The People, Respondent,v.Jose Aviles, Appellant.BriefN.Y.October 18, 2016To BE ARGUED BY: COURT OF APPEALS NO. APL- ALEKSANDR LIVSHITS, ESQ. 2015-00208 TIME REQUESTED: 15 MINUTES State of New York Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSE AVILES, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT V. MARIKA MEIS, ESQ. Attorneys for Defendant-Appellant The Bronx Defenders 360 East 161't Street Bronx, New York 10451 Tel: (718) 838-7846 Fax: (718) 665-0100 ALEKSANDR 13. LIVSHITS, ESQ. Of' Counsel Fried, Frank, Harris, Shriver & Jacobson LLP 1 New York Plaza New York, NY 10004 Tel: (212) 859-8524 Fax: (212) 859-4000 Date Completed: January 21, 2016 Appellate Term, First Department, Docket Number 570370/14 Criminal Court, Bronx County, Docket Number 2011BX065081 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 JURISDICTION AND REVIEWABILITY 3 INTRODUCTION 4 SUMMARY OF ARGUMENT 6 STATEMENT OF FACTS 9 ARGUMENT 17 A. The NYPD's Failure to Offer a Coordination Test to Mr. Aviles on the Basis of a Language Barrier Violated his Equal Protection Rights Under the United States and New York State Constitutions. 17 1. The NYPD's policy of offering coordination tests only in English amounts to intentional discrimination based on national origin and should be subject to strict scrutiny. 23 2. The NYPD's policy of providing coordination tests only in English is not rationally related to a legitimate government purpose. 32 B. The Failure of the NYPD to Offer Mr. Aviles the Opportunity to Perform a Coordination Test Violates the Due Process Clause of the United States and New York State Constitutions. 42 CONCLUSION 52 TABLE OF AUTHORITIES Cases Almendares v. Palmer, 284 F. Supp. 2d 799 (N.D. Ohio 2003) 32, 35 Cabrera v. Alvarez, 2013 WL 1283445 (N.D. Cal. Mar. 27, 2013) 33 Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) 50 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) 38 Clark v. Jeter, 486 U.S. 456 (1988) 26 Cleveland Bd. of Educ. v. Ludermill, 470 U.S. 532 (1985) 49, 54 EEOC v. Sephora USA, LLC, 419 F. Supp. 2d 408 (S.D.N.Y 2005) 29 Hernandez v. New York, 500 U.S. 352 (1991) 28 Hernandez v. Robles, 7 N.Y.3d 338 (2006) 75 I lerzfeld & Stern, Inc. v. Warren Beck, 175 A.D.2d 689 (1st Dep't. 1991) 50 Lau v. Nichols, 414 U.S. 563 (1974) 29 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) 26 Mathews v. Eldridge, 424 U.S. 319 (1976) 48, 53 Meyers v. Amerada Hess Corporation, 647 F. Supp. 62 (S.D.N.Y. 1986) 50, 52 People v. Davis, 8 Misc.3d 158 (Sup. Ct. Bronx Co. 2005) 40 People v. Molina, 25 Misc. 3d 362 (Sup. Ct. Bronx Co. 2009) 24, 40 People v. Rosario, 136 Misc.2d 445 (Crim. Ct. Bronx Co. 1987) 23 People v. Salazar, 112 A.D.3d 5 (1st Dep't 2013) passim ii Plyler v. Doe, 457 U.S 202 (1982) 45 Shaw v. Hunt, 517 U.S. 899 (1996) 37 Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983) passim The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009). 30, 35 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) 38 Village of Willowbrook v. Olech, 528 U.S. 562 (2000) 25 Wiener v. Weintraub, 22 N.Y.2d 330 (1968) 51, 52 Statutes DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002) 31, 32 Guidelines on Discrimination Because of National Origin, 29 C.F.R. § 1606.1 (1980) 29 N.Y. Const. art. I § 11 25 N.Y. Const. art. I, § 6. 48 New York Vehicle and Traffic Law § 1192 9, 45 New York Vehicle and Traffic Law § 1195 12 U.S. Const. amend. V 48 U.S. Const. amend. XIV, § 1 25 iii Other Sources Cited Department of City Planning of New York, The Newest New Yorkers, Characteristics of the City's Foreign-born Population, 2013 Edition, http://www.nyc.gov/html/dcp/pdf/ census/nny2013/nny _2013.pdf (AV-ADD-50) ..33 Language Line Solutions Video-Remote-Interpreting, http://www.languageline.com/solutions/ video-interpretation/ (last visited Jan. 19, 2016) (AV-ADD-83) 44 New York City Mayor's Office of Immigrant Affairs, Constituent Facts & Maps, http://www.nyc.gov/html/imm/httnl/news/stats.shtml (last visited Jan. 19, 2016) ...34 New York Police Department Patrol Guide, Procedure No: 208-40, Intoxicated or Impaired Driver Arrest, hups://muckrock.s3.amazonaws.com/ foia_files/208-40 Intoxicated or_Impaired Driver Arrest.pdf (last visited Jan. 20, 2016) 22, 47, 51 New York Police Department Patrol Guide, Procedure No: 212-90, Guidelines for Interactions with Limited English Proficient (LEP) Persons, https://muckrock.s3.amazonaws.com/foia_files/212-90 Guidelines _for _Interaction with Limited English Proficient LEP Persons.pdf (last visited Jan. 20, 2016) 42 New York Police Department, Highway District Intoxilizer 5000 EN I.D.T.U. Procedural Guide, hups://newyorklegaldefense.com/ wp-content/uploads/2013/10/IDTU-Procedurctl- Guide-ADPLEGAL Redacted.pdf (last visited Jan 19, 2016) 24, 47, 51 New York Police Department, NYPD Language Access Plan, June 14, 2012 http://www.nyc.gov/html/nypd/html/community_affairs/nypd language _access pia n. shun! (last visited Jan. 19, 2016) (AV-ADD-1) 32, 34, 41, 43 NYC Health + Hospitals, Language and Translation Services, http://www.nychealthandhospitals.org/hhc/html/about/About-Hosp Services- OurServices-LangTrans.shtml (last visited Jan. 19, 2016) (AV-ADD-81) 41 iv PRELIMINARY STATEMENT By permission of this Court, granted July 29, 2015, this appeal is taken from an order of the Appellate Term, First Department, entered March 23, 2015, reversing a judgment of the Criminal Court, Bronx County (Adler, J.), rendered April 9, 2013, granting Mr. Aviles' motion to dismiss the accusatory instrument pursuant to C.P.F. § 170.30(0. This Court assigned The Bronx Defenders as counsel. Fried, Frank, Harris, Shriver & Jacobson, LLP appears as pro bono counsel to The Bronx Defenders. Mr. Aviles is currently at liberty. QUESTION PRESENTED Whether the NYPD's failure to offer Mr. Aviles a physical coordination test on the basis of a language barrier violated his Equal Protection and Due Process rights under the United States and New York State Constitutions. 2 JURISDICTION AND REVIEWABILITY This case presents a question of law, as it involves purely matters of constitutional interpretation, which were fully litigated below, and are amenable to this Court's review. The issue was fully preserved and timely appealed. INTRODUCTION Mr. Aviles was arrested on December 1, 2011 and charged with Driving While Impaired and Driving While Intoxicated under New York Vehicle and Traffic Law §§ 1192 (1) and (3). Mr. Aviles made a statement at the scene of arrest in English. He was arrested for suspicion of driving under the influence of alcohol and brought to an Intoxicated Driver Testing Unit ("I.D.T.U.") where he was given a chemical test that resulted in a blood-alcohol content ("BAC") reading of .06, below the minimum level required for a per se violation of Operating a Motor Vehicle While Under the Influence of Alcohol or Drug, V.T.L. § 1192 (2). Mr. Aviles was not offered a coordination test on the basis of a supposed "language barrier." A coordination test, which directs an individual to perform certain physical actions to help determine whether the individual was intoxicated, is a standard part of any I.D.T.U. testing. Mr. Aviles filed a motion to dismiss on the grounds that the New York City Police Department's ("NYPD") failure to offer him a coordination test violated his rights under the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 6 and 11 of the New York State Constitution. The Bronx County Criminal Court granted Mr. Aviles' motion to dismiss. The People appealed and the Appellate Term reversed, relying on a "similar challenge" rejected by the Appellate Division, First Department in People v. 4 Salazar, 112 A.D.3d 5 (1st Dep't 2013). This Court granted Mr. Aviles' leave to appeal. SUMMARY OF ARGUMENT The Appellate Term erred when it based its decision on the Appellate Division, First Department's decision in People v. Salazar and this Court should reject Salazar's analysis. 112 A.D.3d 5 (1st Dep't 2013). The NYPD's policy of offering coordination tests only in English to individuals suspected of driving while intoxicated violates the Equal Protection clause of the United States and New York State Constitutions under both strict scrutiny and rational basis analyses. Although discrimination based on language may be facially neutral as to a suspect class, in these circumstances, the implementation of the NYPD's policy amounts to intentional discrimination based on national origin, a suspect classification, and the policy should therefore be subject to strict scrutiny. See Salazar, 112 A.D.3d at 10; Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983) (a governmental action that is facially neutral could nevertheless be subject to strict scrutiny analysis if it "intentional[ly] discriminat[es]" against a suspect class.). The policy is not narrowly tailored to serve a compelling government interest and therefore cannot pass strict scrutiny. The NYPD's policy of offering coordination tests only in English is unconstitutional under the rational basis analysis as well. In Salazar, the First Department held that the NYPD's policy is rationally related to a legitimate governmental purpose of "avoid[ing] confusion and complications due to a 6 language barrier." 