By Jason Cruz
Northwest Asian Weekly
An arrest of a man has led to questions about whether a Washington state trooper broke protocol because the arrestee did not speak English. Fan Zhang, a native of China, was stopped on a Friday night by Bothell Police in April 2017, on suspicion that he was driving while intoxicated.
The Washington State Patrol took over the investigation and determined standard signs of intoxication. According to an interview with the arresting trooper by Zhang’s attorney, Tim Chiang-Lin, the officer said, “Due to the language barrier, I decided not to perform the other field sobriety tests and offered the defendant a preliminary breath test.” Based on the result of the preliminary breath test, Zhang was over the legal limit and was arrested. The preliminary breath test serves as an indicator if there is cause to arrest a suspect. But, it is not evidence in court to determine that he was driving while under the influence.
He was taken into the police station where it was decided by the trooper that due to the language barrier, Zhang would not understand the Implied Consent Warning to administer a breathalyzer test. The test is used to establish the blood alcohol level and is used in court to determine whether the suspect broke the law. The consent is read prior to giving the breathalyzer test so that the test taker understands his rights. Instead, the trooper sought a warrant from a judge for a blood draw to determine Zhang’s blood alcohol level. The warrant was granted, and Zhang was taken to Providence Hospital where his blood was drawn.
According to Chiang-Lin, there is no written policy on how to assess whether there is a language barrier between a suspect and authorities. Rather, it would appear that it would be based on the discretion of the officer. In his interview with Chiang-Lin, there are four rationales for seeking a blood draw warrant, instead of a breath test. This includes a medical injury, hospitalization, refusal of a breath test, and upon discretion that a suspect would not understand the Implied Consent Warning. It is this last rationale for which the trooper makes his decision.
Chiang-Lin was surprised about the circumstances around the blood draw. “Frankly, when I saw this, I was like, what’s going on?” He notes that this practice of an officer determining whether or not someone can understand English to obtain a blood draw may affect many first-generation immigrants where English is a second language. Not only is a blood draw more invasive than a breathalyzer test, but it may be a violation of an individual’s constitutional rights. The practice appears to be occurring in Snohomish County, according to Chiang-Lin.
Chiang-Lin has filed a motion to suppress the results of the blood test so that it cannot be used against Zhang in prosecuting his case. As stated in the brief on behalf of Zhang, “[t]he 4th Amendment prohibits “unreasonable” searches, even if the search had been conducted under a warrant.” His motion argues that Zhang would have complied with the breath sample to determine whether he was over the allowed limit. As Chiang-Lin points out, Zhang cooperated with the trooper and submitted to the tests at the scene after being pulled over.
“The search of his blood, without [Zhang] being offered a lesser intrusive alternative makes the search of his blood an unreasonable search under the 4th Amendment.”
The Snohomish County Prosecutor’s Office argued that a valid search warrant was obtained by the trooper. In its opposition brief, the prosecutor said that access to a breath test is not a fundamental right for suspects and that there was a rational basis for the trooper to bypass reading to Zhang the consent form to a breathalyzer due to the language barrier.
The concern is that using the rationale that there is a language barrier gives law enforcement cause to more intrusive ways to access evidence. The lack of an interpreter and/or translator regarding a suspect’s rights is an obstacle to justice in this scenario. Chiang-Lin points out the ease of access to an interpreter, even in situations where a suspect is pulled over on suspicion of a DUI. It’s clear that there is a balancing act between the two, but the interpreter services are inexpensive compared to obtaining a blood draw.
In general, the sentencing guidelines for someone found guilty of a DUI are dependent on the alcohol determined to be in the suspect’s system and prior criminal history. It including fines and potential jail time.
A hearing on Zhang’s motion to suppress was postponed due to the lack of an interpreter. It was continued to Nov. 5.
Jason can be reached at email@example.com.