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“No entiendo” is no defense, according to the New Jersey Appellate Division

On July 1, the Appellate Division ruled that “no entiendo” is no defense to the charge of refusing to take a breath test.  A motorist who clearly did not speak English stated that he did not understand the standard DWI rights form.  He did not take the breath test, then was tried and convicted for refusing to take a breath test.  The court held that New Jersey law does not require the state to publish or the police to use a foreign language rights form when investigating a case of driving while intoxicated, and upheld the conviction.

A duly licensed driver drove drunk through Plainfield.  He was stopped because the police suspected that he was driving while intoxicated.  When asked for his credentials in English, he did not understand.  When asked in Spanish, he complied.  He had a valid drivers license, valid registration and valid insurance.  He was also driving while intoxicated.  As such, the investigating officer arrested him and took him to the Plainfield Police Division for further investigation.

A standard and legally required part of a DWI investigation is the use of a written statement of rights.  The officer reviews the written statement with the motorist prior to the administration of the breath test.  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.  The statement was written in English.

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. 

The motorist defended against the refusal charge by arguing that due process required a Spanish language form.  The municipal court and the Law Division did not agree.  The Appellate Division upheld the conviction, opining:

“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

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.  The manual contains a specific section
that describes the refusal statute and the informed consent law,”


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