Bill Text: NJ A3266 | 2010-2011 | Regular Session | Introduced
Bill Title: Clarifies it is not defense to prosecution of refusal to submit to breath test that defendant did not understand notice of consequences.
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2010-09-30 - Introduced, Referred to Assembly Law and Public Safety Committee [A3266 Detail]
Download: New_Jersey-2010-A3266-Introduced.html
Sponsored by:
Assemblyman MICHAEL PATRICK CARROLL
District 25 (Morris)
SYNOPSIS
Clarifies it is not defense to prosecution of refusal to submit to breath test that defendant did not understand notice of consequences.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning refusal to submit to breath test, amending P.L.1966, c.142 and P.L.1981, s.512.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. 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 the person tested of his rights under subsections (b) and (c) of this section.
(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.]
(cf: P.L.2007, c.267, s.1)
2. Section 2 of P.L.1981, 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. It shall not
be a defense to a prosecution under this section that the defendant refused to
submit to a test because he was unable to understand the standard oral or
written statement provided pursuant to subsection (e) of section 2 of P.L.1966,
c.142 (C.39:4-50.2).
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. 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)
3. 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. The implied consent statute provides that any motorist who operates a vehicle on the roads of this State is deemed to have consented to a breath test to determine if the person has been operating a motor vehicle in violation of the drunk driving statute. A person who refuses to take a breath test is charged with refusal to submit to chemical tests in violation of N.J.S.A.39:4-50.4a 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 clarifies that the warning statement, which can be in an oral or written format, only needs to be provided to the arrested person; the requirement that the arrested person be informed is removed. The bill further clarifies that it is not a defense to a prosecution for refusing a breath test that the individual did not understand the warning. The bill does not preclude police officers from giving the statement in a language other then English, but that would not be required.
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.
