State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0809

State of Minnesota,
Respondent,

vs.
Buk Gaak Gany,
Appellant.

Filed January 22, 2019
Affirmed
Johnson, Judge

Blue Earth County District Court
File No. 07-CR-15-5060

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

Patrick R. McDermo tt, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; a nd Tracy M.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Blue Earth County jury found Buk Gaak Gany guilty of refusal to submit to a
chemical test after he was arrested for driving while impaired. Gany petition ed for post-
conviction relief, arguing that he received ineffective assistance of counsel because his trial

2
attorney did not move to suppress evidence of his test refusal on the ground that he has
limited proficiency in the English language and was not provided with an interpreter in
connection with the implied-consent advisory. The post-conviction court denied Gany ’s
petition. We conclude that the post-conviction court did not err by finding that Gany is not
“disabled in communication” and, thus, was not entitled to an interpreter . Consequently,
Gany’s trial attorney was not ineffective in not moving to suppress the evidence of Gany’s
test refusal. Therefore, we affirm.
FACTS
On the evening of December 12, 2015, two off -duty officers of the Blue Earth
County Sheriff’s Department saw a car travel the wrong way on a one-way street near a
liquor store in the city of Mankato. Deputy Ruch and Lieutenant Wersal then saw the car
back into a parking spot, but they lost sight of the car as they parked their own vehicle.
The officers entered the liquor store , where they saw a man who Deputy Ruch believed
was the driver of the car that had traveled the wrong way on the one -way street. The
officers observed that the man appeared to be intoxicated and that the liquor store refused
to sell him any alcoholic beverages. The o fficers followed the man out of the store and
saw him walk to the same car and open the driver’s door. The officers prevented the man
from entering the car, took his car keys, and called for back-up assistance.
Several on-duty officers responded to the call and arrested the man, who later was
identified as Gany , on suspicion of driving while impaired. Officer Hoppe transported
Gany to the county jail, where he read Ga ny the implied -consent advisory. During the
reading of the advisory, Gany frequently interrupted Officer Hoppe, often for the purpose

3
of saying that he was not driving a car when he was apprehended. Officer Hoppe asked
Gany several times whether he understood the advis ory, and Gany eventually said that he
did. Officer Hoppe did not ask Gany whether he wanted an interpreter, and Gany did not
request one. Officer Hoppe asked Gany whether he wanted to consult with an att orney.
Gany initially indicated that he wanted to do so . But after Officer Hoppe provided him
with a telephone and telephone books, Gany made no effort to use them, stating that he did
not have an attorney’s telephone number and did not know whom to call. Officer Hoppe
then asked Gany several times to submit to a breath test. Gany responded that he would
not do so. Officer Hoppe reiterated that his failure to take the breath test would be a refusal,
to which Gany responded, “That’s fine.”
The state charged Gany with (1) refusal to submit to a chemical test, in violation of
Minn. Stat. § 169A.20, subd. 2 (2014); (2) driving while impaired (DWI) , in violation of
Minn. Stat. § 169A.20, subd. 1(1) (2014); and (3) driving after cancellation of a driver ’s
license as inimical to public safety, in violation of Minn. Stat. § 171.24, subd. 5 (2014).
In January 2017, the district court presided over a one-day jury trial. The state
presented the testimony of four law-enforcement officers. Gany presented the testimony
of two witnesses: a friend who testified that he , not Gany, was the person who had been
driving the car, and Gany’s daughter, who testified that Gany had walked, not driven, to
the liquor store. In closing arguments, Gany’s trial attorney pointed to a language barrier
between Gany and the arresting officers to explain Gany’s statements to officers that he
was not driving the car when he was apprehended and to argue that Gany’s refusal to submit
to testing was reasonable.

4
The jury found Gany guilty of test refusal but not guilty of the other two charges.
The district court imposed a sentence of 54 months of imprisonment. Gany filed a timely
notice of appeal. He later moved to stay the appeal so that he could file a post-conviction
petition. We granted the motion. Gany petitioned for post-conviction relief, arguing that
he received ineffective assistance of counsel “because his trial counsel failed to move to
suppress the refusal, which resulted from the violation of Gany’s right to counsel, because
Gany did not understand the English -language implied consent advisory and was not
provided with an English -language interpreter.” The post-conviction court held a n
evidentiary hearing, at which Gany testified about his ability to understand and express
himself in English . In April 2018, the post-conviction court denied the petition. We
reinstated the appeal.
D E C I S I O N
Gany argues that the post-conviction court erred by denying his post-conviction
petition. He contends that his trial attorney provided him with constitutionally ineffective
assistance of counsel by not moving to suppress the evidence of his test refusal based on
the fact that he was not provided an interpreter in connection with the implied -consent
advisory.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI; see also Minn. Const. art.
I, § 6. This right is the “right to the effective assistance of counsel. ” Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984) (quotation omitted). To

5
prevail on an ineffective -assistance-of-counsel claim, a defendant must satisfy two
requirements:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel ’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. If a criminal defendant argues on appeal that his trial attorney
was ineffective in not moving to suppress evidence, the appellant must show, to satisfy the
second requirement, that the suppression claim “is meritorious and that there is a
reasonable proba bility that the verdict would have been different absent the excludable
evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986). If
one of the Strickland requirements is not satisfied, a court need not consider the other
requirement. State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
In reviewing a post-conviction court’s denial of a claim of ineffective assistance of
counsel, this court applies a clear -error standard of review to the post-conviction court’s
factual findings, a de novo standard of review to the post-conviction court’s legal
conclusions, and an abuse -of-discretion standard of review to the post-conviction court’s
ultimate decision whether to grant relief. State v. Nicks, 831 N.W.2d 493, 503 (Minn.
2013); Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012); Davis v. State, 784 N.W.2d 387,
390 (Minn. 2010).

