Tainted DWI Evidence Was Ignored for Years by New York Prosecutors

This story was originally published on ProPublica by Brett Murphy. Co-published with El Diario.

Senior prosecutors in one of New York’s largest counties have known for years that drunk driving convictions of Spanish-speaking motorists may have been tainted by faulty evidence. But the Westchester District Attorney’s Office failed to investigate until defense attorneys contacted the unit that reviews wrongful convictions.

From at least 2014 to 2018, records show, New York State Police troopers gave some drivers mistranslated instructions about what it means to refuse a blood alcohol test.

Legal experts, including three former prosecutors in Westchester, told ProPublica that those incorrect directions could, at a minimum, confuse or mislead drivers and may have pressured some into a decision that resulted in severe consequences.

Westchester prosecutors were alerted to the issue at least three times, in 2018, 2019 and 2021, records show.

“These are folks that are wrongfully convicted,” said Joseph Margulies, a government and law professor at Cornell University. He and others said the district attorney’s office — currently led by Miriam Rocah, who was elected in 2020 — should have been investigating every case that may have included the forms since its prosecutors became aware of the faulty instructions.

Rocah declined requests to discuss what steps she’s taking to address the issue. Spokesperson Jin Whang said the office’s conviction review unit received a list of 263 DWI arrests from the police in February 2022.

“We’re still combing through paper,” she said, acknowledging progress has been slow due to the unit’s small staff and more urgent priorities, compounded by tangled police records. Whang added that prosecutors recently decided, amid questions from ProPublica, that they will consider moving to vacate sentences.

When a driver suspected of being drunk refuses a chemical test for alcohol in their system, police in New York, like in many other places, are required by law to explain that the motorist’s license will be suspended, whether or not they are found guilty, and that their refusal can be used as evidence against them.

A chemical test typically measures blood alcohol content in someone’s breath, blood or urine.

But some state police troopers in Westchester told Spanish-speaking drivers something different. Officers in Troop K gave those motorists a sheet of paper that described a refusal as tantamount to being found guilty for driving drunk.

It told drivers that authorities “will punish you as being guilty” for not taking the test — which is a significant departure from the actual law, which only states the refusal can be used as evidence against them.

The warning also falsely stated that officers “are going to examine your blood,” instead of requesting that drivers take the test, which is often a Breathalyzer.

ProPublica consulted with Spanish-language and legal authorities at five universities, who said the mistranslated warning had several deeply flawed passages.

“It looks like they’re really coercing a ‘yes,’” said Amber Baylor, a law professor at Columbia University who reviewed some of the records. She said immigrant drivers may feel especially susceptible to that kind of pressure given the potential consequences: “your job going up in flames, losing your livelihood, being separated from your family or losing your ability to stay in the country.”

In an email statement, Beau Duffy, a state police spokesperson, said the form “was not an official document that was created, distributed or approved” by the agency, which means it cannot easily be tracked in department records. He said he didn’t know when the Spanish warning was first used or where it had come from but said it is no longer in circulation.

“We believe they were used only in Westchester County,” Duffy said, adding that the state police do not currently issue written refusal warnings in Spanish. The agency tells troopers who don’t speak Spanish to use a telephone translation service contracted by the department.

It’s unclear how many drivers have been impacted. For context, state police troopers arrested at least 56 Hispanic motorists on drunk driving charges in Westchester last year and 79 in 2021, according to state court data.

(The state does not maintain local court records from previous years.) The data does not indicate whether or not those drivers spoke only Spanish. Around 65,000 adults in Westchester speak Spanish and limited or no English, according to U.S. Census Bureau estimates.

Whang said prosecutors didn’t believe that it was fair to cast all convictions involving the mistranslated form as wrongful.

But blood alcohol content is typically the linchpin of successful prosecutions. Legal experts compared the pre-test warning to a Miranda warning, which allows suspects to make informed decisions. “That’s why we have a process,” said Cornell’s Margulies.

