Posted on Jul 06, 2009

UPDATE (7-15-10): The case that this post discusses was reversed by the New Jersey Supreme Court.

On July 1, the New Jersey Appellate Court issued one of the most amazing opinions I have ever seen!  For those of you who don't know, a person arrested for DWI does not have a 6th amendment right to an attorney before giving a breath sample, nor does the breath sample itself constitute self-incriminating testimony under the 5th amendment.  However, the police are required to read a standardized statement explaining this to the defendant, so that he knows that he does not have the right to refuse the breathalyzer.  If he then refuses, he can be charged not only with DWI, but with refusal as well.

In the case of State v. Marquez, in an opinion approved for publication (in other words, it can be cited with authority in future cases), the New Jersey Appellate Division held that proof that a defendant understands the warnings is not an element of the refusal offense. Moreover, the administrative burden placed upon law enforcement to translate the warning into a wide array of foreign languages would be unreasonable, especially given the time-sensitive nature of obtaining drunk driving blood-alcohol evidence.  What?  A defendant is informed that he does not have certain constitutional rights, and it is not important that he understands this? When suspects are read the Miranda warning advising of the existence of these same two rights, the defendant's understanding is paramount.  In fact, the warning ends with, "Do you understand these rights as I have explained them to you?"  What happened here?

In this case, Mr. Marquez was arrested for drunk driving after a motor vehicle accident and  brought back to the police station for breath-testing. He spoke no English and had been able to communicate with the arresting officer in Spanish.  The officer who investigated the accident, an Officer Lugo, "speaking in English, . . . requested defendant's driving credentials. After it became apparent that defendant did not understand him, Officer Lugo repeated his request in Spanish. Defendant then produced a valid New Jersey driver's license, a vehicle registration and an insurance card."  At the police station, the defendant was read the required implied consent warnings in English. At trial, the defendant testified through an interpreter that he did not understand the warning that had been read to him by the police, a fact that was conceded by the State. Defendant was convicted drunk driving, careless driving and refusal to submit to a breath-test.  The court observed:

"The elements of a refusal offense do not include proof that the driver actually comprehended the police officer's instruction. To the contrary, the Supreme Court . . . ‘emphasize[d] that a defendant's subjective intent is irrelevant in determining whether the defendant's responses to the officer constitute a refusal to take the test.' If the law were otherwise, some motorists might illicitly feign such lack of comprehension to evade liability for a refusal."

However, that was not the case here.  All the evidence indicated that the defendant did not speak English or understand the statement read to him.  He was not faking.  When the arresting officer at the scene asked him, in Spanish, for his license, registration, and proof of insurance, the defendant complied. Two other points were also made by the court.  First, when someone obtains a driver's license (which is a privilege, not a right),  and operates a vehicle on New Jersey roadways, he or she gives implied consent to breath testing.  Second, "because [the] defendant . . . did not allow the police to administer the Alcotest to him, the police's obligation . . .  to inform ‘the person tested' of his rights is not on point."  In other words, the nonverbal refusal of Mr. Marquez to take the test is enough, even if he was ignorant of his lack of a right to do so.

Admittedly, the court here was following precedent, as this was not the first time this issue had come before them.

"The question of whether the standard statement must be translated into a foreign language for non-English-speaking drivers has been previously the subject of published judicial and administrative decisions. As the municipal judge here noted, the court rejected a defendant's argument to require such a translation in [State v.] Nunez, supra, 139 N.J. Super. at 28."

I realize that drunk driving is a serious problem in our society and must be dealt with in order to keep us safe on the roadways, but where is the justice here?   Courts must follow a rule of law and often must protect the needs of society over those of individuals, but sometimes justice is needed on a case by case basis.  Here, although DWI cases are time-sensitive when it comes to taking a breath sample, and one cannot always find a translator at a moment's notice, the police officer spoke Spanish. He might have been able to get Mr. Marquez to understand the statement with a little effort, yet in a footnote, the court observed that "The extent of Officer Lugo's fluency in Spanish is not disclosed in the record."  Well, shouldn't it have been?  Wasn't that important?

The court at trial was able to convict Mr. Marquez of drunk driving and careless driving based on the officer's observations at the scene, along with the occurrence of an accident.  He was punished accordingly.  The needs of society were met.  With that in mind, was it really necessary to pile on a separate punishment for the refusal?  Perhaps.  Sometimes the breathalyzer result is the only evidence of impairment in a DWI case, and a message needs to be sent to the driving public.  On the other hand, shouldn't punishment for refusal in these circumstances be used only when said "uninformed refusal" impedes the state's ability to keep drunk drivers off the road?  Shouldn't our municipal court judges have some discretion in this?   The one ray of sunshine here is that the court did "recommend that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages."  Whether that will be enough remains to be see.  Something to think about.

Check out our other news articles on interesting legal developments in New Jersey, as well as a wealth of information on bankruptcy, DWI, foreclosure, and traffic court. Should you have further questions or need additional information, please contact me to schedule an appointment.

Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.

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