Does proof of driving a motor vehicle with a blood alcohol concentration of .10% or more, without any other evidence, compel a conviction under N.J.S.A. 39:4-50(a)? And if so, is the statute constitutional?
N.J.S.A. 39:4-50(a), as amended April 7, 1983, proscribes ". . . operat[ing] a motor vehicle while under the influence of intoxicating liquor . . . or. . . with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood . . ." [emphasis added.] The statute proscribes two distinctly different offenses. One is the long standing offense of driving a motor vehicle while under the influence of alcohol, and the other is the new offense of driving a motor vehicle with a blood alcohol concentration of .10% or more.
This appeal stems from an incident that arose on the night of October 11-12, 1983. After consuming one glass of wine at dinner, the defendant stopped at the Bedminster Inn where he had either two or three drinks of brandy on the rocks. He left the Inn at about 12:35 a.m., proceeded north on Route 202, and swerved when passing a police vehicle traveling in the opposite lane. The police officer followed the defendant, noted his vehicle drifting from side to side, albeit always in his lane, and based upon his observations stopped the defendant. The officer smelled alcohol so he administered psychophysical tests, which resulted in the defendant being arrested and brought to police headquarters, where psychophysical tests were re-administered and at about 1:40 a.m. two breathalyzer tests were given, one registering .18% and the other .19% of blood alcohol. Defendant was convicted in the municipal court of operating a
motor vehicle with a blood alcohol concentration in excess of 0.10%. This appeal is de novo on the record, except for videotapes of the tests performed at police headquarters which were personally examined by this court.
The necessity for stringent drunk driving laws has received widespread and nearly unanimous support in an increasing crescendo in the last several decades throughout this nation. "The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield", Breithaupt v. Abram, 353 U.S. 432, 439, 77 S. Ct. 408, 412, 1 L. Ed. 2d 448 (1975), and "exceeds the death total of all our wars". Perez v. Campbell, 402 U.S. 637, 658, 91 S. Ct. 1704, 1715, 29 L. Ed. 2d 233 (1971) (Blackmun J., concurring). As noted by Chief Justice Burger in Mackey v. Montrym, 443 U.S. 1, 18, 99 S. Ct. 2612, 2621, 61 L. Ed. 2d 231 (1979), traffic deaths in the United States commonly exceed 50,000 annually and approximately one-half of these fatalities are alcohol related. Drastic remedies were necessary to reduce the senseless carnage on our highways.
The new language of N.J.S.A. 39:4-50(a) could hardly be more lucid. No longer does a reading of .10% or more merely create, as in the past, a rebuttable presumption that a driver was under the influence of alcohol; it now constitutes a criminal offense. In unvarnished language the statute "contains no presumption but, rather, an outright ban on driving with a .10% BAC." Fuenning v. Super. Ct. In & For Cty. of Maricopa, 139 Ariz. 590, 680 P. 2d 121, 126 (1983). "[T]he statute does not presume, it defines" and "is an [alternative] method of committing the crime of driving while under the influence" of alcohol. State v. Franco, 96 Wash. 2d 816, 639 P. 2d 1320, 1323 and 1325 (1982). The April 7, 1983 release of Governor Kean announcing his signing of the bill creating the new offense said, "[t]his bill removes the presumption of intoxication and makes it a crime to have [a .10%] level of blood alcohol."
Thus, under the 1983 Amendment, the issue no longer is whether the defendant was drunk. Or whether he was under the influence of alcohol. Or whether his driving ability was impaired in any fashion. Rather the sole and rather simple issue is whether he operated a motor vehicle with a blood alcohol concentration of .10% or more. If he did, he is guilty, no matter how the alcohol affected him personally. Neither other evidence nor opinions of intoxications are necessary to convict.
The purpose of the statute is not to relieve the State of its burden to prove the defendant's guilt beyond a reasonable doubt or to shift to the defendant the burden to prove his innocence. It:
The intent of the statute being plain, is it constitutional? The defendant contends that a statute which creates a standard of conduct that the average person does not know he is violating is void for vagueness because it denies him due process of law under the 14th Amendment. He argues that a person of ordinary intelligence does not know when his blood alcohol concentration is .10% or more and, thus, he could be convicted of a crime without knowing that he was violating the law. It is basic that "an enactment is void for vagueness if its prohibitions are not clearly defined" because "laws [must] give the person of ordinary intelligence a reasonable ...