APPEAL from the Circuit Court of Livingston County; the Hon.
DARRELL H. RENO, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The issue in this case concerns the right of the State to appeal from an order suppressing evidence in a criminal case. On May 4, 1975, defendant Jose C. Lara was involved in a highway accident in Pontiac, Illinois. Thereafter he was issued a traffic citation for driving under the influence of intoxicating liquor in violation of section 11-501(a) of the Illinois Vehicle Code. The pertinent part of section 11-501(a) provides:
"No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State." (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501(a).)
Defendant was escorted to the Pontiac police station where he was administered two breath tests.
Section 11-501.1(a), the "implied consent" provision of the Vehicle Code, provides that any person who drives a motor vehicle in this State, thereby consents to analysis of his breath or blood following a lawful arrest for an offense defined in section 11-501. A police officer must request within a reasonable time following arrest that the subject submit to the test. The test must be administered with an instrument approved by the Department of Public Health in consultation with the Department of Law Enforcement. The test must be administered twice, no less than 15 minutes apart, with the results being printed on a permanent record reflecting the date and time of the test. In addition, the subject must be given an oral statement and a statement printed in English and Spanish which advises him of the following: that by driving in this State, he has consented to the aforementioned analysis; that he may refuse to submit to analysis within 90 minutes of the request, but that such refusal will result in an automatic suspension of his driver's license for 3 or 6 months; that he may consult an attorney; that a refusal to submit to analysis or the results of analysis, if allowed, can be admitted into evidence; that he has a right to a copy of the analysis results; that he will be presumed intoxicated if the results indicate the presence of a .10% or more by weight of alcohol in his blood; that he can have other tests performed at his own expense; and that he has a right to full disclosure of information relating to the results of his test. Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.1(a).
The results of a breathalyzer test are admissible into evidence in the prosecution of a charge for driving under the influence of intoxicating liquor pursuant to section 11-501(c) which states in part:
"Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person's blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily substance is admissible, as provided hereinafter in this paragraph (c) * * *." (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501(c).)
Paragraph (c) goes on to require the consent of the defendant to the taking of a breathalyzer test before evidence of the results may be admitted at a criminal proceeding. The provision states:
"Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed." Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501(c).
On May 6, 1975, defendant pleaded not guilty and demanded a jury trial. On August 20, 1975, defendant filed a pretrial motion to suppress the results of the breathalyzer test on the ground that the required section 11-501.1 admonitions were not meaningfully given.
At the suppression hearing, Alejandro Gutierrez, who accompanied defendant at all times pertinent to the accident and tests, testified that defendant did not understand English. Gutierrez served as an interpreter for defendant both at the scene of the accident and at the police station. At the station, Gutierrez was told by a police officer that defendant was to take two breath tests. Gutierrez was then handed the "Notice of Request to Submit to Test of Breath to Determine Intoxication" and was told to either read the Spanish side to defendant or to translate the English side as the officers read aloud the request form. Gutierrez could barely read Spanish, but could read English. The police never asked him about his translating ability or his ability to read Spanish. Gutierrez stated that defendant was not given a copy of the request form. While police read portions of the form, Gutierrez attempted to give defendant "an idea" of the meaning of each portion being read. Apparently, Gutierrez read paragraphs 1 and 3 in Spanish to defendant; he merely attempted to translate or convey the proper meaning of paragraphs 2 and 4 to 9 to defendant. Gutierrez admittedly was unable to "translate" certain words such as violation, analysis, determine, consult, privilege, revocation, submit, influence, establish, and presumption and felt he was hampered by a lack of time in his "translation" efforts. In fact, it appeared that Gutierrez in "translating" to defendant, misconceived the meaning of certain portions of the request form. The police never asked Gutierrez to ask defendant whether he understood what was being said to him.
Subsequently, the police told Gutierrez that defendant had to sign some papers. After Gutierrez told defendant he had to sign the request form, defendant signed, apparently without opportunity to read the form. Gutierrez testified that one breath test was administered to defendant before he signed the form, and the other after he had affixed his signature.
The defendant, through an interpreter, then testified that he could read and speak Spanish, but did not understand much English. Defendant stated that while at the police station he did not have a copy of the request form, nor could he see the copies possessed by the police and Gutierrez nor did he have an opportunity to read the form before signing it. Defendant said he did not quite understand Gutierrez' "translation" of the contents of the form but did understand that he was to sign the paper and participate in a test. Defendant testified that at the time of signing the forms, he did not know of his right to refuse to take the test or the effect of a refusal, or the presumption established by a finding of .10 percent alcohol in the blood. Defendant testified further that after he arrived at his home later that day, his brother read him the request form and defendant then realized Gutierrez had not explained everything.
The State's evidence sharply conflicted with defendant's evidence. The arresting police officer, Michael Ores, testified that at the station he gave defendant a Spanish copy of the request form and gave Gutierrez an English copy. Ores stated he explained to Gutierrez that defendant had to understand all of the points on the request form. Whenever a question arose, the reading stopped and the problem was resolved between Gutierrez and Ores. Ores testified that Gutierrez did not seem to have problems reading and translating. Ores explained that defendant had to sign the request form in order to administer the test, yet, he did not specifically state to defendant that he did not have to take the test or sign the form. Since Ores does not speak Spanish, he was unaware of what was said to defendant by Gutierrez. Ores' testimony was materially supported by another police officer, Arthur L. Griggs, who was present at the station and who administered the breath tests.
The record includes a Spanish copy of the request form which has been signed by Officer Ores and defendant.
From this evidence, the trial court found that defendant "* * * did not at time of test and does not now speak, write or read English; that People and Defendant relied upon an interpreter whose capability and accuracy were unknown to the People; People did not ask Defendant if he read or understood Spanish; evidence in controversion whether People furnished Defendant copy of `Notice of Request to take Breath Test' concurrently with the reading of the notice; that officer read the notice in English; that interpreter passed on to Defendant interpreter's understanding of the meaning in summarized form to Defendant, but did not translate verbatim the Notice; that interpreter did not read ...