dissenting.
Uncompromising enforcement of laws designed to rid our highways of the scourge of the drunk driver ranks only slightly behind the veneration of motherhood and probably slightly ahead of a robust hankering after apple pie in the hierarchy of values firmly embedded in our culture. And that surely is as it should be. The Court outdoes itself, however, in support of that eminently desirable enforcement objective by effectively writing a new statute — one that establishes wholesome social policy and hence might well attract my support were I a member of the legislative branch. But I am not, any more than are my colleagues, so it does not. In my view the Court has “ventured beyond the bounds of ‘interpretation’ or ‘construction’ and into the realm of ‘creation’ and ‘substitution.’ ” Crewe Corp. v. Feiler, 28 N.J. 316, 330-31 (1958) (Wachenfeld, J., dissenting).
The statute at issue, N.J.S.A. 39:4-50(a), makes it unlawful for a person to “operate[] a motor vehicle while under the *523influence of intoxicating liquor * * * [0r] with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant’s blood * * The majority holds, ante at 506, (1) that “it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence” of the statutory offense, and (2) that “extrapolation evidence is not probative of this statutory offense and hence is not admissible.” The first strikes me as unnecessarily fuzzy, the second as just plain unsound, and in combination they amount to a holding that the critical time for determining whether a statutory violation has occurred is the time the blood-alcohol test is administered rather than, as I believe to be unmistakable from the statute, when the defendant was actually operating the vehicle.
Because the Court has treated with unbecoming irreverence the statute the legislature has given us, taken liberties with the legislative history, given short shrift to an impressive body of respectable authority both in this state and elsewhere, and dismissed the sound position of the chief law enforcement officer of the State of New Jersey, who has primary responsibility for the faithful execution of the criminal laws, I dissent.
I
At trial the State produced the testimony of the arresting officer and introduced the results of two breathalyzer tests, the first administered sixty minutes and the second seventy minutes after defendant was arrested. Each test yielded a blood-alcohol reading of .11%. The municipal court denied defendant’s motion for acquittal at the conclusion of the State’s case, whereupon defendant presented expert testimony to the effect that if the alcohol content was .11% by weight in defendant’s blood sixty and seventy minutes after the arrest, then at the time the officer stopped defendant the blood-alcohol content was .07%. At the conclusion of all the evidence the municipal court, after first declaring a “substantial doubt” that defendant had been driving while under the influence, found defendant *524guilty of operating his motor vehicle with a blood-alcohol concentration of “.10% or more.” On a trial de novo the Law Division held that the State bore the burden of establishing that defendant’s blood-alcohol concentration exceeded .10%, that the State had met that burden, and that the burden “then shift[ed] to defendant * * * to indicate by expert opinion that the .11 reading was not applicable.” Because the court was not “swayed” by defendant’s proof and did not think defendant had “rebutted anything in the State’s case,” defendant was convicted of the statutory violation.
On appeal to the Appellate Division the case took a bit of a barmy twist. The parties assumed that the relevant time for considering defendant’s blood-alcohol level under N.J.S.A. 39:4-50(a) was the time defendant was actually operating the motor vehicle. As perceived by both the State and the defendant the controversy in the court below focused on who had the burden of extrapolating breathalyzer results back to this critical period — the time of operation. On this issue the Appellate Division rejected defendant’s contention that the State, as part of its case in chief, must relate breathalyzer test results back to the time of driving. The court held:
[W]e do not accept defendant's premise that the State, after obtaining a breathalyzer reading of .10 percent or greater, must demonstrate through clear scientific evidence or expert testimony that the blood alcohol level was greater than .10 percent at the exact time of operation of the vehicle. [State v. Tischio, 208 N.J.Super. 343, 347 (1986).]
