State v. Protokowicz

• Decision Date: 28 May 1959
• Docket Number: No. A--248,A--248
• Citation: 151 A.2d 396,55 N.J.Super. 598
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Matthew I. PROTOKOWICZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 598

55 N.J.Super. 598

151 A.2d 396

STATE of New Jersey, Plaintiff-Respondent, v. Matthew I. PROTOKOWICZ, Defendant-Appellant.

No. A--248.

Superior Court of New Jersey

Appellate Division.

Argued May 11, 1959.

Decided May 28, 1959.

Clive S. Cummis, Newark, argued the cause for defendant-appellant (Cummis & Kroner, Newark, attorneys; Maurice M. Krivit, Jersey City, of counsel).

C. William Caruso, Newark, argued the cause for plaintiff-respondent (Brendan T. Byrne, Deputy Atty. Gen., Acting Essex County Prosecutor, attorney).

Before Judges GAULKIN, SULLIVAN and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

The appellant was convicted in the Municipal Court of the City of Montclair and, on appeal, in the Essex County Court of operating an automobile while under the influence of intoxicating liquor. N.J.S.A. 39:4--50. This is a review of the latter conviction.

In both of the courts below the cumulative effect of the testimony of the State's witnesses overwhelmingly established the defendant's guilt, and in this proceeding appellant does not challenge the sufficiency of the evidence as a basis for conviction. However, in the course of the physical examination conducted at the Montclair Police Headquarters by respondent's doctor, appellant upon request permitted the doctor to draw a sample of his blood for blood alcohol determination. Analysis of the sample revealed an alcoholic content of 0.1565%. A report to this effect was received in evidence.

The validity of the conviction is challenged solely on the ground that N.J.S.A. 39:4--50 and 50.1 when conjoined are violative of the provisions of the 14th Amendment of the Federal Constitution and Art. 1, par. 1 of the State Constitution. The thesis of the appellant is that N.J.S.A. 39:4--50.1 establishes a presumption which is fundamentally unfair, and when considered in conjunction with N.J.S.A 39:4--50 it amounts to a constitutionally forbidden 'irrebuttable presumption' of guilt.

N.J.S.A. 39:4--50 provides as follows:

'A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject, * * *' (penalty provided)

N.J.S.A. 39:4--50.1 recites:

'In any prosecution for a violation of section 39:4--50 of Title 39 of the Revised Statutes relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:

'1. If there was at that time 0.05 per centum or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;

'2. If there was at that time in excess of 0.05 per centum but less than 0.15 per centum by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;

'3. If there was at that time 0.15 per centum or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.

'The foregoing provisions of this section shall not be construed as requiring that evidence of the amount of alcohol in the defendant's blood must be presented, nor shall they be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant.' L.1954, c. 23, § 30, p. 76, supplementing chapter 4, Title 39.

In support of the argument that the presumption set forth in the third section of N.J.S.A. 39:4--50.1 must be regarded as conclusive or irrebuttable, appellant reasons thus: since the first section creates a presumption that if 0.05% Or less alcohol is found the defendant is not under the influence of alcohol, and since no presumption arises where the blood alcohol content is in the range between 0.05% And 0.15%, the obvious intent of the Legislature was to create a conclusive presumption in the third section. We deem this conclusion to be a Non sequitur.

Nor do we find logical appeal in appellant's contention that proof of alcohol in the blood of 0.15% Or more creates a conclusive presumption of the violation of N.J.S.A. 39:4--50. It was conceded on the oral argument that the presumption arising from proof of alcohol in the blood of 0.15% Has valid scientific support. Moreover, in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957), the court described the blood test as a 'scientifically accurate method of detecting alcoholic content in the blood' and said that it furnished 'an exact measure upon which to base a decision as to intoxication.' The purpose of N.J.S.A. 39:4--50.1 is to dispense with the necessity of expert testimony that one with 0.15% Of alcohol in the...