United States District Court, D. Massachusetts
PATRICIA PIMENTEL, on behalf of herself and all others similarly situated, Plaintiff,
CITY OF METHUEN, et al., Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
Dennis Saylor IV United States District Judge
a civil rights action arising out of the use of an incorrect
Spanish-language advice-of-rights form by the Methuen Police.
Plaintiff Patricia Pimentel is a citizen of the Dominican
Republic who illegally immigrated to the United States in
2003. She was arrested for drunk driving on October 21, 2014.
After she was arrested, she was given an advice-of-rights
form in Spanish, her native language.
Spanish version of the form included incorrect information;
for example, it stated that the legal limit for blood alcohol
content (“BAC”) while driving was 0.10 percent
(it was actually 0.08 percent) and that a jury would be
informed of her refusal to take a breathalyzer test (it would
not). She was then given a separate “Statutory Rights
and Consent Form” that correctly stated her rights. She
then submitted to a breathalyzer test, which revealed her BAC
to be 0.25 percent, more than three times the legal limit.
eventually received a continuance without a finding
(“CWOF”) after admitting to sufficient facts to
one count of operating under the influence
(“OUI”) and two counts of leaving the scene of an
accident causing property damage. That disposition, however,
caused her immigration problems; she had previously qualified
for protection under the Deferred Action for Childhood
Arrivals (“DACA”) program, and the CWOF
jeopardized that status.
securing new counsel, Pimentel was able to obtain a new trial
on the ground that her prior counsel had rendered ineffective
assistance. In its order, the state court stated that the
breathalyzer test likely would have been suppressed because
the incorrect advice-of-rights form coerced her consent.
Prosecutors then agreed to dismiss one of the property-damage
charges and the remaining charges were resolved in a manner
that did not threaten her immigration status.
has now brought suit against the City of Methuen, the Methuen
Chief of Police, three police officers, and the Essex County
District Attorney. Defendants have moved to dismiss the
complaint for failure to state a claim. For the following
reasons, the motion will be granted in part and denied in
facts are set forth as described in the complaint and
Events Leading Up to Pimentel's Arrest
Pimentel is a citizen of the Dominican Republic. (Compl.
¶ 80). Her primary language is Spanish. (Id.
2003, when Pimentel was nine years old, her parents paid a
“coyote” (that is, a smuggler) to bring her
illegally into the United States. (Id. ¶ 81).
After arriving in the United States, she attended public
schools in Lawrence, Massachusetts. (Id. ¶ 83).
She graduated from Lawrence High School in 2013. Although she
hoped to enroll in college to study criminal justice, her
status as an illegal immigrant precluded her from qualifying
for certain forms of financial aid. (Id. ¶ 84).
15, 2012, then-President Obama announced the creation of the
Deferred Action for Childhood Arrivals program, or DACA.
(Id. ¶ 85). Among other things, DACA provided
that the federal government would not pursue immigration
action against illegal immigrants who were brought to the
United States as minors, provided they were not convicted of
serious crimes or otherwise posed a threat to public safety.
(Id. ¶ 86). The program allowed qualified
individuals to seek employment and higher education
opportunities legally. (Id. ¶ 87).
applied for DACA status on May 14, 2013, and her application
was granted. (Id. ¶ 88). She then began working
in the packaging department at JMB Industries in Hudson, New
Hampshire. (Id. ¶ 89).
evening of October 21, 2014, Pimentel and two of her friends
were drinking. (Id. ¶ 91). Pimentel was 20
years old at the time, and therefore under the legal drinking
age. (Id.). She became ill from the alcohol and
called a taxi to bring her home. (Id. ¶ 92).
One of her friends offered to drive her home instead in
Pimentel's car. (Id.). That friend then got into
an argument with her husband over the phone while driving,
and pulled up to her own home rather than Pimentel's.
(Id. ¶ 93). Pimentel remained in the car in the
to the complaint, Pimentel then saw her ex-boyfriend sitting
in a nearby car. (Id. ¶ 94). He called her cell
phone, and an argument ensued. (Id. ¶¶
95-96). During the conversation, she asked the boyfriend to
stop following her, and he replied that he was going to
“fuck [her] up.” (Id. ¶ 96). After
the boyfriend started walking towards her car, she panicked,
moved into the driver's seat and began driving away.
(Id.). She hit two nearby parked vehicles.
(Id. ¶ 97).
pursuit ensued, and the boyfriend cut her off at a stop sign.
(Id.). He opened the driver's door to
Pimentel's vehicle and hit her in the face.
(Id.). At that point, the boyfriend heard police
sirens and fled the scene. (Id. ¶ 98).
police officers Shawn Tardiff and David Souther were the
first to arrive. (Id. ¶ 99). Tardiff asked
Pimentel for her license and registration and began to
question her. (Id.). Shortly afterward, a
Spanish-speaking officer, Elvin Alacron, pulled up and joined
in the questioning, because she preferred to have an
interpreter present. (Id.).
and Alacron then asked Pimentel to perform various field
sobriety tests. (Id. ¶ 100). After concluding
she was driving while under the influence of alcohol, they
arrested her and transported her to the Methuen police
Pimentel is Given the Incorrect OUI Advice-of-Rights
the police station, Pimentel was observed for 15 minutes by
Alacron and Lieutenant James Jajuga, who was the booking
officer. (Id. ¶ 101). After the observation
period, Pimentel was given the Spanish-language version of
the Methuen Police advice-of-rights form given to persons
arrested for OUI. The Spanish version included multiple
incorrect statements of law. (Id. ¶
the form stated that if OUI arrestees refused to consent to a
breathalyzer test, the jury would be informed of that
refusal. (Id. ¶ 36; Ex. 6). However, the
Supreme Judicial Court had held in 1992 that such an
instruction would violate a defendant's right against
self-incrimination. (Id. ¶ 37).
the form stated that if the breathalyzer test results showed
a BAC of 0.10 percent or more, “it is presumed that you
are driving under the influence of intoxicating liquor, and
this proof can be used as evidence against you in
court.” (Id. ¶ 38; Ex. 6). The form
further stated that “the court will suspend your
license for a period of time up to 90 days.”
