On certification to the Superior Court, Appellate Division, whose opinion is reported at 408 N.J. Super. 273 (2009).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
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.
The opinion of the court was delivered by: Chief Justice Rabner
On September 20, 2007, the police arrested defendant German Marquez for drunk driving. Defendant spoke no English, and the police had no reason to believe that he did. Yet in a good faith, but surreal, effort to inform defendant of the consequences of refusing to submit to a breath test, a police officer read aloud a detailed, eleven-paragraph, standard statement -- all in English. When defendant confirmed in Spanish that he did not understand, the bizarre encounter continued as the officer read yet another two paragraphs in English to defendant.
The police later candidly acknowledged that defendant did not understand what was read to him. Defendant was nonetheless convicted of refusing to submit to a breath test both in municipal court and on de novo review at the trial court, and his conviction was affirmed by the Appellate Division.
We now address the interplay between the two relevant statutes involved in this appeal: (1) the implied consent law, N.J.S.A. 39:4-50.2, which (a) provides that by taking to the State's roadways, drivers impliedly consent to submit to a breath test to measure the level of alcohol in their blood, and (b) further requires that they be informed of the consequences of refusing to submit to such a test; and (2) the refusal statute, N.J.S.A. 39:4-50.4a, which provides penalties for arrested motorists who refuse to submit to that test. Because we find that the statutes require proof that law enforcement officials inform motorists of the consequences of refusal by conveying information in a language the person speaks or understands, we reverse defendant's conviction.
We defer to the Attorney General and the chief administrator of the Motor Vehicle Commission (MVC) to determine how law enforcement can best comply with the requirements of the statutes. In that regard, we acknowledge and encourage the initiative begun by the Attorney General to translate the standard statement into foreign languages and post written and audio translations on a website for use by law enforcement.
The facts are not in dispute. At approximately 10:00 p.m. on September 20, 2007, Officer Shane Lugo of the Plainfield Police Department responded to the scene of a motor vehicle accident. On arrival, the officer saw two vehicles that had collided and were both facing the same direction. Defendant was sitting in the driver's seat of the rear car with the engine running. The damaged front end of his car was touching the other car's rear bumper.
The officer approached defendant and asked for his credentials in English. According to the officer, defendant did not understand him, so he repeated the request in Spanish. Defendant produced his license, registration, and insurance card in response.
As they spoke, the officer smelled alcohol coming from defendant and noticed that he slurred his speech. The officer asked defendant to get out of the car and walk to the curb. Defendant stumbled out of his vehicle and braced himself against it as he made his way to the side of the road; once he let go of the car and began to walk, he swayed back and forth.
The officer, speaking in English, tried to get defendant to perform some field sobriety tests. According to the officer, defendant appeared to listen as he leaned against a tree for support, but he did not understand. Based on the odor of alcohol on defendant's breath, his slurred speech, and swaying, the officer believed that defendant was under the influence of alcohol and placed him under arrest.
The officer next transported defendant to the police station. When they arrived, Officer Anthony Berlinski, a certified Alcotest operator, observed defendant for twenty minutes in the booking area. Both officers then brought defendant to "the Alcotest room," where a breathalyzer test could be administered using an Alcotest 7110 machine to measure defendant's blood-alcohol concentration. (A thorough description of how the Alcotest machine works can be found in State v. Chun, 194 N.J. 54, 75-84 (2008).) A video recorder captured the events in the room.
At this point, Officer Lugo read defendant the contents of a document titled "Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle -- N.J.S.A. 39:4-50.2(e)" (standard statement). Specifically, the officer read aloud the following in English:
1. You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs or with a blood alcohol concentration of 0.10% or more.
2. You are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
3. A record of the taking of samples, including the date, time, and results, will be made. Upon your request, a copy of that record will be made available to you.
4. Any warnings previously given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give, or delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician, or anyone else present for the purpose of taking breath samples.
