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STATE OF MINNESOTA IN COURT OF APPEALS A08-1081 State of Minnesota, Appellant, vs. Kendall Lee Kail, Respondent. Filed February 3, 2009 Reversed and remanded Ross, Judge Ramsey County District Court File No. 62-T0-07-606891 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134, and Katrina E. Joseph, Martin J. Costello, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for appellant) Benjamin S. Houge, Benjamin S. Houge Law Offices, P.O. Box 2311, Stillwater, MN 55082-2311 (for respondent)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Bjorkman, Judge. SYLLABUS 1. Whether a deaf person qualifies as a person disabled in communication as

defined in Minnesota Statutes section 611.31 (2006), obliging the state to assign an interpreter for a proceeding, depends on the communication method used during the proceeding.

2.

A person who fully understands and communicates in writing during an

arrest and subsequent implied consent proceeding is not a person disabled in communication, despite being unable to hear and speak, and is therefore not entitled to a sign-language interpreter under Minnesota Statutes section 611.32 (2006). OPINION ROSS, Judge This appeal requires us to decide whether the state must provide an interpreter to assist during the arrest of, and implied consent advisory discussion with, a suspected drunk driver who cannot hear and speak but who can read and write. After the state charged Kendall Lee Kail with driving while impaired, Kail moved to suppress evidence related to his arrest and to his consent to take a breath test, arguing that the officer's failure to obtain a sign-language interpreter violated his statutory and constitutional rights. The district court granted the motion on statutory grounds and dismissed the charges. Because the interpreter statute does not require assigning an interpreter to a person whose speech-and-hearing disability does not prevent him from fully understanding the arrest and the advisory discussion, we reverse and remand. FACTS In the early-morning hours of June 1, 2007, Saint Anthony Police Officer Daniel Johnson watched an Oldsmobile weave within its own lane and follow another car too closely. He also noticed that the car's windows were unlawfully tinted. Officer Johnson stopped and approached the car and asked the driver for his license and proof of insurance. He quickly discovered that the driver, Kendall Lee Kail, 2

cannot hear or speak.

Officer Johnson communicated with Kail initially through

gestures, but soon through handwritten notes. Kail smelled of alcoholic beverages and had watery and bloodshot eyes, so Officer Johnson directed Kail with specific written instructions to perform field sobriety tests. Because Kail failed the tests, Officer Johnson arrested him for impaired driving, informing Kail in writing. Officer Johnson offered Kail the opportunity to contact a friend to assist him. Despite attempts by pager, Kail found no one to help. Officer Johnson took Kail to the Saint Anthony police station to administer the implied consent advisory and, potentially, a breath test. Officer Johnson and Kail

continued to communicate through writing at the police station. Throughout the process, Officer Johnson repeatedly asked Kail in writing if he understood what was being asked of him, and Kail consistently replied that he did. Officer Johnson directed Kail to read the implied consent advisory. Kail read it. Officer Johnson instructed Kail to indicate that he understood the advisory by initialing its relevant passages. Kail did so, and he wrote that he wished to contact an attorney. When Officer Johnson wrote asking if Kail knew how to contact an attorney, Kail responded in writing that he did, and he identified the attorney whom he wanted to contact. Officer Johnson offered to assist Kail by speaking to the attorney by telephone, but he wrote that Kail had to pick the attorney and dial the number. After several attempts, they were unable to reach Kail's attorney by text messages or by directly dialing. They waited 15 minutes for Kail's selected attorney to respond, but he did not. Kail then gave his written consent, and Officer Johnson administered the breath test. The 3

test reflected an alcohol concentration of .09. The state later charged Kail with fourthdegree driving while impaired. Minn. Stat.

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