577 N.W. 2d 855 (Iowa App., 1998)
Issues:
1. What constitutes a “knowing, voluntary and intelligent” waiver of right to interpreter in an arrest interrogation?
2. Does a lack of waiver invalidate a sobriety test administered?
3. When the Defendant gave the police his parent’s telephone number at booking, was Defendant invoking his request for a call to his parents?
Facts:
A hearing and speech impaired man was convicted of driving while intoxicated. When stopped by the police, the officer realized Defendant was hearing impaired and asked if he wanted an interpreter, Defendant shook his head “no”, but the officer continued to try to find an interpreter for Defendant. Defendant was taken to county jail and was then given a paper to sign that waived his right to an interpreter. However, the defendant had limited reading skills and the light in the cell he was in was very low. Defendant claimed that he thought the paper provided him an interpreter, not that it was a waiver. A videotape of interactions between officers and Defendant in the holding cell shows that there were communication problems between Defendant and the police.
Decision:
1. A shake of the head “no” was not sufficient to indicate a “knowing and voluntary” waiver of the right to an interpreter. Additionally, the actions of the officer in searching for an interpreter, after the Defendant shook his head, indicates that the officer himself did not take the Defendant’s simple “no” to be a waiver.
2. The lack of a waiver, however, does not invalidate any sobriety tests administered to Defendant.
3. When Defendant gave the police his parent’s telephone number at the booking, without any other instructions or requests, he was not clearly invoking his request for his one phone call.
Decision made on an appeal from Criminal conviction; decision affirms lower court decision.
Court
of Appeals of Iowa.
STATE
of Iowa, Plaintiff-Appellee,
v.
James
Walter CARTER, Defendant-Appellant.
No.
97-0200.
Feb.
25, 1998.
Hearing-impaired
driver was convicted in the District Court, Dallas County, Gary G. Kimes, J., of
operating motor vehicle while intoxicated, and he appealed.
The Court of Appeals, Sackett, J., held that: (1) driver did not
voluntarily and knowingly waive right to interpreter, but lack of waiver did not
impact on admission of any breath or body substance tests, and (2) driver did
not invoke right to make telephone call to family member.
Affirmed.
West
Headnotes
[1]
Criminal Law
412.1(4)
Hearing-impaired
arrestee's alleged shaking of head "no," when asked by officer if he
wanted interpreter, would not constitute knowing and voluntary waiver of right
to interpreter; officer's efforts to find interpreter after alleged
"no" indicated that officer failed to see it as waiver.
I.C.A.
§ 804.31.
[2]
Criminal Law
412.1(4)
Although
hearing-impaired arrestee signed waiver of right to interpreter, waiver was not
voluntary and knowing, where arrestee signed waiver through cell bars, cell was
poorly lit, and record did not establish that waiver comported with form
prescribed by Department of Human Rights and County Attorneys Association.
I.C.A.
§§ 622B.1, 804.31.
[3]
Automobiles
349(19)
When arrested for
operating vehicle while intoxicated, driver must be permitted to make telephone
call to attorney or family member upon request. I.C.A.
§§ 321J.1 et seq., 804.20.
[4]
Arrest
70(1)
Arrestee's giving his
parents' phone number to officers did not invoke right to make telephone call to
them, where arrestee gave number in response to booking question, rather than
request for consultation. I.C.A.
§§ 321J.1 et seq., 804.20.
*855
Joel
W. Bittner, Altoona, for appellant.
Thomas
J. Miller, Attorney General, Karen
Doland, Assistant Attorney General, William
R. Byers, County Attorney, and Wayne
Reisetter, Assistant County Attorney, for appellee.
Considered
by CADY,
C.J., and SACKETT
and VOGEL,
JJ.
SACKETT,
Judge.
Defendant-appellant
James Walter Carter appeals his conviction of operating a motor vehicle while
intoxicated. Defendant, who
is hearing impaired, contends he did not knowingly and voluntarily waive his
right to a qualified interpreter as provided under Iowa
Code section 804.31 and that he was denied the right to call a family
member. We affirm.
Defendant
was stopped on July 17, 1996, by a state trooper who administered a breath test
and, through gestures and notes, directed defendant to perform sobriety tests.
