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DWI Blood Testing for Alcohol in New Jersey

Seasoned New Jersey DUI Defense Lawyers

When you are arrested for a DWI, the officer who arrests you can request for either a breath test or a blood test. While you can’t refuse to take a breath test without consequences, you can refuse a blood test and an officer only needs probable cause to be allowed to request a blood test. If your blood was taken, it should be extracted in a medically acceptable manner by a licensed professional. A seasoned New Jersey DWI attorney can thoroughly evaluate the evidence and see if any errors or mistakes were made. Since New Jersey does not have regulations toward blood test protocol, having a skilled attorney is critical.

At the Law Offices of Jef Henninger, Esq., our professional Clifton DWI attorneys can evaluate the procedure of the blood test as well as seeing if the evidence was not contaminated or mislabeled. Our law firm will fight to protect your rights. Schedule a free initial consultation anytime, even on nights and weekends, with our 24/7 hotline at 732-773-2768.

Refusal to Submit to a Breath Test

In New Jersey, failing to submit to a breath test is not allowed. N.J.S.A. 39:4-50.4(a) provides that a municipal court will suspend the license of anyone who is arrested for DWI and refuses to submit to a breathalyzer test. The period of suspension upon a conviction is a minimum of seven months and a maximum of one year.

In addition to the license suspension, the driver is also subject to a fine of between of $300 and $500. The driver must also attend the Intoxicated Driver Resource Center and be subject to the same requirements as a driver convicted of a DWI.

These penalties are separate from the penalties for a DWI conviction. If a person is convicted of both DWI and refusal to submit to a breathalyzer the fines and penalties can double.

An arresting officer is required to read the following statement to an individual before administering a breath test:

You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs or with a blood alcohol concentration at, or above, that permitted by law.

You are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.

A record of the taking of the samples, including the date, time, and results, will be made. Upon your request a copy of that record will be made available to you.

Any warning previously given to you concerning your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give or to delay giving samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician or anyone else present, for the purpose of taking the breath samples.

After you have provided samples of your breath for chemical testing, you have the right to have a person or physician or your own selection, and at your own expense, take independent samples and conduct independent chemical tests of your breath, urine, or blood.

If you refuse to provide samples of your breath you will be issued a separate summons for this refusal

Any response that is ambiguous or conditional, in any respect, to your giving consent to the taking of breath samples will be treated as a refusal to submit to breath testing.

According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle may be revoked by the court for a period of no less than seven months and no more than 20 years. The court will also fine you a sum of no less than $300 and not more than $2000 for your refusal conviction

Any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense.

If you are convicted of refusing to submit to chemical tests of your breath, you will be referred by the Court to an Intoxicated Driver Resource Center and you will be required to satisfy the requirements of that center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.

I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?

If you or a loved one has refused to take a breathalyzer test and are now facing additional charges, hiring a seasoned Newark DWI lawyer is an investment towards your future. The Law Offices of Jef Henninger, Esq., has offices throughout the state of New Jersey and can fight for you in any court. Regardless of the severity or simplicity of the charges, schedule a free initial consultation with our law firm by using our 24/7 hotline at 732-773-2768.

State v. Wilkins (2009)

       DOCKET NO.  A-3211-07T4






  Before Judges Fuentes and Chambers.

  On appeal from Superior Court of New Jersey,
  Law Division, Atlantic County, Municipal
  Appeal No. 90-07.

  Levow & Associates, attorneys for appellant
  (Evan M. Levow, of counsel and on the brief;
  Michael B. Mankowski, on the brief).

  Theodore F. L. Housel, Atlantic County Prosecutor,
  attorney for respondent (Jack J. Lipari, Assistant
  Prosecutor, of counsel and on the brief).


 Defendant Thomas Wilkins appeals from the order of the Law Division finding him guilty of driving while intoxicated, (DWI).  N.J.S.A. 39:4-50.  We affirm.
The matter came before the Law Division by way of defendant’s petition for a de novo review of his conviction in the Folsom Borough Municipal Court.  We gather the following facts from the evidence presented to the Law Division, in the form of the record developed before the Municipal Court.
On March 19, 2005 at approximately 8:20 p.m., New Jersey State Police Trooper Christopher Tropiano observed defendant’s black Oldsmobile traveling westbound on Black Horse Pike, US 322, just west of 8th Street, a road he described as a “straight and level roadway.”
After following the car for approximately one mile, Tropiano saw defendant’s vehicle “weave in and out of its lane of travel.  And at one point the vehicle’s passenger wheels crossed over the white line and entered the shoulder of the highway.”
Tropiano activated his overhead lights and signaled defendant to pull over.  Upon stopping defendant, Tropiano detected an odor of alcohol emanating from defendant’s mouth.  Defendant slurred his speech moved slowly and deliberately as he searched for his driving credentials.  When asked if he had had anything to drink, defendant admitted that he had consumed alcohol earlier in the day.
Tropiano asked defendant to come out of his car and perform a series of field sobriety tests.  Defendant complied, but also told Tropiano that he suffered from a bad hip and experienced hip pain.  Tropiano asked defendant to perform two tests.
The first test required defendant to stand on the foot of his choice, and raise the other leg six inches off the ground and count to thirty.  In his first attempt, defendant raised his left leg approximately six inches off the ground, and after counting to two, placed his leg down.  Thereafter, defendant again raised his left leg approximately six inches off the ground, and placed it down after counting to five.
 The second test required defendant to walk heel to toe seven steps, turn and repeat.  Tropiano physically demonstrated the test as he described it verbally.  Defendant attempted two separate times to perform the test as directed; he failed to do so each time.  Both times, defendant walked without touching heel to toe, and lost balance.  In addition to these physical tests, Tropiano asked defendant to recite the alphabet, starting at the letter “G” and stopping at “Q.”  Defendant successfully completed this test.
 Based on these observations, Tropiano concluded that he had probable cause to arrest defendant and charged him with DWI, and failure to maintain lane.  N.J.S.A. 39:4-88b.  Tropiano transported defendant in his marked police car to the Buena Vista State Police barracks, arriving at 8:37 p.m.  While en route, Tropiano noticed that “a strong odor of an alcoholic beverage filled” the car.  Once inside the Buena Vista barracks, Tropiano handcuffed defendant by one hand to a metal bench, where he sat through processing.
Tropiano testified that defendant was in his presence and under his direct observation from the time he was arrested at the scene, until he was handcuffed to the bench.  Tropiano also searched defendant before handcuffing him to the bench.  From the time of his arrest at the scene, until he was handcuffed to the bench, Tropiano did not see defendant put anything into his mouth.  Defendant consented to taking the breathalyzer test after Tropiano read to him a version of the standard drinking and driving form.
It is undisputed that Tropiano read to defendant the New Jersey Motor Vehicle Commission standard statement for operators of motor vehicle, N.J.S.A. 39:4-50.2(e), as revised effective January 21, 2004, instead of the revised form effective April 26, 2004.  According to defendant, 1 of the eleven paragraphs in the form, the updated form only differed from the older form in the following three ways:
(1) The older form reflects a maximum period of suspension of driving privileges for failing to submit to the test as “no less than six months”; the updated form reads “no less than seven months”;
(2) The older form lists the monetary penalties as “no less than $250 and no more than $1,000”; the updated form reads “no less than $300, and no more than $2,000”;
(3) the older form provides that “any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense”;  The updated form reads “may be independent of any license suspension . . . .” (Emphasis added).
 State Police Sergeant James Brady entered the processing room where defendant was located at approximately 8:55 p.m.  He administered the first breathalyzer test at 9:05 p.m.  According to Brady, he performed all fifteen steps required, while completing the required form reflecting this procedure, checking off the appropriate box on the form each time he completed the step.  He repeated the process for the second test, performed at 9:13 p.m.  Defendant’s blood alcohol content (BAC) on both tests was 0.14.  Brady testified that defendant “absolutely [did] not” put anything in his mouth while in his presence.
 Defendant’s only witness was Dr. Gary Lage, an expert in toxicology.  For the purpose of offering an opinion in this case, Lage testified that he accepted as true defendant’s statement to him that, on the day of the incident, he consumed a total of three beers over a period of seven hours.
According to Lage, on the day of the incident, defendant was suffering from uncontrolled diabetes, resulting in a condition called ketoacidosis.  When a person becomes ketoacidotic the body starts developing acetone as an energy source, as opposed to glucose, which a healthy body uses as energy.  This chemical reaction caused the same type of effect as ethyl alcohol, and would react similarly on the breathalyzer test.
The machine could react as if it were detecting ethyl alcohol instead of the acetone it was actually detecting.  According to Lage, this condition could account for a blood alcohol reading of as high as 0.06 percent.  Lage thus opined, with a reasonable degree of scientific certainty, that defendant’s medical condition rendered the breathalyzer results unreliable.
Against this backdrop, Judge Neustadter rejected Lage’s testimony, and accepted the testimony of the State’s witnesses.  He credited Tropiano’s testimony concerning defendant’s condition at the time of detention by the road side.  Judge Neustadter also found that defendant’s BAC reading of .14 was dispositive, because the two tests were properly performed.
Defendant now appeals raising the following arguments.






 We reject these arguments and affirm.  Despite the mistake made by Trooper Brady in reading to defendant an outdated consent form, there is no evidence that this error materially affected or in any way compromised defendant’s ability to understand his obligation to submit to the breathalyzer test.  The State also established that defendant was observed by both Tropiano and Brady, for a period of at least twenty minutes before the two breathalyzer tests were administered.  State v. Chun, 194 N.J. 54, 79 (2008).  Indeed, Tropiano testified that he observed defendant from the moment he stopped his car on the road, until he was brought to the room where the two tests were administered.
 The balance of defendant’s arguments lack sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(2).

State v. Marquez (2009)

       DOCKET NO.  A-5044-07T4






Before Judges Carchman, R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5862.

Michael B. Blacker argued the cause for appellant.

Anne Marie Gibbons-Lejnieks, Union County Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Gibbons-Lejnieks, of counsel and on the brief.)

