IN THE SUPERIOR COURT OF GUAM 2
) CRIMINAL CASE NO. CM0157-12 4 vs. ) 5 ) DECISION AND ORDER HEE CHOON PARK, ) 6 ) Defendant. ) 7 ____________________________ ) 8 INTRODUCTION 9 This matter came before the Honorable James L. Canto II on Defendant's motion to 10 dismiss and suppress, filed October 10, 2012. Oral arguments were heard on March 19 and 11 April 5, 2013. Assistant Attorney General Matthew S. Heibel appeared on behalf of the 12 Government and Attorney Shane F.T. Black represented Defendant. Having considered the 13 parties' briefs, oral arguments, and the applicable law, the Court now issues the following 14 Decision and Order. 15 BACKGROUND 16 Defendant is charged with driving under the influence of alcohol and reckless driving 17 based upon the following alleged events. On January 7, 2012 at 11:57 p.m., Guam Police 18 Officer J .J. Mendiola approached Defendant at the scene of his traffic accident with a concrete 19 median barrier. (Testimony of J.J. Mendiola, Record Log at 2:30, Mar. 19, 2013.) Defendant 20 fell down as he got out of his vehicle and Officer Mendiola observed that he had bloodshot, 21 watery eyes and smelled of alcohol. Jd. Defendant complied with Officer Mendiola's 22 instruction to wait at a gas station across the street while he moved Defendant's vehicle out of 23 the roadway. !d. 24 In the parking lot of the gas station, Defendant told Officer Mendiola that he does not 25 speak English and that his son is coming to translate. (Testimony of Hee Choon Park, Record 26 Log at 3:15, Mar. 19, 2013.) Officer Mendiola asked Defendant ifhe had anything to drink, and 27 Defendant affirmed that he had three beers. (Testimony of J.J. Mendiola, Record Log at 2:30.) 28 Officer Mendiola asked Defendant if he was willing to participate in standardized field sobriety
Page I of 5 tests, and Defendant declined. ld. Officer Mendiola asked Defendant to produce his driver's 2 license, vehicle registration and proof of insurance, and Defendant pulled out his wallet and 3 retrieved a folder of documents from inside his vehicle. Id. Officer Mendiola asked Defendant 4 to take the relevant documents out from the folder, and Defendant told the Officer in a profane 5 manner to take the documents out himself. ld. Officer Mendiola then informed Defendant that 6 he was under arrest for driving under the influence of alcohol and placed him in handcuffs and 7 put him in the back seat of his patrol vehicle. Id. 8 At the police station, Officer Mendiola read an Implied Consent Form and a Custodial 9 Interrogation Form to Defendant in order to advise him of his rights under 16 GCA §§ 18201- 10 18206 and Miranda v. Arizona, 384 U.S. 436 (1966). Id. Officer Mendiola asked Defendant if II he understood his rights, and Defendant replied "no". ld. Officer Mendiola asked Defendant to 12 sign the forms, and Defendant refused in a profane manner. Id. 13 At 12:50 a.m., Officer Mendiola contacted some hotels or tour companies to find a 14 volunteer translator for Defendant. Id. He found no translators and confiscated Defendant's 15 driver's license at 12:52 a.m. Id. Defendant did not participate in alcohol testing or make 16 further statements to the police. ld. 17 On October 10, 2012, Defendant moved to dismiss and to suppress evidence on the basis 18 that his arrest and custodial interrogation were not conducted in a language that he understands. 19 Defendant argues that the charges must be dismissed because he did not have the opportunity to 20 provide a possibly negative and exculpatory alcohol test. Defendant moves to suppress his 21 refusal to participate in field sobriety tests and any statements made after his arrest because he 22 did not realize the consequences of refusal or knowingly waive his Miranda rights. The 23 Government contends that dismissal is an inappropriate remedy and that Defendant's custodial 24 statements were spontaneous utterances. 26 1. Motion to Dismiss 27 Under Guam law, if a person appears to operate a motor vehicle under the influence of 28 alcohol, that person "shall have the option of using a blood or urine, or breath test for the
