On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5862.
The opinion of the court was delivered by: Sabatino, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Defendant German Marquez, a licensed New Jersey driver, appeals his conviction of refusing to submit to a breath test, N.J.S.A. 39:4-50.2, after being arrested for drunk driving.
Defendant argues that because he is only fluent in Spanish and does not understand English, he cannot be guilty of refusing to comply with the standard breath test instruction (the "standard statement"), which the arresting police officer read to him in English.
We affirm defendant's conviction because the law does not require a translation of the standard statement under N.J.S.A. 39:4-50.2(e) and because defendant gave his implied consent to submit to a breath test when he obtained his New Jersey driver's license. However, we 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.
The facts relevant to our consideration of the issues on appeal are substantially undisputed. On the evening of September 20, 2007, defendant's Toyota struck the rear end of another vehicle at or near the intersection of Park Avenue and West Second Street in Plainfield. A Plainfield patrolman, Officer Shane Lugo, arrived at the accident scene. The officer observed both vehicles facing in a southbound direction. Defendant was seated behind the wheel of the Toyota, with its engine still running.
Speaking in English, Officer Lugo requested defendant's driving credentials. After it became apparent that defendant did not understand him, Officer Lugo repeated his request in Spanish.*fn1 Defendant then produced a valid New Jersey driver's license, a vehicle registration and an insurance card. As this was occurring, Officer Lugo smelled alcohol and noticed that defendant was slurring his words. The officer also noticed that defendant had to brace himself to get out of his car and then began leaning against a tree. Consequently, Officer Lugo asked defendant, in English, to perform certain field sobriety tests. Defendant did not comply, apparently not understanding the request.
Based on his observations, Officer Lugo placed defendant under arrest and transported him to police headquarters. He noticed that defendant's eyes were bloodshot and droopy, and that his speech was "whiny." The officer believed defendant was intoxicated.
Upon arriving at headquarters, Officer Lugo ushered defendant into a room where the Alcotest 7110*fn2 breath test is administered. The officer activated a video camera that taped*fn3
the events. Officer Lugo then read to defendant, in English, all eleven paragraphs of the standard statement mandated by N.J.S.A. 39:4-50.2(e). Among other things, the statement explains the mandatory nature of the breath test, the minimum penalties for refusing the test, and the test subject's right to have a defense expert conduct independent chemical testing of the sample.
After the standard statement was read to him in English, defendant responded in Spanish, "No entiendo," meaning "I do not understand." Officer Lugo then visually demonstrated to defendant, an estimated "three or four times," how to blow air into the test device. Defendant did not perform the test. Instead, he shook his head and pointed to one of his eyes. Officer Lugo memorialized this reaction on a police form, noting that defendant "[s]hook head."
Another Plainfield police officer, Anthony Berlinski, was also in the room and was prepared to administer the Alcotest to defendant. According to Officer Berlinski, he watched Officer Lugo read the statement to defendant. He then saw defendant's negative reaction, which he construed as a refusal. Berlinski duly recorded the refusal. On cross examination, Berlinski, a nineteen-year veteran police officer, acknowledged that he had been trained to read the standard statement aloud only in English.
Defendant was issued summonses for driving while intoxicated ("DWI"), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and careless driving, N.J.S.A. 39:4-97.
At his ensuing trial in municipal court, defendant testified through a Spanish interpreter. The prosecution did not contest defendant's need for an interpreter. Nor did the State dispute defendant's unwavering claim that he did not understand Officer ...