Defendant, Bruce Allen, was arrested and charged with driving while intoxicated ("DWI"). He was given two breathalyzer tests which produced consecutive readings of 0.13% and 0.14%. Allen claimed that his blood alcohol content at the time of the arrest was less than the statutorily mandated minimum reading of 0.10%. N.J.S.A. 39:4-50(a). He was prepared to produce expert testimony in support of this claim.
Allen was subject to the ruling in State v. Tischio, 208 N.J. Super. 343 (App.Div.1986), certif. den. 104 N.J. 420 (1986), which involved a defendant charged with DWI whose breathalyzer reading was 0.11%. Defendant, Tischio, argued that "it was necessary for the State to introduce evidence through an officer or independent expert to prove . . . [his] blood alcohol level at the critical time of operation." Id. at 346-347. The court held:
The statute 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 of the issue of the blood alcohol level at the time of operation is unnecessary. [ Id. at 347]
The court did not deny the admissibility of expert defense testimony extrapolating the breathalyzer readings to prove blood alcohol level at the time of driving. It simply denied any obligation on the part of the State to produce such testimony.
Tischio has been widely misread. Municipal court judges are refusing to permit expert extrapolation testimony in DWI cases because they interpret Tischio as denying its admissibility. (Six appeals from such rulings are now pending in this court.) Such is the case here. Defendant, who was prepared to offer such expert testimony, made a pretrial motion in the municipal court requesting a ruling on his right to do so. The court held that the expert would not be permitted to testify. An interlocutory appeal followed. This opinion holds that Tischio does not bar the proposed expert testimony and reverses the ruling below.*fn1
No doubt some misinterpretation of Tischio resulted from the following statements in the Appellate Division's opinion:
If defendant's position was accepted and the violation construed to obtain only where the blood alcohol reading could be extrapolated to show that there was a .10 percent or greater blood alcohol concentration at the time of operation an anomalous result would occur. An operator who had imbibed sufficient alcohol to result in a blood alcohol concentration above the statutory limit could not be convicted if apprehended prior to the blood alcohol concentration passing that level, even though its occurrence is assured. How much further down the road one may drive after drinking before the operation becomes unlawful would vary from driver to driver, but in the meantime all who consume enough alcohol would sit as moving time bombs which could not be disarmed because the offending alcohol has not yet been sufficiently concentrated in the blood.
The law was not intended to encourage a perilous race to reach one's destination, whether it be home or the next bar, before the blood alcohol concentration reaches the prohibited level. [208 N.J. Super. at 347-348]
The only issue raised in Tischio involved the State's burden of proof: Was it required to extrapolate the breathalyzer evidence in order to prove that defendant had a 0.10% or greater blood alcohol content when he was driving? The court held that the State did not have that burden. Its "time bomb" commentary was gratuitous -- unnecessary to the decision of the issue raised in the appeal. It is ...