On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Gaulkin, Dreier and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
Defendant has appealed from a DWI conviction. N.J.S.A. 39:4-50(a). The municipal court of the Borough of Totowa and the Law Division successively imposed a $250 fine, $15 court costs, a $100 enforcement surcharge, and a six-month suspension of driving privileges.
Defendant was stopped for speeding. The trooper noted some outward signs of intoxication, arrested defendant, and later administered two breathalyzer tests. The readings were both exactly 0.10%. Although there was some additional evidence of intoxication (bloodshot eyes, mistakes in reciting the alphabet and some balance problems), defendant and his expert witness explained that defendant had physical disabilities that may have accounted for these symptoms. The municipal court and Law Division judges expressly declined to base their rulings upon any evidence other than the breathalyzer test results. Thus, defendant was convicted under that part of the statute which makes it an offense to operate "a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood. . . ." This part of the statute is referred to as establishing a per se offense.
Defendant's expert witness and the arresting trooper testified that the breathalyzer has an accuracy of plus and minus 0.10%. Therefore, the readings of 0.10% actually reflected a blood-alcohol concentration anywhere between .09 and .11%. The narrow issue is whether a 0.10% reading from a properly operated and properly functioning breathalyzer is sufficient to support a conviction under the per se section of the statute in light of the 0.01% tolerance. We deem this issue to present a question of legislative intent.
The per se offense was enacted in 1983 as part of a series of amendments to New Jersey's intoxicated driving statutes. It was established, in part, as a result of mounting scientific evidence that:
Most persons are impaired at 0.08 percent blood alcohol concentration, and it is generally agreed that almost everyone experiences reduced driving ability at and above 0.10 percent blood alcohol concentration. . . . [A] driver at 0.10 percent blood alcohol concentration is five to six times more likely to cause a crash than an alcohol-free driver. [ State v. Tischio, 107 N.J. 504, 516, 527 A.2d 388 (1987), quoting MOTOR VEHICLE STUDY COMMISSION, REPORT TO THE SENATE AND THE GENERAL ASSEMBLY OF 1975 at 141-142.]
The per se offense is committed if a person with a 0.10% blood alcohol concentration operates a motor vehicle. No other evidence of intoxication or impaired ability to drive is necessary. State v. D'Agostino, 203 N.J. Super. 69, 73, 495 A.2d 915 (Law Div.1984).
Tests for the determination of blood-alcohol levels, primarily the breathalyzer, have become essential tools in the implementation and enforcement of New Jersey's intoxicated driving statutes. State v. Tischio, 107 N.J. 504, 517, 527 A.2d 388 (1987), app. dism. 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988). The New Jersey Supreme Court examined the accuracy and reliability of breathalyzer tests for the first time in State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964). In Johnson, the Court recognized that breathalyzers were scientifically reliable and accurate tools to determine the alcohol content of the blood. Id. at 171, 199 A.2d 809. The Court held that breathalyzer results are admissible upon a showing that (1) the equipment was in proper working order; (2) the operator was qualified to administer the test; and, (3) the test was correctly administered. Ibid.
The New Jersey Supreme Court addressed another challenge to breathalyzer accuracy in Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984). The challenge involved the susceptibility of particular breathalyzer models to radio frequency interference. In discussing the challenge the Court ruled that "[the] Smith and Wesson Breathalyzer Models 900 and 900A are found to be scientifically reliable and accurate devices for determining the concentration of blood alcohol. Such scientific reliability shall be the subject of judicial notice in the trial of all
cases under N.J.S.A. 39:4-50." Id. at 82, 474 A.2d 1. It is noteworthy that the Court ...