Breath Test Warnings Now Must Be Given in Spanish. State v. Marquez 202 NJ 485 (2010)
In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.
State v. German Marquez (A-35-09)
Argued February 2, 2010 -- Decided July 12, 2010
RABNER, C.J., writing for a majority of the Court.
In this case challenging the conviction of a non-English speaking driver for refusing to submit to an alcohol breath test, the Court analyzes the interplay between New Jersey's implied consent law, N.J.S.A. 39:4-50.2, and its refusal law, N.J.S.A. 39:4-50.4a, to determine whether the statutes require law enforcement officials to inform motorists of the consequences of refusing to consent in a language that the driver speaks or understands.
On September 20, 2007, a Plainfield police officer responded to the scene of a two-car accident. The officer approached the driver of one of the vehicles, German Marquez, and asked in English for his credentials. Because Marquez did not understand, the officer repeated the request in Spanish. Marquez produced his credentials. The officer noticed that Marquez smelled of alcohol and was unstable on his feet. He attempted in English to direct Marquez to perform field sobriety tests, but Marquez did not understand. Believing that Marquez was under the influence of alcohol, the officer placed him under arrest and transported him to the police station.
At the police station, Marquez was brought into the Alcotest room. Speaking English, an officer read to Marquez the "Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle—N.J.S.A. 39:40-50.2(e)" (standard statement). This is an eleven-paragraph statement advising drivers that, among other things, cooperating with the test is required by law, the right to an attorney does not apply to taking breath samples, responses that are ambiguous will be treated as a refusal, and refusing to consent is a violation that results in license revocation. The standard statement concludes by asking the driver whether he or she will submit the breath samples. After the statement was read to Marquez, he shook his head and pointed to his eye. Because Marquez's response was ambiguous, the officer read to him in English additional paragraphs that summarized the warnings provided in the initial reading and again concluded with the question whether he would consent. This time, Marquez responded in Spanish that he did not understand. The officers then attempted to demonstrate how to use the Alcotest machine, but Marquez did not follow their pantomimed efforts. Marquez was issued summonses for driving while intoxicated (DWI), refusing to submit to a breath test, and careless driving.
A Plainfield Municipal Court judge heard testimony from the officers and viewed a videotape of the events in the Alcotest room. There was no dispute that Marquez does not speak English. Marquez testified through an interpreter that he was not drunk, he had taken two Percocet tablets for pain associated with an eye injury, and that the Percocet made him sleepy and dizzy. He also stated that he did not understand what was read to him at the police station and that he had taken his driver's license exam in Spanish. Based on the officer's field observations of Marquez, the judge found him guilty of DWI and refusing to submit to a breath test. The judge noted that the officer properly read the standard statement, there was no precedent requiring that the statement be read in Spanish, and Marquez refused to take the test. In addition to imposing fines and assessments, the court suspended Marquez's license for the minimum period of seven months on the refusal violation, and for three months, to run concurrently, on the DWI conviction. The court stayed the sentence to permit Marquez to seek further review.
Marquez sought a trial de novo in the Superior Court. He conceded that there was credible evidence as to the DWI offense, but challenged the refusal violation. The court convicted Marquez after finding that there was no basis to require that the standard statement be read in Spanish. The court stayed the sentence pending an appeal.
Marquez appealed only the refusal conviction, arguing that he could not be guilty because he does not understand English. The Appellate Division affirmed. 408 N.J. Super. 273 (App. Div. 2009). The panel noted that implied consent to submit to breath tests is given whenever a driver obtains a New Jersey driver's license, and explained that there was no requirement that the standard statement be translated. The panel recommended, however, that the Motor Vehicle Commission (MVC) consider in the future having the standard statement translated into Spanish and other prevalent languages. The Supreme Court granted Marquez's petition for certification. 200 N.J. 476 (2009).
HELD: In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey's implied consent law,N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.
