State v. Downie

STEIN, J.,

dissenting.

The Court is afflicted with a severe case of institutional amnesia. It has either forgotten, or has unaccountably ignored, the most basic distinction between the legislative and judicial branches of government.

*470 Underlying this litigation was the premise, acknowledged by all parties and this Court, that New Jersey’s drunk-driving statute is based on blood-alcohol content. N.J.S.A. 39:4-50. The single issue was whether the breathalyzer, which measures breath-alcohol content, inaccurately converts breath alcohol to blood alcohol because the conversion ratio at which the breathalyzer is calibrated exceeds the so-called partition ratio of a portion of the population. This Court ordered a remand hearing “to develop a factual record on the allegation that partition-ratio variability compromises the specific reliability of breathalyzer-test results * * *.” 114 N.J. 498 (1989). Evidence adduced at the remand hearing demonstrates that the breathalyzer is highly reliable, underestimating blood-alcohol content in most cases, but materially overestimating blood-alcohol content in approximately 2.3% of all subjects tested.

Confronted with such evidence, the Court today “construes” our drunk-driving statute as proscribing .10% or more of alcohol in the breath as well as in the blood. Ante at 466-468. That interpretation enables the Court to sustain the use of the breathalyzer as a device for proving violations of the drunk-driving statute even in that small number of cases in which the breathalyzer materially overestimates blood alcohol. At the same time, the Court disregards not only the unmistakably plain statutory language, but also its own opinions that have repeatedly and consistently characterized the statutory violation in terms of a prohibited amount of alcohol in the blood. See State v. Tischio, 107 N.J. 504, 506, 510, 516, 517, 522 (1987); Romano v. Kimmelman, 96 N.J. 66, 72, 78, 82 (1984); State v. Johnson, 42 N.J. 146, 151, 158, 169, 172-73 (1964).

Although the Court’s resourcefulness is doubtless well-motivated, the taint on the judicial process is ineradicable. It is also totally unnecessary. Evidence in the record suggests that a relatively minor adjustment in the partition ratio at which breathalyzers are calibrated would eliminate all material overestimates of blood alcohol, and a further remand would permit *471 testimony to be elicited on the extent of the required adjustment. Moreover, the Legislature’s concern over the ravages of drunk driving is well-documented. Guided by the Attorney General, who has participated as amicus in this appeal, it is a virtual certainty that the Legislature would act swiftly to amend the drunk-driving statute to provide specifically that the prohibited quantity of alcohol in either the breath or blood constitutes a violation. 1 But if an amendment to the statute is required, that is the business of the Legislature. It is not the function of this Court.

For affirmance and remand — Chief Justice WILENTZ, HANDLER, POLLOCK, O’HERN and GARIBALDI — 5.

For reversal — Justice STEIN — 1.

See,e.g., Cooley v. Municipality of Anchorage, 649 P. 2d 251, 252 (Alaska Ct.App.1982) (reflecting amendment to Anchorage DWI ordinance to define violations in terms of blood alcohol or breath alcohol); People v. Capporelli, 148 Ill.App.3d 1048 , 103 Ill.Dec. 864, 867 , 502 N.E.2d 11, 14 (1986) (describing Illinois DWI statute that defines violations in terms of blood-alcohol or breath-alcohol content); State v. Brayman, 110 Wash.2d 183 , 751 P.2d 294, 296 (1988) (reflecting amendment to Washington DWI statute to define violations in terms of blood-alcohol or breath-alcohol content); Okla.Stat.Ann. tit. 47, § 11-902A1 (West 1989) (defining violation of Oklahoma DWI statute in terms of blood alcohol or breath alcohol).