Spanish-speaking drivers in Westchester County may have been wrongfully convicted of drunk driving for years because of unofficial instructions about sobriety tests. That’s according to a new ProPublica report, which finds New York State Police provided mistranslated directions to drivers about what refusing a blood alcohol test actually means. Now, the Westchester County DA says it is reviewing a backlog of possibly affected cases. Joining us now for more on the story is reporter Brett Murphy.
Can you explain what the problem with this number of cases was specifically?
Yeah, so each time someone gets pulled over, and they're suspected of a DWI, they're asked to take a breathalyzer test or another chemical test to measure their blood alcohol content. If someone refuses or if they don't want to, there's a very specific warning that the officer is supposed to read them. It's similar to Miranda rights, it's pretty much telling them, “If you don't take the test that can be used as evidence against you,” that being the refusal of the test, “we're also going to suspend your license right away.” That's what an officer is supposed to say in those situations. What we found was that from at least 2014 to 2018 in Westchester County, state troopers were telling Spanish speaking drivers something else and they were telling them in the form of a written document that they would hand them if they didn't speak English. That document was supposed to be a translation of the official warning, which I just told you. Instead, it mistranslated the directions entirely. It was full of kind of garbled language that was contradictory and perhaps most importantly, it said that if the driver refuses the test, then they will be found guilty, or they will charge you as being guilty. This, according to the experts in attorneys I was talking to amounted to kind of a coercive warning instead of what it was supposed to say and that's why it was so problematic, because it was an improper warning in a process that's supposed to abreast drivers of their rights in these situations.
I know part of the story centers on this following question, which is not entirely clear. But where did this page of instructions come from?
We don't know that. So, I asked the state police and I asked the DA, I was like, “where did these come from? How did they come to be?” State police said, “all we know is that this is not an official document.” We being the leaders at the at the State Police didn't create it. They think it came from perhaps a trooper who was trying to be helpful, maybe and came up with their own translation. At any rate, it looked like it was being used for quite some time without anyone really catching it or noticing. But there was no real satisfying answer about who or when precisely, these things started circulating.
How did all this come to light?
So, it came to light actually a few times and this was sort of the crux of our reporting, actually. In 2018, a defense attorney representing a driver suspected of DWI, noticed the mistranslated warning during a hearing brought it to the attention of a prosecutor and said, “what's the deal with this?” And they wanted reduced charges against that driver, dropping from a misdemeanor to a violation because there was tainted evidence in the case in this mistranslated form. The senior prosecutor on that case with the DA’s office agreed that there is in fact a problem. This prosecutor told the judge and offered reduced charges. From there, we don't really know what happened. There's no evidence that people above that prosecutor were told about the issue. There's no evidence that there was any sort of review of cases that may have impacted other cases. Fast forward to the to the following year, it happens again, in a separate case, again, defense attorney tells the senior prosecutor, “Hey, we have an issue here with this case, look at the tainted evidence.” The prosecutor agrees and at that point, that prosecutor tells the state police, “Hey, I don't want to see these anymore.” And as far as we know, you know, they stopped circulating at that point. That's in 2019. Again, no evidence of a review internally at the DA’s office of other cases that may have been impacted. This is really what the experts were telling us as a problem, because at this point, at every step when the DA’s office learned about it, the experts said they should have done a review they should have done looking for cases that may have been impacted by this because there was clearly evidence that there was a pattern here that multiple cases could have been impacted. There's no evidence that that took place. Again in 2021 it comes up a third time. This time, the conviction review unit, which was newly created by Mimi Rocah, who had taken office in early 2021 said, “we're going to take a look at these cases now.” And to be clear, these past warnings in 2018 and 2019, predated Mimi Rocah’s administration. So, they are now taking a look at the cases, but it took multiple warnings over several years before any action was taken.
Do we know how many potential cases there are?
