Monthly Archives: July 2009

“U-turn” Means You Turned & Went the Other Way – State v. Smith

[7/30/09 – 11:20 pm] Today’s Appellate Division decision in State v. Smith construes the provisions of NJSA 39:4-125, the U-turn statute. The Court ruled that the statute does not require that the motorist literally make a 180 degree turn. Instead, the statute broadly prohibits any type of attempt to turn a vehicle around and proceed in the opposite direction in an area where a “no U-turn” sign has been conspicuously posed.

The Defendant in Smith was driving down a roadway. He made a left-hand turn into a private driveway, remained there for a few moments, backed out and drove off in the opposite direction. This conduct, according to the Appellate Division, constituted a violation of NJSA 39:4-125.

This opinion contains important discussions on numerous other collateral issues, including the appointment of counsel on minor traffic tickets, the trial of a matter following a promise by the judge to dismiss the complaint if the officer does not show up for court, an analysis of whether 39:4-125 only applies to state highways and how the State may supplement the record as part of a municipal appeal.

Download a copy of State v. Smith.

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Supremes Mandate New Rules for Juvie Confessions – State in the Interest of PMP

[07/29/09- 1:36 pm] In this morning’s Supreme Court decision, State in the Interest of P.M.P. the Justices created new, more restrictive rules that police must follow when attempting to obtain a waiver of the right to remain silent for a juvenile suspect. The Court held that following the filing of a juvenile petition and the issuance of an arrest warrant, a juvenile defendant mat not waive his right to remain silent and give a statement in the absence of counsel, The Court analogized the procedural posture of a juvenile case as a critical stage, the functional equivalent of the return of an indictment in Superior Court. The new procedure conforms to the current practice police must follow in seeking a waiver from a defendant who has been indicted. Under State v. Sanchez, 129 N.J. 261 (1992), such a defendant may not waive his right to counsel and make a statement to the police in the absence of counsel.

Today’s holding in the PMP case, constitutes an additional “bright-line” exception to the Miranda rule where police cannot lawfully obtain the waiver of a defendant for the purpose of obtaining a confession. These cases are:

Attorney Present waiting to speak to defendant -: State vs. Reed, 133 N.J. 237(1993)
Active Bench Warrant – defendant not informed – : State vs. A.G.D., 178 N.J. 56(2003)
Fabrication of Physical to obtain statement – Evidence: State v. Patton, 362 N.J. Super. 16 (A.D. 2003)
Absent Parent & Juvenile under 14 years old:- State v. Presha, 163 N.J. 304 (2000)
Following Indictment – State v. Sanchez, 129 N.J. 261 (1992)
Juvenile following filing of petition and issuance of arrest warrant –
State in the Interest of P.M.P. ___ N.J. ___ (2009)

Download a copy of State of New Jersey In the Interest of P.M.P. (A-63-08).

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D/L Suspension Sentencing Factors Established by App. Div – State v. Moran

[7/28/09 3:33 pm] In this morning’s Appellate Division decision in State v. Moran, the Court undertook a comprehensive review of the provisions of N.J.S.A. 39:5-31. This statute permits a judge to revoke the driving privileges of a person who has been found guilty of a willful violation of any provision of Subtitle 1 of Title 39, the New Jersey Motor Vehicle Code. In upholding the constitutionality of the statute, the Court established a variety of aggravating and mitigating factors for judges to consider when determining whether to suspend a defendant’s driving privileges as a result of a willful violation and for how long.

These would include:, the nature and circumstances of the present offense and whether it was particularly egregious; any harm inflicted on others; the defendant’s driving record, considering how long the defendant has been a licensed driver and the seriousness, frequency, and timing of prior infractions; the likelihood of committing further motor vehicle violations; the need for deterrence; whether there were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense; whether this was the defendant’s first violation or whether he or she had gone for a substantial period of time without violations prior to the present offense; whether the defendant’s character and attitude indicate that he or she is unlikely to commit another motor vehicle violation (or at least a willful one); and the like. With respect to the length of the suspension, courts may also consider the length of suspensions authorized for specific offenses in the Motor Vehicle Code as a basis for comparison and proportionality. Against this backdrop, we consider the judge’s determination in this case to invoke the authority of N.J.S.A. 39:5-31. He did so based upon relevant considerations (the willful violation and defendant’s prior driving record).