112 A.D.3d at 10. however, the court in Salazar wrongly overstated the impracticality of administering coordination tests through an interpreter and exaggerated the administrative burdens associated with a requirement to offer the coordination test in a foreign language. In addition, this case involves a key factor that makes the Salazar decision inapposite; in Salazar, the defendant's BAC was .21, nearly three times the legal limit, while here, Mr. Aviles' BAC was below the level required for a per se violation and was low enough to be prima facie evidence that he was not intoxicated. See V.T.L. § 1192(1); V.T.L. § 1195 (2). Therefore, not offering a coordination test to Mr. Aviles violated his Equal Protection rights because, as the Criminal Court in this case found, where the results of the defendant's chemical test are as low, there is a strong probability that the results of the coordination test would have been exculpatory; accordingly, the trier of fact has a heightened interest in seeing a video of the coordination test to determine whether the suspect was impaired. A- 75 (Decision and Order, People v. Aviles, Docket No. 2011BX065081 (Crim. Ct. Bronx Co. 2014)) (hereinafter "Decision and Order").' The NYPD's failure to offer the coordination test to Mr. Aviles also violated his Due Process rights. Contrary to the lower court's holding (and Salazar), Due Process protections apply because the .NYPD brings suspects to the for Citations to "A" refer to Appellant's Appendix. 7 testing as part of an established post-arrest procedure for gathering evidence for government's process of determining whether to charge the defendant, and the administration of the test therefore functions as an element of a quasi-judicial or administrative proceeding. Further, because Mr. Aviles' BAC was low, the risk that he would be erroneously deprived of his liberties without a coordination test is significantly higher than that faced by the defendant in Salazar. This risk outweighs the burden to the state of providing coordination tests in a foreign language. 8 STATEMENT OF FACTS Arrest and Procedures at I.D.7'.U. Mr. Aviles was arrested on December 1, 2011 and charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drug, V.T.L. §§ 1192 (1) and (3). A-93 (Affirmation of Mark Sedlander in Support of Motion to Dismiss and Motion to Dismiss the Information as Unconstitutional) (hereinafter "Sedlander Affirmation"). The charges stemmed from an incident that took place on December 1, 2011, when Mr. Aviles allegedly was involved in an accident with a NYPD vehicle that was pulling out of the precinct as Mr. Aviles was driving by. A-83 (Affirmation of A.D.A. Russell Satin in Opposition to Defendant's Motion to Dismiss) (hereinafter "Satin Affirmation"). According to the arresting officer, at the time he encountered Mr. Aviles, Mr. Aviles had a strong odor of alcohol, slurred speech and he was swaying and unsteady on feet. Id. During his communications with the arresting officer, Mr. Aviles made the following statement, in English: I HAD A FEW CORNOAS ABOUT 15 MINUTES AGO. ABOUT THREE CORONAS. Id. After Mr. Aviles was arrested, he was brought to the I.D.T.U. At the I.D.T.U., he agreed to take a chemical test and was then given a breathalyzer test that resulted in a BAC reading of .06, below the minimum level of .08 required for a per se violation of Operating a Motor Vehicle While Under the Influence of 9 Alcohol or Drug, V.T.L. § 1192 (2). A-95 (Sedlander Affirmation). After Mr. Aviles was given the chemical test, he was not offered a coordination test that the NYPD offers to individuals arrested for driving while intoxicated and which is a standard part of any I.D.T.U. testing. A-94 (Sedlander Affirmation). The I.D.T.U. Technical Test Report reflects a handwritten line crossing out the "coordination test" portion of the form and the handwritten words "no coord test given language barrier." A-103 (Sedlander Affirmation, Exhibit 1). The report lists the following examinations for testing a suspect's coordination: speech; balance; walking and turning; one leg stand; finger to nose test; and handwriting specimen. Id. The report provides no indication or explanation for how the officer determined that a there was a "language barrier" that prevented the officer from offering a coordination test to Mr. Aviles. Id. Mr. Aviles' Motion to Dismiss On October 23, 2012, Mr. Aviles filed a motion seeking to dismiss the Information pursuant to C.P.L. § 170.30(1)(f) on the ground that the NYPD violated his rights under the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 6 and 11 of the New York State Constitution by failing to offer Mr. Aviles a physical coordination test on the basis of a claimed language barrier. A- 93 (Sedlander Affirmation). Mr. Aviles' Equal Protection arguments were made 10 under both strict scrutiny and rational basis standards. A-97-A-99 (Sedlander Affirmation). Mr. Aviles argued that there was nothing so nuanced or complex in the process of directing a suspect to complete a series of simple exercises that make providing a translation prohibitively cumbersome, and that the NYPD should either translate the coordination tests or stop administering them to English speakers as well. A-97-A-98 (Sedlander Affirmation). Under the Due Process balancing test, Mr. Aviles argued that given the substantial liberty interests at stake, the increased burden in requiring the NYPD to provide translation was not so great especially in light of the translation already provided by the NYPD for numerous other administrative procedures. A-99-A- 100 (Sedlander Affirmation). The People's Opposition to the Motion to Dismiss The People opposed Mr. Aviles' motion to dismiss. A-76 (Satin Affirmation). With respect to Mr. Aviles' Equal Protection arguments, the People argued that the decision to not offer Mr. Aviles the coordination tests was facially neutral and thus strict scrutiny did not apply. A-78 (Satin Affirmation) (citing Soberal-Perez v. Heckler, 717 F.2d 36, 41-42 (2d Cir. 1983)). Without supplying an affidavit from the arresting officer or any supporting documentation, the People argued that the officer's belief concerning Mr. Aviles' ability to speak and understand English was formed from attempting conversation and that national origin had no bearing in that decision. Id. Under rational basis analysis, the People argued that coordination tests cannot be administered by video tape like refusal warnings, and that avoiding confusion and complications to the investigatory process provided a rational basis for the NYPD policy. A-81, A-83 (Satin Affirmation). With respect to Mr. Aviles' Due Process arguments, the People contended (1) that the coordination tests are merely investigatory and discretionary, and therefore the NYPD is under no obligation to assist a defendant in providing a defense; (2) that requiring the NYPD to provide interpreters in "every possible language" would cause delay and defeat the purpose of the test because a suspect's blood alcohol would diminish over time; (3) that bilingual police officers and NYPD personnel could not serve as interpreters; and (4) that the required interpretation services would impose a heavy financial burden. A-84-A-90 (Satin Affirmation). The Lower Court's Decision Dismissing the Information In a decision and order dated April 9, 2013, the lower court (Adler, J.) granted the defendant's motion to dismiss. A-74 (Decision and Order). The court concluded that the failure to administer the coordination test in this case constituted a denial of Equal Protection and Due Process under the Fifth and 12 Fourteenth Amendments of the United States Constitution and Article I, Sections 6 and 1 1 of the New York State Constitution. Id. The court noted that in other cases where defendants had been denied physical coordination tests merely because they only speak Spanish, the court had molded a two-part remedy: (1) part one being a directive that defense counsel at trial be permitted to cross examine the People's witnesses on the issue of the police department's failure to administer a coordination test; and (2) part two being a directive that the trier of fact be provided with an adverse inference charge regarding the police department's failure to administer coordination tests. A-75 (Decision and Order). In this case, however, because Mr. Aviles' chemical test resulted in a very low BAC reading of .06, the court found that there was a strong probability that the results of a physical coordination test would have been exculpatory. Id. The court concluded that in a case where the breathalyzer result is so low, the trier of fact is likely to have a heightened interest in seeing a video memorializing the defendant's abilities. Id. Therefore, the court held that the failure to provide Mr. Aviles access to this potentially exculpatory evidence was a denial of his constitutional rights and warranted dismissal. Id. Appeal to the Appellate Term, First Department The People appealed the lower court's decision, arguing that, based on the Appellate Division, First Department's decision in Salazar, the court below 13 erroneously dismissed Mr. Aviles' case. A-42 (Appellant's Brief, Appellate Term, First Department) (hereinafter "People's Brier). The People argued that the conduct of the NYPD did not violate the equal protection clause under either the "strict scrutiny" or the "rational basis" standards. A-53-A-57 (People's Brief). Relying on Soberal-Perez, the People argued that although Hispanics are a suspect class, strict scrutiny did not apply here as there was no evidence of intentional discrimination. A-55 (People's Brief). Under the rational basis standard, the People raised the same arguments as they did in the trial court; namely that the fiscal and administrative costs of providing interpreters or translation were overly burdensome. A-57-A-59 (People's Brief). With respect to Due Process, the People again argued that Mr. Aviles' Due Process rights were not violated because the coordination test is an investigatory and not a judicial proceeding. Because they are discretionary, the NYPD is under no obligation to assist the defendant in collecting evidence in support of his defense. A-66-A-68 (People's Brief). Additionally, the People argued the lower court's decision was flawed as there was ample evidence of intoxication in this case and the coordination test cannot be said to have been essential to determining whether the defendant was guilty. A-71 (People's Brief). 