STATE OF NEW JERSEY v. JUAN LAZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3171-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN LAZO,

Defendant-Appellant.

________________________________

May 18, 2011

Submitted: May 4, 2011 - Decided:

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5917.

Hugo Villalobos, attorney for appellant.

TheodoreJ. Romankow,Union CountyProsecutor, attorney for respondent (Michelle J. Ghali, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Juan Lazo appeals from an order of the Law Division finding him guilty of refusing to submit to a breathalyzer,1 on de novo review of a municipal court conviction. Defendant was acquitted in the municipal court of driving while intoxicated. The Law Division imposed the same sentence as had been imposed by the municipal court thirty days of community service, forty-eight hours in an Intoxicated Driver Resource Center Program, a two-year loss of drivers' license, a $500 fine, and mandatory costs and penalties. We remand.

Defendant was involved in a collision with a parked car. When the police arrived, the odor of an alcoholic beverage was detected on defendant's breath, and the officer observed defendant's movement was slow and his speech was slurred. The officer noticed defendant appeared to speak Spanish and, at the officer's request, a bilingual pedestrian at the scene translated the officer's instructions regarding the field sobriety tests into Spanish. After failing two of the three tests, defendant was arrested and transported to police headquarters. In the Alcotest room, the officer twice read to defendant in English the "Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle - N.J.S.A. 39:4-50.2(e)" (standard statement). On both occasions, defendant replied "no" to the request he submit to the test. Defendant did not provide any reason for his refusal.

There was a stipulation in municipal court that defendant had consumed three beers on the date he was arrested. Nonetheless, defendant was acquitted of drunk driving but convicted of refusing to submit to a breath test. The Law Division relied, in large part, on our opinion in State v. Marquez, 408 N.J. Super. 273, 286 (App. Div. 2009), in which we upheld a refusal conviction of a defendant who only spoke Spanish and was read the standard statement in English, holding there was no due process requirement the police translate such instruction into Spanish. Specifically, the Law Division found, "[b]ased on the language of Marquez and Widma[i]er,2 the element of a refusal offense does not include proof that the defendant comprehended the police officer's instructions."

Defendant appealed. While the appeal was pending, the Supreme Court decided the Marquez case, reversing our judgment and vacating the portion of the defendant's sentence relating to his refusal conviction. State v. Marquez, 202 N.J. 485, 515 (2010). The Court held "that to 'inform,' within the meaning of the implied consent and refusal statutes, is to convey information in a language the person speaks or understands." Id. at 509. On appeal, defendant argues, among other points, that he was not guilty by virtue of the Supreme Court decision in Marquez. We are satisfied this appeal is governed by Marquez. See State v. Rodriguez-Alejo, __ N.J. Super. __ (App. Div. 2011) (slip op. at 8-9) (providing pipeline retroactivity to Marquez). We decline to exercise original jurisdiction and make factual findings in this instance. R. 2:10-5; cf. State v. Rodriquez-Alejo, supra, slip op. at 10. Accordingly, we remand to the Law Division to consider defendant's arguments in light of the principles enunciated by the Supreme Court in Marquez. We take no position on the merits.

Reversed and remanded. We do not retain jurisdiction.

1 Defendant was charged and convicted by the municipal court under N.J.S.A. 39:4-50.2. Based on comments in the record, the Law Division appeared to have found defendant guilty of N.J.S.A. 39:4-50.4a.

2 State v. Widmaier, 157 N.J. 475, 497 (1999).