On appeal from the Superior Court, Law Division, Middlesex County.
Antell, Shebell and Muir. The opinion of the court was delivered by Shebell, J.A.D.
Defendant John Tischio was stopped at approximately 8:15 p.m. on April 11, 1984 for allegedly operating his vehicle in an erratic manner. He advised the officer that he had three to four beers. After the officer smelled alcohol and observed defendant's knees sag and slight swaying and staggering he placed him under arrest and took him to headquarters for a breathalyzer examination. The first test was conducted at 9:15 and the second at 9:24 p.m. Each reading was .11 percent blood alcohol.
Defendant testified in the municipal court that he was not under the influence. He stated he left a cafe at 8:00 p.m. after having had three glasses of tap beer which he identified as Genessee cream ale, beginning between 6:15 and 6:30 p.m. Defendant presented expert testimony to demonstrate that if the readings of blood alcohol were .11 percent at 9:15 and 9:24 p.m. that even if defendant had as many as five beers, at the time he drove between 8:00 and 8:15 his blood alcohol would have been below the .10 percent concentration set forth in N.J.S.A. 39:4-50(a).
Defendant was convicted in the municipal court of driving with a blood alcohol concentration of .10 percent or more. His conviction was affirmed in the Law Division.
Defendant appeals, alleging he was entitled to a judgment of acquittal at the conclusion of the State's case, his conviction was against the weight of the evidence, the court misapplied the burden of proof, the court committed error in allowing into evidence a breathalyzer certification card which had an alteration as to its date and that N.J.S.A. 39:4-50(a) is unconstitutional in that it violates due process.
The breathalyzer inspection certificates introduced as evidence on behalf of the State were admissible as an exception to the Hearsay Rule. State v. McGeary, 129 N.J. Super. 219, 226 (App.Div.1974). Defendant's position that one of the certifications was not properly authenticated because there was an alteration as to the date is without merit. The report was signed by the New Jersey State Trooper who carried out the inspection and the date change had initials next to it which corresponded to the trooper's name. We are satisfied under the circumstances that the trial judge did not abuse his discretion in admitting the certification in evidence.
Defendant urges us to declare the 1983 amendment to N.J.S.A. 39:4-50(a) unconstitutional in that it created a separate motor vehicle offense if a person "operates a motor vehicle with a blood alcohol concentration of .10 percent or more by way of alcohol in the defendant's blood. . . ." He asserts that this provision does not give fair warning to the ordinary individual of the prohibited conduct and as a result may trap the innocent. Defendant argues that:
The preciseness of the penalized conduct makes it virtually impossible for anyone to comply with the statute unless he/she is armed with a breathalyzer. No reasonable person can know when his blood alcohol content has gone from a .09% to a .10% without the aid of a mechanical device.
The constitutionality of the statute was settled in State v. Kreyer, 201 N.J. Super. 202 (App.Div.1985).
The municipal court judge convicted the defendant solely on the basis of the violation of the .10 percent standard after finding that based on the physical evidence he would have a substantial doubt as to whether defendant was guilty of operating a motor vehicle under the influence of intoxicating liquor. The Law Division appears to have affirmed on the same basis.
It is defendant's position that the State failed to prove the necessary elements of its case beyond a reasonable doubt because the .11 percent blood alcohol reading which was taken an hour after his arrest was higher than it would have been when ...