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State v. Tischio

Decided: June 30, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN E. TISCHIO, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 208 N.J. Super. 343 (1986).

For affirmance -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal and remandment -- Justice Clifford. The opinion of the Court was delivered by Handler, J. Clifford, J., dissenting.

Handler

This appeal requires the Court to interpret N.J.S.A. 39:4-50(a). This statute makes it unlawful for a person to operate "a motor vehicle . . . with a blood alcohol concentration of 0.10% or more by weight of alcohol in the [person's] blood." Specifically, we must decide whether, under the statute, a blood-alcohol level of at least 0.10%, determined solely by a breathalyzer test that is administered within a reasonable time after a defendant's arrest for drunk driving, satisfies the statute; or whether extrapolation evidence, which uses the results of such a breathalyzer test to demonstrate the blood-alcohol level at the time defendant was actually driving, is either required or permitted to establish the statutory offense. Restated, the issue is whether it is the blood-alcohol level at the time of the breathalyzer test or at the time of the operation of the motor vehicle that is essential in establishing the statutory offense.

We now hold that a defendant may be convicted under N.J.S.A. 39:4-50(a) when a breathalyzer test that is administered within a reasonable time after the defendant was actually driving his vehicle reveals a blood-alcohol level of at least 0.10%. We rule that it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the offense. Consequently, we hold further that extrapolation evidence is not probative of this statutory offense and hence is not admissible. Accordingly, we affirm the judgment of the Appellate Division.

I.

The facts that give rise to this appeal are not disputed. On April 11, 1984, at approximately 8:15 p.m., defendant, John

Tischio, was stopped by Officer DeAmoria of the Metuchen Police Department for allegedly operating his automobile in an erratic manner. After DeAmoria smelled alcohol on defendant's breath and observed defendant sway and stagger, he placed defendant under arrest for driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a). At the time of his arrest, defendant admitted that he had drunk three or four beers prior to operating the automobile.

Defendant was then taken to police headquarters where he underwent certain balancing tests. The results of these tests were largely inconclusive. At approximately 9:15, one hour after defendant was stopped, defendant was administered a breathalyzer test. A second test was conducted at approximately 9:24. The result of each test was a blood-alcohol reading of .11%.

The matter was tried in the Metuchen Municipal Court on November 2, 1984. The State's case consisted of Officer DeAmoria's testimony and the results of the breathalyzer tests. At the close of the State's evidence, defendant moved for a judgment of acquittal, asserting that the State had failed to produce any evidence as to his blood-alcohol level at the time he was actually driving. The Municipal Court denied defendant's motion. Defendant then presented expert testimony to the effect that if his blood-alcohol level was .11% at 9:15 and 9:24 then, at the time of the stop, his blood-alcohol level was only .07%.

The Municipal Court concluded that, based upon the physical evidence, it had a substantial doubt as to defendant's guilt of driving while under the influence, the alternative standard for conviction under N.J.S.A. 39:4-50(a). However, it found defendant guilty of driving with a blood-alcohol concentration of .10% or more, contrary to N.J.S.A. 39:4-50(a). Thereafter, a trial de novo was held in the Superior Court, Law Division, Middlesex County. That court also concluded that defendant

was guilty of driving with a blood-alcohol level of .10% or more in violation of N.J.S.A. 39:4-50(a).

Defendant then filed an appeal with the Appellate Division. Defendant reiterated his assertion that he was entitled to an acquittal because the State had failed to prove that his blood-alcohol concentration was .10% or more at the time he was actually operating his vehicle. The Appellate Division held that N.J.S.A. 39:4-50(a) is violated when the administration of a breathalyzer test "produces a reading of .10 percent blood alcohol or greater at any time after operation [of a motor vehicle] so long as there has been no ingestion of alcohol between the time of operation and the time of testing." State v. Tischio, 208 N.J. Super. 343, 347 (App.Div.1986) (emphasis added). Consequently, the court affirmed the conviction, ruling that expert testimony extrapolating the test results to demonstrate a lower blood-alcohol level at the time of actual driving is irrelevant.

On June 3, 1986, we denied defendant's petition for certification. Defendant moved for reconsideration of this denial and, on August 5, 1986, this motion was granted. 105 N.J. 518.

II.

