State v. Stasio

396 A.2d 1129, 78 N.J. 467, 1979 N.J. LEXIS 1170

Opinions

The opinion of the court was delivered by

Schreiber, J.

The major issue on this appeal is whether voluntary intoxication constitutes a defense to a crime, one element of which is the defendant’s intent. Defendant Stasio was found guilty by a jury of assault with intent to rob, in violation of N. J. S. A. 2A:90-2, and of assault while being armed with a dangerous knife, contrary to N. J. S. A. 2A.T51-5. The trial court sentenced the defendant to three to live years on the assault with intent to rob count and a concurrent term of one to two years on the second count. The prison term was suspended and the defendant was placed on probation for three years. The Appellate Division reversed the convictions and ordered a new trial. We granted the State’s petition for certification. 75 N. J. 613 (1978).

The scene of this incident was the Silver Moon Tavern located at 655 Yan Houten Avenue, Clifton. The date was October 7, 1975. The defendant having presented no evidence, what occurred must be discerned from the testimony of three witnesses for the State: Peter Klimek, a part owner of the Silver Moon; Robert Colburn, a patron; and Robert Rowan, a member of the Clifton police force.

Robert Colburn had frequented the Silver Moon Tavern not only for its alcoholic wares but also to engage in pool. On October 7, Colburn arrived at the Tavern about 11:00 a.m. and started to play pool. Sometime before noon the defendant joined him. They stayed together until about 3:00 p.m. when the defendant left the bar. Though the defendant had been drinking during this period, in Colburn’s opinion the defendant was not intoxicated upon his departure. Neither the defendant’s speech nor his mannerisms indicated drunkenness.

Peter Klimek arrived at the Tavern shortly before 5:00 p.m. and assumed his shift at tending bar. There were about eight customers present when, at approximately 5:40 p.m., the defendant entered and walked in a normal manner to the bathroom. Shortly thereafter he returned to the front door, looked around outside and approached the bar. He demanded that Klimek give him some money. Upon refusal, he threatened Klimek. The defendant went behind the bar toward Klimek and insisted that Klimek give him $80 from the cash register. When Klimek persisted in his refusal, the defendant pulled out a knife. Klimek grabbed the defendant’s right hand and Colburn, who had jumped on top of the bar, seized the defendant’s hair and pushed his head toward the bar. The defendant then dropped the knife.

Almost immediately thereafter Police Officer Rowan arrived and placed the defendant in custody. He testified that defendant responded to his questions with no difficulty and walked normally. Klimek also stated that defendant did not appear drunk and that he had not noticed any odor of alcohol on defendant’s breath.

At the conclusion of the State’s case, the defendant elected not to take the stand. He made this decision because of an earlier conference in chambers¹ at which defense counsel had advised the court that his defense would be that defendant had been so intoxicated that he was incapable of forming the intent to rob. The trial court responded by stating that it would charge that “voluntary intoxication was not a defense to any act by the defendant in this matter.” The defendant on a voir dire made it clear that his decision not to testify was predicated upon the trial court’s position. It might be noted that the defendant had no record of prior convictions.

Holding that the trial court’s declaration in view of the defendant’s proffer of proof was erroneous, the Appellate Division reversed the convictions and ordered a new trial. The Appellate Division reasoned that specific intent is an essential element of the crime of an assault with intent to rob and that voluntary intoxication may be shown to negate that element of the offense.

This Court last considered the culpability of an individual who had committed an illegal act while voluntarily under the influence of a drug or alcohol in State v. Maik, 60 N. J. 203 (1972). There tire defendant Maib had been charged with the first degree murder of his friend, a fellow college student. The defense was insanity at the time of the killing. Evidence at the trial had suggested that the defendant was schizophrenic and that a psychotic episode may have been triggered by the defendant’s voluntary use of LSD or hashish. The trial court had charged the jury that if it found that the underlying psychosis had been activated by the voluntary use of either narcotic, the defense of insanity would not stand.

