State v. Duong

State v. Duong, 2015 MT 70 (March 3, 2015) (McGrath, C.J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the officer had particularized suspicion to stop Duong’s vehicle; (2) whether the district court erred in ordering Duong to pay for the costs of his interpreter; and (3) whether the district court erred in imposing a 10% administration fee on Duong.

Short Answer: (1) Yes; (2) yes; and (3) yes.

Affirmed (1), reversed (2 & 3), and remanded for revision of the sentence 

Facts: Trooper Muri was patrolling on I-94 near Glendive one night with DEA Agent Smith in the car with him. The patrol car was stationary along the road when Duong drove past. The officer pulled onto the road and traveled at high speed before reaching Duong’s vehicle, which he followed for about two miles. Trooper Muri observed Duong drive to the right, cross the fog line, and drive onto the rumble strip. Muri pulled into the passing lane and stayed there about 20 seconds before returning to the right lane, during which Duong again crossed the fog line and drove onto the rumble strip. Muri activated his lights and stopped Duong.

Trooper Muri issued a warning to Duong, then asked Duong if he had anything illegal in the vehicle. Duong replied, “Check it out,” and consented to a search of a cardboard box in the car. Muri found 14 pounds of marijuana inside and Duong was arrested and charged with possession with intent to distribute.

Duong was born in Vietnam but has lived in the U.S. since 1985. He speaks English as a second language, and requested an interpreter for his criminal case.

Procedural Posture & Holding: Duong moved to suppress the evidence, arguing the officer lacked particularized suspicion. The district court heard evidence from Trooper Muri, and watched a patrol car video of Duong’s car prior to the stop. The district court denied the motion and Duong pled no contest. The court ordered him to a six-year deferred sentence and ordered him to pay $800 for his public defender, $325 for his interpreter, and a 10% administration fee for collection costs. Duong appeals and the Supreme Court affirms and reverses. 

Reasoning: (1) After the Court reviews the record, it holds the district court’s findings of fact were supported by substantial evidence, and affirms the denial of Duong’s suppression motion.

 

(2) The Office of the Public Defender is responsible for the costs of an interpreter, not the defendant. § 47-1-201(5)(a).

 

(3) The district court’s oral pronouncement of the sentence did not include the 10% administration fee, but the written sentence did. The oral pronouncement controls, and the written sentence must be revised to conform. Moreover, the district court lacked statutory authority to impose such a fee.