6
Gany contends that his trial attorney’s performance was deficient because he did not
move to suppress the evidence of Gany’s test refusal. Specifically, Gany contends that his
trial attorney should have argued to the district court that his English-language skills are
limited because he is a Sudanese immigrant whose primary language is Nu er, that he
consequently is disabled in communication, that he was entitled by statute to an interpreter,
that the officers’ failure to provide an interpreter led to a violation of his limited
constitutional right to counsel in connection with the implied -consent advisory, and that
suppression of the evidence of his test refusal is the appropriate remedy for that
constitutional violation.
The legislature has express ly stated that it is “the policy of this state that the
constitutional rights of persons disabled in communication cannot be fully protected unless
qualified interpreters are available to assist them in legal proceedings. ” Minn. Stat.
§ 611.30 (2018). If a person who is disabled in communication is arrested for a criminal
offense, “the arresting officer . . . shall immediately make necessary contacts to obtain a
qualified interpreter and shall obtain an interpreter at the earliest possible time at the place
of detention.” Minn. Stat. § 611.32, subd. 2 (2018). The officer “shall, with the assistance
of the interpreter, explain to the person disabled in communication, all charges filed against
the person, and all procedures relating to the person ’s detainment and release.” Id. A
person is “disabled in communication” if he or she, “because of difficulty in speaking or
comprehending the English language, cannot fully understand the proceedings or any
charges made against the person, or the seizure of the person’s property, or is incapable of
presenting or assisting in the presentation of a defense.” Minn. Stat. § 611.31(2) (2018).

7
“The term disabled in communication . . . includes persons disabled in expression or
comprehension of the English language. ” State v. Farrah , 735 N.W.2d 336, 34 2 (Minn.
2007). The determination that a per son is disabled in communication is a fact -specific
inquiry. See State v. Kail, 760 N.W.2d 16, 19 -21 (Minn. App. 2009); State v. Perez, 404
N.W.2d 834, 838-39 (Minn. App. 1987), review denied (Minn. May 20, 1987).
In considering Gany’s argument, we are mindful that his theory of post -conviction
relief is based on the premise that suppression is justified by the alleged denial of his limited
constitutional right to counsel. The limited right to counsel arising under the state
constitution applies when “an individual is asked by law enforcement officials to undergo
a blood alcohol test” and ensures that the individual “has the right, upon request, to a
reasonable opportunity to obtain legal advice before deciding whether to submit to
chemical testing.” Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 835 , 837
(Minn. 1991) (citing Minn. Const. art. I, § 6). We assume that Gany invokes his limited
constitutional right to counsel because a violation of the statutory right to an interpreter, by
itself, is not a ground for suppression. See State v. Sanchez -Diaz, 683 N.W.2d 824 , 835
(Minn. 2004) (stating that violation of statutory right to interpreter “does not require the
application of the exclusionary rule ”); see also State v. Mitjans , 408 N.W.2d 824, 830
(Minn. 1987); State v. Marin, 541 N.W.2d 370, 373-75 (Minn. App. 1996), review denied
(Minn. Feb. 27, 1996). As it happened, Gany did not take advantage of his limited right to
counsel because he chose not to call an attorney before deciding whether or not to submit
to chemical testing. To prevail on his post-conviction claim, he ultimately would need to
prove that the absence of an interpreter resulted in a denial of his limited constitutional

8
right to counsel between the time of the reading of the implied-consent advisory and the
time of his decision to refuse chemical testing.
As stated above, whether a person is disabled in communication is a fact -specific
inquiry. See Kail, 760 N.W.2d at 19 -21; Perez, 404 N.W.2d at 838 -39. In addition, the
ability to communicate is inherently a matter of degree. If a person’s present ability to
communicate is in question during courtroom proceedings, a district court has “ broad
discretion based on its first -hand view of indicators that a person is handicapped i n
communication, including: mispronunciations, pauses, facial expressions, and gestures. ”
Jama v. State , 756 N.W.2d 107, 115 (Minn. App. 2008) (quotation omitted) . But if a
person’s ability to communicate with law -enforcement officers on a prior occasion is in
question, a district court or post -conviction court must make findings of fact concerning
the prior event. See, e.g., Kail, 760 N.W.2d at 19-21. In making those findings of fact, a
post-conviction court still is permitted to rely on its first -hand knowledge of the person’s
ability to communicate based on its observation of the person during prior court
proceedings. See, e.g., Arredondo v. State, 754 N.W.2d 566, 577 (Minn. 2008). A post -
conviction court’s findings of fact are subject to a clear -error standard of review. Nicks,
831 N.W.2d at 503; Riley, 819 N.W.2d at 167. A finding of fact is clearly erroneous if
there is no reasonable evidence to support it or if this court is left with the definite and firm
conviction that a mistake was made. State v. Gomez, 721 N.W.2d 871, 883 (Minn. 2006).
In this case, the post-conviction court made extensive findings of fact based on the
evidence presented at the evidentiary hearing, including the 22-minute audio-recording of