On appeal Chief Justice Weintraub, writing for a unanimous Court, began by discussing generally the concept of criminal responsibility. After pointing out that although there was a difference in the treatment of sick and bad offenders, he noted that notwithstanding that difference “the aim of the law is to protect the innocent from injury by the sick as well as the bad.” 60 N. J. at 213. It was in that context that a decision would have to be made whether the vountary use of alcoholic beverages or drugs should support a viable defense. He then stated the generally accepted proposition that criminal responsibility was not extinguished when the offender was under the influence of a drug or liquor and the reasons for that rule:

It is generally agreed that a defendant will not be relieved of criminal responsibility because he was under the influence of intoxicants or drugs voluntarily taken. This principle rests upon public policy, demanding that he who seeks the influence of liquor or narcotics should not be insulated from criminal liability because that influence impaired his judgment or Ms control. The required element of badness can be found in the intentional use of the stimulant or depressant. Moreover, to say that one who offended while under such influence was sick would suggest that his sickness disappeared when he sobered up and hence he should be released. Such a concept would hardly protect others from the prospect of repeated injury. [60 N. J. at 214]

The Chief Justice set forth four exceptions to the general rule. Eirst, when drugs being taken for medication produce unexpected or bizarre results, no public interest is served by punishing the defendant since there is no likelihood of repetition. Second, if intoxication so impairs a defendant’s mental faculties that he does not possess the wilfulness, deliberation and premeditation necessary to prove first degree murder, a homicide cannot be raised to first degree murder. State v. Sinclair, 49 N. J. 525, 544 (1967); State v. Trantino, 44 N. J. 358, 369 (1965), cert. den. 382 U. S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1966). Under this exception the influence of liquor “no matter how pervasive that influence may be, will not lead to an acquittal. It cannot reduce the crime below murder in the second degree, and this because of the demands of public security.” State v. Maik, supra, 60 N. J. at 215. Third, a felony homicide will be reduced to second degree murder when intoxication precludes formation of the underlying felonious intent. Parenthetically, it may be noted that since voluntary intoxication does not eliminate responsibility for the felony, it could be contended that the defendant should remain liable for first degree felony murder. On the other hand, considerations of fairness indicate that such a defendant should be treated the same as one charged with ordinary first degree homicide requiring premeditation. Eourth, the defense of insanity is available when the voluntary use of the intoxicant or drug results in a fixed state of insanity after the influence of the intoxicant or drug has spent itself. Since the defense in Mailc may have fallen into the fourth category, the charge as given was erroneous and the cause was remanded for a new trial on the issue of whether the defendant had been insane at the time of the killing and whether that condition continued thereafter.

A difference of opinion has been expressed in the Appellate Division as to the meaning of Chief Justice Weintraub’s discussion of intoxication in Maik. In State v. Del Vecchio, 142 N. J. Super. 359 (App. Div.), certif. den. 71 N. J. 501 (1976), a conviction for breaking and entering with intent to steal was reversed on the ground that the jury had improperly been charged that voluntary intoxication was not a defense to a crime requiring a specific intent. The Appellate Division reasoned that, when a specific intent was an element of an offense, voluntary intoxication may negate existence of that intent. Since intoxication may have prevented existence of that specific intent, an acquittal might be in order. The Appellate Division also held that the only principle to be derived from MaiTe was the proposition that voluntary intoxication may be relevant in determining whether a murder may be raised to first degree. In contrast, Judge Allcorn’s dissent in State v. Atkins, 151 N. J. Super. 555, 573 (App. Div. 1977), rev’d 78 N. J. 454 (1979), expresses the opinion that Maik stands for the proposition that voluntary intoxication is not a defense to any criminal offense irrespective of whether a specific or general intent is an element of the offense.

In our opinion the Chief Justice in Maik enunciated a principle applicable generally to all crimes and, unless one of the exceptions to the general rule is applicable, voluntary intoxication will not excuse criminal conduct. The need to protect the public from the prospect of repeated injury and the public policy demanding that one who voluntarily subjects himself to intoxication should not be insulated from criminal responsibility are strongly supportive of this result. We reject the approach adopted by Del Vecchio because, although it has surface appeal, it is based on an unworkable dichotomy, gives rise to inconsistencies, and ignores the policy expressed in Mailc.