Download a copy of State v. Moran.

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False Immigration Info Earns Alien New Criminal Trial – State v. Nunez-Valdes

[7/27/09 11:49 pm] In this morning’s New Jersey Supreme Court decision in State v. Nunez-Valdez, the Justices ruled that a defense attorney can be ineffective in a constitutional sense when he provides false or inaccurate information related to the impact that a guilty plea will have on the immigration status of his client. The defendant in Nunez-Valdez entered a plea of guilty to a fourth degree sex crime. At the time of the plea, his inexperienced attorney advised him that the plea would not affect his immigration status. The defendant had been in the United States for the previous 18-years and was extremely concerned about being deported as a result of his conviction. The advice the attorney provided the defendant was legally incorrect. In fact, deportation for this criminal offense was mandatory at the time of the plea under federal law. Federal authorities thereafter sought to deport the defendant.

In his post-conviction relief petition, the defendant claimed that had he been properly informed of the mandatory deportation consequence, he never would have pled guilty. The New Jersey Supreme Court ruled that under the state constitution, a defendant who has been misinformed on the immigration impact of a guilty plea may successfully argue that his guilty plea be vacated as a result of ineffective assistance of counsel.

Please note that this precise issue is now pending before the United States Supreme Court in a case that will be decided during the Court’s next term. (Cert. granted Padilla v. Kentucky, 129 S. Ct. 1317

Download a copy of State v. Nunez-Valdes.

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New Court Rules Officially Released – Effective 9/1/09

[07/24/09 – 11:07 pm] By order dated July 16, 2009, the New Jersey Supreme Court has released the officially adopted new and amended Rules of Court that will go into effect at the start of the new Court year on September 1, 2009. The amendments provide substantial changes to the procedures affecting criminal practice in Part III, especially with respect to post-conviction relief. The municipal court amendments affect a wide array of practice areas ranging from the issuance of process and subpoenas to new procedures that prosecutors may elect to follow in the plea-bargaining process. The new and revised Rules also affect general practice (Part I), family practice (Part V) and appellate practice (Part II). Moreover, several of the appendices to the Rules have been amended and updated.

Download a copy of the revisions to the Rules of Court, effective September 1, 2009.

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[7/22/09 10:50 pm] In April of last year, the Appellate Division ruled in State v. Robinson, 399 N.J. Super. 400 (App. Div. 2008) that “absent unforeseen exigent circumstances supporting the use of force, the use of a flash bang device in connection with the execution of a “knock-and-announce” warrant, nullifies the legal efficacy of such warrant, rendering the entry and search of the dwelling unconstitutional, in violation of a defendant’s rights under Article I, paragraph 7 of the Constitution of the State of New Jersey.” The Court also ruled that a delay of 20 to 30 seconds between the knocking on the door by the police and making a physical entry was insufficient and constituted unreasonable conduct by the police.

This morning, the New Jersey Supreme Court unanimously overruled both of these holdings in the Robinson case. Writing for the Court, Justice Rivera-Soto noted that the issue of the reasonableness of using a flash-bang device when serving a knock and announce search warrant was never argued at the trial level and was raised by the Appellate Division itself and not by the parties to the case. The Supreme Court determined that consideration of this issue by the Appellate Division without any type of trial record was inappropriate. Thus, the Court reversed on procedural grounds the bar to the use of flash-bang devices by New Jersey police when serving a knock and announce search warrant.

