment.