State v.O'Driscoll The police officer s errors in the reading of the standard statement informing defendant of the consequences of refusing to provide a breath sample were not material in light of the statutory purpose to inform motorists and impel compliance

State v.O'Driscoll  The police officer s errors in the reading of the standard statement informing defendant of the consequences of refusing to provide a breath sample were not material in light of the statutory purpose to inform motorists and impel compliance

State v.O'Driscoll (A-7-12) (070438)

Argued May 13, 2013 -- Decided September 18, 2013

RABNER, C.J., writing for a unanimous Court.

In this case, in which defendant was convicted of driving while intoxicated (DWI) and refusal to provide a sample of his breath, the Court considers whether errors in the reading of the standard statement informing defendant of the consequences of refusal warrant a reversal of defendant s conviction for that offense.

Defendant was placed under arrest and taken to police headquarters. After observing defendant for twenty minutes, the officer asked him to submit to a breath test. The officer read from the January 21, 2004 version of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, informing defendant of the consequences of refusal. The statement that the officer read was outdated. The standard statement had been revised as of April 26, 2004, and the penalties differed from the version the officer read in three ways: the minimum period for revocation of one s license was seven months, not six; the minimum fine was $300, not $250; and the maximum fine was $2000, not $1000. In response to the final question of the standard statement, defendant replied, in slurred speech, I don t know what to do. The officer then read defendant a supplemental statement from the standard form, followed by Miranda warnings. Shortly after, defendant noted that he was taking a number of medications and had last taken Ambien at 11:30 p.m. the prior evening about an hour before his arrest.

Defendant was charged with DWI, refusal to submit to a breath test, reckless driving, failure to drive on the right side of the roadway, and possessing an open container of alcohol in a motor vehicle. Defendant was convicted of the failure to keep right, open container, and DWI charges. The municipal court judge also convicted defendant of refusal. Although the judge noted that the officer read an outdated version of the standard statement, the judge found the differences very immaterial and concluded that they would not have made any difference to the defendant on that evening. Fines, costs, and assessments were imposed, as well as a three-month license suspension on the DWI charge. On the refusal charge, the judge ordered a consecutive, seven-month license suspension, a $306 fine, $33 in court costs, and a $100 DWI surcharge.

Defendant appealed only the DWI, refusal, and open container convictions. After a trial de novo in the Law Division, the court found defendant guilty of all three charges. With regard to the refusal charge, the Law Division judge found that the inconsistencies in the outdated standard statement were de minimis and immaterial. He also noted that the doctrine of substantial compliance applied. In addition, the court rejected defendant s Ambien defense.

Defendant appealed. In an unpublished opinion, a two-judge panel of the Appellate Division affirmed the DWI and open container convictions but reversed the conviction for refusal. The panel found it highly doubtful that defendant would have been more likely to feel impelled to give a breath sample had he been read the correct penalties from the April 2004 form. The panel, however, concluded that because the Standard Statement read to defendant . . . provided inaccurate information about the penalties he faced, the statement did not satisfy the statutory mandate to inform defendant of the consequences of refusal. Relying in part on State v. Marquez, 202 N.J. 485 (2010), the appellate panel concluded that the State had failed to inform defendant of the consequences of refusal and felt constrained to reverse defendant s refusal conviction.

The Supreme Court granted the State s petition for certification, which addressed the refusal conviction. 212 N.J. 199 (2012).

HELD: The police officer s errors in the reading of the standard statement informing defendant of the consequences of refusing to provide a breath sample were not material in light of the statutory purpose to inform motorists and impel compliance. The officer s misstatements could not have reasonably affected defendant s choice to refuse to provide a breath sample, and do not require reversal of defendant s conviction for refusal.

