Spanish Language Barrier and Submitting to DUI Testing

One common issue in Georgia DUI cases is the language barrier between the officer's instructions and questioning and the suspect's native language. In State v. Ortiz, the Georgia Court of Appeals analyzed whether or not a suspect understood the officer's instructions and questions for the purpose of determining whether or not he had voluntarily submitted to the field sobriety tests and the state-administered breath test.

The court concluded that Ortiz lacked the capacity to give actual consent for the tests based on a language barrier.
In September 2019, a Gwinnett County Police Officer, who had been trained in DUI detection and field sobriety evaluations, stopped to help other officers with a traffic stop. He was told that the driver of the vehicle, who was identified as Ortiz, had failed to maintain his lane multiple times. The officer was further told that Ortiz was "kind of hard to understand." The officer testified that Ortiz had a Spanish accent and his speech was slow and slurred.
The video-recording of the incident showed that the officer had turned to another officer and said, "I don't understand what he's saying." The officer also admitted on cross-examination that he did not ask Ortiz if he understood English or wanted an interpreter.

Asking for Field sobriety tests:
The officer questioned Ortiz about performing field sobriety tests at least five times, and each time was met with a non-responsive answer; once Ortiz responded that he lived nearby, and another time he responded that he was nervous.
It was not until another officer approached the car, gestured for Ortiz to exit the car, and asked Ortiz two more times about performing the tests that Ortiz apparently indicated — by slightly moving his head from side to side and up and down in a gesture that arguably could be interpreted as a "yes" — that he would perform the tests.
Oddly, the officer testified at the hearing that he believed Ortiz's failure to understand some of the questioning was attributable to the noise in the gas station parking lot rather than his inability to speak English.
After Ortiz shook his head in a manner that could be interpreted as a "yes" the officer performed field sobriety testing and arrested Ortiz for DUI. He then read him the Implied Consent Notice for Suspects 21 and over and asked him to submit to a state breath test. 

Asking for the State Breath Test:
When the officer asked Ortiz whether he would submit to the state breath test, Ortiz did not understand at first, but the officer was "able to get him to understand," and Ortiz eventually consented when he "shook" his head "yes."

He asked him 3 times (in English) if he would take the breath test:
1) the first time, he did not respond
2) the second time, he told the officer twice "I don't understand"
3) the third time, he replied "I take it"

The Georgia Constitution Gives Suspects More Constitutional Protection than the US Constitution:
The Georgia Constitution provides that "[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating." Ga. Const. of 1983, Art. I, Sec. I, Par. XVI.
Valid consent can demonstrate that an individual was not compelled to give incriminating testimony when submitting to a state-administered breath test, see Olevik, 302 Ga. at 243 (2) (c) (iii), 806 S.E.2d 505, the State must show that the DUI suspect "gave actual consent to the [state-administered test], which would require the determination of the voluntariness of the consent under the totality of the circumstances." Williams v. State, 296 Ga. 817, 821, 823, 771 S.E.2d 373 (2015).

Outcome:
The State had the burden of demonstrating that Ortiz sufficiently understood what was being said to him to provide actual, voluntary consent to take the state breath test and have that evidence be admissible against him at trial. 

​The Georgia Court of Appeals agreed with the trial court's ruling that under the "totality of the evidence"  test that the trial court's findings and the record was correct in determining that Ortiz did not give actual, voluntary consent to perform the field sobriety evaluations due to the language barrier.
Therefore, any performance on field sobriety tests and the state breath test would be excluded from a DUI trial in his case.