This аppeal of Charles F. Coxe from his conviction in Superior Court of driving a motor vehicle while under the influence of alcohol challenges the constitutionality of *607 21 Del.C. § 4176(a), which the appellant alleges provides for a “conclusive presumption of guilt based upon a chemical reading.”
The statute, 21 Del.C. § 4176(a), as amended June 20, 1970, after setting forth the penalty for a first offense and each subsequent like offense, provides in pertinent part:
“ * * * Any person who drives, operates or has in actual physical control a motor vehicle while such person’s blood has reached a blood alcohol concentration of Jio of 1% or more, by weight, as shown by a chemical analysis of a blood, breath, or urine sample taken within 2 hours of the alleged offense, shall be guilty under this sеction. This provision shall not preclude a conviction based on other admissible evidencе.” (Emphasis supplied.)
The statute provides for no presumption of guilt, but instead provides that any person having the specified blood alcohol concentration “shall be guilty.” To establish guilt, the State must prove only that the defendant was in physical control of the vehicle, and that a proper and timely test showed the required percentage of alcohol concentrated in thе defendant’s system.
Appellant relies basically on two cases in his appeal. In State v. Childress,
In State v. Protokowicz,
21 Del.C. § 4176(a) was preceded by 11 Del.C. § 3507. The pertinent provisions of § 3507 were very much like the Arizona and Nеw Jersey statutes. Under it, proof of alcohol in the blood to the extent of x%oo of 1% or morе was only
prima facie
evidence of being under the influence thereof. The new § 4176 requires, however, and the jury in this case was instructed, that only two elements need be found for guilt: (1) operation of the vehicle, with (2) the prohibited blood alcohol concentration. To the extent that these two statutes are inсonsistent, the later Act has amended the earlier one. Rickards v. State, Del.Supr.,
We are unable to agree with appellant’s contention that the new statute is unconstitutional. Its effect is to forbid any person to operate a motor vehicle if his blood contains .1 of one per cent alcohol. It represents a legislative determination that such quantity of alcohol has suffiсient adverse effect upon any person to make his driving a definite hazard to himself and others. Wе cannot say that this determination is unfounded or contrary to the facts; a number of studies and many statistics have recently been published by experts in this field which support that conclusion. Some other stаtes have accepted this view. New York, for example, has forbidden the operation оf a motor vehicle by any person having blood alcohol of .15 of one percent *608 * . 62 A. McKinney’s Consolidated Laws § 1192.
In this cаse, the circumstantial evidence, as well as statements made by the appellant, provide sufficient evidence of the first element, that is, operation of the vehicle. The prohibited blood alcohol concentration was shown by a properly administered test. Therefore, we will affirm the conviction and sentence of appellant in the Court below.
Appellant chаrges error in the failure of the trial Judge to read to the' jury the last sentence of § 4176(a), which permits a conviction based on evidence other than the blood test. ** We cannot conceivе how this omission could possibly have adversely affected appellant. If it be considered еrror, appellant has no right to complain because the omission favored him.
Affirmed.