 The opinion of the court was delivered by


 Defendant German Marquez, a licensed New Jersey driver, appeals his conviction of refusing to submit to a breath test, N.J.S.A. 39:4-50.2, after being arrested for drunk driving.  Defendant argues that because he is only fluent in Spanish and does not understand English, he cannot be guilty of refusing to comply with the standard breath test instruction (the “standard statement”), which the arresting police officer read to him in English.
 We affirm defendant’s conviction because the law does not require a translation of the standard statement under N.J.S.A. 39:4-50.2(e) and because defendant gave his implied consent to submit to a breath test when he obtained his New Jersey driver’s license.  However, we recommend that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages.
 The facts relevant to our consideration of the issues on appeal are substantially undisputed.  On the evening of September 20, 2007, defendant’s Toyota struck the rear end of another vehicle at or near the intersection of Park Avenue and West Second Street in Plainfield.  A Plainfield patrolman, Officer Shane Lugo, arrived at the accident scene.  The officer observed both vehicles facing in a southbound direction.  Defendant was seated behind the wheel of the Toyota, with its engine still running.
 Speaking in English, Officer Lugo requested defendant’s driving credentials.  After it became apparent that defendant did not understand him, Officer Lugo repeated his request in Spanish.1  Defendant then produced a valid New Jersey driver’s license, a vehicle registration and an insurance card.  As this was occurring, Officer Lugo smelled alcohol and noticed that defendant was slurring his words.  The officer also noticed that defendant had to brace himself to get out of his car and then began leaning against a tree.  Consequently, Officer Lugo asked defendant, in English, to perform certain field sobriety tests.  Defendant did not comply, apparently not understanding the request.
 Based on his observations, Officer Lugo placed defendant under arrest and transported him to police headquarters.  He noticed that defendant’s eyes were bloodshot and droopy, and that his speech was “whiny.”  The officer believed defendant was intoxicated.
 Upon arriving at headquarters, Officer Lugo ushered defendant into a room where the Alcotest 71102 breath test is administered.  The officer activated a video camera that taped3 the events.  Officer Lugo then read to defendant, in English, all eleven paragraphs of the standard statement mandated by N.J.S.A. 39:4-50.2(e).  Among other things, the statement explains the mandatory nature of the breath test, the minimum penalties for refusing the test, and the test subject’s right to have a defense expert conduct independent chemical testing of the sample.
 After the standard statement was read to him in English, defendant responded in Spanish, “No entiendo,” meaning “I do not understand.”  Officer Lugo then visually demonstrated to defendant, an estimated “three or four times,” how to blow air into the test device.  Defendant did not perform the test.  Instead, he shook his head and pointed to one of his eyes.  Officer Lugo memorialized this reaction on a police form, noting that defendant “[s]hook head.”
 Another Plainfield police officer, Anthony Berlinski, was also in the room and was prepared to administer the Alcotest to defendant.  According to Officer Berlinski, he watched Officer Lugo read the statement to defendant.  He then saw defendant’s negative reaction, which he construed as a refusal.  Berlinski duly recorded the refusal.  On cross examination, Berlinski, a nineteen-year veteran police officer, acknowledged that he had been trained to read the standard statement aloud only in English.
 Defendant was issued summonses for driving while intoxicated (“DWI”), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and careless driving, N.J.S.A. 39:4-97.
 At his ensuing trial in municipal court, defendant testified through a Spanish interpreter.  The prosecution did not contest defendant’s need for an interpreter.  Nor did the State dispute defendant’s unwavering claim that he did not understand Officer Lugo when the officer read aloud the standard statement in English.
 In his translated testimony, defendant maintained that he had not consumed any alcohol before driving on the night of his arrest.  He claimed that he had not had a drink since sustaining an eye injury about five months earlier.  He stated that he had felt somewhat sleepy and dizzy as the result of taking Percocet about twenty minutes before driving.
 Defendant acknowledged that Officer Lugo had read aloud a statement to him at police headquarters.  He advised the court that he did not understand the statement because it was in English.  Defendant also noted that he had taken the written examination for the New Jersey driver’s license in Spanish.
 The State relied at trial upon the testimony of Officers Lugo and Berlinski, as well as the videotape and the official police records noting defendant’s refusal to perform the breath test.  In summation, the prosecutor argued that the rear-end accident caused by defendant amply established his culpability for careless driving.  Additionally, the accident, coupled with Officer Lugo’s perceptions of defendant’s bloodshot eyes, odor, slurred speech and swaying, proved his guilt of the DWI offense.  As to the refusal violation, the prosecutor argued that Officer Lugo discharged his responsibility by reading the standard statement in English.  The prosecutor maintained that the statement did not have to be translated for defendant into Spanish, relying upon State v. Nunez, 139 N.J. Super. 28, 32-33 (Law Div. 1976) (holding that no such translation is required as a predicate to a refusal violation).  The defense, meanwhile, contended that, given the undisputed language barrier here, a translation of the standard statement was necessary in order to convict defendant beyond a reasonable doubt of a refusal.
