Appeal from the Iowa District Court for Greene County, Kurt J. Stoebe, Judge.
A defendant appeals his conviction for operating while intoxicated asserting the court erred in denying his motion to suppress.
Jennifer Bonzer of Johnson and Bonzer, Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Nicola J. Martino, County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Jose Lopez-Pena appeals his conviction for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2011). He asserts the district court erred in denying his motion to suppress when the state trooper did not make reasonable efforts to convey the implied consent advisory and the Miranda warnings in Spanish.
Lopez-Pena was pulled over by Trooper Cunningham for driving eight-four miles per hour in a fifty-five-mile-per-hour zone. When Trooper Cunningham approached the vehicle, he noticed a moderate odor of alcohol. He requested Lopez-Pena's license, registration, and proof of insurance; Lopez-Pena complied. Trooper Cunningham then asked Lopez-Pena to accompany him back to the patrol car. He noticed Lopez-Pena's eyes were bloodshot and watery, and he administered field sobriety tests and a preliminary breath test. Lopez-Pena did not have any difficulty following the trooper's instructions except when asked to count from 1001 to 1030 while standing on one leg. Lopez-Pena responded to the trooper's questions including telling the trooper he was heading to Marshalltown. Lopez-Pena had trouble either remembering or saying the name of the town he was coming from—Carroll. The trooper testified Lopez-Pena could not speak English well, but "he seemed to understand all the tests and everything that I asked him to do."
The trooper read the implied consent advisory to Lopez-Pena in English while they were still seated in the vehicle. Trooper Cunningham asked Lopez-Pena whether he would consent or refuse to take the test on the Datamaster;
Lopez-Pena responded, "Consent." Trooper Cunningham asked whether he wanted to call anyone or speak to anyone to help him make that decision; Lopez-Pena asked to have his passenger, who spoke English, come back to the car. The informed consent was not repeated to the passenger to translate to Lopez-Pena, but the officer did have the passenger translate the consequences of failing or refusing the test. Lopez-Pena again through his passenger's interpretation stated he would consent to the test. Lopez-Pena was then informed he was being arrested, and, after reacting with "Oh my God, " he refused to communicate in English from that point forward. Trooper Cunningham read Lopez-Pena his Miranda rights in English and handed him a card with a Spanish version printed on it. Lopez-Pena did not make any further statements to the trooper.
Lopez-Pena filed a motion to suppress asserting the trooper did not make reasonable efforts to communicate the informed consent advisory and the Miranda warnings in Spanish. At the suppression hearing, Trooper Cunningham testified, and the State admitted the video from the trooper's patrol vehicle, which included the discussions between the trooper and Lopez-Pena while both outside and inside the car. Lopez-Pena called Angela Martinez to testify at the hearing. She has known Lopez-Pena for approximately nine years and frequently performed interpretation services for him. Martinez testified,
Every time that [Lopez-Pena] gets anything in the mail or if there's anything that he gets that is important or that he has any questions about, then that comes in English, he brings it to me. Or if he has any question regarding phone calls, anything that he needs, he comes and asks me for assistance.
She stated he only understands minimal English and would not be able to understand a complex legal document; however, "he would not sign anything unless he knew exactly what he was signing because he would not put his name on something without knowing one hundred percent." She thought he could probably say "please" and "thank you, " and maybe recite his address, but "beyond that, if it was complicated, he would make sure that he would know what he was doing first." On cross-examination, Martinez again stated that if Lopez-Pena did not understand something, he would ask for help, and if he did not ask for help, he probably understood it.
The district court denied the motion to suppress finding the trooper's actions reasonable. The court noted Lopez-Pena's actions in performing the field sobriety tests, signing documents, obtaining his license, showing his registration, producing his proof of insurance, going to and from the patrol vehicle, requesting his passenger's assistance, and explaining a prior OWI arrest confirms Lopez-Pena's understanding of the steps of the procedure. See United States v. Heredia-Fernandez, 756 F.2d 1412, 1416 (9th Cir. 1985) (stating a defendant who had been arrested numerous times in the past could be "presumed to be familiar with Miranda rights procedures."); see also United States v. Collins, 40 F.3d 95, 98 (5th Cir. 1994) (holding the district court did not error when it considered the defendant's familiarity with the criminal justice system in determining whether a Miranda waiver was valid). The court stated it was not convinced ...