Breath-test law changes clear Assembly committee

TRENTON – There’s a tug of war going on between the Attorney General’s office and some legal eagles over a

TRENTON – There’s a tug of war going on between the Attorney General’s office and some legal eagles over a new law the AG’s office wants governing arrests made in connection with driving while under the influence.

The legislation in question – heard before the Assembly Law and Public Safety Committee Monday – involves some thorny legal principles that were upended by a state Supreme Court ruling last year involving a man arrested on charges of driving while intoxicated in Plainfield, Union County, in 2007.

In a 4-3 decision written by Chief Justice Stuart Rabner, the high court threw out the conviction of a Spanish-speaking man for refusing to take an alcohol breath test. The court decided that because German Marquez didn’t speak English, he could not understand a police officer’s direction, spoken in English, that he was required by New Jersey motor vehicle law to take the test.

While the DWI conviction was allowed to stand, Marquez’s conviction for refusing to take the breath test and the seven-month driver’s license suspension that came with it was reversed on the grounds that Marquez couldn’t understand the police officer’s instructions.

The state attorney general’s office now wants a law that it says will clarify legislative intent for informing drivers of their requirement under existing law to take the breath test that uses chemicals to determine the level of alcohol in a driver’s blood. The existing law requiring drivers to take the breath test after they’ve been placed under arrest for drunken driving is known as “implied consent.”

The bill (A3400) states that police officers must inform drivers of their obligation to submit to a breath test, but only for “the purpose of encouraging compliance (with the implied consent law).”

The measure adds an amendment to existing law stating that it is not among a driver’s “substantive rights” to be informed of the consequences of not taking a breath test and that it would no longer be a defense if the arresting officer fails to inform the driver of the consequences of failing to take the test.

Assistant Attorney General B. Stephan Finkel said the department doesn’t believe it was the Legislature’s intent back in 1966 to make informing drivers of their failure to submit to a breath test a deal-breaker when it comes to suffering the penalties of refusal.

“The (state) Supreme Court has turned that on its head,” Finkel told lawmakers. “That decision eviscerates the implied consent law.”

Finkel noted in answer to a lawmaker’s question that New Jersey drivers are already informed of their obligation to take a breath test as part of the test for taking their license.

The committee’s chairman, Gordon Johnson, (D-37), Teaneck, then suggested the state’s obligation appears to have already been met as drivers have to know the law to have a driver’s license.

But Damian Scialabba, one of two attorneys who appeared before the Assembly committee Monday to oppose the bill, argued the Attorney General’s office’s arguments were a “red herring.”

Scialabba, joined by attorney Steven Williams, told lawmakers that adopting the law would “deprive you, your neighbors and your family members of due process” because the police would no longer have to inform them of their obligation to take the test as well as the consequences.

While the lawyers are members of the state Bar Association, they said the association had not taken a position on the bill. But they said they wanted to speak out personally to oppose it.

Since the Marquez case went to court, the Attorney General’s office has recorded the implied consent instruction in eight languages other than English, including Spanish, Chinese, Polish, Arabic and Russian. The recordings are available to police on the Attorney General’s website, the office said in an interview.

In its July 2010 decision, the state high court said a driver has the right not only to be read the instructions surrounding implied consent for an alcohol breath test, but also to understand it in his native tongue. (The court noted the instruction only has to be understood by a sober person, so being too drunk isn’t a defense).

“The statute’s obligation to ‘inform’ calls for more than a rote recitation of English words to a non-English speaker,” the high court wrote in reversing earlier decisions. “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.”

The bill passed the committee 8-1, with Elease Evans, (D-35), Paterson, the only member voting against it.

Breath-test law changes clear Assembly committee