9
the implied -consent advisory , and its own first -hand observations of Gany in pre -trial
proceedings and trial. The post-conviction court summarized the issue as follows:
Gany spoke in English to all of the officers on the night of his
arrest, initiated conversation in English and did no t request an
interpreter. Gany expressed his understanding of the Implied
Consent Advisory and indicated that he understood his right to
have an attorney both at the time of the Implied Consent
Advisory and during his testimony at his post-conviction relief
hearing. Although clearly not his first language, Gany has
demonstrated that he has a firm grasp of the English language.
Gany has lived in the United States for over twenty years,
speaks both N uer and English at home with his children, has
held down many jobs, attended school where the teachers only
spoke English, and obtained a driver’s license.

On the night of December 12, 2015, it is clear that Gany
was heavily intoxicated based upon the testimony of the
officers. The difficulty the officers enco untered with Gany
during the reading of the Implied Consent advisory was
attributable to Gany’s intoxication levels, not due to an
inability to understand or communicate in the English
language. Additionally, Gany had been previou sly convicted
of four pri or DWI s, indicating that he had been through the
process previously and was aware of the information and
processes being relayed to him. Gany expressed that he
understood his right to an attorney, that he was done looking
for an attorney’s number, and tha t he wanted to go before the
judge. Gany declined to take the breath test because he
believed he should not have been arrested for walking on the
street.

Gany did not request an interpreter on the night in
question or for any pre -trial hearings. At tria l Gany only
requested that the interpreter clarify certain words if he raised
his hand. Of particular note, Gany did not request an
interpreter nor was an interpreter present for his hearing or his
testimony during the post-conviction relief hearing in which he
was arguing that he is disabled in communication.

The Court finds that Gany is not disabled in
communication because he does not have difficulty in speaking

10
or comprehending the English language, was able to fully
understand the proceedings and charges made against him, and
was capable of presenting or assisting in the presentation of a
defense.

Based on its finding that Gany is not disabled in communication, the post-conviction court
found that he did not have a right to an interpreter on the evening of December 12, 2015,
that a suppression motion likely would have been denied, and that Gany’s trial attorney did
not provide him with ineffective assistance.
Gany contends that the post-conviction court erred by finding that he is not disabled
in communication “because he has difficulty speaking, and particularly comprehending,
the English language.” Gany further contends that his disability is “demonstrated by the
direct eviden ce in the record of his speech: the squad video, implied consent audio
recording, and transcript of the postconviction hearing.” He points to numerous specific
examples of imperfect communication between him and others.
We acknowledge that the factual rec ord is somewhat in conflict. But t he post-
conviction court’s finding that Gany is not disabled in communication is well supported by
evidence that was presented at the post-conviction hearing as well as the record of pre-trial
proceedings and trial. Befo re trial, Gany stipulated to four prior DWI convictions within
the past 11 years. Gany testified at the post-conviction hearing that he knew that he had a
right to consult with an attorney after he was arrested and brought to jail. At trial, one of
the arresting officers, Officer Waterstreet, testified that “there was some language barrier,
but I wouldn’t say enough that we couldn’t have a conversation.” Likewise, Officer Hoppe
testified, “I don ’t think [Gany ’s] English was perfect by any means, but I believe he

11
understood the process of what was going on. ” This testimony is corroborated by the
audio-recording of the conversation between Gany and Officer Hoppe in which Gany said
that he understood the implied-consent advisory. Although there is evidence that Gany did
not understand how he could be arrested for DWI when he was not actually driving, that
lack of understanding may have arisen from a misunderstanding of the law rather than a
language barrier. In a ddition, the post-conviction court found that Gany ’s intoxication
interfered with his communication with the officers during the implied -consent advisory.
Gany’s ability to communicate in English is evidenced by the fact that he did not rely on
interpreters in pre-trial proceedings, relied on an interpreter only occasionally at trial, and
did not rely on an interpreter during the post -conviction hearing. In addition, we defer to
the post-conviction court’s first -hand observations of Gany throughout courtr oom
proceedings, which are well explained in its written order. See Jama, 756 N.W.2d at 115.
Thus, the post-conviction court’s finding that Gany is not disabled in communication is not
clearly erroneous.
In light of our conclusion that the post-conviction court did not clearly err by finding
that Gany is not disabled in communication, the post-conviction court also did not err by
determining that a suppression motion likely would have been denied and that Gany’s trial
attorney did not provide him with ineffective assistance of counsel.
In sum, the post-conviction court did not err by denying Gany’s petition for post-
conviction relief.
Affirmed.