State v. Tischio
| Decision Date | 30 June 1987 |
| Citation | 107 N.J. 504,527 A.2d 388 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. John E. TISCHIO, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Robert B. Gigl, Jr., Livingston, for defendant-appellant (Stein, Bliablias, McGuire & Pantages, attorneys).
Simon Louis Rosenbach, Asst. Prosecutor, New Brunswick, for plaintiff-respondent (Alan A. Rockoff, Middlesex County Prosecutor, attorney).
Boris Moczula, Deputy Atty. Gen., Trenton, for amicus curiae Atty. Gen. of New Jersey (W. Cary Edwards, Atty. Gen., attorney).
The opinion of the Court was delivered by
This appeal requires the Court to interpret N.J.S.A. 39:4-50(a). This statute makes it unlawful for a person to operate "a motor vehicle ... with a blood alcohol concentration of 0.10% or more by weight of alcohol in the [person's] blood." Specifically, we must decide whether, under the statute, a blood-alcohol level of at least 0.10%, determined solely by a breathalyzer test that is administered within a reasonable time after a defendant's arrest for drunk driving, satisfies the statute; or whether extrapolation evidence, which uses the results of such a breathalyzer test to demonstrate the blood-alcohol level at the time defendant was actually driving, is either required or permitted to establish the statutory offense. Restated, the issue is whether it is the blood-alcohol level at the time of the breathalyzer test or at the time of the operation of the motor vehicle that is essential in establishing the statutory offense.
We now hold that a defendant may be convicted under N.J.S.A. 39:4-50(a) when a breathalyzer test that is administered within a reasonable time after the defendant was actually driving his vehicle reveals a blood-alcohol level of at least 0.10%. We rule that it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the offense. Consequently, we hold further that extrapolation evidence is not probative of this statutory offense and hence is not admissible. Accordingly, we affirm the judgment of the Appellate Division.
The facts that give rise to this appeal are not disputed. On April 11, 1984, at approximately 8:15 p.m., defendant, John Tischio, was stopped by Officer DeAmoria of the Metuchen Police Department for allegedly operating his automobile in an erratic manner. After DeAmoria smelled alcohol on defendant's breath and observed defendant sway and stagger, he placed defendant under arrest for driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a). At the time of his arrest, defendant admitted that he had drunk three or four beers prior to operating the automobile.
Defendant was then taken to police headquarters where he underwent certain balancing tests. The results of these tests were largely inconclusive. At approximately 9:15, one hour after defendant was stopped, defendant was administered a breathalyzer test. A second test was conducted at approximately 9:24. The result of each test was a blood-alcohol reading of .11%.
The matter was tried in the Metuchen Municipal Court on November 2, 1984. The State's case consisted of Officer DeAmoria's testimony and the results of the breathalyzer tests. At the close of the State's evidence, defendant moved for a judgment of acquittal, asserting that the State had failed to produce any evidence as to his blood-alcohol level at the time he was actually driving. The Municipal Court denied defendant's motion. Defendant then presented expert testimony to the effect that if his blood-alcohol level was .11% at 9:15 and 9:24 then, at the time of the stop, his blood-alcohol level was only .07%.
The Municipal Court concluded that, based upon the physical evidence, it had a substantial doubt as to defendant's guilt of driving while under the influence, the alternative standard for conviction under N.J.S.A. 39:4-50(a). However, it found defendant guilty of driving with a blood-alcohol concentration of .10% or more, contrary to N.J.S.A. 39:4-50(a). Thereafter, a trial de novo was held in the Superior Court, Law Division, Middlesex County. That court also concluded that defendant was guilty of driving with a blood-alcohol level of .10% or more in violation of N.J.S.A. 39:4-50(a).
