On defendant's motion for leave to appeal a municipal court conviction out of time, this court is presented with the novel issue whether the procedural and jurisdictional limitations of R. 3:23 absolutely prohibit the appeal of a conviction for driving while under the influence of intoxicating liquors (N.J.S.A. 39:4-50) some eight months after the entry of conviction. For the reasons to be discussed herein, this court concludes that when the municipal judge fails to advise a defendant so charged of his right to counsel, and defendant is otherwise unaware of his right of appeal, then an untimely appeal of such conviction will be considered nunc pro tunc, provided the defendant acts promptly upon learning of his rights and the State fails to demonstrate that its position is prejudiced by the delay.
The unique factual circumstances of the matter before the court present a compelling cause for relaxation of the rules governing appeals from judgments of conviction in courts of limited jurisdiction. See R. 1:1-2. The affidavits in support of defendant's motion establish that Aladino Gonzalez is a deaf mute of Hispanic origin. He has received no formal education, either in Puerto Rico or in the United States, in the use of sign language. Rather, he is completely dependent upon two relatives, who communicate with him through a crude form of self-created signing techniques. These relatives are also of Hispanic origin, and each has a limited educational background and minimal skills in the English language.
In July 1982 defendant was charged with a violation of N.J.S.A. 39:4-40, for driving on the revoked list. In researching the history of defendant's revoked license status, his counsel discovered that the basis for such revocation was a prior conviction for driving while under the influence of intoxicating liquors (N.J.S.A. 39:4-50), entered in the Vineland Municipal Court on December 10, 1981. A further review of the transcript of the
proceedings leading to that conviction revealed the following infirmities:
1. Defendant was never advised of his right to counsel. R. 3:27-2 defines the obligation of the trial judge to advise one accused of a nonindictable offense of his right to counsel, including assigned counsel where the defendant is indigent and constitutionally or otherwise entitled to the same. Although motor vehicle violations are generally not regarded as "crimes" in this State, State v. Macuk, 57 N.J. 1, 9 (1970), the charge of driving while under the influence of alcohol is considered to bear such "consequences of magnitude" as to entitle an accused to assigned counsel where warranted. State v. Ryan, 133 N.J. Super. 1 (Cty.Ct.1975); Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971).
2. While defendant's communication problem was obvious to the municipal judge, that judge failed to provide for the appointment of a qualified interpreter even after defendant had assumed the status of witness.*fn1 Rather, the municipal judge chose to solicit from the audience the assistance of an unidentified and unsworn interpreter who also had limited conversational skills in the English language.
3. No witnesses were sworn.
4. The municipal judge questioned defendant, through his "interpreter," before eliciting testimony from any witnesses for the State. Even if defendant had waived his right to counsel, it is fundamental that the State bears the burden of going forward and establishing a prima facie case of the violation charged. The courts of this State have often noted that because
the "prosecution for drunken driving is in the nature of a quasi -criminal proceeding, (it) must be so conducted as to respect and safeguard the basic rights normally accorded one accused of a criminal offense." State v. Ryan, supra at 4. See, also, State v. Lanish, 103 N.J. Super. 441, 443 (App.Div.1968), aff'd o.b., 54 N.J. 93 (1969); State v. Guerrido, 60 N.J. Super. 505, 510 (App.Div.1960); State v. McCarthy, 30 N.J. Super. 6, 9 (App.Div.1954).
5. As an afterthought, and at the suggestion of the municipal prosecutor, the municipal judge did hear the testimony of an officer who had been summoned to the scene of defendant's arrest after said arrest. The State did not, however, produce as part of its case the police ...