Bill Text: NJ A3192 | 2010-2011 | Regular Session | Introduced
Bill Title: Clarifies breath test warnings provided to persons arrested for intoxicated driving and boating need only be in English and those warnings are not element of offense of refusing breath test.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-09-16 - Introduced, Referred to Assembly Law and Public Safety Committee [A3192 Detail]
Download: New_Jersey-2010-A3192-Introduced.html
Sponsored by:
Assemblyman SAMUEL D. THOMPSON
District 13 (Middlesex and Monmouth)
SYNOPSIS
Clarifies breath test warnings provided to persons arrested for intoxicated driving and boating need only be in English and those warnings are not element of offense of refusing breath test.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning implied consent, and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 7 of P.L.1986, c.39 (C.12:7-55) is amended to read as follows:
7. a. (1) A person who operates a power vessel or a vessel which is 12 feet or greater in length on the waters of this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood, except that the taking of samples shall be made in accordance with the provisions of P.L.1986, c.39 and at the request of a member of the State Police or a law enforcement officer who has reasonable grounds to believe that the person has been operating a vessel in violation of the provisions of section 3 of P.L.1952, c.157 (C.12:7-46).
(2) Whenever an operator has been involved in an accident resulting in death, bodily injury or property damage, an officer shall consider that fact along with all other facts and circumstances in determining under paragraph (1) of this subsection whether there are reasonable grounds to believe a person is operating a vessel in violation of the provisions of section 3 of P.L.1952, c.157 (C.12:7-46).
b. A record of the taking of the sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy shall be furnished or made available to the person so tested, upon his request.
c. In addition to the samples taken and tests made at the direction of a member of the State Police or a law enforcement officer, the person tested shall be permitted to have samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
d. A member of the State Police or a law enforcement officer shall [inform] provide the person tested with a standard oral or written statement prepared by the Chief Administrator of the New Jersey Motor Vehicle Commission of his rights under subsections b. and c. of this section. The member of the State Police or law enforcement officer may provide the statement required pursuant to this subsection in a language regularly spoken by the person tested, but the officer shall not be required to provide this statement in any language other than English.
e. No chemical test, as provided in this section, or specimen necessary for a test, may be made or taken forcibly and against physical resistance thereto by the defendant. A member of the State Police or a law enforcement officer shall, however, [inform] provide the person arrested with a standard oral or written statement prepared by the chief administrator of the consequences of refusing to submit to the test, in accordance with section 9 of P.L.1986, c.39 (C.12:7-57). [A standard statement, prepared by the Chief Administrator of the New Jersey Motor Vehicle Commission shall be read by a member of the State Police or a law enforcement officer to the person under arrest] The member of the State Police or law enforcement officer may provide the statement required pursuant to this subsection in a language regularly spoken by the person tested, but the officer shall not be required to provide this statement in any language other than English.
(cf: P.L.2004, c.80, s.2)
2. Section 9 of P.L.1986, c.39 (C.12:7-57) is amended to read as follows:
9. a. A court shall revoke the privilege of a person to operate a power vessel or a vessel which is 12 feet or greater in length, if after being arrested for a violation of section 3 of P.L.1952, c.157 (C.12:7-46), the person refuses to submit to the chemical test provided for in section 7 of P.L.1986, c.39 (C.12:7-55) when requested to do so. The revocation shall be for one year unless the refusal was in connection with a second offense under section 3 of P.L.1952, c.157 (C.12:7-46), in which case the revocation period shall be for two years. If the refusal was in connection with a third or subsequent offense under section 3 of P.L.1952, c.157 (C.12:7-46), the revocation shall be for 10 years. The court also shall revoke the privilege of a person to operate a motor vehicle over the highways of this State for a period of: not less than seven months or more than one year for a first offense; two years for a second offense; and 10 years for a third or subsequent offense. The court shall also fine a person convicted under this section: not less than $300 nor more than $500 for a first offense; not less than $500 or more than $1,000 for a second offense; and $1,000 for a third or subsequent offense.
