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On April 1, 2011, Attorney John L. Calcagni, III was interviewed for a Lawyer's Weekly article regarding the issue of language barriers and the rights of drunk-driving defendants.

The article details a December 2009 case, wherein Attorney Calcagni represented a non-English speaking defendant who had been arrested and charged with driving under the influence. The decision reached by the Court found, based upon testimony by the arresting officer, that the defendant was aware enough to submit to a field sobriety test, but that the blood alchohol test was given without his full awareness.

Find the article and contents below. To Learn more feel free to contact Criminal Defense Lawyer John L. Calcagni by Email or call today at (401) 351-5100 to schedule a FREE CONSULTATION.

Additional Press Mentions for Attorney Calcagni can be found HERE.

 

Language barrier at issue in drunk-driving case

Lawyer vows to appeal

By Phillip Bantz
Rhode Island Lawyers Weekly
Published: April 1, 2011

Providence lawyer John L. Calcagni III recently lost a hard-fought OUI trial in which his defense hinged on the language barrier between his client and the trooper who arrested him. But the case, which was decided by a jury in New Bedford, Mass., appears to be far from over.

On the night of Dec. 22, 2009, a Massachusetts State Police trooper stopped Calcagni’s client, Daniel P. DaLomba, for driving erratically after a witness reported seeing DaLomba’s vehicle drifting across three lanes of traffic and travelling 15 mph under the speed limit, according to an arrest report.

DaLomba, a Cape Verdean immigrant living in Pawtucket, speaks Creole and some Portuguese, but virtually no English. By communicating through physical gestures, the trooper had DaLomba, 53, perform a series of roadside field sobriety tests, which he said DaLomba failed.

The trooper detained DaLomba, took him to a nearby police barracks and gave DaLomba a copy of his statutory rights in Spanish, which he believed DaLomba understood.

After looking over the form, DaLomba agreed to take a breath test, which registered his blood-alcohol level between .15 and .23 percent, according to the arrest report. The legal driving limit is .08.

DaLomba was convicted of OUI following a trial in New Bedford District Court. But Calcagni plans to appeal the verdict. He recently spoke with Lawyers Weekly’s Phillip Bantz about Commonwealth v. DaLomba.

Q. Is a language barrier between an officer and a driver a fairly common issue? Have you tried other cases like this one?

A. Actually, this is the first case I’ve ever had like this. I think it’s a novel issue, but one that is being or will be encountered by other lawyers in coming years. I really think it’s a neat issue that’s probably affecting other lawyers or people who perhaps don’t have the means to press the issue.

Q. DaLomba’s arrest report states that he understands Spanish, but is that true?

A. Actually, it’s not. He doesn’t speak any Spanish. He may have understood a word or two, but he doesn’t understand the language. He testified at the motion hearing that the officer just kind of pointed and my client signed. And for that reason, the blood alcohol was excluded as evidence.

Q. What evidence did the jury have to consider during the trial?

A. It was really just the officer’s observations: the standard field sobriety test and the operation of the vehicle. The field sobriety test was really the thrust of the state’s evidence.

Q. How did you address the field sobriety results?

A. We attacked that [evidence] by [emphasizing] the fact that Mr. DaLomba said he didn’t understand what the officer was saying that night. The officer indicated that it is his practice to demonstrate how you do the tests, but he doesn’t demonstrate the whole test. He just goes through the preliminary motions. So it was impossible for my client to have a meaningful understanding of what was actually required of him.

Q. You tried to suppress the field sobriety test, right?

A. Absolutely. The judge denied the motion. Apparently there is no statutory requirement to advise a person of their rights before they are given a field sobriety test. And so basically [the judge] found that the defendant understands a limited amount of English, and this was enough for him to comply with the field tests but not enough for him to consent to the breath test, which I thought was an odd discrepancy myself. … I’d say that if [jurors] didn’t have that field test evidence, there would be no conviction for DaLomba.

Q. If DaLomba didn’t understand the officer, why didn’t he decline to cooperate?

A. We had a foreign language expert testify about this. It’s called gratuitous concurrence. Basically, DaLomba’s reply was yes to all the questions because he didn’t understand. It’s the same thing that happens when you have an expert in a certain subject talking to someone with a very limited understanding of the subject. The person with limited understanding will agree with whatever the expert says.

Q. Just how limited is DaLomba’s grasp of English?

A. Our expert said he knows, gratuitously, like 50 words in English. And he’s also very limited with Portuguese, too. When I started working with DaLomba in court before the trial, we had a Portuguese interpreter. [DaLomba] always said he could understand Portuguese, but one interpreter urged me to get a Creole interpreter. When I got the Creole interpreter, my interaction with my client was like night and day. I would ask him questions to trick him, and he would come up with rock-solid answers. He also seemed to open up personality-wise. Come to find out, DaLomba’s got a third-grade education and it’s in the Cape Verde education system where Portuguese was taught, but on the streets it’s Creole.

Q. So on appeal I assume you’ll focus on trying to get that field sobriety test tossed out. Can you discuss the argument you plan to bring?

A. I’m going to argue that the motions judge committed error when he refused to exclude the field sobriety test, and I’m going to argue that while there is no statutory requirement for rights advisement for a field test, the law obviously acknowledges that someone being administered a test, like a breath test, has knowledge of what’s being asked of them and what’s being expected of them and how the information being provided is being used against them. Right now, a guy like Mr. DaLomba is at a complete disadvantage from step one. It’s like sitting down for a test without having been given any of the study materials.

Q. Have you found any caselaw to back up your argument?

A. I haven’t found much guiding caselaw on this issue of language and field sobriety tests. I did find a couple of cases in New Jersey that weren’t exactly on point and some that held weight against me, basically saying that driving is a privilege, and in order to obtain that privilege people have to give up certain rights, such as complying to tests on the roadside. Obviously, I will not be citing those cases.

By Phillip Bantz
Rhode Island Lawyers Weekly
Published: April 1, 2011

To Learn more Contact Criminal Defense Lawyer John L. Calcagni by Email or call today at (401) 351-5100 to schedule a FREE CONSULTATION.