In this DUI prosecution, a Fairfax Circuit Court suppresses the results of field sobriety tests administered with the assistance of a telephone language line, because the telephonic translator is not available for cross-examination or confrontation by defendant.
Admitting the field sobriety test is a violation of the Confrontation Clause because the instructions that were translated by the interpreter are testimonial evidence; the interpreter is unavailable to be confronted by defendant and defendant did not have an opportunity to cross-examine the interpreter prior to them being unavailable.
An interpreter’s translation of an officer’s statements to a driver is almost conceptually inseparable from an interpreter’s translation of a defendant’s statements to an officer. When the translator informs defendant of the officer’s question or instruction, like informing the officer of a defendant’s response, they are making a statement based on their belief of the concept they received in the source language and how that meaning would be said in the target language. An interpreter called by an officer to translate a field sobriety test must recognize the dialogue’s utility for a possible future prosecution.
The substantive information transferred through the interpreter has a dramatic effect on what the defendant believes they are to do. Any inaccuracies in the translation could result in the defendant failing the test arbitrarily. These failures would be noted by the officer and provided as evidence at trial. In short, the interpreter is making statements, by translating statements, which a reasonable person should believe are likely to be used in a future prosecution. Consequently, they should be cross-examined to ensure the veracity of their translation.
This distinguishes instructions directing the defendant during a field sobriety test from the physical components of a field sobriety test, which have been ruled non-testimonial. If translated incorrectly, the defendant might fail by no fault of their own – for example, being told to turn one’s head instead of eyes, or stand on one leg rather than the other. However, once the instructions are understood, and given the opportunity to cross-examine the instructor, the test simply determines whether the defendant could comply.
Motion to suppress field sobriety tests is granted.
Commonwealth v. Pineda (Ortiz) No. FE 2017-585, Aug. 3, 2017; Fairfax Cir.Ct.; Caitlin Payne, APD; Alexandra Vakos, Ass’t Comm. Att’y. VLW 017-8-069, 6 pp.