State v. Javier Galvin, 2010AP863-CR, District 2, 10/6/10
court of appeals decision (1-judge, not for publication); for Galvin: John S. Schiro, Keith Llanas; BiC; Resp.
Galvan, who had minimal ability to understand English, didn’t understand the implied consent warnings given to him in English. Because the arresting officer knew of Galvan’s limitation, and had indeed obtained the translation services of another officer at the time of arrest, the warnings weren’t provided in a reasonable manner and the test result therefore can’t be justified as a matter of implied consent:
¶15 Similarly, at the time of Galvan’s arrest Poupart had a Spanish-speaking officer with him. The other officer even spoke some Spanish to Galvan at one point when Galvan did not understand Poupart’s English instructions. Poupart was thus aware that Galvan’s ability to understand English was minimal. Given that the Spanish-speaking deputy could have read the implied consent warnings to Galvan in Spanish, Poupart’s decision to read the warnings in English was unreasonable.
¶16 Poupart offered no compelling reason for the failure to have the Spanish-speaking deputy provide the warnings. If the State had offered a valid reason for why the other officer could not accompany Poupart—such as the other officer was called away to an emergency—we would consider that fact in our determination as to whether Poupart acted reasonably. See Piddington, 241 Wis. 2d 754, ¶28 (“That a law enforcement officer must use reasonable methods to convey the implied consent warnings does not mean the officer must take extraordinary, or even impracticable measures to convey the implied consent warnings.”). The only explanation that Poupart gave for not bringing the other deputy with him was that he did not think Galvan was a threat. The fact that Galvan was not seen as a security threat does not address whether the officer made a reasonable effort to convey the implied consent warnings.
The chemical test nonetheless may be admissible if acquired constitutionally, as incident to lawful arrest; given the parties’ failure to brief this issue, it is something that must be decided on remand, ¶¶17-19, citing State v. Zielke, 137 Wis. 2d 39, 41, 403 N.W.2d 427 (1987); State v. McCrossen, 129 Wis. 2d 277, 297, 385 N.W.2d 161 (1986).
