This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-1590

 

State of Minnesota,

Respondent,

 

vs.

 

Rene Turcio,

Appellant.

 

Filed May 28, 2002

Affirmed in part, reversed in part, and remanded

Hanson, Judge

 

Carver County District Court

File No. K5-00-2051

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Michael A. Fahey, Carver County Attorney, Tara Elliott Keehr, Assistant County Attorney, Government Center, Justice Center, 600 East Fourth Street, Chaska, MN 55318-2188 (for respondent) 

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

HANSON, Judge

On appeal from conviction of and sentence for gross misdemeanor driving under the influence, appellant argues that he did not understand English well enough to understand the implied consent advisory and, because the police did not obtain an interpreter for him, his right to counsel before deciding whether to take a breath test was not vindicated.  Appellant also argues that, because he agreed to a stipulated-facts trial on the basis that the district court said it would order a one-year probationary period and a corresponding one-year stayed imposition of sentence if it found him guilty, the district court’s order of a two-year probationary period and two-year stay should be remanded for review or for correction of a clerical error.  We affirm in part, reverse in part, and remand.

FACTS

On December 20, 2000, Chaska Police Officer Kyle Gibbons observed appellant Rene Turcio driving erratically.  Turcio pulled up in front of his home and exited his car, and Officer Gibbons approached him.  He noticed that Turcio smelled of alcohol.  Turcio told Officer Gibbons that he did not have a Minnesota driver’s license.  Turcio agreed to take three field sobriety tests and a portable breath test.  He did not follow the instructions for two of the field sobriety tests or the breath test, and failed the third field sobriety test.  Officer Gibbons arrested Turcio. 

            Officer Gibbons took Turcio to the police station.  On the drive, Turcio asked Officer Gibbons to let him sleep at home.  Once they arrived at the station, Officer Gibbons read Turcio the Minnesota Implied Consent Advisory.  Turcio again asked Officer Gibbons to let him go, and offered Officer Gibbons the necklace he was wearing.  When Officer Gibbons asked Turcio if he wanted to contact an attorney, Turcio said that he did.  Officer Gibbons provided Turcio with phone books.  Turcio then said, “no,” apparently indicating that he no longer wished to contact an attorney.  Another officer administered an Intoxilyzer breath test, which showed an alcohol concentration of 0.27.  Officer Gibbons read Turcio his Miranda rights and asked Turcio if he understood.  Turcio said, “yes.” 

From the time Officer Gibbons first approached Turcio through the time he read Turcio the Miranda rights, he and Turcio spoke to each other in English.

            The state charged Turcio with gross misdemeanor driving under the influence with an alcohol concentration of 0.20 or more at the time or within two hours of driving, in violation of Minn. Stat. § 169.121, subds. 1(f) (1998) and 3(c)(1) (1998 & Supp. 1999).[1]  Turcio moved to suppress the breath-test results on the basis that his right to counsel was not vindicated.  At the omnibus hearing, Turcio argued that he had not understood what was occurring that evening because he had needed an interpreter and that Officer Gibbons failed to offer one to him.  After hearing Turcio’s and Officer Gibbon’s testimony, the district court found that Turcio had understood the implied consent advisory and his right to counsel had been vindicated.  It denied Turcio’s motion.

            A short time later, the district court told Turcio that if it found him guilty of driving under the influence at a stipulated-facts trial, it would place him on probation for one year, subject to certain conditions, and otherwise stay imposition of his sentence during that time.  Turcio agreed to a stipulated-facts trial, and the district court found him guilty as charged.  The district court stayed imposition of sentence for up to two years, subject to a number of conditions.  This appeal followed.

D E C I S I O N


            Turcio challenges the district court’s denial of his suppression motion and the two-year stay of his sentence.

I

When we review pretrial suppression orders where the facts are not disputed, we may review the facts independently and determine, as a matter of law, whether the district court erred by not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Whether an officer vindicated a driver’s right to counsel is a mixed question of law and fact.  Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  We afford great deference to the district court’s factual findings.  See State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996) (stating that this court reviews the district court’s factual findings under the clearly erroneous standard of review), review denied (Minn. Nov. 20, 1996).  Once the facts are established, we make a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.”  Kuhn, 488 N.W.2d at 840.