14 Mr. Aviles' Opposition to the People's Appeal With respect to the People's Equal Protection arguments, Mr. Aviles argued that the NYPD's policy should be subject to strict scrutiny because it does not provide officers with any guidance for how they should approach determining whether an individual could understand the coordination test instructions. A-26-A- 28 (Respondent's Brief, Appellate Term, First Department) (hereinafter "Respondent's Brief'). In addition, Mr. Aviles argued that intentional discrimination based on a suspect class was particularly apparent in this case because the NYPD made no effort to determine whether Mr. Aviles understood English sufficiently enough to comprehend the coordination test instructions and where there was evidence that he gave a statement in English. A-23-A-26 (Respondent's Brief). Under the rational basis analysis, Mr. Aviles argued that in cases where a defendant's BAC is low, the failure to offer the coordination test actually exacerbates the "confusion and complications" of the investigatory and judicial process and a more rational approach would be to offer coordination tests in a foreign language, through an interpreter or video (as the NYPD does for chemical tests), to at least those defendants whose chemical test resulted in a low BAC. A-31-A-32 ("Respondent's Brief'). Finally, with respect to Due Process, Mr. Aviles argued under the Mathews balancing test, where a defendant's chemical test resulted in a BAC below the I5 minimum legal requirement for a per se violation, not offering the defendant a coordination test significantly increases the risk of erroneous deprivation of liberties. A-34-A-36 (Respondent's Brief). Mr. Aviles further argued that the potential for this error could be offset by providing an interpreter, offering a recording of a coordination test in the foreign language, or developing an alternative language-neutral coordination test based on physical movements that does not require verbal instructions. A-36-A-38 (Respondent's Brief). Appellate Term, First Department's Decision On March 23, 2015, the Appellate Term, First Department, overturned he lower court's decision, relying on a "similar challenge" rejected by the Appellate Division, First Department in People v. Salazar, 112 A.D.3d 5 ( 1 st Dept. 2013). A- 4-A-5. The court also found Mr. Aviles' "alternative arguments for affordance" not reviewable in a People's appeal. Id. 16 ARGUMENT A. The NYPD's Failure to Offer a Coordination Test to Mr. Aviles on the Basis of a Language Barrier Violated his Equal Protection Rights Under the United States and New York State Constitutions. The NYPD's policy of offering physical coordination tests only in English discriminates on the basis of national origin and is thus subject to strict scrutiny, which it cannot overcome. In addition, the policy is not rationally related to a legitimate governmental purpose, especially here, where the defendant's chemical test provided prima facie evidence that he was not intoxicated. The NYPD's failure to offer a coordination test to Mr. Aviles therefore violated his Equal Protection rights. In New York City, when an individual is arrested for driving under the influence of alcohol, the individual is transported to one of six I.D.T.Us, where an I.D.T.U. technician (typically, an NYPD officer) offers the suspect the opportunity to take a chemical test and a coordination test. See A-94 (Sedlander Affirmation); See also New York Police Department Patrol Guide, Procedure No: 208-40, Intoxicated or Impaired Driver Arrest (hereinafter NYPD DWI Patrol Guide)'̀ (AV-ADD-85).3 The chemical test is offered first. Where the suspect is not able 2 New York Police Department Patrol Guide, Procedure No: 208-40, Intoxicated or Impaired Driver Arrest, Nips ://muckrock. s3.arnazonaw s.conilfbia files/208- -W Intoxicated or Impaired _DriverArrestpcif(last visited Jan. 20, 2016) (AV-ADD-85). Citations to "AV-ADD" refer to Addendum of Materials Cited by Defendant-Appellant. 17 to understand the chemical test instructions due to a language barrier, the NYPD has available foreign language videos that advise suspects of their rights with respect to the administration of the chemical test. See People v. Rosario, 136 Misc.2d 445, 447 (Crim. Ct. Bronx Co. 1987). After watching the video, if the suspect agrees to take the chemical test, the officer would first demonstrate how to use the equipment and then instructs the suspect to mimic the officer's actions. Id. The coordination test follows the chemical test. See NYPD DWI Patrol Guide (AV-ADD-87). The NYPD employs a form that lists six examinations to test a suspects' coordination: speech; balance; walking and turning; one leg stand; finger to nose test; and handwriting specimen. See A-103 (Sedlander Affirmation, Exhibit 1). The practice of the NYPD, in the experience of The Bronx Defenders as an institutional criminal defense provider, is to administer only some of these examinations, particularly the one leg stand, the walk and turn, and the finger to nose. The form provides instructions for the officer to use in administering the examination and recording the observations. The one leg stand test directs the officer to "instruct subject to raise right foot" and has check boxes for "steady," "unsteady," "falling," "other" and "refused." Id. The walking and turning tests direct the officer to "instruct subject to walk heel to toe for nine steps then turn and walk back to starting point" and have boxes for "steady," "unsteady," "falling," "other" and "refused" for each test. Id. The finger to nose test directs the officer 18 to "instruct subject to stand erect with arms at side, then have the subject move one hand at a time to touch the tip of the nose with the tip of the index finger" and has check boxes for "accurate" and "inaccurate" for each hand. Id. As these instructions indicate, the officer generally first demonstrates the action that the individual is required to perform. See New York Police Department, Highway District Intoxilizer 5000 EN I.D.T.U. Procedural Guide4 (hereinafter "I.D.T.U. Procedural Guide") (AV-ADD-28). The form also specifies a final inquiry, asking "was subject under the influence of intoxicating beverages/drugs?" and provides a check box for "yes" or "no." See A-103 (Sedlander Affirmation, Exhibit 1). The coordination test is videotaped and the tape is preserved for possible use at any subsequent hearings and trial. The record of the two tests together provides valuable objective evidence, which assists the prosecutor in evaluating the case and determining whether to prosecute the defendant. See People v. Molina, 25 Misc. 3d 362, 377 (Sup. Ct. Bronx Co. 2009).5 The video record of the coordination test also allows the fact finder to see, objectively, how the defendant looked and acted shortly after his arrest. Id. In many cases, the coordination test evidence is crucial for the determination of the defendant's guilt or innocence. Id. See New York Police Department, Highway District Intoxilizer 5000 EN I.D.T.U. Procedural Guide, https ilnewyorklegaldefense.com/wp-coment/uploadv/201 3/1 0/1DTU- Procedural-Guide-ADP LEGAL Redaded.pdf (last visited Jan 19, 2016) (AV-ADD-17). 5 Although Salazar rejected the rationale in Molina, the Molina decision provides important background information on the NYPD's procedures after an arrest of an individual for driving while intoxicated. See Salazar, I 1 2 A.D.3d at 9. 19 Notwithstanding its importance, the NYPD has an unwritten internal policy to only offer the coordination test in English. Id. An individual who is deemed to not understand English is thus denied the coordination test. Significantly, no metric is provided to assist NYPD officers in making the analysis of the suspect's English comprehension, nor are there any written standards or guidelines for the officer to follow in this regard. As a result, whether an important piece of evidence is collected for trial hinges solely on the NYPD officer's assessment of the defendant's ability to speak and understand English. The United States Constitution provides safeguards against "intentional and arbitrary discrimination" by the government. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Section one of the Fourteenth Amendment to the United States Constitution provides that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Article I, Section 11 of the New York State Constitution provides an equivalent constitutional safeguard. See N.Y. Const. art. I § 11; Hernandez v. Robles, 7 N.Y.3d 338, 368 (2006). Alleged violations of Equal Protection are evaluated under either a "strict scrutiny" or "rational basis" analysis. Where governmental action disadvantages a suspect class such as race, national origin, or ethnicity, or burdens a fundamental right, the conduct must be "strictly scrutinized" and will be upheld only if the government 20 can establish a compelling justification for the action. See Clark v. Jeter, 486 U.S. 456, 461 (1988) ("Classifications based on race or national origin and classifications affecting fundamental rights are given the most exacting scrutiny."). Where a suspect class or a fundamental right is not implicated, the governmental action need only be "rationally related" to a legitimate government purpose. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976). The First Department in Salazar (the authority for the Appellate Term's decision in this case) held that the NYPD's practice of offering coordination tests only to English speakers should not be assessed pursuant to strict scrutiny because la]lthough Hispanics as an ethnic group constitute a suspect class under equal protection analysis, the practice at issue here is facially neutral as to ethnicity. The policy determination as to whether or not to perform physical coordination tests is based on a suspect's ability to speak and understand English, and is not based upon race, religion or national origin." 112 A.D.3d at 9-10. The court further found that the practice also does not violate the Equal Protection clause under the rational basis analysis because it is rationally related to a legitimate governmental purpose of "avoid[ing] confusion and complications due to a language barrier." Id. at 10. The Salazar court identified some of these "complications": (i) conducting the test through an interpreter who was not trained in conducting the test could compromise the reliability of the test; (ii) it is inherently impracticable to conduct 21 coordination tests through interpreters; and (iii) requiring the NYPD to have qualified interpreters on call on a 24/7 basis would impose substantial administrative burdens. Id. at 11. Salazar was incorrectly decided and, at any rate, is distinguishable from this case. In rejecting strict scrutiny, the Salazar court failed to recognize that the NYPD's policy of not offering coordination tests to non-English speakers broadly discriminates based on nation origin by prejudicing a significant portion of New York City's foreign-born population and by failing to provide officers any guidance for determining whether a suspect's English skills are sufficient to take the test. Further, Salazar's rational basis analysis is flawed and is therefore inapplicable to the present case. The specific reasons that the Salazar court accepted in upholding the discriminatory practice are insufficient to satisfy the rational basis standard. In addition, in Salazar, the defendant's chemical test produced a BAC of nearly three times the legal limit, whereas Mr. Aviles' BAC was below the threshold for a per se violation. Id. at 8. This factual difference significantly undermines the applicability of the reasons that the Salazar court used to support of the legitimacy of the NYPD's actions. 22 1 The NYPD's policy of offering coordination tests only in English amounts to intentional discrimination based on national origin and should be subject to strict scrutiny. The NYPD's policy to only offer coordination tests in English amounts to intentional discrimination based on the suspect classification of national origin and is therefore subject to strict scrutiny. A governmental action that is facially neutral can be subject to strict scrutiny if it "intentional[ly] discriminat[es]" against a suspect class. See Salazar, 112 A.1).3d at 10; Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983). Although a policy that discriminates based on language may be facially neutral as to a suspect class, in this case, the policy discriminates based on national origin. Federal statutes and courts have long considered discrimination based on language as evidence of discrimination based on national origin or race. The Supreme Court has recognized that language discrimination under certain circumstances "may be found . . . to be a pretext for racial discrimination." See Hernandez v. New York, 500 U.S. 352, 372 (1991). Analogously, the Equal Employment Opportunity Commission defines "national origin discrimination" under Title VII of the Civil Rights Act of 1964 as "including, but not limited to, the denial of equal employment opportunity because of an individual's or his or her ancestor's place or origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." See Guidelines on 23 Discrimination Because of National Origin, 29 C.F.R. § 1606.1 (1980) (emphasis added). Though stemming from a statutory rather than constitutional context, the administrative and judicial explanations of how disparate treatment of language speakers can constitute national origin discrimination is equally applicable to the identical issue in the constitutional setting. For example, in Lau v. Nichols, the Supreme Court found that the school district's failure to provide non English speaking Chinese students with a bilingual education option violated Title VI of the Civil Rights Act of 1964's prohibition on discrimination based on the ground of race, color, and national origin. 414 U.S. 563 (1974). Similarly, in EEOC v. Sephora USA, LLC, the Southern District of New York concluded that a rule requiring that employees speak only English in the work place established a prima facie showing of discrimination based on national origin. 419 F. Supp. 2d 408, 414 (S.D.N.Y 2005). In short, discrimination based on language can serve as a pretext for discrimination based on national origin or race, which are suspect classes subject to heightened scrutiny. Salazar relied on the reasoning in Soberal-Perez for the proposition that discrimination based on an inability to speak English does not constitute national origin discrimination for purposes of the Equal Protection clause. Salazar, 112 A.D.3d at 10; Soberal-Perez, 717 F.2d at 41. Yet, the analysis of Soberal-Perez is inconsistent with the realities of New York City's limited English proficient 24 ("LEP") population. The assumptions underlying the court's analysis have also been narrowed by federal agencies and the courts. Soberal-Perez was brought by Hispanic plaintiffs against the United States Department of Health and Human Services ("HHS") on the grounds that HHS allegedly violated Title VI and the plaintiffs' Equal Protection rights by not providing social security notices in Spanish. The Second Circuit held that a policy that discriminates based on language is facially neutral as to a suspect class and therefore it is not subject to strict scrutiny. Soberal-Perez, 717 F.2d at 41. The court also held, however, that a facially neutral policy can discriminate against a suspect class if it "intentionally discriminat[es]" against the class. Id. at 42. In that case, the court affirmed the dismissal of an Equal Protection challenge to the federal agency's failure to provide Spanish language assistance services because the plaintiffs alleged merely that such failure had a "disproportionate impact" on Hispanics. Id. at 42. Over three decades have passed since Soberal-Perez and during that period both the executive and the judicial branches have clarified how discrimination based on language could amount to discriminatory intent based on national origin. For one, courts have considered statistical evidence of discriminatory impact on a particular race or national origin as a key indicator of discriminatory intent, when combined with other factors. See The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-05 (9th Cir. 2009). (Title VI and Equal 25 Protection case finding that statistical evidence could create an inference of discriminatory intent based on race where race-neutral precondition to receiving municipal services effectively excluded Latino neighborhoods). Furthermore, since Soberal-Perez, the Department of Justice ("DOJ") has adopted guidance that has significantly expanded the meaning of what constitutes discrimination on the basis of national origin against limited English Proficient ("LEP") persons. See DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002) (hereinafter "DOJ LEP Guidance"). The DOJ LEP Guidance, which applies to all recipients of Federal financial assistance from the DOJ (potentially including the MIS, the defendant in Soberal-Perez), provides that "in certain circumstances, failure to ensure that [LEP] persons can effectively participate in or benefit from Federally assisted programs and activities may violate the prohibition under Title VI of the Civil Rights Act of 1964 . . . and Title VI regulations against national origin discrimination." Id. To combat the potential for national origin discrimination through language discrimination, the DOJ requires that governmental agencies take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. According to the DM, whether discrimination against LEP persons amounts to national origin discrimination 26 requires