The Supreme Court also rejected the Appellate Division’s holding that a delay of 20 to 30 seconds between the knock/announce and entry was unreasonable. On the contrary, the Justices ruled that there was sufficient credible evidence in the trial record to suggest that under the facts of the case, the 20 to 30 second delay was reasonable.

Download a copy of State v. Robinson.

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Supreme Court Adopts NEW Open Records Rule for Judiciary – Rule 1:38

7/22/09 – 5:27 pm] Generally speaking, the provisions of New Jersey’s Open Public Records Act (OPRA) do not apply to records maintained by the judiciary. Historically, access to judicial records has generally been controlled under New Jersey common law and through Rule 1:38.

Today, the New Jersey’s Supreme Court announced in a press release the adoption of a new rule on public access to court records. The revised version of Rule 1:38 and recommendations about court access were submitted in a report by the Court’s Special Committee on Public Access to Court Records. The Court also released its administrative determinations on the committee’s recommendations.

The committee, commonly referred to as the “Albin Committee” for its chair, Associate Justice Barry T. Albin, was formed in February 2006 to conduct a review of Rule 1:38, “Confidentiality of Court Records,” in order to recommend changes to the rule that will facilitate the public’s access to court records as well as safeguard legitimate privacy interests.

The revised Rule 1:38, now called “Public Access to Court Records and Administrative Records,” will become effective on Sept. 1.

The rule includes
• an expanded definition of court records;
• a definition of administrative records and a statement on their availability to the public;
• a comprehensive listing of records excluded from public access with the relevant statutory or court rule references;
• a definition of confidential personal identifiers;
• certain prohibitions on submission of and access to personal identifiers;
• a section on redaction of personal identifiers;
• a section on sealing and unsealing court records;
• a process to appeal a decision denying access to a court record.

Download a copy of the newly revised Rule 1:38.

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Judge Improperly Let Cops Make PC Determination – State v. Marshall

[7/21/09 – 5:38 pm] In this morning’s Supreme Court holding in State v. Marshall, the Court ruled that a Superior Court judge issued an invalid search warrant when he permitted the police to determine when sufficient probable cause existed to search a particular apartment in a multi-unit dwelling. The Justices also invalidated the search warrant on the basis that it did not describe the place to be searched with sufficient particularity.

Download a copy of State v. Marshall.

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Supremes: No More Adverse Inference for Absent Witnesses – State v. Hill

[7/14/09 – 6:04 pm] In State v. Clawans, 38 N.J. 162 (1962), the New Jersey Supreme Court established a procedure whereby a negative inference may be drawn by the fact-finder at trial when a party who could have been produced a critical witness does not do so. The inference to be drawn is that the missing witness was not called because he would have provided negative evidence against the party who failed to call him. This so-called “Clawans charge” has been part of the fabric of both our criminal and civil law for the past 47 years. Today, that changed. In this morning’s Supreme Court decision in State v. Hill, the Justices ruled that from now on, Clawans charges will not be available to the prosecution for use against a defendant. The Court noted that the use of this negative inference by the prosecution has the clear capacity to undermine the presumption of innocence that protects every defendant.

Download a copy of State v. Hill.

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No Defenses: Alcotest BAC of .08% = GUILTY – State v. Coppola

[07/14/09 – 2:52 pm] Yesterday, the Committee on Opinions authorized the publication of the Law Division case of State v. Coppola. In Coppola, the defendant entered a conditional plea of guilty in municipal court while the Supreme Court’s decision in State v. Chun, 194 N.J. 54 (2008) was still pending. Defendant’s conditional plea was based upon a BAC of .08% taken from an Alcotest. Following the publication of Chun, the defendant returned to municipal court and sought to vacate his plea based upon the Chun decision. The defendant argued that based upon Judge King’s Special Master’s Report, readings at the level of .08% and .10% BAC should not constitute conclusive evidence of guilt, but rather should be taken into consideration by the court in conjunction with clinical evidence of guilt. The defendant’s argument was rejected by the municipal court judge.