b. The court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been operating or was in actual physical control of the vessel while under the influence of intoxicating liquor, or a narcotic, hallucinogenic or habit-producing drug, whether the person was placed under arrest, and whether the person refused to submit to the test upon request of the officer. If these elements of the violation are not established, no conviction shall issue. The procedural requirements of section 7 of P.L.1986, c.39 (C.12:7-55) shall not constitute an element of the offense under this section.
c. In addition to any other requirements provided by law, a person whose privilege to operate a vessel is revoked for refusing to submit to a chemical test shall satisfy the screening, evaluation, referral and program requirements of the Bureau of Alcohol Countermeasures in the Division of Alcoholism in the Department of Health and Senior Services. A fee of $40 shall be payable to the Alcohol Education, Rehabilitation and Enforcement Fund established under section 3 of P.L.1983, c.531 (C.26:2B-32), by the convicted person in order to defray the costs of the screening, evaluation and referral by the Bureau of Alcohol Countermeasures and the cost of an education or rehabilitation program. Failure to satisfy this requirement shall result in the immediate revocation of the privilege to operate a vessel on the waters of this State or the continuation of revocation until the requirements are satisfied. The revocation for a first offense may be concurrent with or consecutive to a revocation imposed for a conviction under the provisions of section 3 of P.L.1952, c.157 (C.12:7-46) arising out of the same incident; the revocation for a second or subsequent offense shall be consecutive to a revocation imposed for a conviction under the provisions of section 3 of P.L.1952, c.157 (C.12:7-46).
d. In addition to any other requirements provided by law, a person convicted under this section shall be required after conviction to complete a boat safety course from the list approved by the Superintendent of State Police pursuant to section 1 of P.L.1987, c.453 (C.12:7-60), which shall be completed prior to the restoration of the privilege to operate a vessel which may have been revoked or suspended for a violation of the provisions of this section. Failure to satisfy this requirement shall result in the immediate revocation of the privilege to operate a vessel on the waters of this State, or the continuation of revocation until the requirements of this subsection are satisfied.
(cf: P.L.2004, c.80, s.4)
3. Section 16 of P.L.1990, c.103 (C.39:3-10.24) is amended to read as follows:
a. A person who operates a commercial motor vehicle on a public road, street, or highway, or quasi-public area in this State, shall be deemed to have given his consent to the taking of samples of his breath for the purposes of making chemical tests to determine alcohol concentration; provided, however, that the taking of samples shall be made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that the person has been operating a commercial motor vehicle with an alcohol concentration of 0.04% or more.
b. A record of the taking of such a sample, disclosing the date and time thereof, as well as the result of a chemical test, shall be made and a copy thereof, upon request, shall be furnished or made available to the person so tested.
c. In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine, or blood made by a person or physician of his own selection.
d. The police officer shall [inform] provide the person tested with a standard oral or written statement, prepared by the chief administrator, of his rights under subsections b. and c. of this section. The police officer may provide the statement required pursuant to this subsection in a language regularly spoken by the person tested, but the officer shall not be required to provide this statement in any language other than English.
e. No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, [inform] provide the person arrested with a standard oral or written statement, prepared by the chief administrator, of the consequences of refusing to submit to such test including the penalties under section 12 of this act. [A standard statement, prepared by the director, shall be read by the police officer to the person] The police officer may provide the statement required pursuant to this subsection in a language regularly spoken by the person tested, but the officer shall not be required to provide this statement in any language other than English.
f. The court shall revoke for six months the right to operate any motor vehicle of any person who, after being arrested for a violation of section 5 of this act, shall refuse to submit to the chemical test provided for in this section when requested to do so, unless the refusal was in connection with a subsequent offense under this section, section 5 of this act, R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), in which case the revocation period shall be for two years. In addition, a court shall impose the penalties provided in section 12 of this act.
The court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been operating or was in actual physical control of a commercial motor vehicle on the public highways or quasi-public areas of this State with an alcohol concentration at 0.04% or more, whether the person was placed under arrest, whether he refused to submit to the test upon request of the officer, and if these elements of the violation are not established, no conviction shall issue. The procedural requirements of subsections d. and e. of this section shall not constitute an element of the offense under this section. In addition to any other requirements provided by law, a person whose driving privilege is revoked for refusing to submit to a chemical test shall satisfy the requirements of a program of alcohol education or rehabilitation pursuant to the provisions of R.S.39:4-50. The revocation shall be independent of any revocation imposed by virtue of a conviction under the provisions of R.S.39:4-50 or section 12 of this act.