a balancing of four factors: (1) the number or proportion of LEP persons eligible or likely to be encountered by the program, (2) the frequency with which LEP individuals come in contact with the program, (3) the nature and importance of the program to people's lives, and (4) the costs of ensuring access to LEP persons. Id. It is not necessary to speculate whether the four-factor analysis applies to the NYPD, because the NYPD already uses the DOJ LEP Guidance to determine how to serve New York City's LEP population. See New York Police Department, NYPD Language Access Plane (hereinafter "NYPD Language Access Plan") (AV-ADD-4). The implications of the DOJ LEP Guidance are clear; where a governmental policy that discriminates based on language fails the four-factor balancing test, a finding that the policy could discriminate based on national origin is appropriate. The DOJ LEP Guidance targets many governmental agencies and had it been in effect at the time of the Soberal-Perez decision, it would have likely had a significant impact on the court's analysis. Courts have also significantly expanded the meaning of what constitutes "intentional discrimination" since Soberal-Perez. In Almendares v. Palmer, the court found that the plaintiffs, LEP food stamp beneficiaries, sufficiently stated an 6 New York Police Department, NY PD Language Access Plan, June 14, 2012, http://www.nyc.gov/htmtnypdlitnil/connunityaffrtirs/nypd __language___access_plan.shtml (last visited Jan. 19, 2016) (AV-ADD-1). 27 intentional discrimination claim based on national origin where the materials for the state's food stamp program were provided only in English. 284 F. Supp. 2d 799, 808 (N.D. Ohio 2003). The court held that even when a policy or practice is facially neutral, that policy or practice can be motivated by intentional national origin discrimination when established though evidence of "disparate impact, history of the state action, and foreseeability and knowledge of the discriminatory onus placed upon the complainants." id. at 806. Similarly, in Cabrera v. Alvarez, the court found that the LEP plaintiffs stated a plausible claim of intentional discrimination based on national origin where the San Francisco Housing Authority did not provide language translation services. 2013 WL 1283445 (N.D. Cal. Mar. 27, 2013). Likewise, the NYPD's policy of permitting officers to refuse to provide coordination tests on the basis of language amounts to intentional discrimination based on national origin. New York City's demographic data shows that a vast number of New York City's not English proficient population are foreign-born or are offspring of individuals who are foreign-born.' The New York City Mayor's One study shows that 48.8% of New York City's foreign born residents are not English proficient. This means that at least 75% of New York's not English proficient population are foreign born (If 48.8% of the 37% foreign born resident are not English proficient, that means that 18% of New York City's population are both foreign born and not English proficient, which is 75% of the not English proficient population). It is also intuitive that a vast majority of the remaining 25% are offspring of foreign-born residents. See Department of City Planning of New York, The Newest New Yorkers, Characteristics of the City's Foreign-born Population, 2013 Edition, http://www.nyc.gov/httillidep/pdfreensus/nny2013/nny_2013.pdf (AV-ADD-74). 28 Office of Immigrant Affairs has provided that in 2010, 24% of New York City's residents were not English proficient. See New York City Mayor's Office of Immigrant Affairs, Constituent Facts & Maps8 (AV-ADD-79). In addition, 37.2% of the city's residents were foreign-born. Thus, while the NYPD's policy facially discriminates against non-English speakers, it affects primarily foreign-born individuals, supporting the conclusion that the NYPD's policy discriminates based on national origin. This Court should hold that the NYPD's policy of offering coordination tests only in English amounts to intentional discrimination based on national origin. As demonstrated by the NYPD's Language Access Plan, the NYPD has access to, and is aware of, New York City's demographic information, including the high percentage of the population that is not English proficient and foreign-born. See NYPD Language Access Plan (AV-ADD-4). In fact, the mission of the NYPD Language Access Plan is to "provide timely and meaningful access for LEP persons to the services and benefits that the Department provides to the degree practicable." Id. (AV-ADD-3). The fact that the NYPD has in place a program that provides on-call interpretation and translation services, combined with the knowledge that New York City has a large population of foreign-born residents, 8 New York City Mayor's Office of Immigrant Affairs, Constituent Facts & Maps, http://www.nyc.gov/hinit'imm/htnil/newsistais.shin71 (last visited Jan. 19, 2016) (AV-ADD-79). 29 demonstrates the "foreseeability and knowledge of the discriminatory onus" of offering coordination tests only in English. See Almendares, 284 F. Supp. 2d at 806. The fact that the NYPD has not established any criteria to help police officers determine whether the suspect is sufficiently able to understand English to perform the coordination test further confirms that the NYPD's policy could amount to intentional discrimination on the basis of national origin. See City of Modesto, 583 F.3d at 702-05 (holding that statistical evidence of discriminatory impact on a particular race or national origin is a key indicator of discriminatory intent, when combined with other "factors"). Under the current NYPD policy, a crucial determination that every NYPD officer must make before deciding whether to offer a suspect a coordination test is whether the suspect has the ability to understand English well enough to comprehend the coordination test instructions. This unguided assessment calls for an analysis that will tend to implicate the suspect's national origin. The NYPD does not use any protocols or provide officers with any guidance to assist in making an assessment of a suspect's English proficiency or to help officers determine whether the suspect can understand the coordination test instructions. Without a basic inquiry as to the suspect's English proficiency, a police officer is likely to take into account the person's accent, appearance, and surname — factors that implicate national origin. Absent a 30 standardized test with uniform rules of enforcement, police officers can deny a coordination test to a suspect on the purported basis of a language barrier while actually acting on a true animus for a suspect class. The NYPD's failure to implement any safeguards to protect against this obvious consequence of the unwritten policy supports the conclusion that the policy amounts to intentional discrimination based on national origin. The NYPD policy's discriminatory effect based on national origin is particularly apparent in the present case, where the officer made no effort to determine whether Mr. Aviles understood English well enough to understand the coordination test instructions. The arresting officer's I.D.T.U. Technical Test Report notes only that "no coord test given language barrier," without any basis for concluding that a language barrier that would have prevented Mr. Aviles from understanding the test's instructions. See A-103 (Sedlander Affirmation, Exhibit 1). There is no indication that a coordination test was offered to Mr. Aviles and that Mr. Aviles refused to take the test, or that Mr. Aviles did not understand the officer when the officer inquired whether Mr. Aviles would be willing to take the coordination test. Instead of offering the coordination test to Mr. Aviles and observing Mr. Aviles' response, the arresting officer simply made the conclusory judgment that Mr. Aviles would not be able to comprehend the test's instructions. This decision was made despite the fact that Mr. Aviles made a statement in 31 English at the scene of arrest: "I HAD A FEW CORONAS ABOUT 15 MINUTES AGO. ABOUT THREE CORONAS." See A-83 (Satin Affirmation). To claim that a person who has made a statement in English is incapable of taking the coordination test in English evidences discrimination. The NYPD's actions in this case demonstrate how the NYPD's blanket permission to discriminate on the basis of language can result in discrimination on the basis of national origin. As a result, the NYPD's policy of not offering a coordination test to non-English speakers should be subject to heightened scrutiny. Pursuant to strict scrutiny analysis, a policy is unconstitutional unless it is "narrowly tailored" to achieve a "compelling state interest." See Shaw v. Hunt, 517 U.S. 899 (1996). For the reasons discussed in the next section, the policy of not administering the coordination test to those viewed to not be English speakers not only cannot meet this standard, but it also cannot meet the lesser standard of rational basis review. 2. The NYPD's policy of providing coordination tests only in English is not rationally related to a legitimate government purpose. The NYPD's policy of providing coordination tests only in English violated Mr. Aviles' Equal Protection rights under the less onerous rational basis analysis as well. Under the rational basis analysis, the Court must still conduct "probing" and "searching" analysis to determine whether the proffered governmental purpose is, in fact, rational. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 32 458, 460 (1985). The Court, therefore, should not accept as legitimate any and all reasons that the government proposes for the discriminatory action. Indeed, the Supreme Court has rejected the government's proposed "legitimate purpose" on many occasions. See e.g., City of Cleburne, 473 U.S. 432 (invalidating a city's permit requirements for the operation of a group home for persons with a mental disability under the rational basis test after analyzing the proffered reason for the requirements); United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (holding that a statute which excluded from participation in the food stamp program any household containing an individual who was unrelated to any other member of the household was not rationally related to the stated purpose of the restriction, which was to minimize fraud in the administration of the food stamp program). The rational basis analysis in the First Department's Salazar decision, relied on by the Appellate Term in this case, is both flawed and inapplicable to the present case. The court in Salazar held that the NYPD's policy is rationally related to a legitimate governmental purpose of "avoid[ing] confusion and complications due to a language barrier." 112 A.D.3d at 10. The court identified three reasons that can cause the "confusion and complications": (i) conducting the test through an interpreter who was not trained in conducting the test could compromise the reliability of the test; (ii) it is inherently impracticable to conduct coordination tests 33 through interpreters, and (iii) requiring the NYPI) to have qualified interpreters on call on a 24/7 basis would impose substantial administrative burdens. Id. at 11. However, the Salazar court overstated the legitimacy of these reasons in upholding the NYPD's discriminatory practice. First, the Salazar court held that conducting the coordination test through an interpreter who was not trained in conducting the test could compromise the reliability of the test. Id. While no evidence has been provided explaining why giving instructions to touch one's nose or to stand on one's leg requires significant training, Salazar's reasoning also fails to recognize that the purpose of administering the coordination test at the I.D.T.U. (as opposed to on the scene of arrest as done in many other jurisdictions) is to create an objective record of the defendant's actions for the finder of fact. Because the process is recorded, even if the coordination test is conducted by someone who has not been trained and who therefore makes mistakes in administering the instructions, the fact finder can consider the inexperience of the instructor when viewing the recording. Therefore, contrary to Salazar, the "reliability" of the test will not be compromised if administered through an interpreter because the test will still provide the fact finder with objective evidence of how the suspect acted while allegedly under the influence of alcohol. If Mr. Aviles was indeed swaying and unsteady on his feet, 34 that would be apparent in the video of the coordination test no matter what instructions were given. Salazar's conclusion that it is "inherently impracticable to conduct coordination tests through interpreters" is also unpersuasive. Id. at 11. Only a simple translation is necessary to direct an accused to submit to a physical coordination test. The coordination test instructions are simple and involve the officer demonstrating the physical movements before requesting that the defendant repeat the actions. The Salazar court did not explain how it is "inherently impracticable" to provide through an interpreter instructions such as "touch your nose with your forefinger" (Toque su nariz con su indice), "walk in a straight line" (Camine en la Linea derecha), or "raise your right leg" (levanter su pierna derecha). Molina, 25 Misc. 3d at 797. Nor did the court explain why these instructions are more difficult to translate than the consequences for refusal to submit to a chemical test, which are provided through an interpreter or a recording in a foreign language. See People v. Davis, 8 Misc.3d 158, 160 (Sup. Ct. Bronx Co. 2005) (The Spanish language videotape advises the viewer in Spanish: "You have been arrested for driving a vehicle under the influence of alcohol or drugs. I would like you to take a chemical test of your breath. Do you want to take the test? Yes or No? If you refuse to submit to the chemical test or any part of the same, it will result in the immediate suspension or revocation of your driver's license or privileges, whether 35 you are found guilty or not of the charges for which you have been arrested. If you refuse any part of the test that could be used as evidence against you in any process, trial or hearing."). The Salazar court further failed to recognize how interpreting services are used to aid communications with individuals with limited English proficiency in other contexts. For example, New York City's hospitals frequently use - translators and telephone and video remote interpreting services to treat non-English speakers. See NYC Health + Hospitals, Language and Translation Services9 (AV-ADD-81). If hospital emergency rooms consider telephone and video remote interpreting services sufficiently accurate to conduct life saving examinations and procedures, it is rational to believe that these services are sufficient to assist the NYPD in offering coordination tests to non-English speaking suspects. Indeed, the NYPD Language Access Plan outlines the steps the NYPD has taken to provide access for LEP persons to various services and benefits of the Department. See NYPD Language Access Plan (AV-ADD-3); See also New York Police Department Patrol Guide, Procedure No: 212-90, Guidelines for Interactions with Limited English Proficient (LEP) Persons m (hereinafter NYPD LEP Patrol 9 NYC Health + Hospitals, Language and Translation Services, http://www.nychealthandhospitals.org/hhc/himl/about/About-HospServices-OurServices- LangTrans,shtml (last visited Jan. 19, 2016) (AV-ADD-81). io New York Police Department Patrol Guide, Procedure No: 212-90, Guidelines for Interactions with Limited English Proficient (LEP) Persons, 36 Guide) (AV-ADD-91). The NYPD Language Access Plan describes the language assistance services that the NYPD has implemented, including (1) providing translations of essential public documents in languages most frequently utilized in the jurisdiction, (2) engaging a private vendor — Language Line Services — to be available on-call to provide translation and interpreting services, (3) creating a corps of qualified interpreters consisting of employees who are able to communicate in a foreign language, (4) providing in every precinct, housing police service area, and transit district special dual handset telephones for accessing interpretation services of Language Line Services, and (5) programming the Language Line Services telephone number in cell phones assigned to field officers. Id. (AV-ADD-4, AV-ADD-5, AV-ADD-7). The NYPD Language Access Plan also provides examples of situations where officers may seek interpretation services, such as determining if a crime has occurred, rendering and obtaining medical treatment, or apprehending perpetrators of crime. Id. (AV-ADD-10). No reason has been shown why it would be "inherently impracticable" to administer the coordination test through an interpreter while accepting the effectiveness of interpreter services in these other settings. There is no rational reason that hups:I/muekrock.s3.amazonaws.com/fola files/212- 90_Guidelinesjor interaction_with Limited English_Prolleient_LEP Persons.pdf (last visited Jan. 20, 2016) (AV-ADD-91). 37 interpretation services could not be used in the context of the coordination test as well. The Salazar court was also wrong when it held that "to require the Police Department to have qualified interpreters on call on a 24/7 basis would impose unrealistic and substantial financial and administrative burdens." 