People v. Long
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0627
Case Date: 04/22/1998
NO. 4-96-0627
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Woodford County
MELVIN K. LONG, ) No. 95TR4020
Defendant-Appellant. )
) Honorable
) Donald D. Bernardi,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
After a stipulated bench trial in the circuit court of
Woodford County, defendant Melvin K. Long was convicted of driv-
ing under the influence of alcohol (DUI) (625 ILCS 5/11-501 (West
1994)). The trial court placed defendant on 24 months' court su-
pervision, assessed $169 in costs, and ordered him to perform 100
hours of public service work. Defendant appeals, alleging the
trial court erred in denying his motion to suppress. Defendant
maintains the arresting police officer violated his rights under
the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.A.
12101 et seq. (West 1995)) by failing to provide him with a sign
language interpreter upon his request. We affirm.
For his conduct on September 9, 1995, defendant re-
ceived a traffic citation for DUI. On November 13, 1995, defen-
dant filed a motion to suppress evidence of the use of field-
sobriety and breathalyzer tests. Defendant, who is deaf, argued
the ADA requires law enforcement to provide qualified interpret-
ers for individuals who are deaf. Defendant maintained on sever-
al occasions he requested the provision of a qualified interpret-
er so he could understand the officer's instructions, but the
interpreter was not provided for him. Defendant contended be-
cause he was denied an interpreter, a violation of his consti-
tutional rights occurred when the officer obtained the field
tests and the breathalyzer results.
Neither a transcript of the hearing on defendant's mo-
tion to suppress nor a bystander's report of that hearing is in-
cluded in the record. The facts below, as well as the facts
relied upon by the parties, are found in the common law record
and the trial court's written order following the hearing.
A police officer stopped defendant on September 9,
1995, at approximately 10:30 p.m. The officer advised defendant
his taillights were not working, by showing the lights on his
automobile to him. The officer demonstrated to defendant how to
perform field-sobriety tests. Defendant, unable to hear any-
thing, copied the officer and performed the field-sobriety tests.
Defendant and the officer communicated periodically by using
written notes. The officer arrested defendant and transported
him to the Woodford County jail, where a breathalyzer test, per-
formed by defendant, evidenced an alcohol concentration of .18.
Prior to performing the breathalyzer test, defendant
received the "Warning to Motorist." The applicable portions of
the one-page warning informed defendant:
"Considering the above, you are warned:
1. If you refuse or fail to complete all
chemical tests request and:
If you are a first offender, your driv-
ing privileges will be suspended for a
minimum of 6 months; or
If you are not a first offender, your
driving privileges will be suspended for
a minimum of 2 years.
2. If you submit to a chemical test(s)
disclosing an alcohol concentration of 0.10
or more or any amount of a drug, substance or
compound resulting from the unlawful use or
consumption of cannabis listed in the Canna-
bis Control Act or a controlled substance
listed in the Illinois Controlled Substances
Act and:
If you are a first offender, your driv-
ing privileges will be suspended for a
minimum of 3 months; or
If you are not a first offender, your
driving privileges will be suspended for
minimum of one year." (Emphasis in
original.)
Defendant indicated he did not understand the entire
warning, but he did understand the consequences of refusing the
test, i.e., he would receive a six-month suspension instead of a
three-month suspension if he failed. Based on that information,
defendant decided to take the breathalyzer test. Defendant tes-
tified he requested an interpreter four times, but the officer
denied his requests.
The trial court found defendant was not provided a
sign-language interpreter during his arrest. The trial court,
denying defendant's motion, concluded the ADA contemplates writ-
ten communication may adequately substitute for sign language,
and found it did so in this case. The trial court determined de-
fendant was able through written communication to perform the
field-sobriety tests commonly given in DUI arrests. The trial
court concluded defendant understood the impact of his decision
in electing to take the breathalyzer test.
After the stipulated bench trial, defendant was sen-
tenced. Defendant filed notice of appeal on August 9, 1996, one
day after he was sentenced. On August 27, 1996, defendant filed
a motion to reconsider. On September 5, 1996, defendant filed an
amended motion to reconsider and vacate judgment. On October 10,
1996, the trial court denied defendant's motion to reconsider.
We note the filing of the notice of appeal divested the trial
court of jurisdiction, so we have jurisdiction to consider the
issue raised.
