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 ...