112 A.D.3d at 11. The NYPD provides for live and telephone interpretation already. See NYPD Language Access Plan (AV-ADD-3). In fact, the NYPD's telephone interpretation services are heavily integrated with the Department's operations: Language Line Services processed 112,587 NYPD-related calls in 2010; every precinct, housing police service area, and transit district has special dual handset telephones for accessing interpretation services of Language Line; and Language Line's telephone number is programmed in cell phones issued to field officers. Id. (AV-ADD-5- AV-ADD-6). Thus, the financial and administrative burdens associated with ensuring the availability of the coordination test to non-English speakers are exaggerated. There are other ways to eliminate the NYPD's discriminatory policy without imposing substantial burdens on the Department. The NYPD can offer coordination tests in a foreign language using a video recording, as it does for chemical tests, as no distinction has been identified between the complexities 38 involved in instructing suspects on the consequences of refusal to submitting to a chemical test and the coordination test instructions. The NYPD could employ video-communication technology to assist in administering the coordination test in a foreign language. In fact, Language Line Services, the private vendor that the NYPD uses for over-the-phone interpreting services, also offers video-remote-interpreting (" var). See Language Line Solutions Video-Remote-Interpreting" (AV-ADD-83). Using VRI, the interpreter would be able to observe the suspect perform the test and guide the suspect where it is apparent that instructions are not clearly understood. Furthermore, because there are only six I.D.T.U. facilities in New York City, this service would only need to be established at six locations; dramatically reducing the financial burden of offering such interpretation services. Therefore, this Court should not limit its holding so as to foreclose the possibility of offering linguistic minorities legal protection by accepting Salazar's unpersuasive reasons for the discriminatory practice. In addition, the Appellate Term did not consider a crucial distinction between this case and Salazar: as the trial court concluded, in cases like this, where the results of the chemical tests are so low that there is a strong probability that the Language Line Solutions Video-Remote-Interpreting, htip://www.languageline.conilsolutions/video-interpretation/ (last visited Jan. 19, 2016) (AV- ADD-83). 39 results of the coordination test would have been exculpatory, the failure to administer the physical coordination test bears no rational relation to a legitimate government purpose. See A-75 (Decision and Order). In Salazar, the defendant's blood alcohol content was nearly three times the legal limit. Of course, coordination test would produce little exculpatory evidence to a defendant whose chemical test shows that the defendant is per se intoxicated, as in Salazar. In contrast, Mr. Aviles' breathalyzer test was .06, which is below the minimum for a per se violation. See V.T.L. § 1192(2). Importantly, pursuant to statute, a BAC result between .05 and .07 is prima facie evidence that the person was not in an intoxicated condition. See V.T.L. § 1195 (2). In stark contrast to Salazar, Mr. Aviles was charged with Driving While Impaired under V.T.L. § 1192(1) and Driving While Intoxicated under V.T.L. § 1192(3), which require a subjective analysis by the fact finder to determine if the driver violated the law. In assessing the rationality of a governmental action, the Supreme Court has required that the analysis take into account the harm to the "victims" resulting from the government's actions. See Plyler v. Doe, 457 U.S. 202, 224 (1982). The reasons the Salazar court found as supporting the rational basis for the policy cannot suffice in the differing context of this case. Where a defendant's BAC is low, the failure to offer the coordination test undermines the proffered legitimate governmental purpose of "avoid[ing] confusion and complications due to a 40 language barrier." Salazar, 112 A.D.3d at 10. This is because it would be difficult for the fact finder to determine whether an individual with a low BAC was impaired by alcohol without having an opportunity to examine, first hand, how the defendant responds to a series of instructions that are designed to test whether the defendant was impaired. Mr. Aviles is statutorily presumed to not be intoxicated due to his low BAC, and the NYPD's failure to offer coordination test deprived Mr. Aviles of an opportunity to confirm to the fact finder that initial presumption. The NYPD, as a result, was able to limit its evidence to the subjective (and favorable) testimony of the police officer, which is obviously prejudicial where no observable evidence is available. As noted in the People's opposition to the motion filed below, the arresting officer would testify that Mr. Aviles had a strong odor of alcohol, slurred his speech, and was swaying and unsteady on his feet. See A-83 (Satin Affirmation). These are all subjective observations, and it would not be surprising if they were biased because Mr. Aviles was involved in an accident with a police car that was pulling out of the police precinct as Mr. Aviles was driving by. Allowing these alleged observations to be admitted before a trier of fact, while depriving Mr. Aviles of the opportunity to present a recording of the coordination test showing his appearance at the I.D.T.U., severely undermines Mr. Aviles' ability to mount a defense. 41 For these reasons, this Court should find that the NYPD's practice of offering coordination tests only in English is not rationally related to a legitimate governmental purpose, and all the more so is not narrowly tailored to serve a compelling government interest, as strict scrutiny requires. Accordingly, the policy violates Equal Protection and is unconstitutional. B. The Failure of the NYPD to Offer Mr. Aviles the Opportunity to Perform a Coordination Test Violates the Due Process Clause of the United States and New York State Constitutions. The Appellate Term incorrectly concluded that the NYPD's failure to offer Mr. Aviles a coordination test did not violate his Due Process rights. As with the Equal Protection argument, the Appellate Term's analysis relied on Salazar, and was therefore misguided. Salazar held that "there is no risk of an erroneous deprivation of defendant's liberty by failing to conduct a physical coordination test" because a coordination test is an "investigative," rather than "judicial, quasi- judicial, or even an administrative proceeding." 112 A.D.3d at 13. However, Salazar did not take into account that the coordination test is an established NYPD procedure that has components of a judicial and an administrative proceeding. Indeed, it is the policy of the NYPD to administer coordination tests. See e.g., NYPD DWI Patrol Guide (AV-ADD-85); I.D.T.tJ. Procedural Guide (AV-ADD- 27). In addition, the court below failed to recognize that Salazar specifically 42 acknowledged that its Due Process analysis does not apply to situations such as the present case, where the defendant's BAC was low. Id. The Fifth Amendment of the U.S. Constitution provides that "No person shall be . . . deprived of life, liberty or property, without due process of law." U.S. Const. amend. V. Similar protections are provided in Article I, Section 6 of the New York State Constitution. N.Y. Const. art. I, § 6. To determine whether a governmental action violates the Due Process clause, courts apply the three-part test articulated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). Under Mathews, a court must evaluate: (1) the private interest affected by the challenged government procedure; (2) the risk of an erroneous deprivation of that interest if the procedure is allowed to stand; and (3) the government's interest in retaining the procedure, including possible administrative and financial costs of changing the procedure and the prospective value of additional protections. 424 U.S. at 334-35. The Salazar court acknowledged that an arrest and conviction for driving under the influence of alcohol places a significant liberty at stake. Salazar, 112 A.D. 3d at 13 ("[A Is in any criminal case, a significant liberty interest is at stake"). It is therefore undisputed that the first Mathews factor was satisfied in Salazar and in this case. In Salazar, however, the court determined that the defendant failed to satisfy the second Mathews factor, concluding that the NYPD's policy of not 43 offering a coordination test to the defendant in that case would not risk erroneous deprivation of his liberty. Salazar provided two reasons for this conclusion: (1) a coordination test is merely an investigative tool and the defendant does not have a right to have the police perform certain investigative functions, and (2) not offering a coordination test to the defendant would not pose a great risk that he will be erroneously deprived of his liberties because there was ample of other evidence that he was, in fact, intoxicated. Id. In Salazar, the court concluded that erroneous deprivation of a defendant's liberties could only occur at judicial, quasi-judicial, or administrative proceedings. 112 A.D.3d at 13. Because administering a coordination test is an "investigative function" that "may yield information that is helpful to [the defendant]," the court held that the failure to provide the coordination test could not deprive the defendant of his liberties. Id. however, the circumstances under which the coordination test is administered in New York City qualify the test as a quasi- judicial or an administrative proceeding in practice. The Due Process clause was established to protect individuals from deprivation by the state of the right to life, liberty and property without appropriate procedural safeguards. See Cleveland Bd. of Educ. v. Ludermill, 470 U.S. 532, 541 (1985). The Supreme Court has repeatedly stated that Due Process is flexible and calls for such protections as the particular situation demands. See Morrissey v. 44 Brewer, 408 U.S. 471, 481 (1972). Indeed, contrary to the conclusion reached in Salazar, "due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstance." See Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). It follows that the "[due process] privilege attaches . . . to every step of the proceeding in question even if it is preliminary and/or investigatory and irrespective of whether formal charges are ever presented." See Herzfeld & Stern, Inc. v. Warren Beck, 175 A.D.2d 689, 691 (1st Dep't. 1991) (addressing Due Process protections in the context of an investigation by a securities exchange). Consistent with the flexible nature of the Due Process clause, courts have held that governmental actions analogous to those that take place at the I.D.T.U. amount to a quasi-judicial function. In Meyers v. Amerada Hess Corporation, the Southern District of New York held that a State Division of Human Rights (the "Division") investigatory conference — an investigation by the Division of whether a complaint made to the Division has sufficient probable cause to hold a hearing — was a quasi-judicial proceeding. 