Those Arrested for DWI Have Right to Be Informed of Obligation to Submit to a Breath Test in the Language They Speak: Refusal Case Law

July 18, 2010

In State v Marquez, the NJ Supreme Court held that an individual arrested for DWI/DUI has the right to be informed of the consequences of refusing to consent (to submit) to an Alcotest (Breathalyzer) in the language that they speak. In this case, the defendant was arrested for DWI in New Jersey. It was clear that he did not speak English. When the Police brought him to the police station, the read to him, in English, what is commonly referred to as the Standard Statement. This eleven paragraph form informs the individual arrested for DWI what will happen should he/she refuse to blow into the machine. It was clear that Marquez did not understand, so the officers demonstrated what he was supposed to do (pantomime blowing into the Alcotest).

Even those who speak English have a tough time understanding this form. Most don’t realize that a first conviction for refusal means no less than a seven month loss of license.

Prior to this decision, courts examining this issue had held that it was not necessary for the Standard Form to be read in the suspect’s language before charging the individual with refusal. The reasoning behind this being that, under this State’s implied consent laws (NJSA 39:4-50.2) a person who applies for and receives a NJ driver’s license has, in essence, already agreed that he/she has an obligation to submit to a chemical test if arrested for DWI. The only requirement is that police read the standard form, in English, to the suspect. One could think of it like a contract you sign with the State when you get your license. Nonetheless, prior to being charged with refusal, the police must inform you of the consequences of doing so.

The Marquez decision is a dramatic departure from previous case law. Police are now required to provide the standard form in the language spoken by the individual arrested for DWI/DUI. In order to implement this decision, the Court will rely upon the efforts of the Attorney General and The MVC to provide the Standard Form in a variety of different languages. This may mean a simple written translation, or audio translations or ????.

This decision has received a good amount of attention. From a DWI defense lawyers perspective, I think it is a good decision for a number of reasons. But most importantly, it just seems fair that before taking a persons license for seven months, and with it their job, and all the other consequences that may follow, that they be provided with a little “heads up” in the language they speak regarding the consequences of refusal. Having on hand in the police station written or taped translations of the refusal right form is certainly not a huge burden on the State. Honestly, a CD player, a copy machine, a file cabinet, the minimal cost to the state of having a recording made of the standard form in a few different languages, it really is not overwhelming. Of course, as with all new case law decisions in favor of a DWI defendant, DUI defense lawyers will attempt to mold the case around the facts of their situation and manipulate accordingly. But I am certain that courts will give very little leeway when it comes to these types of situations. If the form is translated in the language the defendant says he/she speaks, that should suffice.