Drivers in New Jersey who don't speak English must be informed of the
consequences of refusing to take an alcohol breath test in a language they understand, the state Supreme Court ruled Monday.
For the first time, as a result of the good work of the New jersey Association of Criminal Defense Lawyers the state's position that the all important advisement regarding the requirement that a person be advised of their obligation to take a blood or breath test (known here in Colorado as the Express Consent Law) not necessarily be understood - "just that it be read," was overturned as unreasonable by the Court. The decision gives immunity to any drunken driver who speaks a language that the officer is unable to identify or translate.
Since April, New Jersey has provided police with a website with the statement in audio and written form in 10 languages widely spoken in the state. State police have used the website at headquarters before administering the breath test, said a spokesman, Detective Brian Polite, but there are no statistics available as to how often.
Martin Perez, president of the Latino Leadership Alliance of New Jersey, called the ruling "a step forward" to dealing effectively with the states' population. More than 1.5 million immigrants live in New Jersey, and a quarter speak a language other than English.
The language issue is one states have grappled with on similar cases for years, with none requiring translations of these statements for non-English speakers, says Jeffrey Mandel, who filed a brief in support of the Marquez case for the Association of Criminal Defense Lawyers of New Jersey.
In most states, drivers are deemed as having given implied consent to a breath test as a condition of being on the road and are reminded when stopped by police that refusing to do so can result in penalties as severe as those for impaired driving.
The American Civil Liberties Union of New Jersey says a lack of a translation policy holds non-English speakers to a "higher standard" of remembering what's in the driver's manual. The ACLU, in a statement, likens it to the importance of translating Miranda rights and court proceedings, which the state's courts do provide.
State approaches to the breath-test consent typically fall into one of two categories:
• At least seven states call for "reasonable" efforts to be made by police to have those facing prosecution understand the consequences of refusing the test: Alaska, Iowa, Nebraska, New York, Pennsylvania, Washington and Wisconsin. Definitions of "reasonable" have varied depending on the judge and the facts of each case, but several rulings have focused on an officer making a good faith attempt to convey the warning.
• Five other states -- Georgia, Illinois, Minnesota, Ohio and Oregon -- follow the view of New Jersey's Democratic Attorney General Paula Dow that the law requires the statement be read, not that drivers must understand it.
Two other states also provide opportunities for translation. In New York, translators are on-call 24/7 to address any translation issues that may arise, according to the New York State Police. They also use cards with the warnings written in Spanish.
Washington state has the statement written in English and Spanish, as well as a telephone language service available to translate it into other languages. The Washington State Patrol reports the language line was used 49 times in 2009 and 29 times so far in 2010.
H. Michael's Take
Colorado's Express Consent Law:
By operating a motor vehicle in the state of Colorado you are automatically giving "express consent" or granting permission to be administered a chemical test by breath, blood, or urine to measure your blood alcohol content. If a law enforcement officer requires you to take a test because of suspected drinking and driving and you refuse, your license will be revoked at that point for one year.
Colorado Law does not now require Colorado's Express Consent Advisement be translated into the suspects native language... it should.
