New Jersey Supreme Court Requires Police to Give Breathalyzer Warnings in Foreign Languages

Spring 2011

By Eric H. Jaso

When a police officer stops a suspected drunk driver in New Jersey, and the driver refuses an alcohol breath test, state law requires the officer to inform the driver of the consequences of his refusal, including the automatic loss of license.1 What if the driver is not (apparently) able to speak or understand English? Must the police warn the driver in his native language? In July, a divided New Jersey Supreme Court ruled that they must.

The traffic incident that gave rise to this case was routine. When police responded to a minor fender-bender, one driver remained in his car with the motor running. An officer asked the driver, German Marquez, for his license, registration and proof of insurance. Marquez apparently did not understand him, so the officer repeated his request in Spanish, and Marquez complied. Marquez was slurring, and the officer smelled alcohol on him. When he got out of the car at the officer’s direction, Marquez stumbled, braced himself against the car, and swayed when he tried to walk to the curb. The officer tried to get Marquez to perform field sobriety tests, but Marquez appeared not to comprehend. Based on his observations, the officer arrested Marquez.2

Marquez was taken to the station for a breathalyzer test. Before attempting to administer the test, the officers read Marquez a standard warning (in English) stating what the test is for, how it is administered, and explaining that the law requires DWI arrestees to submit to the test or be charged separately with the refusal. Marquez shook his head and pointed to his eye; because that response was considered ambiguous, the officers read an additional statement. Marquez then stated (in Spanish), “I don’t understand.”3 After that, the officers attempted to show Marquez how to take the test, but he did not respond. Marquez was cited for DWI, careless driving, and also for his refusal to take the breath test.4

The municipal court found Marquez guilty of all three offenses; the judge rejected the argument that he could not be found guilty of the refusal when the warnings were given in English, concluding that the arresting officer properly read him the statement, that the law did not require that the statement be given in another language, and that in any event Marquez in fact refused the test. Marquez pursued a trial in Superior Court, but that judge reached the same conclusion. The appellate court affirmed, holding that the law did not require translation of the warnings, that by obtaining a driver’s license, Marquez had given “implied consent to submit to a breath test,” and that there had been no violation of due process.5 The court nonetheless suggested that the state motor vehicle authorities get the statement translated into Spanish “and perhaps other prevalent foreign languages.”6

Before the New Jersey Supreme Court, Marquez argued that having the police read him the warnings in English did not “inform” him of the consequences of refusing the breathalyzer test as state law requires, and that he was consequently deprived of due process. The prosecutor responded that, because state law also provides that any licensed driver gives his implied consent to submit to alcohol testing, Marquez had no right to refuse, so any shortcomings in warning him of the consequences of refusal could not implicate due process rights. The state also argued that the statute only required that the warnings be given (in English), not that they be understood, and, in any event, the police physically demonstrated how to take the test, so that Marquez’s failure to understand English was irrelevant.7

The state attorney general filed a brief taking the position that Marquez’s refusal conviction should be affirmed even though he did not understand the warnings and no interpreter was provided, and that there was neither a statutory or constitutional right to have them read in languages other than English.8 The state allowed that a defendant could assert a defense based on an inability to understand English, but that he would bear the burden of proof on that claim. (Before argument, the state also informed the supreme court that the MVC would post the warnings on its web site (including video) in the nine foreign languages in which it administers the driver exam.)9 Amicus curiae the Association of Criminal Defense Lawyers asserted that the warnings should be available in any language in which the state offers drivers tests; for its part, the ACLU contended that the state’s failure to provide translations was “fundamentally unfair” and “violated due process.”10

In rendering the court’s judgment, Chief Justice Stuart Rabner first recounted the history of drunk driving laws in the state. The court observed that DWI was first criminalized in 1921 (the Chief Justice evidently forbearing comment on the irony of this law being enacted one year after federal prohibition), but noted that convictions were hard to come by, because most drunk drivers could (and did) refuse alcohol testing. The Legislature addressed this shortcoming in 1966, enacting both a refusal violation and the implied consent law, which provided that “all motorists operating a vehicle on a public road had consented to the taking of breath samples, which would be tested for blood-alcohol content.”11 The court described these enactments as “designed to encourage people arrested for drunk driving to submit a breath sample and to enable law enforcement to obtain objective scientific evidence of intoxication.”12 However, the Legislature did not require warnings until 1977, having found that the relatively lesser penalties for refusing breath tests resulted (unsurprisingly) in drunken motorists electing to take that hit rather than submit to the testing and risk the higher penalties of a DWI conviction. The penalties were therefore beefed up and the warning provision added to the statute requiring police to “inform the person arrested of the consequences of refusal” by reading a standard statement.13

The court opined that Marquez’s claim hinged on “the Legislature’s intent expressed through the implied consent and refusal statutes,” starting with the “generally accepted meaning” of the words of the statutes.14 The implied-consent statute provides that “[a]ny person who operates a motor vehicle . . . shall be deemed to have given his consent to the taking of samples of his breath for the purpose of . . . determin[ing] the content of alcohol in his blood,” and that the police “shall . . . inform the person arrested of the consequences of refusing to submit to such test[.] . . . A standard statement . . . shall be read by the police officer to the person under arrest.”15 The court also recited the criminal refusal statute, which includes “whether [the defendant] refused to submit to the test upon request of the officer” as an element.16

