State v. Tischio
| Court | New Jersey Superior Court – Appellate Division |
| Writing for the Court | SHEBELL |
| Citation | 506 A.2d 14,208 N.J.Super. 343 |
| Decision Date | 26 February 1986 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. John E. TISCHIO, Defendant-Appellant. |
Page 343
v.
John E. TISCHIO, Defendant-Appellant.
Appellate Division.
Decided Feb. 26, 1986.
Page 344
Robert B. Gigl, Jr., Newark, for defendant-appellant (Podvey, Sachs & Catenacci, Newark; Robert B. Gigl, Newark, on brief).
Page 345
Simon L. Rosenbach, Asst. Pros., for plaintiff-respondent (Alan A. Rockoff, Middlesex Co. Pros.; Simon L. Rosenbach, on brief).
Page 344
Before Judges ANTELL, SHEBELL and MUIR.
The opinion of the court was delivered by
[506 A.2d 15] SHEBELL, J.A.D.
Defendant John Tischio was stopped at approximately 8:15 p.m. on April 11, 1984 for allegedly operating his vehicle in an erratic manner. He advised the officer that he had three to four beers. After the officer smelled alcohol and observed defendant's knees sag and slight swaying and staggering he placed him under arrest and took him to headquarters for a breathalyzer examination. The first test was conducted at 9:15 and the second at 9:24 p.m. Each reading was .11 percent blood alcohol.
Defendant testified in the municipal court that he was not under the influence. He stated he left a cafe at 8:00 p.m. after having had three glasses of tap beer which he identified as Genessee cream ale, beginning between 6:15 and 6:30 p.m. Defendant presented expert testimony to demonstrate that if the readings of blood alcohol were .11 percent at 9:15 and 9:24 p.m. that even if defendant had as many as five beers, at the time he drove between 8:00 and 8:15 his blood alcohol would have been below the .10 percent concentration set forth in N.J.S.A. 39:4-50(a).
Defendant was convicted in the municipal court of driving with a blood alcohol concentration of .10 percent or more. His conviction was affirmed in the Law Division.
Defendant appeals, alleging he was entitled to a judgment of acquittal at the conclusion of the State's case, his conviction was against the weight of the evidence, the court misapplied the burden of proof, the court committed error in allowing into evidence a breathalyzer certification card which had an alteration as to its date and that N.J.S.A. 39:4-50(a) is unconstitutional in that it violates due process.
Page 346
The breathalyzer inspection certificates introduced as evidence on behalf of the State were admissible as an exception to the Hearsay Rule. State v. McGeary, 129 N.J.Super. 219, 226, 322 A.2d 830 (App.Div.1974). Defendant's position that one of the certifications was not properly authenticated because there was an alteration as to the date is without merit. The report was signed by the New Jersey State Trooper who carried out the inspection and the date change had initials next to it which...
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State v. Tischio
...long as there has been no ingestion[527 A.2d 390] of alcohol between the time of operation and the time of testing." State v. Tischio, 208 N.J.Super. 343, 347, 506 A.2d 14 (App.Div.1986) (emphasis added). Consequently, the court affirmed the conviction, ruling that expert testimony extrapol......
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Haas v. State, No. 76767
...or the next bar, before the blood alcohol concentration reaches the prohibited level.' " Id. 527 A.2d at 396 (quoting State v. Tischio, 208 N.J.Super. 343, 506 A.2d 14, 16 (1986)). The New Jersey court held that extrapolation evidence was inadmissible. Several states have held that the intr......
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Davis v. Com., No. 1274-87-3
...State v. Ulrich, 17 Ohio App.3d 182, 478 N.E.2d 812 (1984); Mosley v. State, 185 Ga.App. 610, 365 S.E.2d 451 (1988); State v. Tischio, 208 N.J.Super. 343, 506 A.2d 14 (A.D.1986); Washington v. District of Columbia, 538 A.2d 1151 (D.C.App.1988). The analysis by the courts in these cases and ......
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State v. Mechler, No. 0075-04.
...various jurisdictions that hold that defendant may introduce extrapolation testimony to rebut BAC test results). 29. State v. Tischio, 208 N.J.Super. 343, 348, 506 A.2d 14, 16 30. 46 S.W.3d 902 (Tex.Crim.App.2001). 31. Id. at 909 (footnotes omitted). 32. See State v. Taylor, 132 N.H. at 319......
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State v. Tischio
...long as there has been no ingestion[527 A.2d 390] of alcohol between the time of operation and the time of testing." State v. Tischio, 208 N.J.Super. 343, 347, 506 A.2d 14 (App.Div.1986) (emphasis added). Consequently, the court affirmed the conviction, ruling that expert testimony extrapol......
-
Haas v. State, No. 76767
...or the next bar, before the blood alcohol concentration reaches the prohibited level.' " Id. 527 A.2d at 396 (quoting State v. Tischio, 208 N.J.Super. 343, 506 A.2d 14, 16 (1986)). The New Jersey court held that extrapolation evidence was inadmissible. Several states have held that the intr......
-
Davis v. Com., No. 1274-87-3
...State v. Ulrich, 17 Ohio App.3d 182, 478 N.E.2d 812 (1984); Mosley v. State, 185 Ga.App. 610, 365 S.E.2d 451 (1988); State v. Tischio, 208 N.J.Super. 343, 506 A.2d 14 (A.D.1986); Washington v. District of Columbia, 538 A.2d 1151 (D.C.App.1988). The analysis by the courts in these cases and ......
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State v. Mechler, No. 0075-04.
...various jurisdictions that hold that defendant may introduce extrapolation testimony to rebut BAC test results). 29. State v. Tischio, 208 N.J.Super. 343, 348, 506 A.2d 14, 16 30. 46 S.W.3d 902 (Tex.Crim.App.2001). 31. Id. at 909 (footnotes omitted). 32. See State v. Taylor, 132 N.H. at 319......