On appeal to the Law Division, the Court ruled that the Supreme Court has concluded that the Alcotest is scientifically reliable, subject to certain safeguards. Moreover, a BAC of .08% constitutes sufficient evidence by itself to constitute proof of a per se violation of NJSA 39:4-50(a) without regard to any clinical evidence.

Download a copy of the Law Division decision in State v. Coppola

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Police are permitted Long-term Warrant for Data Searches – State v. Finesmith

[7/13/09 – 2:24 pm] This morning’s Appellate Division decision in State v. Finesmith is the second reported opinion from that Court to stem from this case. (See State v. Finesmith, 406 N.J. Super. 510 (App. Div. 2009)). The defendant in this matter is a medical doctor. The indictment in the case relates to possession of so-called “kiddie-porn” found on the defendant’s household computers. The defense maintained that numerous people in the defendant’s household could have accessed his computers for the purpose of downloading the prohibited images. To rebut this defense, the prosecutors sought a Communications Data Warrant (CDW) under the authority of N.J.S.A. 2A:156A-2 thru 156A-29. The state sought to review data, including data on a medical web site service, for a one-year period in order to establish a pattern of what sites were being accessed at or near the times the kiddie porn was being downloaded. The defendant objected, maintaining that the proposed one-year length of the warrant was unreasonable and siding with the trial-court’s limitation of a 2-week CDW.

Under the New Jersey Wiretapping and Electronic Surveillance Control Act, a CDW is different from a wiretap order in both the nature of the communication to which it is addressed and the standard for its issuance. A wiretap order permits the interception by law enforcement of a communication contemporaneous with the transmission while a CDW is directed to acquisition of communications in post-transmission electronic storage kept by an electronic communication service or remote computing service for reasons of backup protection for the communication. By definition, an electronic communication in storage cannot be “intercepted” because it is not contemporaneous with the transmission.

As a result, a CDW is not subject to the more restrictive procedures and enhanced protections of the Wiretap Act, which include a showing of necessity because normal investigative procedures have failed, N.J.S.A. 2A:156A-10. Instead, the statutory standard for a CDW requires only a showing of “reasonable grounds to believe that the record or other information pertaining to a subscriber or customer of an electronic communications server is relevant and material to an ongoing criminal investigation.”

Accordingly, since the information sought was relevant and the time period necessary to establish a pattern through circumstantial evidence, the Court ruled that the one-year length of the CDW was reasonable and permitted under the statute.

Download a copy of State v. Finesmith

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Police May Interview Suspects Who Invoke Right to Counsel – Montejo v. Louisana