We don't have a number on that. What we have is the number 260, that's how many arrests the state police have referred over to the conviction review unit for them to take a look at. So far, the CRU has reviewed about 44 of those and in 5 of the 44, they found the mistranslated forms, there could be a lot more we don't know if that 260 encapsulates the entire universe in which this form was given. We don't know a lot about what actual scale we're looking at here, given the universe that was handed from the State Police over to the DA’s office.
Now it is possible and/or likely that in many of the cases, the drivers were in fact driving while impaired, correct?
Absolutely. Yeah. So, this is this was the point that DA 's office made a few times and others have said as well that this is one piece of evidence, there's often other types of evidence, maybe a confession or failed sobriety test. Some of these drivers had been convicted before or since of DWI. So, it's definitely important to keep that in mind. However, the blood alcohol content is often the linchpin in a prosecution, right? That conviction often will depend on what that number is and if that number was obtained through a flawed process, given an improper warning, then that's a major issue. That's what that's what people kept bringing up. That's why we have a process here.
Now, there are presumably Spanish speaking drivers in other parts of New York State that are patrolled by New York State Police. Is there any evidence that this mistranslated form was used in other areas of New York?
No, there's no evidence that that is the case, although it was a question I asked in this story. I didn't kind of go looking in those other counties. I did ask the state police and they said, we don't believe it was used in any other counties, just Westchester. The specter was raised, of course, by some of these defense attorneys and experts that this may have been an issue before. In fact, mistranslated Miranda warnings have been a problem before and other jurisdictions, other departments. But I didn't see any cases outside of Westchester.
Bigger picture, if somebody who does not speak English is pulled over by law enforcement or is dealing with law enforcement. Is there a process to be followed where they can get instructions in a language they can understand?
Yeah, so I asked the state police that exact question, they said process that's in place is to dry if the police officer who's making the arrest or pulled someone over does not speak that native language, so say it's Spanish, and the driver also does not speak English, so there's a communication problem. They have a translation service that is contracted by the state police that they can call to have the conversation and incorrectly and accurately we lay really what the warning is supposed to be.
For people who may have been wrongfully convicted through this sort of botched process, I wonder if you can speak to the challenges, they would face in potentially staying in the country or keeping their immigration status what it was, I imagine that it would be pretty difficult for some of them to potentially embark on clearing their names at this point.
Yeah, and that was sort of the issue I was raising because the DA’s office has said, “we are conducting the review and, on a case-by-case basis. we're going to look at remedies for each one of these cases that may have been impacted by the mistranslated form by the tainted evidence.” They told me that vacating sentences, so throwing out some of these convictions, may be on the table as something they will offer. However, as you pointed out, these cases go back to as far as 2014. Right? So, the people who may have been impacted could be out of the country by now. They could have faced other charges stemming from this. They could have lost their jobs. There's sort of this cascading effect. This is what the experts I talked to about this told me. This group of people, especially if they're immigrants, you know, face very severe consequences for this type of thing. So, the stakes are very high and there could in fact be situations where folks are no longer here because of what happened. We don't know that to be true of any of the few that I found, although it was stated in an affidavit from one of the drivers that this has been fear now, because of this conviction and the improper warning that they received or they're worried about their status in the country.
Separate from the ongoing reviews, has this reporting led to any changes within the Westchester County DA’s office? What have they told you?
Not that I know. I know that they are reviewing the cases. They told me they're doing that. However, they made the point, the CRU, which is new, relatively new, was created by the current administration. There are only three attorneys on it, so they have to prioritize claims of actual innocence, exonerations, that sort of thing. I think they're a little bit inundated. So, they're kind of weighing their priorities and they're kind of doing it as a project, this thing. I have asked about other steps they may be taking, if you know what questions were asked to those senior prosecutors who I told you were first alerted to this, including one who is still at working at the office but did not receive a satisfying answer on that at all. If they were asked, what did you do at the time, what steps were taken at the time? What other steps are being taken now? As far as I know, it's just this review of these 260+ cases.