Del VeccMo would permit the intoxication defense only when a “specific” as distinguished from a “general” intent was an element of the crime. However, that difference is not readily ascertainable. “The distinction thus made between a 'specific intent’ and a 'general intent,’” wrote the Chief Justice in MaiJc, “is quite elusive, and although the proposition [that voluntary intoxication may be a defense if it prevented formation of a specific intent] is echoed in some opinions in our State, see State v. White, [27 N. J. 158, 165-167 (1958)]; cf. State v. Letter, 4 N. J. Misc. 395, 133 A. 46 (Sup. Ct. 1926), it is not clear that any of our cases in fact turned upon it.” 60 N. J. at 214-215. Professor Hall has deplored the attempted distinction in the following analysis:

The current confusion resulting from diverse uses of “general intent” is aggravated by dubious efforts to differentiate that from “specific intent.” Each crime * * * has its distinctive mens rea, e. g. intending to have forced intercourse, intending to break and enter a dwelling-house and to commit a crime there, intending to inflict a battery, and so on. It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end. To assert therefore that an intention is “specific” is to employ a superfluous term just as if one were to speak of a “voluntary act.” [J. Sail, General Principles of Criminal Law 142 (2d ed. I960)]

Eor a similar analysis see People v. Hood, 1 Cal. 3d 444, 456-457, 82 Cal. Rptr. 618, 625-626, 462 P. 2d 370, 377-378 (1969). The same point is made in G. Williams, Criminal Law — The General Part (2d ed. 1961):

The adjective “specific” seems to be somewhat pointless, for the intent is no more specific than any other intent required in criminal law. The most that can be said is that the intent is specifically referred to in the indictment. There is no substantive difference between an intent specifically mentioned and one implied in the name of the crime, lid. at 49]

The undeniable fact is “that neither common experience nor psychology knows any such actual phenomenon as 'general intent5 that is distinguishable from 'specific intent.5 55 Hall, “Intoxication and Criminal Responsibility,55 57 Harv. L. Rev. 1045, 1064 (1944).

Moreover, distinguishing between specific and general intent gives rise to incongruous results by irrationally allowing intoxication to excuse some crimes but not others. In some instances if the defendant is found incapable of formulating the specific intent necessary for the crime charged, such as assault with intent to rob, he may be convicted of a lesser included general intent crime, such as assault with a deadly weapon. N. J. 8. A. 2A:90-3. In other cases there may be no related general intent offense so that intoxication would lead to acquittal. Thus, a defendant acquitted for breaking and entering with intent to steal because of intoxication would not be guilty of any crime — breaking and entering being at most under certain circumstances the disorderly persons offense ;of trespass. N. J. 8. A. 3A:170-31. Similarly, if the specific intent to rob were not demonstrated because of intoxication, then the defendant may have no criminal responsibility since assault with intent to rob would also be excused.

Finally, where the more serious offense requires only a general intent, such as rape, see J. Sail, General Principles of Criminal Law 143 (3d ed. 1960), and sources cited, intoxication provides no defense, whereas it would be a defense to an attempt to rape, specific intent being an element of that offense. Yet the same logic and reasoning which impels exculpation due to the failure of specific intent to commit an offense would equally compel the same result when a general intent is an element of the offense.²

One commentator summed np the situation in the following way:

For example, if the defendant is found incapable of formulating the specific intent necessary for the crime with which he is charged, he may be convicted instead of a lesser included general intent offense. Yet in some cases there may be no related general intent offense on which conviction can be based, and complete acquittal will result. See, e. g., People v. Jones, 263 Ill. 564, 105 N. E. 744 (1914) (attempted burglary); Hall, [Intoxication and Criminal Responsibility, 57 Harv. E. Rev. 1045, 1062 (1944)]. Thus, the intoxicated offender may be denied exculpation, receive partial exculpation, or receive total exculpation, depending upon the nature of the crime with which he is charged. As one commentator concludes: “It is thus apparent that the criminal liability of the grossly intoxicated offender depends upon the crime fortuitously committed while incapacitated.” Note, Volitional Fault and the Intoxicated Criminal Offender, 36 U. Cin. L. Rev. 258, 276 (1967). [Comment, 61 Minn. L. Rev. 901, 904 n. 14 (1977)]

The Del Vecchio approach may free defendants of specific intent offenses even though the harm caused may be greater than in an offense held to require only general intent. This course thus undermines the criminal law’s primary function of protecting society from the results of behavior that endangers the public safety. This should be our guide rather than concern with logical consistency in terms of any single theory of culpability, particularly in view of the fact that alcohol is significantly involved in a substantial number of offenses.³ The demands of public safety and the harm done are identical irrespective of the offender’s reduced ability to restrain himself due to his drinking.⁴ “[I]f a person casts off the restraints of reason and consciousness by a voluntary act, no wrong is done to him if he is held accountable for any crime which he may commit in that condition. Society is entitled to this protection.” McDaniel v. State, 356 So. 2d 1151, 1160-1161 (Miss. 1978).

Until a stuporous condition is reached or the entire motor area of the brain is profoundly affected,⁵ the probability of the existence of intent remains. The initial effect of alcohol is the reduction or removal of inhibitions or restraints. But that does not vitiate intent. The loosening of the tongue has been said to disclose a person’s true sentiments — “in vino veritas.” One commentator has noted:

The great majority of moderately to grossly drunk or drugged persons who commit putatively criminal acts are probably aware of what they are doing and the likely consequences. In the case of those who are drunk, alcohol may have diminished their perceptions, released their inhibitions and clouded their reasoning and judgment, but they still have sufficient capacity for the conscious mental processes required by the ordinary definitions of all or most specific mens rea crimes. For example, a person can be quite far gone in drink and still capable of the conscious intent to steal, which is an element of common law larceny. [Murphy, “Has Pennsylvania Found a Satisfactory Intoxication Defense?”, 81 Dich. L. Rev. 199, 208 (1977) (citations omitted)]

When a defendant shows that he was comatose and therefore could not have broken and entered into the home or committed some other unlawful activity, such stage of intoxication may be relevant in establishing a general denial. But short of that, voluntary intoxication, other than its employment to disprove premeditation and deliberation in murder, should generally serve as no excuse. In this fashion the opportunities of false claims by defendants may be minimized and misapplication by jurors of the effect of drinking on the defendant’s responsibility eliminated.

The significance of the common law approach to voluntary intoxication should not be overlooked. Our criminal law is grounded in large measure in the common law because of its incorporation by our constitutions and statutes.⁶ Our first constitution expressly included the common and statutory laws of England. N. J. Const. (1776), par. 22. This incorporated by reference has been retained in subsequent constitutions. N. J. Consi. (1844), Art. X, par. 1; N. J. Const. (1947), Art. XI, § I, par. 3. See State v. Young, 77 N. J. 245, 249-250 (1978).

The Legislature has followed this pattern since 1796 by stating that all offenses of an indictable nature at common law that are not expressly provided for by statute are crimes. An Act for the Punishment of Crimes, par. 68, adopted March 18, 1796 (Laws of New Jersey 244, 262 (1821)); N. J. S. A. 2A:85-1. See State v. Bynes, 109 N. J. Super. 105 (App. Div. 1969), aff’d o.b. 55 N. J. 408 (1970).

