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.