Page 2 of5 purpose of determining the alcohol or controlled substance content of that person's blood or 2 urine." 16 GCA § 18201(c). This statute "requires the police to give a person the option of 3 using a blood or breath test." People v. Rasauo, 2011 Guam 1 ~ 47. An arresting officer must 4 also warn the person of the consequences of any refusal to submit to testing. 16 GCA § 5 18201(f), (g). 6 In Rasauo, 2011 Guam 1, the Supreme Court noted that constitutional "[d]ue process 7 does not necessarily require that drivers be meaningfully advised of the implied consent rights 8 in language they can understand." !d. at ~ 44. Furthermore, the statutory right to an implied 9 consent warning is generally "a matter of legislative grace and not a right of constitutional lO dimension." !d. at~ 45 (citing South Dakota v. Neville, 459 U.S. 553, 565 (1983); Rodriguez v. 11 State, 565 S.E.2d 458, 462 n. 24 (Ga. 2002)). The Supreme Court questioned the relevance of 12 comparable, but distinguishable, implied consent statutes and declined to address whether due 13 process requires translation under Guam's statutes. !d. at~~ 47-48. 14 In this case, Defendant argues that due process mandates dismissal because Officer 15 Mendiola did not preserve exculpatory evidence when he did not translate the Implied Consent 16 Form that Defendant refused to sign. The Court does not agree. Guam's statutory right to an 17 implied consent warning is not a right of constitutional dimension. Defendant relies upon state 1 18 authorities ·with distinctive implied consent statutes that are of questionable relevance here. 19 Defendant provides no authority that 16 GCA §§ 18201-18206 imposes a duty upon arresting 20 officers to preserve exculpatory evidence for driving offenses with a translation of implied 21 consent warnings. Cf People v. Pak, 1998 Guam 27 ~ 13 ("nowhere in ... [16 GCA §§ 18201- 22 18206] is the dismissal of criminal proceedings authorized."). The Court is devoid of authority 23 to dismiss and Defendant "has failed to point to authority ... to show that Guam's failure to adopt 24
1 26 Defendant cites authorities that, unlike Guam law, provide for independent testing or require delivery of a standar and uniform warning statement. (Motion to Dismiss and Suppress, 4, Oct. 10, 2012; Defendant's Reply, I, 4, Nov 27 13, 2012 (citing Brown v. Municipal Court, 150 Cal.Rptr. 216 (Cal. Ct. App. 2d Dist. 1978) (suppression i appropriate remedy for frustration of right to independent testing under former Cal. Veh. Code§ 13354(b)); State v. 28 Minkoff, 42 P.3d 223 (Mont. 2002) (dismissal is appropriate remedy for frustration of right to independent testin
Page 3 of5 1 procedures that ensure a non-English speaking defendant understands the implied consent form 2 is a violation of due process." Rasauo, 2011 Guam 1 at~ 48. For these reasons, the complaint 3 shall not be dismissed for a violation of due process. 4 2. Motion to Suppress Field Sobriety Statements 5 "The Fifth Amendment privilege against self-incrimination prohibits the prosecution 6 from using statements stemming from custodial interrogation of the defendant, unless it 7 demonstrates the use of procedural safeguards to secure that privilege." Rasauo, 2011 Guam 1 8 at~ 24 (citing Miranda v. Arizona, 384 U.S. 436,444 (1966)). However, "[a] defendant who is 9 temporarily detained at a traffic stop ...
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IN THE SUPERIOR COURT OF GUAM 2
) CRIMINAL CASE NO. CM0157-12 4 vs. ) 5 ) DECISION AND ORDER HEE CHOON PARK, ) 6 ) Defendant. ) 7 ____________________________ ) 8 INTRODUCTION 9 This matter came before the Honorable James L. Canto II on Defendant's motion to 10 dismiss and suppress, filed October 10, 2012. Oral arguments were heard on March 19 and 11 April 5, 2013. Assistant Attorney General Matthew S. Heibel appeared on behalf of the 12 Government and Attorney Shane F.T. Black represented Defendant. Having considered the 13 parties' briefs, oral arguments, and the applicable law, the Court now issues the following 14 Decision and Order. 15 BACKGROUND 16 Defendant is charged with driving under the influence of alcohol and reckless driving 17 based upon the following alleged events. On January 7, 2012 at 11:57 p.m., Guam Police 18 Officer J .J. Mendiola approached Defendant at the scene of his traffic accident with a concrete 19 median barrier. (Testimony of J.J. Mendiola, Record Log at 2:30, Mar. 19, 2013.) Defendant 20 fell down as he got out of his vehicle and Officer Mendiola observed that he had bloodshot, 21 watery eyes and smelled of alcohol. Jd. Defendant complied with Officer Mendiola's 22 instruction to wait at a gas station across the street while he moved Defendant's vehicle out of 23 the roadway. !d. 24 In the parking lot of the gas station, Defendant told Officer Mendiola that he does not 25 speak English and that his son is coming to translate. (Testimony of Hee Choon Park, Record 26 Log at 3:15, Mar. 19, 2013.) Officer Mendiola asked Defendant ifhe had anything to drink, and 27 Defendant affirmed that he had three beers. (Testimony of J.J. Mendiola, Record Log at 2:30.) 28 Officer Mendiola asked Defendant if he was willing to participate in standardized field sobriety