I pause to express agreement with that holding: the State need not produce “clear scientific evidence” or “expert testimony” on its case. The problem is created in the next succeeding paragraph of the Appellate Division opinion, containing two significant propositions entirely of the court’s own creation, not having been argued by either side:
The statute reflects a simple legislative plan to establish a violation where the administration of the breathalyzer or other established tests for determining blood alcohol content produces a reading of .10 percent blood alcohol or greater at any time after operation so long as there has been no ingestion of alcohol between the time of operation and the time of testing. Further proof on the *525issue of the blood alcohol level at the time of operation is unnecessary. [Ibid. (emphasis added).]
At least one court has characterized the foregoing language of the Appellate Division as no more than dicta and therefore not binding if unable to withstand vigorous independent analysis. See State v. Allen, 212 N.J.Super. 276, 279-80 (1986), in which the Law Division held — correctly, in my view — that the relevant time for considering a defendant’s blood-alcohol level is at the time of actual operation of the motor vehicle. Id. at 281-83. I gather that the Court is reluctant to come right out and express its agreement with that fundamental proposition. The opinion skirts the issue with the statement, ante at 509, that the blood-alcohol content at the time of the breathalyzer test is the essential evidence of the offense; but that does not tell us what the offense is. Inasmuch as the Court declares extrapolation evidence to be non-probative, I assume that it considers the offense to have been committed when a post-driving test produces a reading in excess of the stated level, without any conclusion required on what the content was at the time of driving. Clearly contrary to the Appellate Division, and apparently contrary to my colleagues, I would hold that the offense is operating a motor vehicle with a blood-alcohol content in excess of the specified level.
The statute says so. It is directed at “[a] person who operates a motor vehicle * * * with a blood alcohol concentration” above the specified level. As a criminal enactment it must be strictly construed. E.g., State v. Maguire, 84 N.J. 508, 514 n. 6 (1980); State v. Grant, 196 N.J.Super. 470, 480-81 (App.Div.1984). To make the point I must conquer a dreadful case of insecurity, a feeling bordering on paralyzing intimidation born of the recent discovery, hammered home with painful frequency, that language so transpicuous to me means something entirely different to my colleagues, see, e.g., State v. Valentin, 105 N.J. 14 (1987) (criminal statute); In re Perez, 104 N.J. 316 (1986) (affidavit); Meier v. New Jersey Life Ins. Co., 101 N.J. 597 (1986) (life insurance policy and relevant doc*526uments), whereas language that confounds me with its inscrutable rococo curlicues causes not a bat of the eye in other members, see State v. Lee, 96 N.J. 156 (1984). But out with it: I view the statutory language as plain and unambiguous. It refers to the offense occurring at the time of driving and not at the time of testing. The verb “to operate” is “definite, clear and distinct, readily understood and employed in the every-day speech of the man on the street. Refined definition is unnecessary.” State v. Lashinsky, 81 N.J. 1, 9 (1979) (quoting State v. Furino, 85 N.J.Super. 345, 348 (App.Div.1964)).
The majority resists a reading of the statute that zeroes in on the time of operation of the vehicle not because there is anything unclear about what the legislature said, but because the Court concludes that what the legislature said makes enforcement awkward, cumbersome, difficult. It need not. I should think we could accommodate the words the legislature used and what the Court sees as the legislative intent by making a more-than-.10% reading prima facie evidence, rather than conclusive proof, of a violation while driving, provided that the reading is obtained, as in this case, within a reasonable time after the arrest. Such a rule would be based on reasonable legislative assumptions, including the current state of knowledge of burn-off rates, subject however to attack in the form of expert extrapolation testimony to be produced by the defendant. Surely a defendant should be allowed to show, through expert proof extrapolating the breathalyzer results back to the time of operation, that the State’s prima facie case has been overcome, and that in fact the proofs are insufficient to establish beyond reasonable doubt an excessive reading at the time the vehicle was being driven. If, as I am convinced, the statutory offense is driving with a blood-alcohol content over .10%, then it can hardly be denied (but the Court denies it) that extrapolation evidence is probative. And that view of the offense and of the probative value of extrapolation evidence represents exactly the position of the Attorney General, amicus in this Court, of which more below.