5. After you have provided samples of your breath for chemical testing, you have the right to have a person or physician of your own selection, and at your own expense, take independent samples and conduct independent chemical tests of your breath, urine, or blood.
6. If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.
7. Any response that is ambiguous or conditional, in any respect, to your consent to taking of breath samples will be treated as a refusal to submit to breath testing.
8. According to N.J.S.A. 39:4-50.4a, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked by the court for a period of no less than six months and no more than 20 years. The Court will also fine you a sum of no less than $250.00 [sic] and no more than $1,000.00 for your refusal conviction.
9. Any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense.
10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred by the Court to an Intoxication Driver Resource Center and you will be required to satisfy the requirements of that center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for failure to do so.
11. I repeat, you are required by law to submit to taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?
The form provides space for an answer after that last paragraph. When the officer finished reading paragraph eleven, defendant shook his head and pointed to his eye. The officer recorded defendant's answer on the document as "shook head."
Because defendant's response was considered ambiguous, the officer read aloud the following additional paragraphs in English:
[12.] I have previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, or lack of response, is unacceptable. If you do not unconditionally agree to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
[13.] Once again, I ask you, will you submit to giving samples of your breath?
Defendant responded, "No Entiendo" -- Spanish for "I do not understand." The officer noted defendant's answer on the form as follows: "I speak Spanish 'No Entiendo.'" Officer Lugo later testified that he did not believe defendant understood what was read to him and had no reason to believe defendant spoke English.
In addition to reading the standard statement, both officers gestured to defendant to demonstrate how to use the Alcotest machine. On three or four occasions, the officers pointed to the machine and cupped their hands in an effort to show defendant what he needed to do. Defendant did not follow the officers' pantomimed efforts. 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. 39:4-50.4a, and careless driving, N.J.S.A. 39:4-97.
At a trial in Plainfield Municipal Court on December 18, 2007, the court heard testimony from Officers Lugo and Berlinski and viewed the videotape of events in the Alcotest room. Defendant also testified through a Spanish interpreter. It is undisputed that he does not speak English. Defendant claimed that he was not under the influence of alcohol on the night of his arrest; instead, he said that he took two Percocet tablets about fifteen to twenty minutes before driving to treat pain associated with an eye injury that he sustained five months before his arrest. Defendant testified that Percocet makes him feel 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 license exam in Spanish.
On January 29, 2008, the municipal court judge announced his findings. Based solely on Officer Lugo's observations of defendant, the court found him guilty of DWI. The court also found him guilty of refusing to submit to a breath test. The municipal court judge noted that Officer Lugo properly read the standard statement, that there was no precedent requiring that the statement be read in Spanish, and that defendant refused to take the test.
Prior to sentencing, the court merged the careless driving offense into the DWI violation. The court then suspended defendant'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 also imposed various fines and monetary assessments. The court stayed its sentence for twenty days to allow defendant to seek further review.
Defendant sought a trial de novo in the Superior Court. He focused his challenge on the refusal violation and conceded at oral argument that there was credible evidence as to the DWI offense. After conducting its review on June 6, 2008, the trial court convicted defendant. The court found that although defendant did not understand the standard statement read to him, there was no basis to require that it be read in Spanish. It was sufficient, the court concluded, to read the statement in English. The court imposed the same sentence and stayed it pending appeal.
Defendant filed an appeal limited only to the refusal conviction. State v. Marquez, 408 N.J. Super. 273, 279 (App. Div. 2009). His DWI conviction, therefore, remains intact and will not be affected by the outcome of this case. Defendant once again argued that he could not be guilty of refusal because he does not understand English. Ibid. The Appellate Division affirmed the conviction. Id. at 275. The panel explained that "the law does not require a translation of the standard statement under N.J.S.A. 39:4-50.2(e)" and that "defendant gave his implied consent to submit to a breath test when he obtained his New Jersey driver's license." Ibid. In addition, the Appellate Division found that due process was ...