On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-027.
The opinion of the court was delivered by: Koblitz, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Payne, Baxter and Koblitz.
The opinion of the court was delivered by KOBLITZ, J.S.C. (temporarily assigned).
Defendant Ramon A. Rodriguez-Alejo was charged with driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; possession of an open container in a motor vehicle, N.J.S.A. 39:4-51a; and reckless driving, N.J.S.A. 39:4-96. At trial, the State conceded an inability to convict on the open container charge. The municipal court judge found defendant guilty only of the refusal to submit to a breath test by failing to provide a sufficient breath sample despite defendant's claim that he did not understand the instructions given to him in English.
Defendant was again found guilty at a trial de novo before the Law Division and sentenced to $306 in fines, $33 in costs, a $200 DWI surcharge, a seven-month license suspension and twelve hours in an Intoxicated Driver Resource Center Program. The sentence was stayed pending appeal. On appeal, defendant argues, as he did in both the municipal court and Law Division proceedings, that his limited proficiency in English prevented him from understanding the instructions regarding the breath sample. Additionally, although not specifically raised as a violation of his rights by defendant, he was not read the required portion of the approved instructions regarding the effect of a refusal. Finding defendant was not sufficiently informed of the breathalyzer process, we reverse.
The trial in municipal court proceeded with a Spanish interpreter for defendant. Corporal Douglas Wiatrak of the Middletown Township Police Department testified to the following facts. At 10:45 p.m. on July 22, 2007, he responded to a civilian report of a possibly intoxicated driver hitting a tree. He saw fresh skid marks on the highway in the direction of defendant's car, which was on the shoulder of the road. Wiatrak smelled the odor of a skidding tire as he approached the car, which showed no signs of having been in an accident. Defendant was standing outside smoking a cigar, and five passengers were sitting in the car. Wiatrak and defendant had a short conversation in which defendant responded appropriately to questions but stated that he spoke little English. Wiatrak could not remember if he had to repeat or rephrase the questions so that defendant could understand. Defendant said he was coming from the beach, had consumed two beers, had trouble seeing and skidded off the road while trying to avoid another car. Wiatrak used one of the passengers as an interpreter for a short time.
Wiatrak observed that defendant's eyes were watery and bloodshot with droopy eyelids. Defendant smelled of alcohol and stood with his legs apart and leaned on the car to keep his balance. Wiatrak began administering field sobriety tests, beginning with the horizontal gaze nystagmus (HGN) test, which defendant failed.*fn1 After that test, defendant indicated he did not understand the instructions for the next test, which was for balance. Wiatrak then placed defendant under arrest for driving while intoxicated. Defendant was able to answer basic questions posed in English to complete an arrest report at the police station.
A videotape of Wiatrak administering the breathalyzer test was admitted into evidence. We reviewed that videotape, which shows Wiatrak reading the standard breathalyzer notification quickly in a monotone, after which defendant says in accented English that he does not understand. After Wiatrak asked defendant if he would submit samples of his breath, defendant responded, "I don't understand," paused and then said "yeah." Wiatrak placed these statements on the standard (refusal) statement form. Wiatrak attempted to use hand gestures and a few words of Spanish in conversing with defendant. Wiatrak pointed to the machine and used the few words of Spanish he knew, such as the word "aqua" ("here") when asking defendant to approach the breathalyzer machine. Wiatrak used hand gestures to mimic blowing into the machine and the words "mas" ("more") and "too pequeao" ("small") in trying to communicate that defendant needed to blow harder into the breathalyzer.
Wiatrak had no training regarding how to deal with people who did not speak English, but was "left to handle it as best [he] c[ould]."
With the use of an interpreter, defendant testified to the following facts. He went out with friends on a boat at the marina in Middletown and drank two beers during the day. His eyes hurt him from swimming in salt water earlier that day.
He came to the United States from Cuba in August 2006, less than a year before the arrest.*fn2 He speaks little English, understanding only "one, two [or] three words[,] but . . . [not] a whole conversation." He took his New Jersey driver's test in Spanish. On cross-examination, defendant said he works two jobs, making shower stalls at a factory during the day and cleaning a building at night, and that his supervisors speak Spanish. Defendant also stated during cross-examination that he always seeks assistance from the same Spanish-speaking banker when doing his banking.
One of his friends acted as an interpreter with the police at first. At the scene, defendant thought he heard another officer speaking Spanish, but when defendant looked to him for help, the officer indicated that he only spoke Italian. Wiatrak read his address and other information from his license, and he agreed to its accuracy, but understood very little said to him in English. He followed the officer's hand gestures when blowing into the breathalyzer.
Relying on our decision in State v. Marquez, the Law Division found defendant guilty of the refusal charge, finding defendant had, "if not a perfect understanding of English, . . . he did understand English to some degree, and then certainly made his responses in English." See State v. Marquez, 408 N.J. Super. 273 (App. Div. 2009) (upholding a refusal conviction of a defendant who only spoke Spanish where he was read the standard statement in English, finding no requirement that the standard statement be translated), rev'd in part, vacated in part, 202 N.J. 485 (2010).
On appeal, defendant argues the following:
POINT I: DEFENDANT-APPELLANT IS NOT GUILTY OF N.J.S.A. 39:4-50.2 BECAUSE HE HAS A LIMITED UNDERSTANDING OF ENGLISH AND DID NOT SUFFICIENTLY UNDERSTAND THE REQUEST OR ...