Defendant was told by the trooper he would have an interpreter.
Defendant was then arrested and taken to the Dallas County Sheriff's
Office.
Defendant
first contends he did not knowingly and voluntarily waive his right to an
interpreter under Iowa
Code section 804.31, [FN1] *856
which makes provisions for the use of interpreters when a person is deaf [FN2] or hard-of-hearing.
[FN3]
FN1.
804.31. Arrest of deaf or
hard-of-hearing person--use of interpreters--fee
When a person is detained for questioning or arrested for an alleged
violation of a law or ordinance and there is reason to believe that the person
is deaf or hard-of-hearing, the peace officer making the arrest or taking the
person into custody or any other officer detaining the person shall determine if
the person is a deaf or hard-of-hearing person as defined in section
622B.1. If the officer so
determines, the officer, at the earliest possible time and prior to commencing
any custodial interrogation of the person, shall procure a qualified interpreter
in accordance with section 622B.2 and the rules adopted by the supreme court under
section
622B.1 unless the deaf or hard-of-hearing person knowingly, voluntarily, and
intelligently waives the right to an interpreter in writing by executing a form
prescribed by the department of human rights and the Iowa county attorneys
association. The interpreter
shall interpret the officer's warnings of constitutional rights and protections
and all other warnings, statements, and questions spoken or written by any
officer, attorney, or other person present and all statements and questions
communicated in sign language by the deaf or hard- of-hearing person. This
section does not prohibit the request for and administration of a preliminary
breath screening test or the request for and administration of a chemical test
of a body substance or substances under chapter 321J prior to the arrival of a
qualified interpreter for a deaf or hard-of-hearing person who is believed to
have committed a violation of section 321J.2. However, upon the arrival of the
interpreter the officer who requested the chemical test shall explain through
the interpreter the reason for the testing, the consequences of the person's
consent or refusal, and the ramifications of the results of the test, if one was
administered.
When an interpreter is not readily available and the deaf or hard-of-
hearing person's identity is known, the person may be released by the law
enforcement agency into the temporary custody of a reliable family member or
other reliable person to await the arrival of the interpreter, if the person is
eligible for release on bail and is not believed to be an immediate threat to
the person's own safety or the safety of others. An answer, statement, or
admission, oral or written, made by a deaf or hard-of-hearing person in reply to
a question of a law enforcement officer or any other person having a
prosecutorial function in a criminal proceeding is not admissible in court and
shall not be used against the deaf or hard-of-hearing person if that answer,
statement, or admission was not made or elicited through a qualified
interpreter, unless the deaf or hard-of-hearing person had waived the right to
an interpreter pursuant to this section. In the event of a waiver and criminal proceeding, the
court shall determine whether the waiver and any subsequent answer, statement,
or admission made by the deaf or hard-of-hearing person were knowingly,
voluntarily, and intelligently made.
FN2.
622B.1. Definitions--rules
1. As used in this chapter,
unless the context otherwise requires:
....
b. "Deaf person" means an individual who uses sign language as
the person's primary mode of communication and who may use interpreters to
facilitate communication. Iowa
Code § 622B.1(1)(b).
FN3.
622B.1. Definitions--rules
1. As used in this chapter,
unless the context otherwise requires:
....
c. "Hard-of-hearing person" means an individual who is unable
to hear and distinguish sounds within normal conversational range and who needs
to use speechreading, assistive listening devices, or oral interpreters to
facilitate communication.
The
State argues defendant told the trooper from the beginning he did not want an
interpreter and defendant knowingly and voluntarily waived his rights to an
interpreter.
Defendant
has impaired hearing. His
speech also is impaired. The
trooper stopping defendant testified he realized at once defendant's hearing was
impaired. The trooper attempted to communicate by pointing,
talking, writing, and asking defendant to read his lips, but determined
defendant needed an interpreter. Defendant
was cooperative. The trooper
testified he asked defendant if he needed or wanted an interpreter and defendant
shook his head "no."
On the videotape, the trooper tells defendant he will get him an
interpreter. The trooper
later contacted the dispatcher to get one.