At common law voluntary intoxication was not a defense. The earliest pronouncement is found in Reniger v. Fogossa, 1 Plow. 1, 19, 75 Eng. Rep. 1, 31 (Exch. Ch. 1551), which reads:

But where a man breaks the words of the law by involuntary ignorance, there he shall not be excused. As if a person that is drunk kills another, this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby. And Aristotle says, that such a man deserves double punishment, because he has doubly offended, viz. in being drunk to the evil example of others, and in committing the crime of homicide. And this act is said to be done ignoran ter, for that he is the cause of his own ignorance: and so the diversity appears between a thing done ex ignorantia, and ignorantes. [Citations omitted]

See Singh, “History of the Defence of Drunkenness in English Criminal Law,” 49 L. Q. Rev. 528, 530 (1933).. That remained the unwritten law at the time New Jersey attained statehood. Eor development of the law in England see Director of Public Prosecutions v. Beard, [1920] A. C. 479, 12 A. L. R. 846. Our holding today adheres to the central theme of that principle modified only by contemporary circumstances including scientific data on physiological effects of alcohol and our notions of fairness and rightness.

It might be suggested with some justification that we should adhere to the policy expressed in the new Code of Criminal Justice, effective September 1, 1979, N. J. S. A. 2C :98-4. However, the Deputy Attorney General implied at oral argument that the Legislature would be requested to modify the provisions dealing with intoxication and, in view of the possibility that the Legislature might act, in the interim we prefex to adhere to the principle enunciated in Mailc. We note that in Arkansas, a law based on the Model Penal Code’s provision for a defense of voluntary intoxication was repealed less than two years after it was enacted. Ark. Stat. Ann. § 41-207 (1977). The repealing legislation was made effective immediately by a finding of emergency which read in part “that the defense of voluntary intoxication is detrimental to the welfare and safety of the citizens of this State in that criminals are at times excused from the consequences of their criminal acts merely because of their voluntary intoxication * * 1977 Ark. Acts, No. 101, § 3. Similarly, Pennsylvania first enacted but then repealed a voluntary intoxication defense which was substantially the same as in the Model Penal Code. 18 Pa. Cons. Stat. Ann. § 308 (Purdon Supp. 1978) (prior version at 1972 Pa. Laws, No. 334).

The new Code of Criminal Justice provides that a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require. N. J. S. A. 2C :2-2. It also states that intoxication is not a defense “unless it negatives an element of the offense,” N. J. S. A. 2C:2-8(a), and that “[w]hen recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.” N. J. S. A. 2C:2-8(b). These provisions were taken from the Model Penal Code of the American Law Institute, § 2.08 (Prop. Off. Draft 1962). The American Law Institute Committee has explained that in those instances when the defendant’s purpose or knowledge is an element of a crime, proof of intoxication may negate the existence of either. Tent. Draft No. 9 at 2-9 (1959). The distinction between specific and general intent has been rejected. Id. at 4.

Purpose or knowledge has been made a component of many offenses so that voluntary intoxication will be an available defense in those situations. Thus, voluntary intoxication may be a defense to aggravated assaults consisting of attempts to cause bodily injury to another with a deadly weapon. N. J. 8. A. 20:12-l(b) (2). Intoxication could exonerate those otherwise guilty of burglaries and criminal tresspass. N. J. 8. A. 2C :18-2; 2C :18-3. It would be an available defense to arson, N. J. 8. A. 2C :17-1, robbery, N. J. 8. A. 2C:19-1, and theft, N. J. 8. A. 2C:20-3. It could reduce murder to manslaughter, N. J. 8. A. 2C :ll-3, 2C :ll-4, and excuse shoplifting, N. J. 8. A. 2C:20-ll,(b). The Code would also permit the incongruous result of permitting intoxication to be a complete defense to an attempted sexual assault (rape), N. J. 8. A. 2C :5-l, but not of a completed sexual assault, N. J. 8. A. 20:14-2. Whether the Legislature will retain any or all these provisions remains to be seen.

