State v. ProtokowiczState v. Protokowicz
The appellant was convicted in the Municipal Court of the City of Montclair and, on appeal, in the Essex County Court of operating an automobile while under the influence of intoxicating liquor.
In both of the courts below the cumulative effect of the testimony of the State‘s witnesses overwhelmingly established the defendant‘s guilt, and in this proceeding appellant does not challenge the sufficiency of the evidence as a basis for conviction. However, in the course оf the physical examination conducted at the Montclair Police Headquarters by respondent‘s doctor, appellant upon request permitted the doctor to draw a sample of his blood for blood alcohol determination. Analysis of the sample rеvealed an alcoholic content of 0.1565%. A report to this effect was received in evidence.
The validity of the convictiоn is challenged solely on the ground that
“A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject, * * *” (penalty provided)
“In any prosecution for a violation of
Section 39:4-50 of Title 39 of the Revised Statutes relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alсohol in the defendant‘s blood at the time alleged as shown by chemical analysis of the defendant‘s blood, urine, breath, or other bodily substance shall give rise to the following presumptions:1. If there was at that time 0.05 per centum or less by weight of alcohol in the defendant‘s bloоd, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
2. If there was at that time in excess of 0.05 per centum but lеss than 0.15 per centum by weight of alcohol in the defendant‘s blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor but such fact may be considered with other competent evidence in determining the guilt or innоcence of the defendant;
3. If there was at that time 0.15 per centum or more by weight of alcohol in the defendant‘s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
The foregoing provisions of this section shall not be construed as rеquiring that evidence of the amount of alcohol in the defendant‘s blood must be presented, nor shall they be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant.” L. 1954, c. 23, § 30, p. 76, supplementing chapter 4, Title 39.
In support of the argument that the presumption set forth in the third section of
Nor do we find logical appeal in appellant‘s contention that proof of alcohol in the blood of 0.15% or more creates a conclusive presumption of the violation of
Our courts have not previously considered the effect of the presumption in question on due process requirements. Elsewhere the question is not novel. State v. Childress, 78 Ariz. 1, 274 P.2d 333, 46 A.L.R.2d 1169 (Sup. Ct. 1954), and the accompanying annotations are directly in point. Defendant therein charged that the Arizona statute (
A similar case is Kay v. United States, 255 F.2d 476, 481 (4 Cir. 1958), certiorari denied 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65, wherеin the defendant attacked the statute as denying him the right of confrontation of witnesses and as creating an unconstitutional presumptiоn. Both arguments were rejected. As to the presumption, the court stated:
“The presumption here is rebuttable. It neither restricts the defеndant in the presentation of his defense nor deprives him of the presumption of innocence. Since wide experience has demonstrated the close connection between the presumed fact and the alcoholic content of the blood, there is no constitutional objection to the jury‘s consideration, with all of the other evidence, of the statutory presumption.”
See annotation, “Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another,” 162 A.L.R. 495.
We are in accord with these holdings. In final anаlysis, the scientific fact when proven by the State or defendant, as the case may be, and the presumption deriving therefrom is relevant only to the issue of intoxication and has no bearing whatever on the equally important components of the charge, namely, that the defendаnt operated a motor vehicle on a public highway. All evidence and all presumptions or inferences arising therefrom are subordinated to the fundamental presumption of innocence which cloaks the defendant throughout the case, the burden remaining on the State to prove every element of the charge beyond a reasonable doubt.
Thus we conclude that the presumption provided by
Affirmed.