647 F. Supp. 62 (S.D.N.Y. 1986). The court held that any "step" that takes place in the "course" of the judicial or quasi-judicial proceeding, including "preparations for those proceedings," is part of the proceeding. Id. at 65. Similarly, this Court has held that an investigation by the New York State Bar Association's Grievance Committee constitutes a quasi- 45 judicial function because the Committee acts as an "arm" of the Appellate Division. Wiener v. Weintraub, 22 N.Y.2d 330, 332 (1968). Similarly, the coordination test is part of a quasi-judicial or administrative proceeding. While in many jurisdictions, the coordination test is performed roadside and before the driver is placed under arrest, in New York City, an individual suspected of driving while intoxicated is placed under arrest before he is transported to the I.D.T.0 for testing. This distinction is significant for the Mathews analysis because an individual under arrest is at greater risk of an erroneous deprivation of liberty than an individual who is not in custody. After an arrest is made, the officer is required to follow specific procedures developed by the NYPD to assist the prosecution in the adjudication of the case, and these procedures function as preparation for the judicial proceeding, as in Meyers. See 647 F. Supp. 62 (S.D.N.Y. 1986); See also NYPD DWI Patrol Guide (AV-ADD- 85). The LD.T.U. procedures are governed by the I.D.T.U. Procedural Guide, which directs the I.D.T.U. technician to "offer the subject the coordination exam" after the chemical test has been administered and by the NYPD DWI Patrol Guide, which similarly directs the I.D.T.U. technician to "conduct 'coordination test' of prisoner, in presence of arresting officer." See I.D.T.U. Procedural Guide (AV- ADD-27); NYPD DWI Patrol Guide (AV-ADD-87). The coordination test is one of only two tests that the I.D.T.U. Procedural Guide requires, and is therefore an 46 essential "step in the proceeding" by which the government considers whether to charge the defendant. See Meyers, 647 F. Supp. at 65. By gathering evidence after the arrest has been made pursuant to a specific administrative protocol, the NYPD acts as an "arm" of the prosecution. See Wiener, 239 N.E.2d at 541. The failure to provide a coordination test at the I.D.T.U. cannot be analogized to a mere failure to perform a certain investigatory function, as Salazar suggests, where, for example, the officer fails to track down a lead or fails to locate a specific piece of evidence while executing a search warrant. On the contrary, administering a coordination test to individuals suspected of driving while intoxicated is a systematic part of the NYPD's rules and policies. In this case, the police officer consciously considered whether to offer a coordination test to Mr. Aviles, as is done in the majority of arrests for driving while intoxicated, determined not to offer a coordination test, crossed out the "coordination test" portion of the I.D.T.U. Technical Test Report, and wrote "no coord test given language barrier" on the report. This was not a mere failure to perform an "investigative function" but rather a conscious decision by the officer to deviate from the mandated procedure in a particular case. Because the coordination test is a specific procedure established by the government to obtain evidence for the purpose of determining whether to charge the defendant, the coordination test (or 47 the decision not to offer the test) constitutes a quasi-judicial or an administrative function for this purpose. The Salazar court also concluded that failing to provide a coordination test did not pose a great risk of erroneously depriving the defendant of his liberties because "defendant's breathalyzer test results, as well as the officer's observation of the defendant at the scene of his arrest, amply supported the conclusion that defendant was, in fact, intoxicated." Salazar, 112 A.D.3d at 13. In Salazar, there was indeed ample evidence supporting the conclusion that the defendant was intoxicated: the defendant's car was parked facing oncoming traffic, the defendant was slouched over the steering wheel, there was an open 40-ounce bottle of beer in the car, the defendant was unable to step out of the car without the assistance of the officer, the defendant told the officer that he was drunk, and, most importantly, the defendant's breathalyzer test produced a BAC of .21, nearly three times the legal limit. 112 A.D.3d at 7. As the Mathews court emphasized, the critical factor in determining whether an individual's Due Process rights are violated is the likelihood of "erroneous" deprivation of his liberties. See Mathews, 424 U.S. at 335. In the present case, the risk of "erroneous" deprivation of Mr. Aviles' liberties is significantly higher than in Salazar because Mr. Aviles' chemical test produced a BAC below the minimum legal requirement for a per se violation and there is little other evidence supporting 48 a conclusion that he was intoxicated. In fact, Mr. Aviles' BAC results are prima facie evidence that he was not in an intoxicated condition and a video of a coordination test could have further demonstrated to the finder of fact that he was not impaired or intoxicated. Without a video of the coordination test, the finder of fact would have a very limited set of facts to analyze whether Mr. Aviles was impaired or intoxicated. According to the arresting officer, Mr. Aviles had a strong odor of alcohol, slurred speech and was unsteady on his feet. See A-83 (Satin Affirmation). These are all subjective observations, and the fact that Mr. Aviles was involved in an accident with a police car that was pulling out of the police precinct as Mr. Aviles was driving by allows for a plausible suspicion of unconscious bias. The officer's failure to offer the coordination test denied highly valuable, objective, and likely exculpatory evidence to the finder of fact. As a result, this failure significantly increases the risk that Mr. Aviles' liberties will be erroneously deprived. Due Process requires that the state implement procedural safeguards prior to depriving an individual of his liberties. See Ludermill, 470 U.S. at 541. A coordination test is such a procedural safeguard that the NYPD has implemented to determine whether an individual suspected of driving while intoxicated has violated the law and should therefore be deprived of his liberties. By not offering a coordination test to Mr. Aviles, the NYPD placed him at heightened risk of 49 deprivation - being found guilty of driving while intoxicated - without the very procedural safeguards that the NYPD has systematically established to protect individuals from exactly this unconstitutional outcome. Finally, the governmental interest at stake for preserving this inherently discriminatory policy does not outweigh the deprivation of Mr. Aviles' liberties resulting from the officer not offering him a coordination test. In Salazar, the court stated that the procedural safeguards of providing coordination tests to non-English speakers are outweighed by the fiscal and administrative burdens on the NYPD resulting from having trained interpreters in numerous languages be available around the clock. 112 A.D.3d at 13. However, as described above, there are a number of ways for the NYPD to provide coordination tests in foreign languages without incurring excessive fiscal and administrative burdens, including offering video recordings or administering coordination tests through a telephone or video- remote interpreting service, and the NYPD already uses these interpreting services in many other aspects of police work. In addition, interpreting services need to be provided at only six I.D.T.U. locations, further minimizing the fiscal and administrative burden on the government. The costs to the government of implementing these procedures are minimal when compared to the erroneous risk of prison or financial burden associated with denying coordination tests to individuals who do not speak English. 50 Therefore, this Court should find that the NYPD's failure to offer the coordination test to Mr. Aviles violated his Due Process rights. 51 CONCLUSION FOR THE FOREGOING REASONS, THIS COURT SHOULD REVERSE THE APPELLATE TERM, FIRST DEPARTMENT'S DECISION. Dated: New York, New York January 21, 2016 Respectfully submitted, V. MARIKA MEIS, ESQ. The Bronx Defenders 360 East 161st Street Bronx, New York 10451 Tel: (718) 838-7846 Fax: (718) 665-0100 B ALEKSANDR B. LivsHiTs, ESQ. Of Counsel Fried, Frank, Harris, Shriver & Jacobson LLP 1 New York Plaza New York, NY 10004 Tel: (212) 859-8524 Fax: (212) 859-4000 52