A Deaf Driver Who Reads and Writes English is not Entitled to Interpreter During DWI Arrest

State v. Kail, MN.Ct.App., 2/3/2009.  Police stopped Mr. Kail's car on suspicion of weaving within it's own lane and following another car too closely.  Mr. Kail can neither hear no speak, although he could read and write English.  After approaching Mr. Kail's car, the officer suspected that Mr. Kail may be intoxicated.  Mr. Kail ultimately produced a breath test reading of 0.09.  All communications between the officer and Mr. Kail were in written notes.

On motion to suppress all evidence because the officer did not provide Mr. Kail with a sign language interpreter, Judge Michael Fetsch dismissed the charges.  The state appealed.  The Court of Appeals reverses the dismissal and remands back to the trial court.

The Court of Appeals concluded that Mr. Kail was not "disabled in communication" under Minn.Stat. 611.32.  In pertinent part, this statute provides that a person is so disabled:

(a) because of a hearing, speech, or other communication disorder, or (b) because of difficulty in speaking or comprehending the English language, [the person] cannot fully understand the proceedings or any charges made against the person, or the seizure of the person’s property, or is incapable of presenting or assisting in the presentation of a defense.

The Court reached this conclusion by extending dicta from an implied consent case, Warner v. Comm’r of Pub. Safety, 498 N.W.2d 285, 288 (Minn. App. 1993), review denied (Minn. May 28, 1993).  The officer in that case had communicated by use of writing, gestures and lip reading.  That apparently suffices.

To learn more about the obstacles that hearing impaired persons confront in the justice system, see:  Michele La Vigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness, Language, and Due Process, 2003 Wis. L. Rev. 843 (2003).