Simple rights and formalities afforded under the law are sometimes required to be read to a person under arrest. One of these legal rights, the right to refuse a breathalyzer test, has recently created some attention leading to new implications under New Jersey Law.
In New Jersey, any person who operates a motor vehicle on any public road, street or highway or quasi-public area shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood to determine a drunk driving violation. N.J.S.A. 39:4.50.2. Upon refusing, the law enforcement officer is required to read an 11 paragraph standard statement advising the driver of the consequences of refusing. New Jersey Division of Motor Vehicle Standard Statement for Operators of a Motor Vehicle
An issue concerning the inability to understand consequences associated with refusing to submit to an alcohol breath test was recently decided on July 12, 2010 by the Supreme Court of New Jersey in State v. German Marquez. State v. Marquez, A-35 September Term 2009, Supreme Court of New Jersey. The Court held that the statements used to explain to a motorist the consequences of a refusal must be given in a language the person speaks or understands. In the Marquez case the defendant was advised of the refusal consequence in English and there was no dispute that he did not understand English, so his refusal conviction was reversed.
The facts of the Marquez case involve a Spanish speaking motorist, German Marquez, who was suspected of driving under the influence after being involved in a two-car accident. The police officer noticed Marquez smelled of alcohol and seemed unstable on his feet, and instructed him to perform field sobriety tests. After failing to understand how to perform the tests, Marquez was arrested. While at the police station, Marquez was read in English an eleven (11) paragraph DWI refusal standard statement, required under the informed consent statute (N.J.S.A. 39:40-50.2), informing him of the legal requirement to submit a breath sample and the associated consequences of refusal. Marquez responded in Spanish that he did not understand. After failing to follow the police officer's pantomimed instruction of how to use the breathalyzer machine, Marquez was charged with DWI (N.J.S.A. 39:4-50, refusing to submit to a breath test (N.J.S.A. 39:4-50.4a), and careless driving (N.J.S.A. 39:4-97).
Marquez challenged the refusal violation and conceded that there was credible evidence of the DWI offense. The basis of Marquez's argument challenging the refusal violation was that the DWI standard statement should have been read to him in Spanish. Although the Court found that no statute requires the DWI standard statement to be read in a language other than English, the Court reversed Marquez's refusal conviction. The Court reasoned that while the implied consent statute (N.J.S.A. 39:4-50.2(e)) requires the person arrested to be informed of the consequences of refusing to submit to a breath test, that person could not have been "informed" if the standard statement was not read in a language the person could understand.
Moreover, it remains that an inability to understand the legal consequences of refusing a breathalyzer due to drunkenness cannot be a defense to a refusal charge. The only defense to such a charge, after this Court's decision, is a police officer's failure to read a DWI standard statement in a language the driver is able to understand.
In its decision, the Court also recommended that the Motor Vehicle Commission consider making available a translated DWI standard statement in other prevalent languages. The State Attorney General's office is most likely hard at work translating the DWI standard statement into as many languages as possible to be distributed to all law enforcement agencies in New Jersey. With today's technology it would seem that in the near future the DWI standard statement could be read to a driver from an audio pre-recording of the statement that is broadcast from the police officers dispatch radio. The Motor Vehicle Commission may also want to consider adding a letter on each driver's license signifying the prevalent language of the driver so the police officer knows what language the person understands.
If you have been charged with drunk driving or refusal to submit to the chemical breath test you need an experienced criminal defense DWI lawyer to protect your rights. The attorney you retain should know the changes to the drunk driving laws in New Jersey and take the time to thoroughly review your case to determine if the police made a mistake that can allow for you to retain your driving privileges.
SOURCES:
State v. Marquez, A-35 September Term 2009, Supreme Court of New Jersey
New Jersey Division of Motor Vehicle Standard Statement for Operators of a Motor Vehicle