(Id.). However, the legal BAC level is 0.08 percent,
not 0.10 percent, and the license-suspension penalty for
registering a BAC of 0.08 percent or higher is capped at 30
days, not 90. (Id. ¶ 39). The complaint further
alleges that the form omitted any mention of the “per
se” theory of liability, under which the state can
convict a defendant of OUI simply by showing that the
defendant drove with a BAC higher than 0.08 percent.
the form stated that if the breathalyzer test showed a BAC
higher than 0.05 percent but lower than 0.10 percent,
“there is no presumption that you are driving under the
influence of an intoxicating liquor.” (Id.
¶ 40; Ex. 6). Again, the legal BAC level is 0.08
percent. (Id. ¶ 41).
the form stated that if the breathalyzer test result showed a
BAC of 0.05 percent or lower, the arrestee would be
“liberated” or “set free” from the
charge. (Id. ¶ 42; Ex. 6). Although a BAC of
0.05 percent or lower creates a “permissible inference
that such defendant was not under the influence of
intoxicating liquor, ” a defendant can still be
prosecuted for an OUI if there is other evidence of
impairment. (Id. ¶ 43). The form also did not
include information specific to drivers under the age of
21-specifically, that Massachusetts subjects such drivers to
certain penalties if their BAC is 0.02 percent or more.
the form stated that a refusal to submit to the breathalyzer
test would result in a 120-day suspension of the
arrestee's driver license. (Id. ¶ 44; Ex.
6). However, the penalty for refusing a breathalyzer test is
a mandatory 180-day license suspension for drivers aged 21 or
over, and a mandatory three-year license suspension for
drivers under age 21. (Id. ¶ 45).
reviewing the Spanish advice-of-rights form, Pimentel signed
the document a few minutes after 2 a.m. on October 22.
(Id. ¶ 103; Ex. 5). She was then given a
“Statutory Rights and Consent Form” that listed
further rights in both Spanish and English, which she also
signed. (Id. ¶ 105; Ex. 11). The parties do not
dispute that the Statutory Rights and Consent Form correctly
stated her rights. After signing both forms, Pimentel took
the breathalyzer test, which showed her BAC to be 0.25
percent. (Id. ¶ 108).
Subsequent Criminal Proceedings
that day, Pimentel was arraigned on one count of OUI and two
counts of leaving the scene of an accident causing property
damage. (Id. ¶ 109). She received a
court-appointed attorney and discussed her immigration status
with him. (Id. ¶ 110). She asked her attorney
whether she could obtain a CWOF and how the proceedings would
affect her immigration status. (Id. ¶ 112). The
attorney replied that a CWOF would not constitute an
adjudication of guilt, preserving her DACA status.
(Id. ¶ 113).
January 6, 2015, Pimentel pleaded to sufficient facts, and a
district court judge continued the matter without a finding
for one year. (Id. ¶ 114). As a consequence of
the plea, she lost her license for 210 days. (Id.).
She was placed on probation, and was required to complete a
14-day inpatient alcohol treatment program. (Id.).
In addition, near the end of her probation period, she was
informed she had to participate in a 16-week
first-time-offender alcohol-education program.
(Id.). The district court continued her probation
four months so she could complete the program.
April 30, 2015, Pimentel applied to renew her DACA status and
employment authorization, which were set to expire on May 13,
2015. (Id. ¶ 115). Approximately four months
later, on September 7, 2015, she received two letters from
the Department of Homeland Security denying her applications.
(Id. ¶ 116). The letters stated that the
applications were denied because she had been convicted of
“a felony or a significant misdemeanor.”
(Id.; Exs. 13 and 14). Without the protection of
DACA, she was potentially subject to deportation to the
Dominican Republic. (Id. ¶ 118).
then sought new counsel. (Id. ¶ 119). At some
point in December 2015, she learned that the Spanish version
of the advice-of-rights form had included incorrect
information. (Id. ¶ 120). On July 26, 2016, her
attorney moved for a new trial on the ground of ineffective
assistance of counsel-specifically, that her prior plea was
constitutionally invalid because her prior counsel had failed
to advise her of the consequences to her immigration status
and did not explore a motion to suppress the breathalyzer
test evidence. (Id. ¶ 121). The motion was
granted on March 2, 2017. (Id. ¶ 122). A state
district court judge agreed that her prior counsel had
provided ineffective assistance and that she stood a
reasonable chance of suppressing the breathalyzer test
evidence. (Id.; Ex. 4).
two months later, the district attorney's office agreed
to dismiss one of the property-damage charges. (Id.
¶ 124). In addition, the assistant district attorney
agreed to a “guilty-filed” disposition of the
remaining charges, which would not threaten Pimentel's
immigration status. (Id. ¶¶ 124-25).
Methuen's Alleged Awareness of Errors in the