Page I of 5 tests, and Defendant declined. ld. Officer Mendiola asked Defendant to produce his driver's 2 license, vehicle registration and proof of insurance, and Defendant pulled out his wallet and 3 retrieved a folder of documents from inside his vehicle. Id. Officer Mendiola asked Defendant 4 to take the relevant documents out from the folder, and Defendant told the Officer in a profane 5 manner to take the documents out himself. ld. Officer Mendiola then informed Defendant that 6 he was under arrest for driving under the influence of alcohol and placed him in handcuffs and 7 put him in the back seat of his patrol vehicle. Id. 8 At the police station, Officer Mendiola read an Implied Consent Form and a Custodial 9 Interrogation Form to Defendant in order to advise him of his rights under 16 GCA §§ 18201- 10 18206 and Miranda v. Arizona, 384 U.S. 436 (1966). Id. Officer Mendiola asked Defendant if II he understood his rights, and Defendant replied "no". ld. Officer Mendiola asked Defendant to 12 sign the forms, and Defendant refused in a profane manner. Id. 13 At 12:50 a.m., Officer Mendiola contacted some hotels or tour companies to find a 14 volunteer translator for Defendant. Id. He found no translators and confiscated Defendant's 15 driver's license at 12:52 a.m. Id. Defendant did not participate in alcohol testing or make 16 further statements to the police. ld. 17 On October 10, 2012, Defendant moved to dismiss and to suppress evidence on the basis 18 that his arrest and custodial interrogation were not conducted in a language that he understands. 19 Defendant argues that the charges must be dismissed because he did not have the opportunity to 20 provide a possibly negative and exculpatory alcohol test. Defendant moves to suppress his 21 refusal to participate in field sobriety tests and any statements made after his arrest because he 22 did not realize the consequences of refusal or knowingly waive his Miranda rights. The 23 Government contends that dismissal is an inappropriate remedy and that Defendant's custodial 24 statements were spontaneous utterances. 26 1. Motion to Dismiss 27 Under Guam law, if a person appears to operate a motor vehicle under the influence of 28 alcohol, that person "shall have the option of using a blood or urine, or breath test for the
Page 2 of5 purpose of determining the alcohol or controlled substance content of that person's blood or 2 urine." 16 GCA § 18201(c). This statute "requires the police to give a person the option of 3 using a blood or breath test." People v. Rasauo, 2011 Guam 1 ~ 47. An arresting officer must 4 also warn the person of the consequences of any refusal to submit to testing. 16 GCA § 5 18201(f), (g). 6 In Rasauo, 2011 Guam 1, the Supreme Court noted that constitutional "[d]ue process 7 does not necessarily require that drivers be meaningfully advised of the implied consent rights 8 in language they can understand." !d. at ~ 44. Furthermore, the statutory right to an implied 9 consent warning is generally "a matter of legislative grace and not a right of constitutional lO dimension." !d. at~ 45 (citing South Dakota v. Neville, 459 U.S. 553, 565 (1983); Rodriguez v. 11 State, 565 S.E.2d 458, 462 n. 24 (Ga. 2002)). The Supreme Court questioned the relevance of 12 comparable, but distinguishable, implied consent statutes and declined to address whether due 13 process requires translation under Guam's statutes. !d. at~~ 47-48. 14 In this case, Defendant argues that due process mandates dismissal because Officer 15 Mendiola did not preserve exculpatory evidence when he did not translate the Implied Consent 16 Form that Defendant refused to sign. The Court does not agree. Guam's statutory right to an 17 implied consent warning is not a right of constitutional dimension. Defendant relies upon state 1 18 authorities ·with distinctive implied consent statutes that are of questionable relevance here. 19 Defendant provides no authority that 16 GCA §§ 18201-18206 imposes a duty upon arresting 20 officers to preserve exculpatory evidence for driving offenses with a translation of implied 21 consent warnings. Cf People v. Pak, 1998 Guam 27 ~ 13 ("nowhere in ... [16 GCA §§ 18201- 22 18206] is the dismissal of criminal proceedings authorized."). The Court is devoid of authority 23 to dismiss and Defendant "has failed to point to authority ... to show that Guam's failure to adopt 24
1 26 Defendant cites authorities that, unlike Guam law, provide for independent testing or require delivery of a standar and uniform warning statement. (Motion to Dismiss and Suppress, 4, Oct. 10, 2012; Defendant's Reply, I, 4, Nov 27 13, 2012 (citing Brown v. Municipal Court, 150 Cal.Rptr. 216 (Cal. Ct. App. 2d Dist. 1978) (suppression i appropriate remedy for frustration of right to independent testing under former Cal. Veh. Code§ 13354(b)); State v. 28 Minkoff, 42 P.3d 223 (Mont. 2002) (dismissal is appropriate remedy for frustration of right to independent testin