            Minnesota’s constitutional right to counsel attaches at the chemical-testing stage in a DWI proceeding and that right is not protected unless qualified interpreters are provided to assist persons handicapped in communication.  See Minn. Stat. §§ 611.30-.32 (1998) (stating state policy to provide interpreters, listing proceedings in which interpreters are available, and defining handicapped persons); Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991) (stating that Minn. Const. art. I, § 6 right to counsel attaches at chemical-testing stage of DWI proceedings); State v. Marin, 541 N.W.2d 370, 373 (Minn. App. 1996) (stating that constitutional rights cannot be fully protected unless qualified interpreters assist with legal proceedings), review denied (Minn. Feb. 27, 1996); Warner v. Comm’r of Pub. Safety, 498 N.W.2d 285, 287-88 (Minn. App. 1993) (distinguishing use of interpreter to vindicate the right to counsel in implied-consent proceedings from use in criminal proceedings), review denied (Minn. May 28, 1993).  Because the right to an interpreter is not itself a constitutional right, the exclusionary rule only applies to the failure to provide an interpreter if that failure results in a constitutional violation.  State v. Mitjans, 408 N.W.2d 824, 830 (Minn. 1987); Marin, 541 N.W.2d at 373. 

The district court did not err by determining that Turcio was able to fully understand both the implied-consent advisory and his right to counsel.  It found he had no difficulty speaking or comprehending English and was, therefore, not handicapped in communication.  Minn. Stat. § 611.31 defines a person handicapped in communication to include “a person who * * * because of difficulty in speaking or comprehending the English language, cannot fully understand the proceedings.” 

            The district court’s detailed factual findings show that Turcio spoke to Officer Gibbons in English, Officer Gibbons had no difficulty understanding Turcio, Turcio appeared to understand the proceedings, and Officer Gibbons provided Turcio with the opportunity to look at phone books and consult with an attorney.  Although Turcio testified and argues that he only copied Officer Gibbons’ actions when given the field sobriety tests, for the third field sobriety test, Turcio followed Officer Gibbons’ verbal instructions.  He also followed Officer Gibbons’ later instruction to turn around and put his hands behind his back for the arrest.  See Warner, 498 N.W.2d at 287 (stating that no interpreter was required where motorist responded and followed directions at both the scene and the police station).

Also, Turcio initiated conversations in English with Officer Gibbons when he asked Officer Gibbons to allow him to sleep at home and when he asked Officer Gibbons to let him leave in exchange for his necklace.  Additionally, at the omnibus hearing, Officer Gibbons testified that he attributed any difficulty Turcio had in following his directions to Turcio’s intoxication.  Finally, Officer Gibbons has experience dealing with persons handicapped in communication and has contacted interpreters for those persons.  He testified that, with respect to those persons, it was apparent they did not understand English.  He said that, here, Turcio had no problem speaking English and appeared to understand everything he said. 

Because the district court’s finding that Turcio is not handicapped in communication is not clearly erroneous and because Turcio was given phone books and the opportunity to consult with counsel, the district court did not err by allowing the results of the breath test to be admitted in evidence.


II

            Minn. R. Crim. P. 27.03, subd. 8 states:

Clerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

 

            The district court told Turcio that if it found him guilty, it would require him to meet certain conditions while serving a probationary period of up to one year.  It further stated that it would stay imposition of any other sentence during that time if he met those conditions.  The district court found Turcio guilty of all three charged crimes, but the judgment stayed imposition for up to two years, based on certain conditions.

Turcio does not challenge any of the conditions, but argues that the district court’s two-year stay of imposition most likely is a clerical error and not an indication that the district court later decided to increase the one-year stay because the district court’s minutes indicate it would impose a one-year stay.  The state agrees that the records are unclear and recommends that the sentence be remanded to the district court.

            Either stay period is within the district court’s discretion.  See Minn. Stat. § 609.135, subd. 2 (2000) (stating maximum stays of imposition/execution).[2]  Although the district court told Turcio that it would grant a one-year stay if he were found guilty at a stipulated-facts trial, and its handwritten minutes show that the two-year stay was crossed out and changed to a one-year stay, we cannot confidently say that the judgment’s two-year stay was simply a clerical error.  Clerical errors are those which “cannot reasonably be attributed to the exercise of judicial consideration or discretion.”  State v. Pflepsen, 590 N.W.2d 759, 768 n.4 (Minn. 1999) (citation omitted).

Because Turcio’s right to counsel was vindicated, we affirm his conviction of gross misdemeanor driving under the influence.  But because it is unclear whether the district court’s grant of a two-year stay was an exercise of its judgment or a clerical error, we reverse the sentence and remand to the district court.  If the two-year stay was a clerical error, the district court should correct it pursuant to Minn. R. Crim. P. 27.03, subd. 8.

Affirmed in part, reversed in part, and remanded.

 

 



[1] The state also charged him with two misdemeanors: driving without a license in violation of Minn. Stat. § 171.02 (1998) and driving with an open bottle in violation of Minn. Stat. § 169.122, subd. 1 (1998).  Although these were considered by the district court, neither is at issue on appeal. 

[2] Likewise, Turcio’s agreement to a stipulated-facts trial is not treated as a guilty plea.  See, e.g., State v. Verschelde, 595 N.W.2d 192, 195 (Minn. 1999).