 The municipal judge found defendant guilty of all three cited violations.  The judge concluded that the DWI violation was sufficiently established by the “strong odor of alcohol” from defendant, his “stumbling out of the car,” and his “bracing himself against the car as he walked.”  The judge also was satisfied that the proofs sufficed to support a careless driving violation.
 With respect to the refusal charge, the municipal judge noted that he had observed the videotape twice, which clearly showed that Officer Lugo had read the prescribed standard statement to defendant in English.  The judge found defendant’s lack of understanding of English “immaterial,” given the requirements of the implied consent law as a condition of licensure.  In this regard, the judge relied upon Nunez, supra, a case that has been cited at least twice in published opinions and has “never been overturned by an appellate court.”  The judge also noted the practical difficulties implicated by defendant’s claim that the police have a legal duty to translate the standard statement, noting the “hundreds of languages” spoken in this country.  Because defendant indisputably failed to perform the breath test after being given the opportunity to do so, the court found him guilty of a refusal violation.
 In sentencing defendant, the municipal judge recognized that he has a “relatively clean driving record.”  Accordingly, the judge imposed the minimum seven-month license suspension for the refusal violation, as well as a concurrent three-month suspension for the first-time DWI infraction.  The careless driving violation was merged with those charges.  Appropriate fines and other monetary sanctions were also imposed.  The fines and suspensions were stayed, pending de novo review by the Law Division.
 On de novo review, the Law Division sustained defendant’s convictions.  The Law Division judge rejected defendant’s argument that the police were obligated to translate the standard statement into Spanish, either under the applicable statutes or under constitutional principles of due process.
 Defendant now appeals.  His appeal is confined to the refusal conviction, reiterating his argument that he cannot be guilty of that offense because he does not understand English.  We now examine that argument.
 Pursuant to N.J.S.A. 39:4-50.2(a), “[a]ny person who operates a motor vehicle on any public road . . . in this State shall be deemed to have given his consent to the taking  of samples of his breath for purposes of making chemical tests to determine the content of alcohol in his blood[.]”  However, a police officer seeking such a breath sample must have “reasonable grounds to believe” that the driver has been operating his motor vehicle while intoxicated.  Ibid.  Defendant does not contest that Officer Lugo, in requesting his breath sample, possessed such reasonable grounds to believe that he had committed a DWI offense.
 A motorist has no right to withhold cooperation when a police officer seeks a breath sample, because the motorist’s “very driving upon the highway” imputes consent to undergo the test.  State v. Kenderski, 99 N.J. Super. 224, 230 (App. Div. 1968).  A response that falls “substantially short of an unconditional, unequivocal assent to an officer’s request” to take a breath test “constitutes a refusal to do so.”  State v. Widmaier, 157 N.J. 475, 497 (1999) (internal citations omitted).   There are strong and long-established public policies that underlie this strict regulatory approach.  See State v. Tischio, 107 N.J. 504, 512 (1987) (noting the State’s policy to “curb the senseless havoc and destruction” caused by drunk driving).  As the Supreme Court recognized in Widmaier, supra, 157 N.J. at 497, any other approach “would undermine law enforcement’s ability to remove intoxicated drivers from the roadways.”  See also State v. Wright, 107 N.J. 488, 497-502 (1987) (broadly construing the refusal statute, in light of its legislative purposes “in facilitating drunk driving investigations”).  “The refusal statute was enacted by the Legislature to combat the ‘high rate of refusal[s] [which] made enforcement of the drunk driving laws difficult.'”  State v. Breslin, 392 N.J. Super. 584, 591 (App. Div. 2007) (quoting State v. Tekel, 281 N.J. Super. 502, 505 (App. Div. 1995)).
 Refusal to submit to a breath test triggers a mandatory suspension of the motorist’s driving privileges.  N.J.S.A. 39:4-50.4a(a).  For a first-time offender, the mandatory suspension is “not less than seven months or more than one year.”  Ibid.  The Legislature has specified that, in a case charging the motorist with refusal, the municipal judge is to determine whether: (1) “the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle . . . while . . . under the influence of intoxicating liquor” or a narcotic or other controlled dangerous substance; (2) “the person was placed under arrest, if appropriate”; and (3) the driver “refused to submit to the test upon request of the officer.”  Ibid.  As the result of the Supreme Court’s decision in State v. Cummings, 184 N.J. 84, 88 (2005), the State must prove these elements beyond a reasonable doubt, given the quasi-criminal nature of the refusal offense.
 The elements of a refusal offense do not include proof that the driver actually comprehended the police officer’s instruction.  To the contrary, the Supreme Court in Widmaier “emphasize[d] that a defendant’s subjective intent is irrelevant in determining whether the defendant’s responses to the officer constitute a refusal to take the test.”  157 N.J. at 498.  If the law were otherwise, some motorists might illicitly feign such lack of comprehension to evade liability for a refusal.
