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NJ Legislature Moves to Eliminate Defense to Refusal

Last year, the New Jersey Supreme Court ruled in State v. Marquez, 202 N.J. 485 (2010), that the police must warn drivers arrested on suspicion of driving while intoxicated (DWI) of the penalties for refusing to submit to chemical breath testing in a language they understand.   The State Assembly Law and Public Safety Committee recently voted in favor of a bill that would effectively overrule the Marquez decision. 

The refusal law, N.J.S.A. 39:4-50.4, provides that a person who refuses to submit to chemical breath testing faces a minimum 7 month loss of driving privileges for a first offense, 2 year loss of privileges for a second offense, and a 10 year revocation of driving privileges for a third or subsequent offense.  A person arrested for DWI must be apprised by the police as to the penalties for refusal in a formal written statement that is used throughout the state.  In the Marquez case, the defendant, arrested for DWI, claimed that he told the police he did not understand English, and therefore did not comprehend the penalties for refusal.  The Supreme Court voided the defendant's refusal conviction, holding that the penalties/warnings for refusal must be read to the individual in a language he/she speaks or understands.  

The bill recently passed by the Assembly Law and Public Safety Committee would render the Marquez decision moot, and amend the refusal law to provide that the penalty warning requirement is not an essential element of refusal, and that failure to receive the warning regarding the consequences for refusing is not a defense to a refusal charge.

The pending legislation is likely to engender a tremendous amount of opposition among criminal defense attorneys throughout the state, including attorneys in Ocean and Monmouth Counties who handle DWI defense, in that it runs contrary to all notions of due process and fundamental fairness.  This is legislation worth keeping an eye on.  Stay tuned. 

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