NJ Supreme Court Rules Police Must Explain DWI Test In Suspect's Native Language

In a split decision (4-3), the New Jersey Supreme Court ruled that a suspect's conviction on failing to submit to a Breathalyzer test following a police stop for DUI should be thrown out because police didn't inform the suspect in his native tongue.

Marquez, who speaks only Spanish, did not understand an officer’s instructions in English that he was required by state law to take a breath test to determine if he was intoxicated, his lawyer said.

Marquez’s conviction for drunken driving remains intact after the Supreme Court decision. But his conviction for refusing to take a breath test was vacated.

Justice Jaynee LaVecchia wrote a separate decision joined by two other justices, Helen Hoens and Roberto Rivera-Soto, dissenting in part and concurring in part. They argued that the majority’s decision undercuts the state’s implied consent law, which requires that drivers submit to breath tests.

The majority decision acknowledged that the Attorney General’s office has already moved to translate instructions about the test into other languages.

In April, the state recorded them in 10 languages -- Arabic, Chinese, English, French, Japanese, Korean, Polish, Russian, Portuguese, and Spanish -- and posted the recordings on a state website, where police can play them for suspects before breath tests.

I suspect the primary reason the Court ruled this way was because the state was already moving to provide the translated rules for police to play to suspects so that they know their rights to a Breathalyzer. Moreover, the police apparently attempted to communicate with the defendant in English and had no success. They attempted to do so in Spanish and he complied, but then didn't do the same when it came time for the Breathalyzer test.

The decision is here.

It is quite likely that this ruling undermines the implied consent law in the state - which requires all drivers to submit to a Breathalyzer test on suspicion of a DUI. The defendant here, German Marquez claimed on appeal to the Appellate Division that he could not be guilty because he does not understand English. The Appellate Division didn't agree - and affirmed the conviction. The State Supreme Court overturned that decision.

When you are licensed in New Jersey, you are assumed to know the laws and rules of driving, including the various rules relating to DUI/DWI. That includes not drinking and driving and the criminal penalties that can result. This is clearly spelled out in Chapter 6 of the NJ Driver's Manual.

Note: Under state law, refusal to take a breath test is equal to driving with a BAC
of .08 percent for a first offense. The current penalty for both is the loss of driving
privileges for seven months to one year, to run concurrently or consecutively, based
upon a judge’s order (N.J.S.A. 39:4-50.4a). Motorists who refuse to take a breath
test in New Jersey are also subject to an MVC insurance surcharge of $1,000 per
year for three years (N.J.S.A. 17:29A-35). Failure to pay this surcharge will result
in an indefinite suspension of driving privileges until the fee is paid.

New Jersey provides the same in Spanish:

Observación: Las leyes estatales disponen que negarse a que le hagan una
prueba de aliento equivale a conducir con un BAC del 0.08 por ciento si se trata
de la primera ofensa. La sanción actual para ambos es la pérdida del privilegio de
conducir por un periodo de siete meses a un año, que será aplicada concomitante
o consecutivamente, según falle el juez (N.J.S.A. 39:4-50.4a). En New Jersey, el
automovilista que se niegue a que le hagan la prueba de aliento también queda
sujeto a un recargo de la MVC sobre su seguro anual de $1,000 por tres años
(N.J.S.A. 17:29A-35). El incumplimiento de pago de dicho recargo resultará en la
suspensión indefinida del privilegio de conducir mientras no se pague el recargo.

This means that Marquez knew or had reason to know he was subject to the Breathalyzer requirement and that failure to submit would result in civil and criminal penalties.

No driver in New Jersey has a right to refuse the Breathalyzer, and yet the majority found precisely that - because Marquez doesn't speak or understand English. In other words, the majority undermined the informed consent law - even as it is spelled out in the driver manuals.

This decision increases the burden on law enforcement to provide translations to all potential DUI suspects - and if you think that the 10 languages translated to date will be sufficient, just wait until someone comes along and is speaking a language other than those on the list. Where is the responsibility on the driver to know the law and that he or she would be subject to various criminal sanctions and the requirement to submit to a Breathalyzer if they're arrested on such charges.

Note too that the NJ Supreme Court has previously found that a defendant can't claim that they were too drunk to understand the standard statement. The State doesn't need to prove that the defendant actually understood the warnings on a subjective level.

Overall, I think this was a poorly decided case and the court would have been better served upholding the conviction because of the driver's rights and responsibilities - and the implied consent to give samples for the Breathalyzer.