1. Marquez, supra, explained how the implied consent and refusal statutes interact: the refusal statute requires officers to request motor vehicle operators to submit to a breath test; the implied consent statute tells officers how to make that request. 202 N.J. at 501. Marquez noted that officers are to read the standard statement to inform defendants of the consequences of refusal. Justice LaVecchia, dissenting in part, concluded that courts need only determine whether the officer made objectively reasonable efforts to inform the defendant under the circumstances. Id. at 524. Neither the majority nor the dissent required that the standard statement be recited perfectly or even addressed the question. The language of the implied consent statute also does not require absolute precision. To be sure, police officers are expected to read the correct statement in its entirety and not deviate from it. But if an officer misreads part of the statement, reversal of a refusal conviction is not necessarily required. Instead, the Court considers whether the error is material in light of the statutory purpose to inform motorists and impel compliance. The same type of analysis one that focuses on whether the State has informed the defendant of material facts should apply when a police officer reads the wrong version of the standard statement or misreads the current form. Under that approach, discrepancies that would not have influenced a reasonable driver s choice to submit to a breath test would not be considered material and would not require reversal of a conviction for refusal. (pp. 15-21)

2. The officer s mistakes in this case were inconsequential. As the Legislature intended, the officer used the standard statement to inform defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply. It is difficult to see how the minor discrepancies in this case could have influenced that decision. Because the errors were not material, the Court finds that the State satisfied the elements of the refusal statute. In addition, the sentence imposed both the amount of time of the license suspension and the fine fell within the ranges the officer identified. (pp. 21-23)

The judgment of the Appellate Division is REVERSED, and defendant s conviction for refusal is REINSTATED.

JUSTICES LaVECCHIA, ALBIN, HOENS and PATTERSON and JUDGES RODR GUEZ and CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER s opinion.

State v. Spell (A-99-07) 196 N.J. 537, The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.

State v. Spell (A-99-07) 196 N.J. 537, The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.

Argued October 20, 2008 -- Decided November 10, 2008

PER CURIAM.

Defendant Ernest Spell was convicted in municipal court of refusing to submit to a Breathalyzer® test, in violation of N.J.S.A. 39:4-50.2. At a trial de novo before the Superior Court, Law Division, defendant was convicted anew. 

The Appellate Division affirmed the conviction.  State v. Spell, 395 N.J. Super. 337 (2007). The panel also held that whenever a person detained for driving while intoxicated refuses to take a Breathalyzer® test immediately upon request, police officers must read the additional, final paragraph of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle - 194 N.J. 269 (2008).

HELD: The Court affirms defendant's conviction substantially for the reasons expressed by the Appellate Division. The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.

1. The record supports the finding that defendant unequivocally refused to take the Breathalyzer® test. (p. 2)

2. The additional paragraph of the standard statement to which the Appellate Division referred is, according to its instructions, to be read aloud by police officers only if, after all other required warnings have been provided, a person detained for driving while intoxicated either conditionally consents or ambiguously declines to provide a breath sample. That paragraph reiterates some of the prior warnings, including that the person's right to remain silent and right to counsel do not apply to the taking of breath samples and do not give the person the right to refuse to provide them; and that if the person does not unconditionally agree to provide breath samples, the person will be charged with refusal to submit to the test. That paragraph concludes by again asking if the person will submit to giving breath samples. The Appellate Division's holding that requires police officers to read that paragraph in all cases was not necessary to the determination of this case. To that extent, it is vacated. (pp. 2-3)

3. The Legislature has vested in the Chief Administrator of the Motor Vehicle Commission the authority to determine the contents and procedure to be followed in respect of the standard statement. The Court refers the procedure outlined by the Appellate Division to the Chief Administrator for consideration. (p. 4)

4. Because the decision to amend the standard statement is vested in the sound discretion of the Chief Administrator, the Court does not retain jurisdiction over that aspect of the judgment. (pp. 4-5)

The judgment of the Appellate Division is AFFIRMED, as MODIFIED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this opinion.

SUPREME COURT OF NEW JERSEY

A- 99 September Term 2007

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ERNEST SPELL,

Defendant-Respondent.

Argued October 20, 2008 - Decided November 10, 2008

On certification to the Superior Court, Appellate Division, whose opinion is reported at 395 N.J. Super. 337 (2007).

