482
Argued and submitted July 23, reversed and remanded September 9, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
NADEZHDA VOYPANYUK,
Defendant-Appellant.
Multnomah County Circuit Court
18CR73058; A172109
Jon Ghastin, Judge pro tempore.
Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Kamins, Judge, and
Kistler, Senior Judge.
PER CURIAM
Reversed and remanded.
Cite as
314 Or App 482
(2021) 483
PER CURIAM
Defendant appeals a judgment of conviction on one
count of driving under the influence of intoxicants (DUII)
raising two assignments of error. In her first assignment,
defendant challenges the trial court’s denial of her motion
to suppress. The state concedes the error. Because, based on
this record, we accept the state’s concession, we reverse and
remand. We decline to exercise our discretion to address the
second assignment of error, pertaining to a requested jury
instruction, because it is not certain that matter will arise
on remand.
While conducting a DUII investigation that began
with a traffic stop, it became apparent to Deputies Gerkman
and Promma that defendant did not speak English. They
took defendant to the Troutdale Sheriff’s Office and called
Language Line—an interpreter service commonly used by
the sheriff’s department—to communicate with defendant
in Russian. The Language Line “establish[ed] a line of communication between [defendant] and the person speaking,”
and defendant appeared to understand what was happening.
A deputy read Miranda warnings in English to the
Language Line translator and gave the translator an opportunity to read them to defendant. Then, through the translator, a deputy asked defendant if she understood her rights.
Defendant responded through the translator, “Yes.”
Deputy Johnson came to assist Gerkman and Promma
because she is fluent in Russian. Johnson “asked immediately when [she] met [defendant] if she had been read
Miranda rights and [Johnson] was told that that was done
via the Language Line and that [defendant] has understood
them.” Johnson did not re-Mirandize defendant.
Before the trial court, and on appeal, defendant
argues that Article I, section 12, of the Oregon Constitution
requires that a defendant’s waiver of her right to counsel and against compelled self-incrimination be knowing,
intelligent, and voluntary. As defendant argues, without
evidence about the translator or the translation, the trial
court could not find that the deputies ever communicated
defendant’s rights to her, that defendant thus understood
484 State v. Voypanyuk
her rights, and that defendant thus knowingly, intelligently,
and voluntarily waived her rights.
As indicated, the state concedes the error. We accept
the state’s concession, but note that our decision to do so is
confined to the facts of this case. Here, the state offered no
testimony about the Language Line generally, how it operated, how it trained its interpreters, whether it was subject
to industry accreditation or certification, or whether it conformed to interpreter standards for court interpreter services. We need not, in this case, denote the boundaries of
what, if any, testimony about the Language Line could have
alleviated the constitutional violation. It is sufficient to note
that in this case, on this record, there was nothing in that
regard. As such, the state’s concession is well taken, as is
the state’s concession that the results of the eventual breath
test are not attenuated and require suppression.
Reversed and remanded.
