If you have been charged with a DUI or DWI in New Jersey and also have a hearing impairment, attorney Anthony J. Vecchio will evaluate your case to ensure that your rights are defended.
The New Jersey Legislature has required that a standard statement be read to any defendant subjected to breath testing for a New Jersey DWI charge. See N.J.S.A. 39:4-50.2(e). “By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent.” State v. Marquez, 202 N.J. 485, 504 (N.J. 2010) citing State v. Widmaier, 157 N.J. 475. 489 (N.J. 1999).
In Marquez, the New Jersey Supreme Court fleshed out the practical impact of the requirement that police officers “inform” motorists of the consequences of refusing to submit to breath test.
The Court held: “If people cannot hear or do not speak or understand English … some other effort must be made to “inform” them “of the consequences of refusing to submit.” N.J.S.A. 39:4-50.2(e). Providing a written document to hearing-impaired individuals in a language they understand will ordinarily suffice.”
The Court further explained: By its own terms, therefore, the statute’s obligation to “inform” calls for more than a rote recitation of English words to a non-English speaker. Knowledge cannot be imparted in that way. Such a practice would permit Kafkaesque encounters in which police read aloud a blizzard of words that everyone realizes is incapable of being understood because of a language barrier. That approach would also justify reading aloud the standard statement to a hearing-impaired driver who cannot read lips. We do not believe that the Legislature intended those absurd results. Rather, its directive that officers “inform,” in the context of the implied consent and refusal statutes, means that they must convey information in a language the person speaks or understands.[State v. Marquez, 202 N.J. 485, 507 (N.J. 2010).]
The Refusal statute requires that the defendant have the ability to physically understand the implied consent warning. Voluntarily drinking to excess or being subjectively “confused” about the requirement to submit is not a defense under New Jersey law. However, our Supreme Court has recognized that police officers must make further efforts to impart the requirements of the implied consent law to the hearing impaired and those who cannot understand English.
This may include giving the hearing impaired defendant a written statement to read, or in the case of a non-English speaker, the warning provided in a language the defendant understands. In cases where the where the police do not provide a written paragraph 36 to the defendant to read, the client should be sent to an audiologist for an evaluation.
A report should be prepared by the audiologist and provided to the prosecutor and court. In some cases, the audiologist should be retained for testimony at trial. It is important to note that this was an objective, rather than subjective inability to understand given the defendant’s hearing impairment.
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