Our holding today does not mean that voluntary intoxication is always irrelevant in criminal proceedings.⁷ Evidence of intoxication may be introduced to demonstrate that premeditation and deliberation have not been proven so that a second degree murder cannot be raised to first degree murder or to show that the intoxication led to a fixed state of insanity. Intoxication may be shown to prove that a defendant never participated in a crime. Thus it might be proven that a defendant was in such a drunken stupor and unconscious state that he was not a part of a robbery. See State v. Letter, 4 N. J. Misc. 395, 133 A. 46 (Sup. Ct. 1926). His mental faculties may be so prostrated as to preclude the commission of the criminal act. Under some circumstances intoxication may be relevant to demonstrate mistake. However, in the absence of any basis for the defense, a trial court should not in its charge introduce that element. A trial court, of course, may consider intoxication as a mitigating circumstance when sentencing a defendant.

Although the evidence in the record demonstrates that the defendant assaulted Klimek while possessed with a knife and that his mental faculties were not prostrated, we are disturbed by the trial court’s ruling which precluded the defendant from taking the stand. Defense counsels proffer of proof that the defendant had been in the tavern between 7:00 a.m. and 5:30 p.m., that he had been drinking most of the day, and that he did not remember anything about the offense could possibly lead to the conclusion that he did not commit the assault. In that event the effect of the voluntary -intoxication would demonstrate a denial of the assault. However, if the attack did occur, then the voluntary intoxication would not serve as a defense, even though the defendant could not remember the event. It would have been far better practice for the trial court not to have made its ruling at some unrecorded conference in chambers. The court should have waited until the issue was reached at trial when evidence of intoxication was offered. Permitting defendants to withhold evidence because of an expected jury instruction focuses the trial on appellate review rather than on producing the evidence at the trial. As the Attorney General cogently comments in his brief, "Any defendant who is dissatisfied with the state of the law could refrain from presenting proofs, take his chance with the verdict and, if found guilty, have a potential defense preserved on appeal.” Under the circumstances here, we are constrained to grant the defendant a new trial.

The defendant also contends that the trial court erred when it charged:

Our law provides that one who commits or attempts to commit a robbery when armed with or having in his possession any dangerous knife shall in addition to the punishment provided for the crime be punished by a further punishment. Our law further provides that in the trial of a person for attempting to commit robbery the fact that he [was] armed with or had in his possession any dangerous instrument is prima faoie evidence of his intention to commit the crime with the dangerous instrument. Here again the burden of proof is on the State to prove the allegation of the second count beyond a reasonable doubt. This burden never shifts. [Emphasis supplied]

Defense counsel, relying upon State v. Humphreys, 54 N. J. 406 (1969), excepted to the court’s assertion that possession of the knife was prima facie evidence of intent to commit the crime. The narrow issue raised is the alleged impropriety of the use of the phrase prima facie, the defendant having acknowledged the applicability of N. J. S. A. 2A:151-6 which recites that possession of a dangerous instrument (defined to include a knife, N. J. S. A. 2A:151-5) “is prima facie evidence of his intention to commit said crime with said * * * dangerous instrument.”

In State v. Humphreys, supra, the trial court charged the language of N. J. S. A. 2A:151-7, “The presence of a firearm * * * in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time.” This was held to be error. The Court, noting the distinction between a presumption and an inference, stated that a jury must be carefully informed that it is within the jury’s province to decide whether an inference may and should be drawn from the facts and that the jury could have been misled by use of the term "presumptive evidence.” 54 N. J. at 415.

Though the word "presumption” or one similar to it was not used in the charge in this case, and we find that State ¶. Humphreys, supra, is not apposite, a trial court should not assume that jurors have a correct understanding of the phrase "prima facie.” State v. Ruggiero, 41 N. J. 4, 6 (1963). Better practice dictates that such a phrase be eliminated. The jury should be instructed in terms of inferences which may or may not be drawn from a fact, the jury being at liberty to find the ultimate fact one way or the other.

The judgment of the Appellate Division is affirmed.

Footnotes

1

Contrary to R. 1:2-2, these proceedings were not recorded.

2

Some form of mens rea is an element of all offenses except strict liability crimes. See State v. Savoie, 67 N. J. 439, 454-461 (1975).