On appeal, defendant maintains this court should re-
verse his conviction because his requests for a sign language
interpreter were denied. Defendant cites statutory and case law
regarding the requisite provision at trial of sign language in-
terpreters for the deaf or "reasonable facilities" for individu-
als with disabilities. See, e.g., 725 ILCS 140/1 (West 1994);
People ex rel. Myers v. Briggs, 46 Ill. 2d 281, 287, 263 N.E.2d
109, 113 (1970); People v. Branson, 131 Ill. App. 3d 280, 287,
475 N.E.2d 905, 911 (1984). Defendant provides no statutory
cites or case law directly supporting his proposition that denial
of an interpreter during a DUI investigation denied his rights
under the ADA.
The State cites the Code of Federal Regulations (28
C.F.R. 35.160 (1997)) and maintains the police officer did not
violate any rights under the ADA, because the ADA requires the
public entity take appropriate measures to ensure communication
with individuals who are deaf are as effective as communications
with others. The State contends the deaf individual's request
must be given primary consideration, but that request need not be
controlling if another effective means of communication exists.
The State also maintains under the decision in People v.
Wegielnik, 152 Ill. 2d 418, 605 N.E.2d 487 (1992), the implied-
consent statute and the due process clause do not require an
individual understand the consequences of refusing a blood-alco-
hol test.
Neither party cites controlling Illinois case or stat-
utory law, and we know of none. Based on our review of the re-
cord and federal law, we find the trial court did not err in
denying defendant's motion to suppress. People v. Winters, 97
Ill. 2d 151, 158, 454 N.E.2d 299, 303 (1983) (a court of review
will not disturb a trial court's determination on a motion to
suppress evidence unless the decision is manifestly erroneous).
The ADA prohibits a public entity from discriminating
against any qualified individual with a disability because of
that disability. 42 U.S.C.A. 12132 (West 1995). According to
the implementing regulations, the ADA requires the following:
"(a) A public entity shall take appro-
priate steps to ensure that communications
with *** members of the public with disabili-
ties are as effective as communications with
others.
(b)(1) A public entity shall furnish
appropriate auxiliary aids and services where
necessary to afford an individual with a
disability an equal opportunity to partici-
pate in, and enjoy the benefits of, a ser-
vice, program, or activity conducted by a
public entity.
(2) In determining what type of auxil-
iary aid and service is necessary, a public
entity shall give primary consideration to
the requests of the individual with disabili-
ties." 28 C.F.R. 35.160 (1997).
From the plain meaning of this regulation, a public
entity is required to give "primary consideration" to the choice
of the individual with disabilities, not to provide that
individual's choice in every circumstance. The implementing
regulations also provide the following:
"'The public entity must provide an oppor-
tunity for individuals with disabilities to
request the auxiliary aids and services of
their choice. This expressed choice shall be
given primary consideration by the public
entity.... The public entity shall honor the
choice unless it can demonstrate that another
effective means of communication exists
***.'" (Emphasis added.) Peterson v.
Hastings Public Schools, 31 F.3d 705, 708
(8th Cir. 1994), quoting 28 C.F.R. Pt.
35.160, app. A, at 463 (1993).
The ADA Handbook suggests the use of written communica-
tion may be sufficient for effective communication in certain
circumstances. The handbook indicates factors to be considered
when determining whether an interpreter rather than written com-
munications are required include the context in which the commu-
nication occurs, the number of individuals involved, and the
importance of the communications. Other considerations include
whether the information is complex or exchanged for a long period
of time. H. Perritt, Americans with Disabilities Act Handbook,
app. C, at 203 (3d ed. 1997).
The context of the communication was a DUI investiga-
tion during the late evening hours on a Saturday night. A re-
quirement for police officers to delay their investigation to
make arrangements for the provision of a sign-language interpret-
er would interfere with the law's objectives because the alcohol
concentration in the blood dissipates over time. See Wegielnik,
152 Ill. 2d at 425, 605 N.E.2d at 490. The communication in-
volved two individuals. The communication was important, as
defendant was being investigated for a DUI, but the information
was not complex, nor was it exchanged over a long period of time.
Defendant acknowledged the use of written materials. Signifi-
cantly, we note no findings or allegations the officer refused to
communicate with defendant via written notes and no indication a
sign-language interpreter would have helped defendant perform the
field-sobriety tests or better understand the written warning.
Defendant indicated he was able to mimic the field-sobriety
tests, and he understood the warning to motorist regarding the
consequences of taking the test. Under these circumstances, we
find the use of written communication and the officer's demon-
stration how to perform field-sobriety tests constituted effec-
tive means of communication, resulting in no prejudice to defen-
dant.
Affirmed.
COOK and McCULLOUGH, JJ., concur.
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