In this case, both parties have assumed that the relevant time for determining defendant's blood-alcohol level, under N.J.S.A. 39:4-50(a), is at the time he was actually operating the motor vehicle. Consequently, the litigation focused upon who -- the State or the defendant -- had the burden of relating breathalyzer test results back to the time when defendant was operating his vehicle. On this issue, the Appellate Division rejected defendant's contention that the State, as part of its case in chief, must produce extrapolation evidence. The court held:

[W]e do not accept defendant's premise that the State, after obtaining a breathalyzer reading of .10 percent or greater, must demonstrate through clear scientific evidence or expert testimony that the blood alcohol level was greater

than .10 percent at the exact time of operation of the vehicle. [ Tischio, supra, 208 N.J. Super at 347.]

However, the court went further and held:

The statute [ N.J.S.A. 39:4-50(a)] 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 on the issue of the blood alcohol level at the time of operation is unnecessary. [Id. (emphasis added.)]

Defendant's contention that N.J.S.A. 39:4-50(a) permits the introduction of extrapolation evidence is based on the premise that the statute clearly and unambiguously prohibits a .10% blood-alcohol concentration only at the time of operation. Defendant relies on State v. Allen, 212 N.J. Super. 276, 282 (Law Div.1986), where the trial court adopted this position, stating that the statutory language "leaves little room for interpretation."

The statute states in relevant part:

A person who operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood . . . shall be subject [to penalties.]

This language literally defines the offense as involving two necessary elements -- a prohibited blood-alcohol level and the operation of a motor vehicle -- and seemingly requires that both occur together. While the coincidence of the two statutory elements arguably is required to establish the offense, other considerations militate against such an interpretation. These include the fact that the statute is not plain and unambiguous on its face, that the legislative intent and purpose are contrary to such an interpretation, that the overall legislative scheme for the enforcement of drunk-driving laws would be impeded by such an interpretation, that the history of the legislation directs us to a different interpretation, and that overriding considerations of public policy would be disserved by such an interpretation.

We first examine whether N.J.S.A. 39:4-50(a) is plain and unambiguous on its face; or, to state the issue another way,

whether the statute is susceptible of application according to its literal terms.

A moment's reflection indicates that the statute is not unambiguous and that it cannot be applied literally. The statute expressly contemplates the administration of a breathalyzer test to determine blood-alcohol concentration. Indeed, the determination of blood-alcohol levels through chemical or breathalyzer tests is the linchpin of New Jersey's drunk-driving statutes. See Romano v. Kimmelman, 96 N.J. 66 (1984). Although the statute does not refer to the time of testing, it is obvious that a breathalyzer test cannot be administered while a defendant is driving his motor vehicle. Thus, the blood-alcohol level determined by a breathalyzer test can never automatically coincide with the time of the defendant's actual operation of his motor vehicle, as suggested by the literal language of the statute. This raises at least two possible interpretations of the statutory offense. One is that a .10% blood-alcohol level determined by a breathalyzer test made within a reasonable time of defendant's operation alone satisfies the statute. The other is that some evidentiary process -- not discernible on the face of the statute -- must be invoked to relate breathalyzer test results to the time when the defendant was actually driving.*fn1 The question is which interpretation comports with the true meaning of the statute.

It is settled that the most important factor in construing a statute is the intent of the Legislature. Perez v. Pantasote, Inc., 95 N.J. 105, 114 (1984). We have consistently stated that:

In reading and interpreting a statute, primary regard must be given to the fundamental purpose for which the legislation was enacted. Where a literal rendering will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter. This doctrine permeates our case law. [ N.J. Builders, Owners and Managers Association v. Blair, 60 N.J. 330, 338 (1972).]

See also Wollen v. Borough of Fort Lee, 27 N.J. 408, 418 (1958) ("The inquiry in the final analysis is the true intention of the law; and, to this end, the particular words are to be made responsive to the essential principle of the law. It is not the words but the internal sense of the law that controls."). We are mindful of the fact that N.J.S.A. 39:4-50(a) is penal in nature and, therefore, should be strictly construed. State v. Grant, 196 N.J. Super. 470, 480-81 (App.Div.1984). Nevertheless, even when dealing with a criminal statute, "the goal of the interpretive process is to ascertain the intent of the legislature. 'All rules of construction are subordinate to that obvious proposition.'" Id. at 481 (quoting State v. Provenzano, 34 N.J. 318, 322 (1961)). Thus, "the words of [a penal statute] are to be accorded a rational meaning in harmony with the obvious intent and purpose of the law." State v. Brown, 22 N.J. 405, 415 (1956).

