[243 NJSuper Page 689] The novel issue in this case is whether State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987) bars extrapolation evidence in
prosecutions under The Code of Criminal Justice, Title 2C; more particularly, N.J.S.A. 2C:12-1b(1) and -1c. Tischio held that extrapolation evidence was impermissible in per se violations of N.J.S.A. 39:4-50(a), provided the breathalyzer test was conducted within a reasonable period after the time of operation. Does that rule, however, prohibit extrapolation under other statutes? Does Tischio represent a blanket prohibition to all extrapolation evidence, under all circumstances? I hold that it does not. The defense motion to exclude such evidence is accordingly denied.
The facts of this case are uncomplicated. The State alleges that defendant was operating his vehicle at approximately 12:44 a.m. when it collided head-on with another vehicle. It is claimed that defendant was operating his automobile on the wrong side of the road. As a result of the collision, three victims, including a four-year-old child, each sustained serious bodily injury.
The police officer at the scene observed that defendant evinced signs of inebriation, including slowed speech and the smell of alcohol. Defendant stated to police that he had consumed six beers an hour before the collision. Blood samples were drawn from defendant for medical treatment purposes at 2:27 a.m., and another blood sample was drawn from defendant for law enforcement purposes at 3:10 a.m. Defendant's blood-alcohol concentration at 2:27 a.m. was 0.077%; at 3:10 a.m. it was 0.055%. Defendant was subsequently indicted for violating N.J.S.A. 2C:12-1b(1) and -1c.
N.J.S.A. 39:4-50(a) states:
A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, 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 fines as detailed].
The quoted statute is composed of two distinct and different prongs: first, the "under the influence" prong, and second, the "with a blood alcohol concentration (BAC) of 0.10% or more" prong. Culpability under the statute may be based
either on (1) conduct as a result of being under the influence of alcohol at the time of the wrongful act, or (2) the per se intoxication rule which was the issue in State v. Tischio.
Defendant's argument that Tischio bars extrapolation evidence in the instant case misreads Tischio. This Court interprets Tischio as relating strictly to the per se second prong of N.J.S.A. 39:4-50(a).
The Court in Tischio held that, provided the breathalyzer test was administered within a reasonable period of time, the BAC test result is the definitive and only BAC evidence admissible at trial. It is impermissible to extrapolate to show what the driver's BAC was at the time of operation, if the BAC test result was equal to or greater than 0.10%. The Supreme Court of New Jersey reached its ruling for "overriding considerations of public policy," Tischio, 107 N.J. at 509, 527 A.2d 388, and was not persuaded by the argument that defendant Tischio may have had a BAC of less than 0.10% at the time of operation. The Court "rule[d] that it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the offense . . . [and] that extrapolation evidence is not probative of this statutory offense [ i.e., the second prong or presumptive provision of N.J.S.A. 39:4-50(a)] and hence is not admissible." Tischio, 107 N.J. at 506, 527 A.2d 388. The thrust of the decision was that "'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.'" Id. at 519, 520, 527 A.2d 388 (quoting from State v. Tischio, 208 N.J. Super. 343, 348, 506 A.2d 14 (App.Div.1986)). A defendant whose blood-alcohol level measures 0.10% or more ...