 We are mindful that the Legislature authorized the standard statement, N.J.S.A. 39:4-50.2(e), as a procedural device “to help ensure that defendants understand the mandatory nature of the [breath] test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent.”  Widmaier, supra, 157 N.J. at 489.  The statute states that the standard statement, in the form “prepared by the director [of the Division of Motor Vehicles4],” “shall be read by the police officer to the person under arrest.”  N.J.S.A. 39:4-50.2(e).  The statute does not specify the language of the statement to be read to the arrestee. 
 Where a breath test has been administered, the arresting police officer “shall inform the person tested of his rights under subsections (b) and (c) of [the refusal statute].”  N.J.S.A. 39:4-50.2(d) (emphasis added).  Subsection (b) refers to the defendant’s right to a copy of the test results, N.J.S.A. 39:4-50.2(b), and subsection (c) refers to the defendant’s right to have an independent test performed, N.J.S.A. 39:4-50.2(c).  Apart from these two discrete items, “the [refusal] statute sets forth no other affirmative duties on the part of the police.”  State v. Greeley, 178 N.J. 38, 43 (2003).  However, law enforcement may not “thwart the right to an independent test through arbitrary actions or policies that would render the statutory right meaningless.”  Ibid.; see also State v. Jalkiewicz, 303 N.J. Super. 430 (App. Div. 1997); State v. Ettore, 228 N.J. Super. 25, 30 (App. Div. 1988).  Applying this standard, the Court held in Greeley that a police department’s policy to not release a DWI detainee until he can arrange a sober escort from the stationhouse did not interfere with the defendant’s “statutory right” to pursue independent testing.  178 N.J. at 49.
 Following Greeley, in State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006), we held that the prosecution in a refusal case is not required to “present affirmative proof” that a defendant has been advised of his rights under N.J.S.A. 39:4-50.2(c) and (d) “in order to sustain a conviction of a per se violation under N.J.S.A. 39:4-50(a).”  Rather, a defendant must move to suppress the test results in order to preserve his ability to complain about the police’s failure to advise him of his rights.  Ibid.
 Because defendant in the present case did not allow the police to administer the Alcotest to him, the police’s obligation under subsection (d) of the refusal statute to inform “the person tested” of his rights is not on point.  See N.J.S.A. 39:4-50.2(d).  The question then becomes whether the police fell short of their obligations under subsection (e) of the statute in the manner in which they read the standard statement to defendant.
 We have held in at least one case that a trooper’s failure, in dealing with an arrestee who gave an ambiguous response to the testing request, to read aloud the supplemental portion of the standard statement explaining that such an ambiguous response would be deemed a refusal, required reversal of the refusal conviction.  See State v. Duffy, 348 N.J. Super. 612 (App. Div. 2002).  Duffy, which involved an incomplete reading of the standard statement, is distinguishable from the present case, in which it is undisputed that Officer Lugo read aloud the entire standard statement.  Moreover, defendant’s gestures and words refraining from taking the test were unambiguous.  The issue here is purely one of translation.
 The question of whether the standard statement must be translated into a foreign language for non-English-speaking drivers has been previously the subject of published judicial and administrative decisions.  As the municipal judge here noted, the court rejected a defendant’s argument to require such a translation in Nunez, supra, 139 N.J. Super. at 28.  In that case, the defendant was charged with driving under the influence based upon the results of a breathalyzer test administered by a State Police officer.  Id. at 29.  Although the officer advised the defendant of his right to have an independent test performed in accordance with N.J.S.A. 39:4-50.2, the defendant, who did not speak English, did not understand what the officer said to him.  Id. at 29-30. 
 Observing that “driving a motor vehicle on the highways of the State is a privilege, not a right” and that a driver, by virtue of the statutory licensure scheme, gives his “implied consent to submit to a breathalyzer test[,]” the Law Division judge in Nunez determined that defendant’s argument——that he was unaware that he could obtain an independent test——lacked merit because  the “right to have an independent test performed is a statutory right, not a constitutional one.”  Id. at 30-33.  Nunez has been cited with approval in two opinions by our court, albeit not for the specific translation issue that is presented on this appeal.  See State v. Mercer, 211 N.J. Super. 388, 392 (App. Div. 1986); State v. Casele, 198 N.J. Super. 462, 470 (App. Div. 1985). 
 Likewise, in a reported administrative decision, DMV v. Iuliano, 4 N.J.A.R. 439 (1980), an administrative law judge (“ALJ”) rejected a contention by a motorist who had difficulty understanding the English language that he was entitled to have the then-existing version of the standard statement translated into his native language.  Citing Nunez, supra, the ALJ concluded that the public policy behind the informed consent law signified that “there can be no requirement that a licensee be read the [standard statement] in any other language except English.”  Id. at 444.  The ALJ observed that the lack of a translation requirement should remain until such time as “the Division of Motor Vehicles promulgates a bi-lingual policy, or there is a re-examination of State v. Nunez by a [c]ourt of higher jurisdiction.”  Ibid.
 In the present case, defendant attempts to invalidate Nunez by arguing that he is entitled to a translation of the standard statement under constitutional principles of due process of law.  We are not so persuaded.