In addition to imposing a revocation under this subsection, a court shall impose a fine of not less than $250 or more than $500.
(cf: P.L.1990, c.103, s.16)
4. Section 2 of P.L.1966, c.142 (C.39:4-50.2) is amended to read as follows:
2. (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).
(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
(d) The police officer shall [inform] provide the person tested with a standard oral or written statement prepared by the chief administrator of his rights under subsections (b) and (c) of this section. The police officer may provide the statement required pursuant to this subsection in a language regularly spoken by the person tested, but the officer shall not be required to provide this statement in any language other than English.
(e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, [inform] provide the person arrested with a standard oral or written statement prepared by the chief administrator of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act. [A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest] The police officer may provide the statement required pursuant to this subsection in a language regularly spoken by the person tested, but the officer shall not be required to provide this statement in any language other than English.
(cf: P.L.2007, c.267, s.1)
5. Section 2 of P.L.1982, c.512 (C.39:4-50.4a) is amended to read as follows:
2. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. The procedural requirements of section 2 of P.L.1966, c.142 (C.39:4-50.2) shall not constitute an element of the offense under this section. In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense. The person also shall be required to install an ignition interlock device pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).
b. For a first offense, the fine imposed upon the convicted person shall be not less than $600 or more than $1,000 and the period of license suspension shall be not less than one year or more than two years; for a second offense, a fine of not less than $1,000 or more than $2,000 and a license suspension for a period of four years; and for a third or subsequent offense, a fine of $2,000 and a license suspension for a period of 20 years when a violation of this section occurs while:
(1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;
(2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or
(3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.
A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.
It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.
(cf: P.L. 2009, c.201, s.5)
6. This act shall take effect immediately.
STATEMENT
The purpose of this bill is to clarify legislative intent regarding this State's implied consent statute and the offense of refusal to take a breath test after an arrest for drunk driving or boating. The implied consent statutes provides that any motorist who operates a vehicle on the roads of this State, or any boater operating a power vessel or a vessel which is 12 feet or greater in length on the waters of this State, is deemed to have consented to a breath test to determine if the person has been operating the vehicle in violation of the drunk driving and boating statutes. A person who refuses to take a breath test is charged with refusal to submit to chemical tests and the penalties imposed are similar to those imposed for drunk driving.
Recently, the New Jersey Supreme Court in State v. Marquez ruled that a conviction for refusal to take a breath test requires proof that an officer requested the motorist to submit to the test and informed the person of the consequences for refusing to do so. The court further held that because the word "inform" implies the imparting of knowledge, officers are obligated to do more to make the arrested person aware of the consequences of refusing to submit to a breath test than a rote repetition of English words to non-English speakers.
This bill specifies that the warning statement and rights notification statements, which can be in an oral or written format, only need to be provided in standard form to the arrested person; the requirement that the arrested person be informed is removed. The bill further clarifies that an officer may provide these statements in a language that the person regularly speaks, but that there is no requirement that the officer do so.
In Marquez, the court also held that the warnings required to be given to a motorist, or boater, in the implied consent statutes constitute an element of the offense of refusing to take the breath test. This bill clarifies that requirements of the implied consent statute do not constitute an element of the refusal offense. The Legislature intended for these requirements to serve as procedural safeguards, not as substantive rights under the refusal statute.
As the dissent in Marquez noted, the Legislature did not impose a requirement that the arrested person understand the information being conveyed and, indeed, a motorist may not understand the warnings because of intoxication. The dissent also cited other states' rulings which have considered the same issue and found no distinction between a lack of comprehension because of intoxication and a lack of understanding because of insufficient English language skills. It logically follows that a person who speaks little to no English should not be able to claim that he or she did not understand the warnings given and thereby avoid the consequences of refusing the breath test.
