People v. Marquez

In People v. Marquez (NYLJ, Sept. 8, 1992, at 25, col 2 [Crim Ct, Bronx County]) a Spanish-speaking defendant was shown a videotape in which the refusal warnings were given in Spanish. At the completion of the tape, the defendant stated "No," which was interpreted as a refusal by the police officer who was present during the playing of the tape. However, this police officer did not speak Spanish so he was unable to ask the defendant if he was indeed refusing to take the test or if he was saying he did not understand the warnings. The court stated that the People had the burden of establishing, by a preponderance of the evidence, that the defendant was capable of understanding the refusal warning (citing People v. Baginski, NYLJ, Mar. 13, 1992, at 25, col 6 [Crim Ct, Kings County]). The court found that the warnings were not given in clear and unequivocal language based upon the People's failure to lay a proper foundation to introduce the tape used to recite the warnings in Spanish to this defendant. The court went on to say that the presence of a language barrier put the defendant at an unacceptably unfair disadvantage when it came to understanding any warnings given by a police officer who does not speak the same language. This precluded the defendant from making an informed choice about taking the test.