                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0443

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                Chad Thomas Karnowski,
                                      Appellant.

                                 Filed January 30, 2017
                                        Affirmed
                                       Kirk, Judge

                             Hennepin County District Court
                                File No. 27-CR-14-7564

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Peter A. MacMillan, Assistant Crystal City Attorney, MacMillan, Wallace & Athanases,
PLLC, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota, Scott M.
Flaherty, Special Assistant Public Defender, Andrew P. Leiendecker (certified student
attorney), Briggs and Morgan, P.A., Minneapolis, Minnesota (for appellant)

       Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and

Kirk, Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

       On appeal from his convictions of second-degree driving while impaired (DWI) test

refusal and third-degree DWI, appellant argues that (1) the district court erred in denying
his motion to dismiss the test-refusal charge because law enforcement failed to provide him

with an interpreter; (2) his right to counsel was not vindicated; and (3) there was

insufficient evidence to support the jury’s finding of guilt on the third-degree DWI charge.

We affirm.

                                         FACTS

       At approximately 1:55 a.m. on February 22, 2014, Police Officer Tracie Lee-Faust

of the Crystal Police Department was on routine patrol and observed a vehicle fail to signal

before turning. She initiated a traffic stop of the vehicle and made contact with appellant

Chad Thomas Karnowski, the driver of the vehicle. Officer Lee-Faust motioned to

appellant to roll down his driver’s side window, but he did not comply. She observed that

appellant appeared dazed and confused and opened the driver’s side door to speak with

him.

       Appellant told Officer Lee-Faust that he was deaf and she observed that he had a

hearing aid in his left ear. She asked him if he knew why she had stopped his vehicle, and

he replied that he thought it was because of his lights. Officer Lee-Faust was able to

converse with appellant by speaking slowly and loudly to him, and she believed that he

was attempting to read her lips. Officer Lee-Faust observed an open beer can in a

compartment located on the driver’s side door. She asked appellant to step out of the

vehicle to perform field sobriety tests. After repeated efforts to administer the horizontal

gaze nystagmus (HGN) test, Officer Lee-Faust believed appellant was not cooperating.

She secured appellant, who resisted, in the back of her squad vehicle and waited for back

up.


                                             2
       Lieutenant Peter Underthun of the Crystal Police Department arrived on scene and

used a notepad to instruct appellant on how to take the HGN test. As Officer Lee-Faust

administered the HGN test, she observed indications of impairment and she smelled

alcohol on appellant. Officers requested in writing that appellant take a preliminary breath

test, and he verbally replied, “You can’t make me.” At the suppression hearing, Officer

Lee-Faust testified that they did not ask appellant to perform the remaining standardized

field sobriety tests because she thought that appellant was playing games. Appellant was

arrested and brought to the Crystal Police Department.

       At the police department, Officer Lee-Faust and Police Officer Kathleen Gomez of

the Crystal Police Department administered the Minnesota Motor Vehicle Implied Consent

Advisory (ICA) to appellant. Appellant was provided with a written copy of the ICA and

a legal pad so the officers could communicate with him in writing as they read him the

ICA. Officer Lee-Faust wrote appellant a note stating, “I’m about to read something very

important to you. Please read along and answer the questions, which are asked on the

sheet.” Appellant wrote back, “I am deaf. I want an interpreter.” Officer Gomez wrote

back, declining his request. She asked him why he could read her notes to him, but could

not read the ICA. Appellant responded, “I can read, but I can’t hear you.”

       As Officer Lee-Faust continued to read the ICA, she asked appellant if he

understood. Appellant looked away and did not appear to Officer Lee-Faust to be paying

attention. He repeatedly let the ICA form drop to the floor. When the officers asked

appellant if he wished to consult with an attorney, appellant closed his eyes and shook his

head no. On the ICA form, next to the question, “Do you wish to consult with an attorney?”


                                             3
Officer Gomez wrote, “Yes or no.” On the audio recording of the administration of the

ICA, Officer Gomez stated, “We have phone books right there, there’s a phone right there.

