[207 NJSuper Page 341] This is an appeal from a municipal court conviction for violating N.J.S.A. 39:4-50(a), by permitting another person who was "under the influence of intoxicating liquor" or who had a "blood alcohol concentration of 0.10% or more" to operate defendant's motor vehicle. The case raises the unresolved question of whether, in a prosecution for that offense, the State must show that the owner of the vehicle either knew or reasonably should have known of the driver's condition.*fn1
The municipal court held that no such showing was required. Indeed, it expressly declined to find that defendant knew or should have known that the driver was intoxicated or had a blood alcohol concentration beyond the proscribed amount. Instead it based its determination of defendant's guilt entirely on its finding that defendant had permitted another to drive his vehicle and that the driver was subsequently found to have a blood alcohol concentration of more than .10% while driving the vehicle.
The question presented here has been addressed twice before by trial courts in New Jersey. In State v. Carlston, 40 N.J. Super. 559 (Cty.Ct.1956) the court found, as the municipal court found here, that since the words of the statute did not expressly refer to the vehicle owner's knowing (or having reason to know) of the driver's condition, there was no reason to imply such a requirement. In State v. Wetmore, 121 N.J. Super. 90 (Cty.Ct.1972) the court reached the opposite conclusion, noting that in interpreting criminal statutes courts have frequently implied a requirement of "knowledge" notwithstanding the absence of express language so stating.*fn2
The question was also presented once to the Appellate Division. However, in State v. Gormley, 139 N.J. Super. 556 (App.Div.1976) the court concluded that the case before it did not require resolution of the issue. Instead, it said it would "leave for another day" a choice between
the holding in State v. Carlston, 40 N.J. Super. 559 (Cty.Ct.1956), that knowledge by the owner of the driver's intoxication is not an essential element of the offense, or the contrary holding in State v. Wetmore, 121 N.J. Super. 90 (Cty.Ct.1972). [at 560]
The present case does require resolution of that issue. Here, notwithstanding the driver's guilty plea to a charge of driving while intoxicated, there is no basis on which this court, in its de novo review of the record, R. 3:23-8, could find beyond a reasonable doubt that the defendant knew or reasonably should have known of that condition.
The driver here was Robert Fischer a friend of defendant. He was driving defendant's automobile (with defendant sitting next to him) when the vehicle was stopped at a "DWI checkpoint" by police conducting random examinations of passing motorists. They were not stopped because of any driving violation nor is there any indication of erratic or improper driving.
After being stopped, Fischer and defendant were taken to the police station where Fischer submitted to a breathalyzer analysis and performed a standard series of tests. The breathalyzer showed a blood alcohol concentration of .15%. A video tape of Fischer's performance of the standard tests was shown at the municipal court trial and was also viewed by this court. It shows an almost flawless performance.
Pursuant to instructions by the police, Fischer walked the required straight line. He closed his eyes and touched his nose
a number of times, accurately and without hesitation. He bent over and straightened up with no loss of balance. He recited the alphabet with no mistakes. He was neatly dressed, cooperative and polite. At no time did he sway or stagger. In short, he showed no signs of intoxication.
According to defendant, he and Fischer had been together for about two hours before they were stopped. They had planned to go fishing the next day and were driving to defendant's house to get an early start in the morning. Fischer was driving because defendant was tired. Fischer, defendant said, had drunk "two beers" while the two were together and had showed no signs of intoxication. He had no difficulty in speaking or walking and he drove the car smoothly. In defendant's words, he "did a very good job," and, said defendant, if Fischer "had given me any indication that he was intoxicated and not in control of the vehicle," defendant would not have permitted him to drive the car. Since there is no indication that defendant was under the influence of ...