Defendant then filed an appeal with the Appellate Division. Defendant reiterated his assertion that he was entitled to an acquittal because the State had failed to prove that his blood-alcohol concentration was .10% or more at the time he was actually operating his vehicle. The Appellate Division held that N.J.S.A. 39:4-50(a) is violated when the administration of a breathalyzer test "produces a reading of .10 percent blood alcohol or greater at any time after operation [of a motor vehicle] so long as there has been no ingestion 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 extrapolating the test results to demonstrate a lower blood-alcohol level at the time of actual driving is irrelevant.
On June 3, 1986, we denied defendant's petition for certification. Defendant moved for reconsideration of this denial and, on August 5, 1986, this motion was granted. 105 N.J. 518.
In this case, both parties have assumed that the relevant time for determining defendant's blood-alcohol level, under N.J.S.A. 39:4-50(a), is at the time he was actually operating the motor vehicle. Consequently, the litigation focused upon who--the State or the defendant--had the burden of relating breathalyzer test results back to the time when defendant was operating his vehicle. On this issue, the Appellate Division rejected defendant's contention that the State, as part of its case in chief, must produce extrapolation evidence. The court held:
[W]e do not accept defendant's premise that the State, after obtaining a breathalyzer reading of .10 percent or greater, must demonstrate through clear scientific evidence or expert testimony that the blood alcohol level was greater than .10 percent at the exact time of operation of the vehicle. [Tischio, supra, 208 N.J.Super at 347, 506 A.2d 14.]
However, the court went further and held:
The statute [ N.J.S.A. 39:4-50(a) ] reflects a simple legislative plan to establish a violation where the administration of the breathalyzer or other established tests for determining blood alcohol content produces a reading of .10 percent blood alcohol or greater at any time after operation so long as there has been no ingestion of alcohol between the time of operation and the time of testing. Further proof on the issue of the blood alcohol level at the time of operation is unnecessary. [Id. (emphasis added.) ]
Defendant's contention that N.J.S.A. 39:4-50(a) permits the introduction of extrapolation evidence is based on the premise that the statute clearly and unambiguously prohibits a .10% blood-alcohol concentration only at the time of operation. Defendant relies on State v. Allen, 212 N.J.Super. 276, 282, 514 A.2d 879 (Law Div.1986), where the trial court adopted this position, stating that the statutory language "leaves little room for interpretation."
The statute states in relevant part:
A person who operates a motor vehicle while under the influence of intoxicating liquor ... or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood ... shall be subject [to penalties.]
This language literally defines the offense as involving two necessary elements--a prohibited blood-alcohol level and the operation of a motor vehicle--and seemingly requires that both occur together. While the coincidence of the two statutory elements arguably is required to establish the offense, other considerations militate against such an interpretation. These include the fact that the statute is not plain and unambiguous on its face, that the legislative intent and purpose are contrary to such an interpretation, that the overall legislative scheme for the enforcement of drunk-driving laws would be impeded by such an interpretation, that the history of the legislation directs us to a different interpretation, and that overriding considerations of public policy would be disserved by such an interpretation.
We first examine whether N.J.S.A. 39:4-50(a) is plain and unambiguous on its face; or, to state the issue another way whether the statute is susceptible of application according to its literal terms.
A moment's reflection indicates that the statute is not unambiguous and that it cannot be applied literally. The statute expressly contemplates the administration of a breathalyzer test to determine blood-alcohol concentration. Indeed, the determination of blood-alcohol levels through chemical or breathalyzer tests is the linch pin of New Jersey's drunk-driving statutes. See Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984). Although the statute does not refer to the time of testing, it is obvious that a breathalyzer test cannot be administered while a defendant is driving his motor vehicle. Thus, the blood-alcohol level determined by a breathalyzer test can never automatically coincide with the time of the defendant's actual operation of his motor vehicle, as suggested by the literal language of the statute. This raises at least two possible interpretations of the statutory offense. One is that a .10% blood-alcohol level determined by a breathalyzer test made within a reasonable time of defendant's operation alone satisfies the statute. The other is that some evidentiary process--not discernible on the face of the statute--must be invoked to relate breathalyzer test results to the time when the defendant was actually driving. 1 The question is which interpretation comports with the true meaning of the statute.
It is settled...
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