You could contact an attorney, I could get you your phone, you can use the computer,

whatever you need to do.” Officer Gomez testified that she pointed out to appellant the

telephone and the computer in the booking room. Officer Gomez asked appellant if he

would like to contact an attorney, and she stated, “Yes or no. No? I see you shaking your

head . . . that looks to me like a no. . . . Do you wish to consult with an attorney? No is

what I’m understanding.” The officers concluded that appellant did not wish to consult

with an attorney and Officer Gomez circled, “No” on the ICA form. As Officer Gomez

continued through the ICA, she lost her place and again asked appellant both orally and in

writing if he would like to speak with an attorney. Appellant then wrote, “Call Mason

Barland.” Mason Barland is a City of Crystal Police Officer, who is not an attorney or

interpreter. Officer Gomez replied orally and in writing, “You can. We will not.”

Appellant did nothing.

      The officers asked appellant orally and in writing a total of four times if he would

take a breath test. Appellant did not respond and did not pay attention to the ICA form.

Officer Gomez wrote to appellant, “With no answer from you – we will need to consider

this a refusal.” Appellant replied, “ADA law. Look it up.” The officers deemed

appellant’s response as a test refusal. Sometime after the ICA concluded, Officer Lee-

Faust wrote on the legal pad informing appellant that his vehicle was being forfeited and

that his license was being revoked. Appellant wrote back, “Jade Johnson, my lawyer. I

am done talking.” Officer Lee-Faust did not contact Johnson.


                                            4
       Respondent State of Minnesota charged appellant with one count of second-degree

DWI test refusal and one count of third-degree DWI. Appellant moved to suppress and

dismiss the test-refusal charge on multiple grounds, including that his right to counsel was

not vindicated, that officers failed to properly administer the ICA, and that officers failed

to provide an American Sign Language (ASL) interpreter as required under Minn. Stat.

§ 611.32 (2014).

       At the suppression hearing, appellant’s mother testified that appellant is a college

graduate and that while he is able to read and write in English, he can also lip read, but

“it’s a very imprecise way to communicate.” A letter from Jane Carlstrom, Au.D., CCC-

A, appellant’s audiologist, was admitted into evidence. The audiologist wrote that with the

use of a hearing aid and good visual contact with the speaker, appellant is able to

understand some of the conversation. “In order to insure that [appellant] understands

everything that is spoken, [he] needs to use a sign language interpreter or needs to see the

conversation in writing.”

       After the hearing, the district court issued an order denying appellant’s motion,

finding that: (1) appellant’s right to counsel was vindicated because he never chose to

exercise his right to counsel by telling the officers that he wished to do so; (2) the officers

effectively communicated the arrest and post-arrest process to appellant; and (3) appellant

did not need the assistance of an interpreter because he was not disabled in communication

because he could communicate during his arrest and the ICA process through the use of

his hearing aid, lip reading, and reading written English.




                                              5
       After a two-day jury trial, the jury found appellant guilty on both counts. The

district court sentenced appellant to one year in the county workhouse, with 335 days

stayed for four years, and probation. This appeal follows.

                                       DECISION

I.     The district court did not err in denying appellant’s motion to suppress because
       he was not provided with an interpreter during the implied-consent advisory.

       “Statutory interpretation presents a question of law, which we review de novo.”

Johnson v. Comm’r of Pub. Safety, 756 N.W.2d 140, 143 (Minn. App. 2008), review denied

(Minn. Dec. 16, 2008). We give due regard to the district court’s opportunity to judge the

credibility of witnesses, and findings of fact will not be set aside unless clearly erroneous.

Snyder v. Comm’r of Pub. Safety, 744 N.W.2d 19, 22 (Minn. App. 2008).

       Appellant argues that his conviction for second-degree DWI test refusal should be

reversed because he was not provided an interpreter during administration of the ICA. 1

“To protect or facilitate the exercise of constitutional rights, it is the express policy in

Minnesota to provide qualified interpreters to assist persons in legal proceedings who are

handicapped in communication (now referred to as ‘disabled in communication’).” State

v. Farrah, 735 N.W.2d 336, 341 (Minn. 2007); see also Minn. Stat. § 611.30 (2014). A

person is disabled in communication when he: (1) has a “hearing, speech or other


1
  For the first time on appeal, appellant argues that the Crystal Police Department’s failure
to provide him with an interpreter violated his due-process and equal-protection rights.
After a careful review of the record, we conclude that appellant forfeited these arguments
because he failed to raise them before the district court. See Roby v. State, 547 N.W.2d
354, 357 (Minn. 1996) (stating that an appellate court will not decide issues not raised
before the district court unless justice requires it and doing so will not unfairly surprise the
other party).