certiorari to the supreme court of Louisiana
No. 07–1529. Argued January 13, 2009—Decided May 26, 2009
At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his rights under Miranda v. Arizona, 384 U. S. 436 , and he agreed to go along on a trip to locate the murder weapon. During the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Upon returning, he finally met his court-appointed attorney. At trial, his letter was admitted over defense objection, and he was convicted and sentenced to death. Affirming, the State Supreme Court rejected his claim that the letter should have been suppressed under the rule of Michigan v. Jackson, 475 U. S. 625 , which forbids police to initiate interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding. The court reasoned that Jackson’s prophylactic protection is not triggered unless the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel; and that, since Montejo stood mute at his hearing while the judge ordered the appointment of counsel, he had made no such request or assertion.
1. Michigan v. Jackson should be and now is overruled. Pp. 3–18.
(a) The State Supreme Court’s interpretation of Jackson would lead to practical problems. Requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption, as the court below did, might work in States that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the States, which appoint counsel without request from the defendant. Pp. 3–6.
(b) On the other hand, Montejo’s solution is untenable as a theoretical and doctrinal matter. Eliminating the invocation requirement entirely would depart fundamentally from the rationale of Jackson, whose presumption was created by analogy to a similar prophylactic rule established in Edwards v. Arizona, 451 U. S. 477 , to protect the Fifth Amendment -based Miranda right. Both Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about the right to counsel once they have invoked it, but a defendant who never asked for counsel has not yet made up his mind in the first instance. Pp. 6–13.
(c) Stare decisis does not require the Court to expand significantly the holding of a prior decision in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. Payne v. Tennessee, 501 U. S. 808 . Beyond workability, the relevant factors include the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned. Pearson v. Callahan, 555 U. S. ___, ___. The first two cut in favor of jettisoning Jackson: the opinion is only two decades old, and eliminating it would not upset expectations, since any criminal defendant learned enough to order his affairs based on Jackson’s rule would also be perfectly capable of interacting with the police on his own. As for the strength of Jackson’s reasoning, when this Court creates a prophylactic rule to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. Jackson’s marginal benefits are dwarfed by its substantial costs. Even without Jackson, few badgering-induced waivers, if any, would be admitted at trial because the Court has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at 474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146 , no subsequent interrogation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient. On the other side of the equation, the principal cost of applying Jacksoni’s rule is that crimes can go unsolved and criminals unpunished when uncoerced confessions are excluded and when officers are deterred from even trying to obtain confessions. The Court concludes that the Jackson rule does not “pay its way,” United States v. Leon, 468 U. S. 897 , n. 6, and thus the case should be overruled. Pp. 13–18.
2. Montejo should nonetheless be given an opportunity to contend that his letter of apology should have been suppressed under the Edwards rule. He understandably did not pursue an Edwards objection, because Jackson offered broader protections, but the decision here changes the legal landscape. Pp. 18–19.
06–1807 (La.), 974 So. 2d 1238, vacated and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion.

Download a copy of this opinion.

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Police May Re-interview Following a Break in Custody – State v. Wessells

[07/09/09 – 11:06 am] This morning’s Appellate Division decision in State v. Wessells involves a situation where the defendant was arrested on a traffic warrant and was questioned by the police about a multiple homicide during his detention. At some point in the interview, the defendant invoked his right to counsel and the questioning ceased. Thereafter, the defendant posted bail on the traffic warrant and was released. Within days, the police uncovered additional evidence linking the defendant to the homicides. As a result, nine days after his release, the defendant was again arrested, only this time he was charged with homicide offenses. Despite the prior invocation of his right to counsel, the police attempted to question the defendant once again. This time, the defendant waived his right to remain silent and to have an attorney present. He thereafter provided incriminating admissions to the police.

The defendant sought to suppress his incriminating statements based upon his prior request to remain silent and have attorney. He based his argument upon the so-called “Edwards Rule” which holds that an accused who has expressed his desire to deal with

the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. Edwards v. Arizona, 451 U.S. 477 (1981). The rule is intended to prevent the police from badgering a suspect who is in custody. However, the Edwards Rule does not speak to a situation, as occurred here, where there has been a substantial break in custody.

The Appellate Division ruled that in New Jersey, a person who has asserted the right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney. Moreover, in order to determine whether the break in custody was perpetrated by the police in bad faith, the Court indicated that New Jersey will adopt a totality-of-the-circumstances test.

Download a copy of State v. Wessells.

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ICE Detainer Justifies Increased Bail in NJ – State v. Fajardo-Santos

[07/08/09 – 10:24 am] This morning, the New Jersey Supreme Court ruled that when immigration authorities file a deportation detainer against a criminal suspect, the detainer will justify an increase in the amount of the defendant’s bail. The case that establishes this proposition, State v. Fajardo-Santos, involved a defendant who was held on criminal charges. The defendant posted bail. However, shortly thereafter, ICE officials filed a detainer against him, evidencing their desire to deport him from the United States. The following day, the prosecutor’s office sought an increase in the defendant’s bail, arguing that there was now an increased risk that the defendant would not appear for trial. The Supreme Court agreed with the need for increased bail as a result of the new level of risk. However, the Justices also ruled that in the future, if prosecutors intend to move for higher bail after an ICE detainer has been lodged, they should not wait until after the defendant posts bail, but rather should seek bail reconsideration immediately.