Boris Moczula, Assistant Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney; Natalie A. Schmid Drummond, Deputy Attorney General, on the brief.

John Vincent Saykanic argued the cause for respondent.

Jeffrey S. Mandel argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (PinilisHalpern,attorneys).

PER CURIAM.

Defendant Ernest Spell was convicted in municipal court of refusing to submit to a Breathalyzer^® test, in violation of N.J.S.A. 39:4-50.2. At a trial de novo before the Law Division of the Superior Court, defendant was convicted anew, and that conviction was affirmed by the Appellate Division.  State v. Spell, 395 N.J. Super. 337 (2007). We granted the petition for certification filed by the State of New Jersey, 194 N.J. 269 (2008), and denied defendant's cross-petition for certification.  Ibid. We also granted to the Association of Criminal Defense Lawyers of New Jersey leave to appear as amicus curiae.

We affirm defendant's conviction substantially for the reasons expressed by the Appellate Division. As the panel succinctly noted, "defendant was found to have unequivocally refused to take the breathalyzer test[ and t]he record supports such a finding[.]"  Spell, supra, 395 N.J. Super. at 347. We add only the following.

In further holding "that, effective on October 1, 2007,¹ officers must read the additional paragraph of the [New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle - 157 N.J. 475, 498-99 (1999) (recognizing that when "it may be in the interest of both law enforcement officials and the driving public to amend the standard statement in order to eliminate any ambiguity concerning a motorist's intent to submit to the test[,]" judiciary may "recommend a modification to the instructions accompanying the statement[;]" it may "urge [that Chief Administrator of the Motor Vehicle Commission] consider revising the standard statement" as recommended; and it may "encourage [that Chief Administrator] simplify and clarify" statement). And, because the decision to amend the standard statement is vested in the sound discretion of the Chief Administrator, we do not retain jurisdiction over that aspect of this judgment.

As modified, the judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this opinion.

State v. Schmidt (A-35-10) Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional

State v. Schmidt (A-35-10)

Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional.

Argued March 28, 2011 -- Decided May 26, 2011

RIVERA-SOTO, J., writing for the Court.

The question before the Court is whether a defendant s failure to provide proper breath samples of sufficient volume and length during the administration of a breath-based blood alcohol test, constituted an ambiguous or conditional response sufficient to require the reading of a second statement in addition to the Standard Statement under N.J.S.A. 39:4-50.2(e).

At police headquarters, defendant was read his Miranda warnings and the standard statement for operators of a motor vehicle. The Standard Statement explains, among other things, that the law requires that the defendant provide the required breath samples and that if he refuses, he will be issued a separate summons for the refusal. The statement further provides that any ambiguous or conditional response also will be treated as a refusal. In addition, the statement provides that, if a defendant remains silent; or states, or otherwise indicates, that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person; or if the response is ambiguous or conditional, in any respect whatsoever, the police officer administering the test shall read an additional statement.

After defendant consented to provide the required breath samples thereby obviating the need to read the Additional Statement Patrolman Carson of the Logan Township Police Department instructed [defendant] to take a deep breath and blow into the mouth piece with one long continuous breath. [Defendant] was advised to continue to blow until he was told to stop. He advised he understood. Twice defendant provided breath samples that were not of sufficient length and/or volume to generate a valid reading on the testing apparatus. Carson again instructed defendant and advised him that if he did not give a long continuous breath [, it] would be considered a refusal. When defendant again failed to do that, he was charged with refusal to give a breath sample, in violation of N.J.S.A. 39:4-50.2.

In the municipal court, defendant consented to be tried on a stipulated record consisting exclusively of the police report and the text of the entire Standard Statement. He nonetheless challenged the refusal charge, claiming that once the police officer had determined to charge [defendant] with the refusal . . . he was required to read the [Additional Statement]. The municipal court rejected that claim, stating that from the plain reading of the refusal paragraphs [in the Standard Statement], it doesn t call for the reading of the [Additional Statement]. Ultimately, the municipal court stayed defendant s sentence pending appeal.

