12-8-11. I was scheduled to testify on behalf of the New Jersey State Bar Association (NJSBA) today in the NJ Senate against the proposed Refusal bill . I asked that the executive board of the NJSBA take emergent action in opposition to the proposed refusal bill which would trick unawary subjects into refusing and being double penalized therefore. I am glad to report that we were able to get the NJSBA to fax a letter in opposition to the Senate yesterday. Also I was able to bright the matter to the attention of the Hispanic Bar Association of NJ. Obviously when 85% of all court translations are Spanish to English (AOC stats) such an organization should be on notice of this bill. They weren’t, and so had no idea of the emergent issue. The Hispanic Bar president and its Public Policy committee chair were immediately helpful, and agreed to testify for the Hispanic Bar, along with me for the NJSBA. Sometime this morning, after the fax from the NJSBA and after the Hispanic Bar called the Senate to confirm that they would testify, I received a call that the bill was being “held” (taken off agenda for today. ) I have no idea if this was coincidence or not and no idea when it will pop up again, whether in the lame duck session or otherwise. In any event, my reading of State v Marquez is that the court used a statutory basis for decision only because a full constitutional analysis was not necessary. The legislature already built in a protection against Miranda based confusion. However, I think it is clear from Marquez, Widmaier, Duffy , and other cases that some form of notice is constitutionally required to avoid the confusion between the assertion of 5th A rights and a Refusal which requires an unequivocal “yes”. We can only hope that the legislature will not simply buy into this rushed bill without understanding the consequences to people who (regardless of how guilty they may be of DWI) innocently assert their 5th A rights only to be rewarded with double penalties and being forced to plead guilty because the State now has a refusal charge to hold over them if they want a trial. Moreover, just think how that that injustice multiplies for Hispanics who will still be given Miranda rights in Spanish but then be asked in English to take the breath test without any explanation whatsoever required as to the consequences of asserting those 5th amendment rights , ie that those rights no right to refuse by silence or request and attorney.