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Pimentel v. City of Methuen

United States District Court, D. Massachusetts

June 26, 2018

PATRICIA PIMENTEL, on behalf of herself and all others similarly situated, Plaintiff,
CITY OF METHUEN, et al., Defendants.


          F. Dennis Saylor IV United States District Judge

         This is 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.

         The 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.

         Pimentel 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.

         After 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.

         Pimentel 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 part.

         I. Background

         A. Factual Background

         The facts are set forth as described in the complaint and attached exhibits.

         1. Events Leading Up to Pimentel's Arrest

         Patricia Pimentel is a citizen of the Dominican Republic. (Compl. ¶ 80). Her primary language is Spanish. (Id. ¶ 99).

         In 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).

         On June 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).

         Pimentel 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).

         On the 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 driveway. (Id.).

         According 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).

         A short 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).

         Methuen 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.).

         Tardiff 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 station. (Id.).

         2. Pimentel is Given the Incorrect OUI Advice-of-Rights Form

         Once at 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. ¶ 35).[1]

         First, 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).

         Second, 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. (Id.).

         Third, 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).

         Fourth, 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. (Id.).

         Fifth, 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).

         After 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).

         3. Subsequent Criminal Proceedings

         Later 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).

         On 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. (Id.).

         On 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).

         Pimentel 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).

         Approximately 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).

         4. Methuen's Alleged Awareness of Errors in the ...

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