Page 3 of5 1 procedures that ensure a non-English speaking defendant understands the implied consent form 2 is a violation of due process." Rasauo, 2011 Guam 1 at~ 48. For these reasons, the complaint 3 shall not be dismissed for a violation of due process. 4 2. Motion to Suppress Field Sobriety Statements 5 "The Fifth Amendment privilege against self-incrimination prohibits the prosecution 6 from using statements stemming from custodial interrogation of the defendant, unless it 7 demonstrates the use of procedural safeguards to secure that privilege." Rasauo, 2011 Guam 1 8 at~ 24 (citing Miranda v. Arizona, 384 U.S. 436,444 (1966)). However, "[a] defendant who is 9 temporarily detained at a traffic stop ... is not generally considered to be 'in custody' for the 10 purposes of Miranda," and procedural safeguards are not required to administer field sobriety II tests. !d. at~ 25 (citing Berkemer v. McCarty, 468 U.S. 420,440 (1984)). 12 Here, Officer Mendiola instructed Defendant to wait across the street from his traffic 13 accident and then asked Defendant if he was drinking and if he was willing to participate in 14 field sobriety tests. Defendant's freedom of action was not curtailed to a degree associated with 15 formal arrest when he refused to participate in field sobriety tests. See People v. Cundiff, 2006 16 Guam 12 ~~ 19-22 (arrest is made by physical restraint or severely intrusive detention) (quoting 17 Dunaway v. New York, 442 U.S. 200, 216 (1979)). Defendant could not have reasonably 18 believed that the detention was more than temporary in nature. See Berkemer, 468 U.S. at 441- 19 442 ("a single police officer asked respondent a modest number of questions and requested him 20 to perform a simple balancing test at a location visible to passing motorists. Treatment of this 21 sort cannot fairly be characterized as the functional equivalent of formal arrest."). Defendant 22 was not in custody when he refused to participate in field sobriety tests, and Officer Mendiola 23 was not required to furnish Miranda warnings in order to administer the tests. See Rasauo, 24 2011 Guam 1 at~ 27. For this reason, the motion to suppress field sobriety statements shall not 25 be granted. 26
27 under Mont. Code§ 61-8-405(2)); State v. Marquez, 998 A.2d 421 (N.J. 2010) (standard test warning required b 28 N.J.S.A. § 39:4-50.2(e) must be in language defendant understands in order to convict for offense of test refusal).)
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3. Motion to Suppress Custodial Statements 2 Under Guam law, the admissibility of custodial statements depends upon the 3 administration of Miranda warnings that "reasonably convey to an individual their rights 4 against self-incrimination." Rasauo, 2011 Guam 1 at 1 19 (citing Duckworth v. Eagan, 492 5 U.S. 195, 203 (1989)). A suspect may waive these rights, but there is a presumption against 6 waiver and the government must prove by a preponderance of the evidence that the waiver is 7 voluntary, knowing, and intelligent. !d. at 1 16 (citing Colorado v. Connelly, 479 U.S. 157, 168 8 (1986); US. v. Garibay, 143 U.S. 534, 536 (9th Cir. 1998)). A knowing and intelligent waiver 9 is made "with a full awareness of both the nature of the right being abandoned and the 10 consequences ofthe decision to abandon it." Moran v. Burbine, 475 U.S. 412,421, 106 S.Ct. 11 1135, 1141 (1986). 12 In this case, Officer Mendiola read Miranda warnings to Defendant with a waiver form 13 at the police station. Officer Mendiola asked if Defendant understood and he replied "no" and 14 refused to sign the waiver form. The government presented no evidence that Defendant was 15 aware of his rights and of the consequences of any decision to speak. Absent evidence of a 16 knowing and intelligent waiver, it is presumed that Defendant did not waive his rights and his 17 custodial statements are inadmissible. For this reason, the motion to suppress custodial
18 statements shall be granted. 19 CONCLUSION 20 Based upon the foregoing, Defendant's motion to dismiss is hereby DENIED, his 21 motion to suppress field sobriety statements is hereby DENIED, and his motion to suppress 22 custodial statements is hereby GRANTED. Custodial statements made after arrest shall not be
23 admissible at trial against Defendant. 24
25 SO ORDERED this ~~ day of June, 2013. 26
28 HON. JAMES L. CANTO II Judge, Superior Court of Guam
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