Whang said the conviction review unit, which Rocah created shortly after she took office, first learned about the translation issue in late October 2021, when defense attorneys with the Legal Aid Society asked for help getting a list of potentially affected DWI cases from Troop K.

The unit received information on about 260 arrests made between 2010 and 2019 and has so far reviewed 44 of them, according to Whang, all of which resulted in a conviction. Five of those 44 cases involved the mistranslated form.

Prosecutors have not yet notified the attorneys in those cases. But Whang said the DA’s office intends to do that and to come up with a “remedial course of action” once the conviction review unit has gone through the remaining cases.

She noted that there are only three attorneys in the unit, which is independent from the rest of the office and typically focus on cases of egregious misconduct and those where someone may be exonerated by new evidence, including DNA.

In November 2018, a defense attorney for a Hispanic motorist accused of drunk driving discovered the mistranslated warnings and brought them to the attention of Livia Rodriguez, who was a senior assistant district attorney at the time and still holds that role.

Rodriguez told a judge she thought the issues were valid and offered reduced charges, according to a transcript of the hearing.

It’s unclear if Rodriguez alerted her superiors or the state police at that time. She declined ProPublica’s request for an interview and referred questions to Whang, who said she had no comment about how Rodriguez handled the situation at the time.

The faulty forms appeared during a hearing in 2019 as part of another of Rodriguez’s prosecutions. Defense attorney James Timko noticed the incorrect language and told the court that his client’s refusal should be inadmissible.

“The police have ‘muddied the waters’ by providing a defendant a woefully inartful, inaccurate and affirmatively misleading statement,” he wrote in a court filing.

In an interview with ProPublica, Timko said, “It was a disaster.”

Still, the judge allowed the driver’s refusal into evidence because, she said, he understood English well enough during his 2017 arrest that it didn’t matter whether the Spanish warning was defective.

Timko wrote an email to Michael Borrelli, the DWI coordinator for the district attorney at the time, and said the judge’s ruling would likely be reversed on appeal because the refusal warnings were so badly mistranslated. Borelli agreed and offered less serious charges.

“It wasn’t even close,” Borrelli said in an interview. “Even someone with a fourth grade Spanish would have been like, ‘What?’”

Borrelli said he told state police personnel there that he never wanted to see those forms used again. (Duffy, at the state police, said the department had no documentation of that conversation and could not find anyone who recalled it.)

“I’m sure I reported it up the chain of command and I’m sure I got orders,” Borrelli added, but he did not remember any internal effort at the DA’s office to look at past cases that may have been affected.

Whang was also not aware of any such effort at the time. “We cannot speak for the decision making — the why or the how — prior to this administration,” she said, noting that Rocah took office in early 2021.

Two years went by before the issue surfaced a third time. Katie Wasserman, a defense attorney with Legal Aid in Westchester, told the court in July 2021 that the state police had given the wrong translation to another driver in a case that dated back years. Duffy told ProPublica that by then the forms were no longer in use.

“The District Attorney’s Office is aware of the improper warning as it had been brought to their attention on at least two documented occasions in 2018 and then again in 2019,” Wasserman wrote in the filing.

The driver didn’t have correct information when he decided to refuse the test, Wasserman argued, so his refusal should not have been allowed to be used against him during the plea negotiations.

“I would never have made the decision to plead guilty to a misdemeanor,” the driver, who has other drunk driving convictions, wrote in an affidavit. He wrote that he feared he may get deported and be permanently separated from his family as a result of the conviction.

In the months that followed, senior officials in the DA’s office held a series of meetings about how to handle the problem. Whang said the conviction review unit didn’t learn of the issue until Wasserman called the division’s chief, Anastasia Heeger, in late October to ask for help getting information from the state police about other cases impacted by the faulty forms. “After [Heeger] got the call, she immediately said, ‘Yes I’ll join you,’” Whang said.

Wasserman said in an interview that too much time has elapsed since then and something substantive should have happened by now. “It’s just not a priority,” she said. “Truth is, they've been sitting on it.”

Photo by Roman Koester on Unsplash