 As illustrative support for his constitutional argument, defendant largely relies upon Rivera v. Board of Review, 127 N.J. 578 (1992).  In that case, the appellant, a migrant farm worker, was awarded unemployment benefits for the fall and winter of 1988, periods of time when he was not working in New Jersey.  Id. at 580.  Subsequently, the Department of Labor ruled that he was ineligible for benefits, and it demanded repayment by sending the appellant a “Demand for Repayment,” a “Schedule of Overpayments,” and an “Important Information [N]otice” at his address in Puerto Rico.  Ibid.   As the Court noted, “[t]he import of the notices was that absent a timely appeal, [appellant] would be obligated to return all funds he had received since November 1988.”  Id. at 581.  Notably, all three notices were written in English.  Ibid.  
When the notice arrived in Puerto Rico, Rivera’s daughter telephoned him in Pennsylvania, where he was looking for work, and at his request immediately forwarded the papers to him.  Ibid.  He received the forwarded notice on June 12, 1989, and two days later, on June 14, 1989, after having the notice translated into Spanish, he filed an appeal.  Ibid. 
An administrative hearing on the appeal was held before the Department’s appeal tribunal on January 30, 1990.  The appeal tribunal declined to hear the appeal on the merits because it had not been filed in a timely manner as required by N.J.S.A. 43:21-16(d).  Ibid.  Thereafter, the Board of Review affirmed the decision and that decision was subsequently upheld by this court.  Id. at 582.
Our Supreme Court recognized in Rivera that “[t]he Constitution demands that a person not be deprived of property or liberty absent due process of law.”  Id. at 583 (citing Cunningham v. Dep’t of Civil Serv., 69 N.J. 13, 19 (1975)).  It also acknowledged that due process becomes adequate where the State provides “notice and an opportunity for hearing appropriate to the nature of the case.”  Ibid. (quoting Mullane, supra, 339 U.S. at 313, 70 S. Ct. at 656, 94 L. Ed. at 873).  The Court cautioned that “[t]he touchstone of adequate process is not [an] abstract principle but the needs of the particular situation.”  Ibid. (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972) (holding that “due process . . . calls for such procedural protection as the particular situation demands”)).
Treating our state statutes providing for the payment of unemployment compensation benefits akin to a form of common-law property protected by the Fifth Amendment, the Court remanded the matter, citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976) (setting forth a three-part balancing test weighing individual and governmental interests and the costs of different types of procedure).  The Court held that the Department should have addressed the merits of appellant’s claim, and, moreover, urged the Department to promulgate regulations that guaranteed adequate notice for migrant workers.  Rivera, supra, 127 N.J. at 89.
 However, the right to due process does not automatically carry with it a right to have government documents translated into one’s native language.  For example, in Alfonso v. Board of Review, 89 N.J. 41 (1981), a case that preceded but was not overruled by Rivera, our Supreme Court rejected the argument of a Spanish-speaking woman that the Department of Labor was obligated to translate the notices rejecting her claim for unemployment benefits into Spanish.  According to the Court majority, “[t]he paramount question” under the constitution was “whether the notice given to the claimant here was calculated ‘under all the circumstances’ to convey the required information.”  Id. at 44.  Answering this question in the affirmative in favor of the Division, the Court held that “in an English-speaking country, requirements of ‘reasonable notice’ are satisfied when the notice is given in English.”  Id. at 45.
 In the present context of this case involving the refusal statute, we are persuaded that due process was satisfied, and that Officer Lugo was not constitutionally obligated to read the standard statement to defendant in Spanish.  We are mindful that it is undisputed that defendant is not fluent in English.  However, we are also mindful of the clear implications of the implied consent law, a statute that our courts have consistently upheld as constitutional.  Cummings, supra, 184 N.J. at 89; Breslin, supra, 392 N.J. Super. at 584.  In procuring his New Jersey driver’s license and in operating his automobile on our public roadways, defendant provided his advance consent to submit to a breath sample.  That consent, as a constitutional matter, sufficiently reflects that defendant knew, or should have known, that he could not decline to blow air into the breath testing device without exposing himself to licensure sanctions.
 The sufficiency of notice is buttressed by the fact that the New Jersey motor vehicle license testing process includes specific coverage of our drunk driving laws, including the refusal statute.  Defendant was permitted to take the written portion of the examination in Spanish.  It is noteworthy that the MVC’s driver’s manual, which is made available to persons such as defendant before they sit for the examination, is translated into Spanish.5  The manual contains a specific section that describes the refusal statute and the informed consent law, as follows:
New Jersey has an implied consent law.  This means that motorists on New Jersey roadways have agreed, simply by using New Jersey roadways, to submit to a breath test given by law enforcement or hospital staff following an arrest for a drinking and driving offense.  Motorists who refuse to take a breath test will be detained and brought to a hospital, where hospital staff may draw blood.