A compelling parallel to this case, illustrating how criminal laws must be construed to effectuate legislative intent, can be found in the Court's interpretation of New Jersey's criminal statutes involving the use of guns, particularly our treatment of the Graves Act, N.J.S.A. 2C:43-6(c). The Graves Act provides that anyone who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of certain designated crimes shall be sentenced to prison for a mandatory minimum term prescribed by the Act. In State v. Des Marets, 92 N.J. 62 (1983), we held, inter alia, that the "possession" of a firearm, for purposes of the Act, need not be possession with intent to use. Id. at 65. We have also held that "possession" of a firearm includes constructive possession, State v. Stewart, 96 N.J. 596, 604 (1984), and that the "firearm" involved in a Graves Act offense need not be proven operational

in order for the Act's sanctions to apply. State v. Gantt, 101 N.J. 573, 577 (1986). Finally, we have ruled that an accomplice who is convicted only of an unarmed offense is subject to Graves Act penalties if he knew a weapon would be used in the commission of the crime. State v. White, 98 N.J. 122, 126 (1984).

The point of these cases is our recognition that the intent and purpose of the Legislature, the "special objectives" of the Graves Act, mandated that we go beyond the literal language of the statute. Id. at 131-32. We realized that, notwithstanding the penal nature of the statute, a strict or literal interpretation was not consistent with the legislative goal. State v. Des Marets, supra, 92 N.J. 62. We are similarly enjoined to give our drunk-driving statutes the pragmatic and flexible interpretations necessary to effectuate the Legislature's regulatory aims, while honoring the due process limitations necessarily attendant upon the law's penal sanctions.

The primary purpose behind New Jersey's drunk-driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers. In State v. D'Agostino, 203 N.J. Super. 69, 72 (Law Div.1984), the court stated:

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," and "exceeds the death total of all our wars". . . . [T]raffic 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. (citations omitted).

See also State v. Johnson, 42 N.J. 146, 165 (1964) (Noting "the common knowledge that a great number of serious accidents have involved drinking drivers -- a fact which becomes of greater importance and public concern almost daily in this motor age with ever increasing vehicle speeds, the constantly growing number of vehicles on the roads and the staggeringly mounting accident toll."); State v. Grant, supra, 196 N.J. Super. at 476

("[W]e are dealing with law enforcement efforts designed to curb one of the chief instrumentalities of human catastrophe, the drunk driver.")

Our courts have not hesitated to give a broad construction to the terms of N.J.S.A. 39:4-50(a) when a narrow or literal interpretation would frustrate the fundamental regulatory goals underlying New Jersey's drunk-driving laws. For example, with respect to the most pivotal phrase of the statute -- "operates a motor vehicle" -- the courts of this State have consistently adopted a practical and broad interpretation of this language in order to express fully the meaning of the statute. A pragmatic definition of this term is necessary in order to effectuate the legislative intent to deal with the risk that intoxicated drivers will cause harm to themselves and to others who use the roadways of this State, a danger that frequently arises even before an intoxicated person may have put his or her car in motion. Thus, while the statute refers to the operation of a motor vehicle, actual operation is not required to satisfy this element of the statutory offense. See State v. Sweeney, 40 N.J. 359, 360-61 (1963) (a person may be "operating" a motor vehicle, within the meaning of N.J.S.A. 39:4-50(a), even when the vehicle has not been moved). We have consistently ruled that a defendant's intent to operate a motor vehicle can constitute "operation" within the meaning of the statute. See, e.g., State v. Sweeney, supra, 40 N.J. 359; State v. Stiene, 203 N.J. Super. 275, 279 (App.Div.1985); State v. Prociuk, 145 N.J. Super. 570, 574 (1976). The vigor of this interpretative theme is exemplified in our most recent decision, rendered this term, State v. Mulcahy, 107 N.J. 467 (1987). There, the Court once again applied a pragmatic understanding of "operating a motor vehicle" consistent with the underlying legislative purpose. We ruled that the apparently intoxicated defendant's attempt to put his key into the automobile ignition constituted operation of a motor vehicle within the meaning of the drunk-driving

statutes.*fn2 We are thus strongly impelled to construe the terms of N.J.S.A. 39:4-50(a) flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk-driving laws.

In construing N.J.S.A. 39:4-50(a), we must also consider the entire gamut of statutory and regulatory law dealing with the societal dilemma of drunk-driving. This examination reflects the traditional interpretative guide to construe the terms of a statute in context, in pari materia. State v. Brown, 22 N.J. 405, 415 (1956). The overall scheme of these laws reflects the dominant legislative purpose to eliminate intoxicated drivers from the roadways of this State. To this end, the Legislature, working in tandem with the courts, has consistently sought to streamline the implementation of these laws and to remove the obstacles impeding the efficient and successful prosecution of those who drink and drive. One such impediment has been the introduction of conflicting expert testimony at trials under N.J.S.A. ...


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