By Ken Wallentine
A man driving to work in the very early morning hours saw AdonSoto driving in the middle of the road, straddling the divider line. AdonSoto was driving toward a large truck in the oncoming lane as the truck driver blasted the horn. The man called police as he followed AdonSoto for a short time and watched her cross the fog line approximately 20 times.
An officer saw AdonSoto drive through a four-way intersection without stopping. He pulled her over. AdonSoto spoke to the officer in Spanish. The officer knew enough Spanish to know that AdonSoto was slurring her words. After failed attempts at field sobriety tests, the officer arrested AdonSoto and took her to the station for a breath test.
The officer called a telephonic language interpreter service to speak to a “registered, certified interpreter.” The telephone call was not recorded. The officer read a Miranda warning in English, and the interpreter relayed the warning in Spanish. AdonSoto nodded her head up and down when the interpreter asked if she understood, and she responded, “Si.”
The officer, through the interpreter, asked if AdonSoto would take a breathalyzer test, and she agreed. The officer explained the instructions, and the interpreter relayed them in Spanish. The interpreter asked AdonSoto if she understood the instructions, and she responded affirmatively. The officer demonstrated the test and he attempted the test three times. AdonSoto did not produce a sufficient sample for a test result.
The trial judge allowed evidence that AdonSoto refused to provide a breath test. A jury convicted AdonSoto of driving under the influence. AdonSoto appealed, claiming that her constitutional right of confrontation was denied because the interpreter’s statements—as testified to by the officer—were improper hearsay evidence.
The court upheld AdonSoto’s conviction, but carefully considered the confrontation issue. The court announced a new rule that all station house interviews with non-English speaking suspects conducted through an interpreter must be recorded: “Along with providing a method to gauge reliability, a recording of the translation provides an independent basis to evaluate the truth of the testimony for purposes of determining the applicability of the confrontation clause.”
Many states already have a statute, judicial rule or administrative provision that requires recording of a custodial interrogation. Digital audio recording technology is cheap and widely available (almost any smart phone features a digital recording app). Agencies who utilize Lexipol’s policy services are already familiar with the Limited English Proficiency Policy required to comply with 42 USC § 2000d for an agency receiving certain federal grants. Though recording interviews and interrogations conducted through an interpreter may not be mandatory in your state, it is an easy step and may prevent an argument on appeal.
Commonwealth v. AdonSoto, 58 N.E.3d 305 (Mass. 2016)