Motorists who refuse to take a breath test in New Jersey are subject to an MVC insurance surcharge of $1,000 per year for three years.  Failure to pay this surcharge will result in an indefinite suspension of driving privileges until the fee is paid.  Motorists who refuse to take a breath test will be detained and brought to a hospital, where hospital staff may draw blood.

Under state law, refusal to take a breath test is equal to driving with a BAC of .10 percent for a first offense.  The current penalty for refusal is the loss of driving privileges for between seven months and one year, to run concurrently or consecutively, based upon a judge’s order.

Notably, all three of these informational paragraphs are translated into Spanish on the version appearing on the MVC’s website.7  Although the informational paragraphs do not detail all of the features of the refusal law, they mitigate the contention that defendant was not alerted to the refusal law because of his asserted language barrier.
 We are also mindful, as was the court in Nunez, of the considerable administrative burdens that would be placed on the MVC and police departments if they were obligated in every case to translate the standard statement into a multiplicity of languages and dialects.  The judiciary undertakes major endeavors to accommodate such translation requests in court proceedings.8  Likewise, we are mindful that Miranda9 warnings are commonly translated into Spanish.  See, e.g., State v. Mejia, 141 N.J. 475, 502-03 (1995); State v. Cabrera, 387 N.J. Super. 81 (App. Div. 2006); State v. Soto, 340 N.J. Super. 47, 57 (App. Div. 2001); State in Interest of J.F., 286 N.J. Super. 89, 100 (App. Div. 1995).  But the scientifically time-sensitive nature of blood and breath evidence may not make rapid translation administratively feasible, as the evidence may dissipate or change while awaiting such a translation.  See Widmaier, supra, 157 N.J. at 498 (observing that delaying the administration of a breath test may adversely affect the results). 
 To be sure, there may be good policy reasons for the MVC to now consider, as an administrative matter, having the standard statement translated into Spanish10 and perhaps into other foreign languages prevalent in our State.  The MVC might also consider creating standardized audio readings of the translated versions to be played or replayed for, DWI arrestees needing such translation.  However, that policy decision, as with other prospective modifications of the standard statement, remains the prerogative of the MVC.  See Spell, supra, 196 N.J. at 537; see also Mejia, supra, 141 N.J. at 503 (sustaining defendant’s conviction but recommending that the Attorney General administratively develop “appropriate bilingual Miranda warnings” for “the larger segments of the non-English speaking population”).  We therefore refer this opinion to the MVC for such future regulatory consideration.

State v. Bertrand (2009)

       DOCKET NO.  A-2378-07T4




  Before Judges Wefing, Yannotti and LeWinn.

  On appeal from Superior Court of New Jersey,
  Law Division, Hudson County, Municipal Appeal
  No. 58-07.

  Stabile Law Firm, attorneys for appellant/
  cross-respondent (Steve Stabile, on the brief).

  Edward J. De Fazio, Hudson County Prosecutor,
  attorney for respondent/cross-appellant (Gina Giordano, Assistant Prosecutor, on the briefs).

  The opinion of the court was delivered by


 Following a trial de novo in the Law Division, defendant was found guilty of refusal to provide breath samples, N.J.S.A. 39:4-50.2.  He has appealed from that conviction.  The State has cross-appealed from the sentence imposed by the Law Division, contending it was an illegal sentence.  After reviewing the record in light of the contentions advanced on appeal, we affirm defendant’s conviction but remand for resentencing.
 Shortly after one o’clock on the morning of April 24, 2007, several members of the Union City Police Department responded to the apartment complex known as Troy Towers, located at 380 Mountain Road in Union City, to a report of a motor vehicle accident involving a possibly intoxicated driver.  Four members, Officers Gonzalez, DePinto, D’Andrea, and Sergeant Botti, testified at the subsequent proceedings in Union City municipal court.  Officer Gonzalez was the first on the scene.  She said that she came upon defendant sound asleep on a bench near the security guard’s booth.  Witnesses estimated the distance between the bench and the spot where defendant’s car had been left at between twenty and forty feet.  Defendant’s car was not in its assigned spot in the garage and had been left facing the wrong way.  The keys were in the ignition but there was no testimony from anyone who saw defendant operating the car.
 Officer Gonzalez had difficulty awakening defendant.  Once she roused defendant, she and the other officers came to the conclusion that he was intoxicated.  His face was flushed, he smelled of alcohol, and he was belligerent.  He refused to perform any of the field sobriety tests without first consulting an attorney.  Sergeant Botti directed that defendant be placed under arrest and taken to police headquarters.  At police headquarters, the police read to defendant the standard statement seeking his consent to provide breath samples.  Defendant, however, refused to do anything without first consulting with an attorney.  He was then charged with violating both N.J.S.A. 39:4-50, driving while intoxicated, and N.J.S.A. 39:4-50.2, refusing to provide breath samples.
 At the conclusion of the State’s case in municipal court, defendant moved for a directed verdict on both charges.  The trial court granted defendant’s motion to dismiss the charge of driving while intoxicated, there being no proof that defendant had operated the vehicle.  It denied, however, the motion to dismiss the charge of refusing to provide a breath sample and found defendant guilty of that offense.  State v. Wright, 107 N.J. 488, 490 (1987) (holding that actual operation of a vehicle is not an element of N.J.S.A. 39:4-50.2; it is sufficient if the police had probable cause to believe the defendant had been driving while intoxicated).
 Defendant appealed to the Law Division and, in addition to the record of the municipal court trial, the parties submitted the following stipulated facts:  the parking garage for Troy Towers included 345 parking spaces; the garage was constructed on four levels; residents of Troy Towers enter the parking garage through use of an access card with a photo identification; and visitors and tradesmen were not generally permitted to park in the garage.  The parties also stipulated that parking in the garage was controlled by the following regulations:
 Exterior Parking
 23.  The upper south parking lot is for guest parking.  In order to park in this lot, the guest must register his or her vehicle with the Concierge (name of resident & apartment number, make of car, color, and license number).  The Concierge will allocate a space and provide the Guest with a Parking Permit, which must be visible from the outside of the vehicle at all times.
  23.3  Guest parking is not for use by residents.

 24.  Parking spaces in the garage are for Troy Towers’ residents only.  The parking spaces are rented to residents on a separate contract at a monthly rate approved by the Board of Directors.
  24.3  If a resident wishes to have a vehicle, other than the registered vehicle, park in the garage, permission must be obtained in advance from the Management Office (not the Concierge).  Failure to do so can result in the vehicle’s being towed).