1. The Legislature criminalized drunk driving in 1921. In 1951, it adopted a presumption that anyone operating a vehicle with a blood-alcohol content of .15% was intoxicated. However, drivers faced no penalties for refusing to submit to tests, therefore refusal rates were high. In 1966, the Legislature addressed this problem by enacting an implied consent law, N.J.S.A. 39:4-50.2, and a refusal statute, N.J.S.A. 39:4-50.4. The former deemed that all motorists consented to the taking of breath samples. The latter authorized a license revocation if a driver refused to participate in the blood test. Amendments passed in 1977 addressed a continued pattern of refusal flowing from the fact that refusal penalties were shorter than any penalty for drunk driving except for a first offense. The Legislature raised the penalty for refusal and added a requirement that police offers inform the driver of the consequences of refusing. The Legislature also amended the implied consent law to require the DMV to prepare a standard statement to be read to motorists. In 1981, 1994, and 2004, the Legislature again revised the statutes, increasing the refusal penalties. In 2005, this Court determined that because refusal cases are quasi-criminal in nature and subject to double jeopardy principles, the proper burden of proof for refusal is beyond a reasonable doubt. (Pp. 12—16)
2. Reviewing the plain language of the statutes, the Court notes that the implied consent statute deems any person who operates a motor vehicle on a public road to give his or her consent to the taking of breath samples, requires a police officer to "inform the person" of the consequences of refusing, and directs that a "standard statement" be read by the officer. Turning to the refusal statute, the Court notes that it provides penalties for refusing to submit to the test, including driver's license suspensions for not less than seven months for a first offense, and up to ten years for subsequent offenses. The Court determines that these interrelated statutes must be read together, and finds that there are four essential elements that must be proven beyond a reasonable doubt to sustain a refusal conviction: (1) the arresting officer had probable cause to believe that defendant had been driving or was in physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test. (Pp. 16—22)
3. The Court acknowledges that its opinion in State v. Wright, 107 N.J. 488 (1987), did not list the third element as a factor that must be proven for a refusal conviction. The Court explains, however, that this requirement was not an issue in Wright, which focused on whether a motorist could be convicted of refusal without proof of having actually operated a vehicle. After reviewing cases decided after Wright that addressed the reading of the standard statement, equivocal responses, and the burden of proof for refusals, and after considering the Attorney General's written guidelines listing a four-part analysis that includes a refusal to submit to the test after the officer reads the standard statement, the Court finds that refusal convictions require proof that an officer requested a motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The fact that motorists are deemed to have implied their consent does not alter that requirement. (Pp. 22—27)
4. The definition of the word "inform" includes the imparting of knowledge, therefore the directive that officers "inform," in the context of the implied consent and refusal statutes, means that they must convey information in a language the person speaks or understands. If people do not hear or understand English, some other effort must be made. Providing a written document to hearing-impaired individuals in a language they understand will ordinarily suffice. For non-English speakers, the Court defers to the MVC to fashion a proper remedy with the assistance of the Attorney General. The Court acknowledges that the Attorney General has already taken substantial steps, having informed the Court that it has arranged for certified translated versions of the standard statement to be prepared, in both written and audio form, in the nine foreign languages in which the MVC offers the written driver's test. The MVC is charged with determining what to do about the small percentage of additional motorists who would not be covered by this development. Given the need to collect samples quickly and the large number of potential languages involved, the Court understands it is not practical to expect that interpreters will be available on short notice and it does not construe the statutes to require that approach. (Pp. 27—37)
5. The Court adds that it is not a defense to a refusal charge for drivers to claim that they were too drunk to understand the standard statement. It is not necessary for the State to prove that a driver actually understood the warnings on a subjective level. If properly informed in a language they speak or understand while sober, drivers can be convicted under the implied consent and refusal statutes. Defendants who claim that they do not speak or understand English must bear the burden of production and persuasion on that issue. (Pp. 37—39)
6. Here, it is undisputed that Marquez does not speak English. As a result, the officer's reading of the standard statement to him in English failed to inform him of the consequences of refusal. The Court therefore reverses his refusal conviction without reaching Marquez's constitutional due process claim. (P. 39)
The judgment of the Appellate Division is REVERSED, the portion of Marquez's sentence relating to his refusal conviction is VACATED, the stay of Marquez's DWI sentence is lifted, and the sentence will commence at once.
JUSTICE LaVECCHIA, CONCURRING in part, and DISSENTING in part, joined by JUSTICES RIVERA-SOTO and HOENS,disagrees with the majority's holding that the procedural safeguards in New Jersey's implied consent statute, N.J.S.A. 39:4-50.2, constitute an additional substantive element of the offense of refusing to submit to a chemical breath test that the prosecutor must prove beyond a reasonable doubt in order to sustain a refusal conviction under N.J.S.A. 39: 4-50.4a. She asserts that the majority's interpretation of the statutes makes the fact that motorists on New Jersey's roadways have given their implied consent to chemical breath tests entirely meaningless when, in fact, they have no right under the law to refuse to take the test. Justice LaVecchia claims that the text of the implied consent law is written from the viewpoint of the police officer, placing on him or her a requirement to inform, and there is no requirement in the statute that the driver understand the information being imparted, especially in light of the fact that the driver is, by definition, intoxicated and potentially unable to understand the information being conveyed. Justice LaVecchia maintains that immunizing non-English speaking motorists from refusal convictions unless a translation is provided makes it more difficult to prosecute them for driving while intoxicated because the most concrete and important piece of evidence—blood alcohol content—will not be available. She interprets the statutes to require only a determination whether the police officers made reasonable efforts under the circumstances to inform the defendant of the consequences of refusing to submit to the test. Applying that standard, Justice LaVecchia agrees that Marquez's refusal conviction must be reversed because the officers knew Marquez did not speak English, one of them had effectively communicated with Marquez in Spanish, and no further effort was made to communicate with him in Spanish.
JUSTICES LONG, ALBIN, and WALLACE join in CHIEF JUSTICE RABNER's opinion. JUSTICE LaVECCHIA, joined by JUSTICES RIVERA-SOTO and HOENS, filed a separate opinion concurring in part and dissenting in part.
