State v. Tischio

527 A.2d 388, 107 N.J. 504, 1987 N.J. LEXIS 330
CourtSupreme Court of New Jersey
DecidedJune 30, 1987
StatusPublished
Cited by169 cases

This text of 527 A.2d 388 (State v. Tischio) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tischio, 527 A.2d 388, 107 N.J. 504, 1987 N.J. LEXIS 330 (N.J. 1987).

Opinions

The opinion of the Court was delivered by

HANDLER, J.

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 O. 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.

I.

The facts that give rise to this appeal are not disputed. On April 11, 1984, at approximately 8:15 p.m., defendant, John [507]*507Tischio, 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 [508]*508was 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 (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.

II.

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 [509]*509than .10 percent at the exact time of operation of the vehicle. [Tischio, supra, 208 N.J.Super at 347.]

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 (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.

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Cite This Page — Counsel Stack

Bluebook (online)
527 A.2d 388, 107 N.J. 504, 1987 N.J. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tischio-nj-1987.