 Defendant was again found guilty, and he has appealed to this court, raising the following arguments for our consideration:


 There is a significant difference in the language of the statute dealing with driving while intoxicated, N.J.S.A. 39:4-50, and the refusal statute, N.J.S.A. 39:4-50.2.  The former speaks simply of operating a motor vehicle while under the influence of certain substances.  The latter, however, provides in pertinent part that any individual “who operates a motor vehicle on any public road, street or highway or quasi-public area in this State” is deemed to have consented to give breath samples to an officer “who has reasonable grounds to believe” that the individual has been driving while intoxicated.  N.J.S.A. 39:4-50.2(a).  Under N.J.S.A. 39:4-50, it is immaterial where an individual operates a motor vehicle if intoxicated; the fact of operation constitutes the offense.  Under N.J.S.A. 39:4-50.2, however, the offending conduct must have occurred on a “public road, street or highway or quasi-public area.” 
 Defendant argues that his conviction cannot stand because there was no proof he operated his car on a public road, street or highway, and the parking garage, restricted to use by the building’s residents and their guests, is not a quasi-public area.  The State argues that the determination by the municipal court judge and the Law Division judge that the garage was a quasi-public area is a factual finding to which we must defer under State v. Locurto, 157 N.J. 463, 470-71 (1999).  We cannot agree with this argument; in our view, the decision whether the area is quasi-public is a conclusion of law, made on the basis of the stipulated facts.  Our review of legal conclusions is plenary, with no presumption of correctness.  Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).  We agree, nonetheless, that defendant’s conviction should be affirmed because we are satisfied that this parking garage can fairly be termed a “quasi-public area” for purposes of the refusal statute.
 The trial court approached the question by analyzing the underlying purposes of N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.2 and concluding that both were directed at protecting the safety of others.  In its view, the three hundred plus residents of Troy Towers were as entitled to protection against an intoxicated driver as any driver proceeding down a public street.  We do not entirely subscribe to this analysis, for it has the potential to eliminate entirely the distinction in language selected by the Legislature when it enacted these two separate statutes.
 We focus, rather, on the nature of the structure itself and its uses and defendant’s relationship to it.  There is some indication that N.J.S.A. 39:4-50.2 was drafted to include the concept of a “quasi-public area” because of concerns expressed at the time of its enactment that it might run afoul of constitutional principles if the operator of a vehicle on wholly private property were deemed to have consented to provide breath samples.  State v. Garbin, 325 N.J. Super. 521, 530-31 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000).  This reflects the principle that one of the hallmarks of wholly private property is the ability of the owner to control who may have access to it and use of it.  Bubis v. Kassin, 404 N.J. Super. 105 (App. Div. 2008) (holding that owner of upland sand area not required to permit plaintiff to have use of that area).   
 Here, defendant did not own the garage and had no power to control who had access to it.  The most that defendant had was the right to park his car in a designated slot.  He had no ability to determine the terms under which other residents of this complex used the garage or where they parked their vehicles.  He had no ability to reserve any portion of the structure for his own use or that of his guests; nor could he bar the guests of other residents from parking in accordance with the governing regulations.  Although the parking garage was not available to the general public, it was available for all of the residents of Troy Towers to use on an equal basis in accordance with the governing regulations.  This garage may have been private vis-à-vis the public at large; it was not private, however, vis-à-vis defendant and the other tenants of Troy Towers, all of whom had the right to share in its use.  In light of this shared use, we conclude it is appropriately characterized as quasi-public for purposes of the refusal statute.  We thus affirm defendant’s conviction under N.J.S.A. 39:4-50.2.
 We turn now to the State’s cross-appeal.  At the conclusion of the proceedings in municipal court in July 2007, after the municipal court judge concluded that defendant was guilty under N.J.S.A. 39:4-50.2, he turned to the question of sentencing and said to defendant’s counsel, “This is his first offense, correct?” to which the attorney responded, “I believe so.  Yes, Your Honor.  Yes.”  The municipal court judge then sentenced defendant accordingly.  The Law Division judge imposed the same sentence following the trial de novo.
 The State has submitted to us the transcript of an earlier proceeding, in November 2006, in Weehawken municipal court, at which defendant pled guilty to driving while intoxicated.  It has also submitted a copy of a summons issued in March 2007, one month prior to the subject incident, for refusal to submit to breath testing, and a copy of the judgment of conviction for this offense following a trial de novo in the Law Division.  It is patent that defendant was not entitled to be sentenced as a first offender and that his sentence is illegal.  We, therefore, remand this matter to the municipal court for purposes of re-sentencing. 
 In the course of reviewing this cross-appeal, we have noted that when defendant pled guilty in Weehawken municipal court to driving while intoxicated in November 2006, he was represented by the same attorney who assured the Union City municipal court judge in August 2007 that the conviction for refusal represented defendant’s first offense.  We are compelled to refer this matter for further proceedings to determine whether the attorney’s statement was a result of ignorance or was a violation of his duty of candor to the court.
 Defendant’s conviction is affirmed.  As to the cross-appeal, defendant’s sentence is reversed, and the matter is remanded to the municipal court for re-sentencing.


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