Defendant filed a de novo appeal to the Law Division where he advanced a two-fold argument: One, whether [defendant s] actions were a refusal; and Two, whether, even if they were, if his actions did constitute a refusal, whether the State could prove it based on the fact they didn t read [the Additional Statement]. The Law Division rejected those arguments. The court explained that it did not find defendant s answer to be ambiguous or conditional and that, as a result, the State was not required to read the Additional Statement. The Law Division concluded that defendant did knowingly refuse to provide a proper sample and that this has been established beyond a reasonable doubt. Adjudging defendant guilty of refusal under N.J.S.A. 39:4-50.2, the Law Division imposed the same sentence as had the municipal court.

Defendant again appealed, and the Appellate Division reversed. The panel determined that defendant unambiguously consented to undergo an Alcotest after being read the first part of the Standard Statement. The panel determined, however, that the ambiguous circumstances required reading of the Additional Statement and that [s]o long as the [Additional] Statement is read and the defendant, without reasonable excuse, continues to produce inadequate breath samples, we find it to be within a police officer s discretion to terminate the [breath test] and charge the defendant with refusal. The Appellate Division therefore reversed defendant s conviction and sentence for refusing to submit to the breath test.

The Supreme Court granted the State s petition for certification. The Association of Criminal Defense Lawyers of New Jersey was granted leave to file a brief as amicus curiae.

HELD: Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, defendant remained among those who have consented and, hence, was not entitled to reading of the Additional Statement.

1. Central to the inquiry in this appeal are the dual questions of what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie. Save for penalties that may be imposed under N.J.S.A.39:4-50.4a, the substance of the standard statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch. Once the question of what must be disclosed in the Standard Statement is laid to rest, the corollary question of how much must be disclosed seems self-evident: provided the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied. At this Court s behest, the Executive Branch added the Additional Statement at issue in this appeal, but limited its application solely to those certain delineated instances, including where a defendant s response is ambiguous or conditional. Here, the Appellate Division concluded that defendant s thrice failed attempts to provide a sufficient breath sample rendered his earlier unambiguous and unconditional assent to submit to the breath test somehow ambiguous or conditional, thereby triggering the obligation to read the Additional Statement. Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, the Court is compelled to reject the Appellate Division s extension of the Additional Statement as unwarranted. Once consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant s unilateral actions aimed at defeating the testing process. To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme. (Pp. 15-24)

2. No due process notice considerations have been raised by the parties to this appeal in respect of defendant s failure to submit to the test and, hence, the Court need not address that question. That said, for the avoidance of future doubt and to provide consistency of administration, the inclusion in the main body of the Standard Statement of a notice to a DWI arrestee that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test is both reasonable and salutary. Therefore, the Court recommends to the Attorney General that the main text of the Standard Statement be supplemented to address such instances. (Pp. 24-26)

The judgment of the Appellate Division is REVERSED, the stay of defendant s sentence is VACATED, defendant s conviction and sentence are REINSTATED, and the case is REMANDED to the Law Division to implement defendant s sentence without additional delay.

JUDGE STERN (temporarily assigned) filed a separate, CONCURRING opinion, in which JUSTICES LONG and ALBIN join, stating that even when defendant unequivocally and unconditionally consented to give an adequate breath sample at the outset, once his efforts proved to be insufficient, he had to be further advised about his obligation to provide an adequate sample and the consequences of not doing so. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, and HOENS join in JUSTICE RIVERA-SOTO s opinion. JUDGE STERN, temporarily assigned, filed a separate concurring opinion, in which JUSTICES LONG and ALBIN join.

State v. Marquez (A-35-09)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.

State v. Marquez (A-35-09)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. 

202 N.J. 485

Argued February 2, 2010 -- Decided July 12, 2010

RABNER, C.J., writing for a majority of the Court.

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.

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