Download a copy of State v. Fajardo-Santos.

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Community Caretaking Justified Warrantless Home Entry by Cops – State v. Bogan

[07/07/09 – 10:38] This morning’s New Jersey Supreme Court decision in State v. Bogan represents only the second major decision from the Court dealing with the community caretaking exception to the warrant requirement, the first having occurred back in 2004. (State v. Diloreto, 180 N.J. 264 (2004)). In Bogan, the police went to an apartment to investigate a potential criminal sexual assault upon a child. Upon arrival, the police were greeted outside the apartment by a second child who appeared to be alone and not subject to any adult supervision. During the course of their conversation, the child retreated into the apartment to answer a phone call from his father. The police entered the apartment to speak to the father on the phone for the purpose of inquiring as to the child’s care and welfare. While inside, the police noticed the defendant (the subject of the criminal investigation) in plain view in another room. The officers immediately seized the defendant and, following a waiver of Miranda rights, obtained incriminating statements from him. The Supreme Court held that the police entry into the apartment without a warrant was entirely reasonable in light of their community caretaking obligations toward the unattended child they had encountered at the apartment.

Download a copy of State v. Bogan.

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Police May Seize Evidence Following Emergency Home Entry – State v. O’Donnell

[07/02/09 – 11:14 pm] In this morning’s Appellate Division decision in State v. O’Donnell, the Court held that police officers who make an emergency entry into a residence may, without a search warrant, seize criminal evidence they inadvertently discover in plain view while attending to the purported emergency. In addition, the Court held, for the first time, that New Jersey police may subsequently re-enter the property shortly after discovering the evidence and seize it without a search warrant.

The facts in O’Donnell involve a police response to a 9-1-1 call that reported a six-year-old child had stopped breathing. Initial police responders located the child who appeared to have died. The police also noted in plain view near the child’s body a variety of items in plain view that appeared to have criminal evidentiary value. Rather than seize these items immediately, the police arrested the defendant, removed her to the police station, secured the crime scene and awaited the arrival of homicide investigators from the prosecutor’s office. The homicide investigators arrived 40 minutes later, entered the residence without a search warrant and seized the evidence.

The Appellate Division affirmed the trial court’s denial of a motion to suppress the seized evidence, holding that the police were lawfully in the view area when they made their observations. Moreover, the subsequent arrival of the homicide investigators and entry without a search warrant was reasonable. This was because the second entry was nothing more than a continuation of the initial entry into the residence by the police.

Download a copy of State v. O’Donnell.

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ENGLISH ONLY is the Rule in NJ DWI Cases – State v. Marquez

[7/1/09 – 8:48 pm] – In an opinion released this morning, the Appellate Division has ruled that New Jersey law authorizes that people who have been arrested for drunk driving can be informed of their obligation to submit to breath-testing in solely in English. This opinion of the Court confirms a 1976 county court decision that came to the same conclusion (State v. Nunez, 139 N.J. Super. 28 (Cty Ct. 1976)). In Marquez, the defendant was arrested for drunk driving and conveyed back to the police station for breath-testing. The defendant spoke no English and had been able to communicate with the arresting officer in Spanish. At the police station, the defendant was read the required implied consent warnings (paragraph 36) in English. At trial, the defendant testified through an interpreter that he did not understand the warning that had been read to him by the police, a fact that was conceded by the State. Defendant was convicted drunk driving, careless driving and refusal to submit to a breath-test.

The Appellate Division ruled that proof that a defendant understands the warnings in paragraph 36 is not an element of the refusal offense. Moreover, the administrative burden placed upon law enforcement to translate paragraph 36 into a wide array of foreign languages would be unreasonable, especially given the time-sensitive nature of obtaining drunk driving blood-alcohol evidence.

Download a copy of State v. Marquez.

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