These statutes are “plainly interrelated,” according to the court, and dictate “what police officers must say to motorists”: “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.”17 Thus, the court reasoned, for a refusal conviction to obtain, the trial judge must find that the defendant “refused to submit to the test upon request of the officer,” which request in turn must consist of the police reading “a standard statement . . . for the specific purpose of informing ‘the person arrested of the consequences of refusing to submit to such a test. . .’”18 Because the statute itself dictates that the police must read a standard statement created by the MVC, the request cannot be communicated in other words or by other means, and this means that the statutes “not only cross-reference one another internally, but they also rely on each other substantively.”19 Thus, the court concluded, to find that the reading of the warning does not substantively affect the element required to convict “would in effect read [the warning aspect of the statute] out of existence.”20

Therefore, to convict a driver of refusal, the court ruled that the prosecution must prove not only that the defendant refused to submit to a breathalyzer test, but also that “the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so.”21 The court acknowledged that this element had never been included before, but that was only because the issue of the “request” aspect of the statute had never previously been squarely presented to an appellate court.

Having thus described the additional element, the court focused on the requirement that the officer “inform” the driver by means of reading the written warning. Citing dictionary definitions of the word “inform” (e.g., “the imparting of knowledge, especially of facts . . . necessary to the understanding of a pertinent matter”) the court concluded that “the statute’s obligation to ‘inform’ calls for more than a rote recitation of English words to a non-English speaker.”22 The court warned of “absurd results” if the state’s position were accepted: “Such a practice would permit Kafkaesque encounters in which police read aloud a blizzard of words that everyone realizes is incapable of being understood because of a language barrier,” comparing Marquez’s case to “reading aloud the standard statement to a hearing-impaired driver who cannot read lips.”23 The statute’s inclusion of the term “inform,” the court concluded, “means that [police] must convey information in a language the person speaks or understands.”24 As it is no defense to be too drunk to understand the warnings when rendered in a language one speaks, the prosecution need not prove that the driver “actually understood the warnings on a subjective level”; rather, “[i]f properly informed in a language they speak or understand while sober, drivers can be convicted under the implied consent and refusal statutes.”25 Having based its decision on “the plain language of the statutes and the case law,” the court found it unnecessary to address the constitutional claims raised.26

The court recognized that its decision would have a “practical impact,” given that judicial proceedings in New Jersey required translation into some 81 foreign languages in the preceding two years (hastening to add that 85% of the translations involved Spanish and the others eight languages in which MVC publishes the drivers’ license exam).27 The court also acknowledged that time is of the essence in collecting evidence of alcohol in the body, and that “it is not practical to expect that interpreters will be available on short notice in all cases.”28 However, the court declared that “[t]he executive branch, and not the courts, is best-equipped to respond to those concerns,” and expressed confidence that the MVC and the Attorney General would “fashion a proper remedy,” noting that the Attorney General had already prepared written and audio translations of the warnings and posted them on a website.29 (In the event a non-English speaker responded ambiguously or attempted to ask questions after hearing or viewing the standard warning, the court directed that a translation of the standard follow-up statement be provided).30

Three justices dissented. Because New Jersey law provides that licensed motorists using the roads have given their implied consent to submitting to breathalyzer tests, the dissenters reasoned, the statutory requirement that the police read warnings to suspected drunk drivers is merely a “procedural safeguard” which does not give rise to “an additional substantive element of the [refusal] offense,” which the dissenters characterized as a “novel interpretation” that “eviscerates” the implied consent provision and renders it “entirely meaningless.”31 The dissenters also claimed that the majority abandoned the tradition of deferring to the agency’s interpretation of the law, that the court emphasized the term “inform” out of its proper statutory context, and pointed to the fact that although many other states had similar warning provisions, none required translation to sustain a conviction for refusing a breathalyzer.32

The practical effects concerned the dissenters as well; they opined that it was “particularly incongruous” that non-English-speakers can take the New Jersey drivers’ exam in their native tongue, and in doing so confirm their implied consent to breath testing, “[y]et round-the-clock translation must be available to police officers on patrol to reconfirm that understanding, again, when that person is suspected of violating the drunk driving laws.”33 Instead, the dissenters concluded, if police officers “made reasonable efforts” to inform the driver of the consequences of refusal, a refusal conviction should stand.34

In a footnote, the majority dismissed the dissenters’ arguments and conclusion, accusing them of seeking to “import[] a reasonable efforts test” from other states’ decisions and thus ignore the “precise language the New Jersey Legislature used in crafting this state’s laws . . . It is not for the courts to rewrite those statutes and substitute a different approach.”35


1 N.J.S.A. 39:4-50.4a.

2 New Jersey v. German Marquez, 202 N.J. 485, 490- 491 (2010).

3 Id. at 492-493.

4 Id. at 493.

5 Id. at 494-495.

6 Id. at 495.

7 Id.

8 Id. at 495-496.

9 Id. at 496.

10 Id. at 428.

11 Id. at 497.

12 Id.

13 Id. at 498.

14 Id. at 499.

15 N.J.S.A. 39:4-50.2.

16 N.J.S.A. 39:4-50.4a.

17 German Marquez, 202 N.J. at 501.

18 Id.

19 Id. at 502

20 Id.

21 Id. at 503.

22 Id. at 507.

23 Id.

24 Id.

25 Id. at 513.

26 Id. at 506.

27 Id. at 509-510.

28 Id. at 513.

29 Id. at 511.

30 Id. at 511-512.

31 Id. at 515.

32 Id. at 515-516.

33 Id. at 528.

34 Id. at 516.

35 Id. at 506.

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