3

See Wilentz, “The Alcohol Factor in Violent Deaths,” 12 Am. Pract. Digest 829 (1961); Goodwin, Crane & Guze, “Felons Who Drink,” 32 Q. J. Stud. Ale. 136 (1971) ; McGeorge, “Alcohol and Crime,” 3 Med. Sci. & L. 27 (1963). A study in 77 rape cases reflected that 50% of the offenders had been drinking. Rada, “Alcoholism and Forcible Rape,” 132 Am. J. Psychiatry 4 (1975). Analysis of many studies reflects a high ratio of offenders who have imbibed to those who have not in violent crimes. See K. Pernanen, “Alcohol and Crimes of Violence,” in 4 The Biology of Alcoholism 351 (B. Kissin & H. Begleiter eds. 1976).

4

This position is consistent with the .treatment accorded voluntary intoxication in tort law. Restatement (Second) of Torts § 2830, Comment d (Tentative Draft No. 4, 1959); W. Prosser, Torts § 32 at 154 (4th ed. 1971).

5

There is some evidence that at 0.20% of alcohol in the blood, the typical individual would normally fall into that category. Greenberg, “Intoxication and Alcoholism: Physiological Factors,” 315 Annals Am. Acad. Pol. & Soc. Sci. 22, 27 (1958). The motor vehicle .statute presumes a driver is under the influence of liquor if the percentage is 0.10% or more. N. J. S. A. 39:4-50.1(3). Of course, the precise effects of a particular concentration of alcohol in the blood varies from person to person depending upon a host of other factors. See generally Perr, “Blood Alcohol Levels and ‘Diminished Capacity’,” 3 (No. 4) J. Legal Med. 28-30 (April 1975).

6

An argument could be made that the substance of our criminal law, unless modified by the Legislature, remained frozen in the status in which it existed when the Constitution was adopted. Authority for this premise might be found in the positions of Vermont Chief Justice Chipman and Supreme Court Justice Johnson. The Vermont Chief Justice wrote in 1793 that “no Court, in this State, ought ever to pronounce sentence of death upon the authority of a common law precedent, without the authority of a Statute.” Dissertation on the Act Adopting the Common and Statute Laws of England, quoted in M. Hortoitz, The Transformation of American Law 1780-1860 14 (1977). Supreme Court Justice William Johnson asserted that in the colonies “the adoption of the Common Law [of crimes] depended upon the voluntary act of the legislative power of the several States.” The Trial of William Butler for Piracy (1813?) quoted in Horwitz, op. cit. at 15. See J. Goodenow, Historical Sketches of the Principles and Maxims of American Jurisprudence (1819), quoted in Hortoitz, op. cit. at 15-16.

We have not accepted this proposition. In State v. Toscano, 74 N. J. 421, 432 (1977), Justice Pashman commented, “[W]e are guided only by common law principles which conform to the purposes of our criminal justice system and reflect contemporary notions of justice and fairness.”

7

While we recognize that the rule we announce here is at odds with the rule in a number of other jurisdictions, see Annot., 8 A. L. R. 3d 1236 (1966), it is in accord with the holding in several other states. See McDaniel v. State, 356 So. 2d 1151 (Miss. 1978) (armed robbery; court made rule); State v. Vaughn, 268 S. C. 119, 232 S. E. 2d 328 (1977) (house-breaking and assault with intent to ravish; court made rule); Commonwealth v. Geiger, 475 Pa. 249, 380 A. 2d 338 (1977) (by statute); McKenty v. State, 135 Ga. App. 271, 217 S. E. 2d 388 (1975) (by statute); State v. Cornwall, 95 Idaho 680, 518 P. 2d 863 (1974) (by statute); Rodriquez v. State, 513 S. W. 2d 594 (Tex. Crim. App. 1974) (by statute); State v. Richardson, 495 S. W. 2d 435 (Mo. 1973) (second1 degree murder; court made rule); Chittum v. Commonwealth, 211 Va. 12, 174 S. E. 2d 779 (1970) (kidnapping and attempted rape; court made rule). See also Ark. Stat. Ann. § 41-207 (1977), discussed supra at 481.