                                               6
communication disorder, or (2) because of difficulty in speaking or comprehending the

English language, cannot fully understand the proceedings or any charges made against the

person.” Minn. Stat. § 611.31 (2014). A deaf person who is arrested for drunk driving is

not automatically guaranteed an interpreter under Minn. Stat. § 611.32 (2014). State v.

Kail, 760 N.W.2d 16, 20-21 (Minn. App. 2009). The statute requires law enforcement to

provide an interpreter “when a person is actually disabled in communications because he

cannot understand the proceeding.” Id. at 20. The district court is required to appoint a

qualified interpreter to assist a person who is disabled in communication throughout any

preliminary proceeding or proceeding involving possible criminal sanctions or

confinement. Minn. Stat. § 611.32, subd. 1.

       Appellant disputes the district court’s finding that he did not meet the statutory

definition of a “person disabled in communication.” Appellant contends that he did not

understand his arrest or the ICA process because the officers failed to reduce all of their

communication with him to written form, and that they ignored his repeated requests for

an interpreter. Relying on Kail, appellant asserts that law enforcement should have

assigned him an interpreter so he could fully understand all of the communications

exchanged during his arrest and the administration of the ICA. 760 N.W.2d at 19.

       In Kail, this court addressed the circumstances under which a defendant is entitled

to an interpreter under Minn. Stat. § 611.31. We held that

              Section 611.31 establishes that entitlement to an interpreter
              depends not merely on whether the individual suffers a
              disability, but on whether a communication disorder or
              language barrier prevents that person from fully understanding
              the proceedings. One who fully understands the arrest and


                                              7
              postarrest implied consent proceeding despite having hearing
              and speech deficiencies is not a “person disabled in
              communication” and is therefore not entitled to an interpreter.

Id. at 19. In Kail, this court determined that the evidence showed a suspected drunk driver

who could not hear or speak, fully understood the DWI arrest and the ICA process. Id. at

20. The driver never asked for an interpreter, and law enforcement did not assign an

interpreter to him.    Factors pointing to the driver’s full understanding included the

exchange of written notes between the officer and the driver demonstrating the driver’s

understanding and ability to communicate in written English, and the officer’s care and

concern in his written communications to the driver assuring that the driver understood.

Id.

       Following Kail, we conclude that the district court did not err in finding that

appellant fully understood both his arrest and the ICA process. Appellant successfully

communicated both orally and in writing with the officers during the traffic stop and the

ICA. During the traffic stop, appellant gave sensible and timely verbal answers to the

officers’ questions. During the ICA process, appellant was provided with the ICA form

and the record establishes that appellant, who is a college graduate, could read English.

Despite his assertions to the contrary, appellant’s written communications with the officers

demonstrate that he was capable of understanding the communications exchanged during

his arrest and the post-arrest process.

       Appellant argues that the district court erred in crediting the officers’ subjective

belief that he was being uncooperative in support of its finding that he did not need an

interpreter. Appellant relies on Farrah, a case where the Minnesota Supreme Court


                                             8
reversed and remanded a defendant’s fourth-degree criminal-sexual-conduct conviction

because the district court improperly credited a police officer’s belief that the defendant,

who had difficulty communicating in English, adequately comprehended the officer’s

questions and he knowingly and intelligently waived his Miranda rights. 735 N.W.2d at

341-42. The court held that the totality of the evidence demonstrated that the defendant

was disabled in communication under Minn. Stat. § 611.31, and that he should have been

provided with an interpreter. Id. at 342-43.

       Here, the district court’s reliance on the officers’ subjective belief that appellant

failed to cooperate during his arrest and the ICA process gives us pause. While we defer

to the district court’s credibility determinations, Snyder, 744 N.W.2d at 22, we recognize

the possibility that an officer may misconstrue a deaf driver’s silence or inability to speak

during an arrest or post-arrest process as objective evidence that the driver is failing to

cooperate. In turn, the district court may wrongly conclude that the driver does not need

an interpreter by relying on the officer’s subjective perception of events. Instead, the

district court should conduct an independent examination of the record for objective

evidence that the driver is capable of fully communicating with law enforcement. In this

case, we do not affirm appellant’s test-refusal conviction upon the officers’ belief that

appellant was playing games and failed to cooperate. But we do find strong evidence in

the record demonstrating that, despite appellant’s hearing impairment, he was able to fully

communicate with officers.

