Thursday, May 14, 2015
a Confused Arrestee Should Be Informed of penalties for refusal Before a Court Can Consider the Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt
II Modern Notions of Due Process and Fair Play Dictate that a Confused Arrestee Should Be Informed of penalties for refusal Before a Court Can Consider the Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt
The NJ Supreme Court held in State v. Marquez 202 NJ 485 (2010) that the refusal warning should be worded so a driver understands the penalties for refusal.
In the Marquez case involving a conviction for refusing to submit to a chemical breath test, the Court held 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.
Refusal penalties are significant. In contrast with the earlier penalties, a first-time offender who today is convicted of refusing to submit to a breathalyzer test after being arrested for driving while intoxicated faces a suspension of the driving privileges for a minimum of seven months to a maximum of twelve months, a fine of not less than $500, and mandatory confinement of twelve to forty-eight hours at an Intoxicated Driver Resource Center. *** Those penalties increase for repeat offenders as well as for those offenses committed on or within 1,000 feet of school property or while driving through a school crossing. Those convicted must also pay thousands of dollars in surcharges to the State.
Based on the seriousness of the consequences of a refusal conviction, our Supreme Court in recent years has redefined the offense from civil to quasi-criminal in character. For example, the Supreme Court held that double jeopardy principles barred retrial of a refusal acquittal even though the facts would otherwise support conviction. State v. Cummings, supra at 92-93 (internal citations omitted). Also, the Court elevated the burden of proof required for conviction from preponderance of the evidence to proof beyond a reasonable doubt, State v. Widmaier, supra. despite the plain language of the statute. Ordinary notions of due process and fair play, especially within a statutory scheme that contemplates reading a standard statement to convey information to an arrestee, militates against the creation of a conclusive presumption that a mere reading of a standard statement in a way that is unintelligible to particular defendant constitutes proof of an element of the offense beyond a reasonable doubt.
III. Evidence That Defendant Did Not Understand the Standard Statement Required to Be Read to the driver was Palpable, Raising Reasonable Doubt About the Sufficiency of the Evidence Needed to Convict the driver
The defendant was obviously confused by the conflicting Miranda warnings, then Paragraph 36
This Court should, therefore, acquit the driver of the charge under N.J.S. 39:4-50.4a.