Even later, the trooper asked the dispatcher if they had a list of
interpreters for the hearing impaired.
Defendant
was taken to the Dallas County jail and placed in a small holding cell.
The cell had no direct overhead lighting. The only light entering the cell came through bars on
two sides. After placing
defendant in the cell, there is indication the trooper was looking for an
interpreter before he left the room and returned saying, "Maybe we can get
by." The trooper then
showed defendant a paper through the cell bars, putting it in front of the bars.
Defendant signed the paper outside the cell.
Further conversation indicated at this point defendant had signed a
waiver of his right to an interpreter.
*857
The waiver defendant signed was as follows:
I understand that I have the right to the presence of a qualified
interpreter for the hearing impaired as defined in Iowa Code Chapter 622.B2
(1983) and the Rules of the Iowa Supreme Court, during any questioning.
I knowingly and voluntarily waive that right.
This waiver was made without any threat or coercion by any officer.
There is nothing to
indicate the form used was approved by the Department of Human Rights and the
Iowa County Attorneys Association. The
State does not argue that it had been approved.
Defendant contends the
waiver was not voluntary because he could not read thewaiver because of his
limited abilities and poor lighting. He contends he understood from the first paragraph of
the waiver an interpreter would be available to him.
[1] We first disagree with the State's argument the
trooper's statement defendant shook his head "no" when asked if he
wanted an interpreter has any bearing on the issue.
The fact the trooper continued to seek an interpreter after the alleged
"no" indicates the trooper failed to see it as a waiver.
Even if defendant had shaken his head "no" when asked if he
wanted an interpreter, this was insufficient to constitute a knowing and
voluntary waiver of his rights under Iowa
Code section 622B.2.
[2] We next address the State's contention
defendant voluntarily and knowingly waived his right to an interpreter in
signing the presented waiver. Defendant at all times was extremely cooperative.
The videotape shows the cell where defendant was held was poorly lighted.
The trooper did not hand the waiver to defendant, but it was put in front
of the cell and defendant signed it by putting his hand outside the cell.
On the videotape, the officers at the Dallas County jail indicate their
difficulty in communicating with defendant.
There is no evidence of another type of communication to defendant at
this point. There is no
showing the waiver comported to the statutory requirement that it be a form
prescribed by the Department of Human Rights and the
Iowa County Attorneys Association. We
do not find the State has shown defendant voluntarily and knowingly waived his
right to an interpreter. However,
the failure of the waiver does not impact on the admission of any breath
screening tests or body substance test defendant was given.
See Iowa
Code § 804.31.
[3] Defendant next contends he requested a call to
his parents and it was refused. He
advances the provisions of Iowa
Code section 804.20 [FN4]
require he should have been permitted to make the call.
An arrested person must be permitted to make a telephone call to an
attorney or family member upon request when charged with a violation of chapter
321J, subject to certain limitations.
See Didonato
v. Iowa Dep't of Transp., 456 N.W.2d 367, 371 (Iowa 1990);
State
v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978).
FN4.
804.20. Communications by
arrested persons
Any peace officer or other person having custody of any person arrested
or restrained of the person's liberty for any reason whatever, shall permit that
person, without unnecessary delay after arrival at the place of detention, to
call, consult, and see a member of the person's family or an attorney of the
person's choice, or both. Such
person shall be permitted to make a reasonable number of telephone calls as may
be required to secure an attorney. If
a call is made, it shall be made in the presence of the person
having custody of the one arrested or restrained. If such person is intoxicated, or a person under
eighteen years of age, the call may be made by the person having custody. Iowa
Code § 804.20.
The
statute does not require an officer to tell the person he has the right;
but when a request to make a phone call is made, the statutory purpose is
not met if the officer stands mute and refuses the request. Didonato,
456 N.W.2d at 371.
[4]
It is undisputed defendant gave an officer his parents' phone number without
other written instructions. The
State advances it was given in response to booking questions rather than a
request for consultation. We
agree. While there is some
confusion as to additional requests for counsel *858 made by defendant,
these requests were administered after the breath test and do not support
suppressing it. Defendant has
failed to show he made any statements to officers that prejudiced his cause.
AFFIRMED.
END OF DOCUMENT