When German Marquez was charged with driving while impaired by Plainfield, N.J., police in 2007, he was read a statement in English warning him of the penalties he faced if he did not submit to a breath test.
Marquez, who speaks Spanish but not English, says he did not understand and did not take the test. In addition to a driving-while-impaired charge, he was charged with failure to take a breath test.
In a case pending before the state Supreme Court, Marquez's attorney, Michael Blacker, is asking for that conviction to be overturned and for the court to mandate translations of the statement about the breath test, which state law requires to be read before it is administered. A decision is scheduled to be released today. "If the statement were translated, it would level the playing field equal to English speakers," Blacker says.
The language issue is one states have grappled with on similar cases for years, with none so far 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, Blacker says.
However, the American Civil Liberties Union of New Jersey says the lack of a translation policy means non-English speakers are being held 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, Mandel says, 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, Mandel says.
– 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.
New Jersey's brief in the Marquez case also argues that it is impractical, when time is of the essence in testing for sobriety, to ascertain which foreign language the driver speaks and obtain translation, says Peter Aseltine, spokesman for New Jersey's Attorney General's office.
Since April, New Jersey has provided police with a website where the statement is provided in both audio and written form in the 10 foreign languages widely spoken in the state. Aseltine says use of the site is not required. New Jersey State Police have used it but have not kept statistics about how often, said a spokesman, Detective Brian Polite. Troopers wait until they return to headquarters to use the website and administer the breath test, Polite says.
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.
Mandel says he hopes a ruling in his client's favor will lead other states to require translations.
Marquez's conviction for driving while impaired is not being appealed. He received a three-month license suspension and was fined $600. If he loses the breath test appeal, he faces an additional seven-month license suspension and $530 in fines.
Bruno reports for the Daily Record in Morris County, N.J.