       In a case where it is not as clear that a hearing-impaired driver fully understands all

of the communications exchanged with law enforcement, and where the driver asks for an


                                               9
interpreter, the better practice is for law enforcement to provide the driver with an

interpreter. If an interpreter is not available, law enforcement should obtain a search

warrant to procure a sample of the driver’s blood.2

II.    Appellant’s right to counsel was vindicated.

       The Minnesota Constitution provides individuals who are arrested for DWI with a

limited right to counsel before deciding whether to submit to a breath test. Minn. Const.

art. I, § 6; Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review

denied (Minn. Oct. 20, 1992). This right is vindicated if the driver “is provided with a

telephone prior to testing and given a reasonable time to contact and talk with counsel.”

Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation

omitted). “The question of whether a person has been allowed a reasonable time to consult

with an attorney is a mixed question of law and fact.” Palme v. Comm’r of Pub. Safety,

541 N.W.2d 340, 344 (Minn. App. 1995) (quotation omitted), review denied (Minn. Feb.

27, 1996).

       We examine the totality of the circumstances when determining whether a driver’s

right to counsel was vindicated. See Kuhn, 488 N.W.2d at 842. In assessing whether an

officer vindicated a driver’s limited right to counsel, we focus “both on the police officer’s

duties in vindicating the right to counsel and the defendant’s diligent exercise of the right.”

Id.


2
  We realize that obtaining a search warrant for a blood draw will create a situation where
a hearing-impaired person will face the intrusive reality of a blood test rather than a breath
test. But this type of situation is an inescapable reality in light of the U.S. Supreme Court’s
decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

                                              10
          Appellant argues that his right to counsel was not vindicated because officers failed

to clearly communicate that he had a right to an attorney and to provide him with the

resources to exercise that right. Viewing the totality of the circumstances, we conclude

that appellant’s right to counsel was vindicated because he shook his head “no,” indicating

that he did not want to exercise this right, despite the fact that the officers provided him

with access to a telephone and computer, as well as a reasonable amount of time to contact

and speak with an attorney. See id. Although appellant stated sometime after the officers

had completed the ICA that Jade Johnson was his attorney, this was not an attempt to

exercise his limited right to counsel because he did not express a desire to contact an

attorney during the ICA. See State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998)

(holding that if a suspected drunk driver’s request for an attorney during the ICA process

is ambiguous, police are required to either clarify the request or vindicate the underlying

right).

          Appellant argues that given the late hour, he should have been given at least an hour

to contact an attorney. But the district court did not err when it found that appellant never

made a good faith and sincere effort to exercise his right to contact an attorney when given

the opportunity during the ICA. See Kuhn, 488 N.W.2d at 840. For the same reason, we

conclude that the police department did not violate federal law by failing to provide a phone

with TTY capabilities because appellant never exercised his right to counsel.




                                               11
III.   There was sufficient evidence to support the jury’s guilty verdict on the third-
       degree DWI charge.

       In considering a claim of insufficient evidence, this court’s review is limited to a

thorough analysis of the record to determine whether the evidence, when viewed in the

light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict

that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court

must assume that “the jury believed the state’s witnesses and disbelieved any evidence to

the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

       Appellant argues that the jury erred in convicting him of third-degree DWI, arguing

that the circumstantial evidence presented by the state was insufficient to allow the jury to

rationally conclude beyond a reasonable doubt that he was driving while impaired.

       “[W]hen a disputed element [of a crime] is sufficiently proven by direct evidence

alone, . . . it is the traditional standard [for evaluating the sufficiency of the evidence],

rather than the circumstantial-evidence standard, that governs.” State v. Horst, 880 N.W.2d

24, 39-40 (Minn. 2016). Viewing the verdict in the light most favorable to the conviction,

there is strong direct evidence that appellant was driving while impaired. The evidence

presented to the jury included Officer Lee-Faust’s observation of appellant failing to signal

before turning, appellant’s display of indicia of intoxication, appellant’s admission to

drinking alcohol that evening, and the officer’s observations of opened and unopened beer

cans in appellant’s vehicle. For these reasons, we will not disturb appellant’s third-degree

DWI conviction. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

       Affirmed.



                                             12