*527As against the fear that a rule allowing defense extrapolation would turn what the legislature sought to streamline into a tedious and prolonged battle of experts, I suggest that only in the “borderline” case, one in which, as here, the evidence of drunk driving is thin and a conviction on the second prong of the statute — the over-. 10%-prong — is based on breathalyzer readings that at the time of testing are so close to the line as to lend themselves to a sensible extrapolation argument, will a defendant likely expend the effort required to mount such a defense. We will, I suspect, see few of them.
II
That the rule proposed in this opinion, making time of operation rather than time of testing the critical time, and therefore rendering a defendant’s extrapolation evidence probative, is consistent with what the legislature had in mind becomes clear when we examine other sections of the drunk-driving laws, keeping in mind the principle that “[a] statute is to be construed as a whole with reference to the system of which it is a part * * *. The import of any word or phrase is to be gleaned from the content and statutes in pari materia.” State v. Brown, 22 N.J. 405, 415 (1956); see State v. Lee, supra, 96 N.J. at 161; Brewer v. Porch, 53 N.J. 167, 174 (1969); Giordano v. City Comm’n of Newark, 2 N.J. 585, 594 (1949). Prior to 1983, N.J.S.A. 39:4-50.1 stated in relevant part:
In any prosecution for a violation of R.S. 39:4-50 relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol 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% or less by weight of alcohol in the defendant’s blood, 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% but less than 0.10% 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 * * *.
*528(3) If there was at that time 0.10% 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. (Emphasis added).
The emphasized language makes plain that this section was concerned with the time of operation of the motor vehicle and not with the time of the breathalyzer test. In 1983, paragraph (3) was deleted and the current language of N.J.S.A. 39:4-50(a) was adopted making a .10% blood-alcohol level a per se offense. However, nothing about this change indicates a legislative intent to focus on the time of testing rather than on the time of driving. As stated above, N.J.S.A. 39:4-50(a) is directed towards the person who “operates a motor vehicle.” Moreover, paragraphs (1) and (2) of N.J.S.A. 39:4-50.1 are still in effect. As the court noted in Allen, supra, 212 N.J.Super. at 282, the approach taken by the Appellate Division in Tischio (and now approved by the majority) “produced a very peculiar legislative plan for DWI cases: the under-0.10% rules apply to the time of driving, while the over-0.10% rule applies to the time of testing.”
Furthermore, other sections of the drunk driving law indicate that the legislative purpose looks to the time of driving. N.J. S.A. 39:4-50.2 provides:
Any person who operates a motor vehicle on any public road * * * in this State shall be deemed to have given his consent to the taking of samples of his breath * * * provided, however, that the taking of samples is made * * * at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of [N.J.S.A. 39:4-50] (emphasis added).
The emphasized language again makes it clear that the critical time is the time of operation. N.J.S.A. 39:4-50.4a states:
The municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [N.J.S.A. 39:4-50], shall refuse to submit to the chemical test * * *. The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle * * * while under the influence of intoxicating liquor. (Emphasis added).
Once again, it is apparent that the legislature was concentrating on the time of driving.
*529In Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984), this Court articulated “the general rule that a word or phrase should have the same meaning throughout the statute in the absence of a clear indication to the contrary.” The above analysis of the language of N.J.S.A. 39:4-50(a), and the statutes in pari materia with it, supports the position that the Court is demonstrably in error in looking to the time of administration of the breathalyzer tests.
Ill
The view expressed above draws additional strength from the legislative history. In State v. Madden, 61 N.J. 377, 389 (1972), this Court declared:
We must enforce the legislative will if it is within the constitutional limits whether we approve of the legislative intent or not. But it is our initial task to seek that intent, and to that end we must consider any history which may be of aid.
The Assembly Committee statement attached to the 1983 amendment to N.J.S.A. 39:4-50 says: “The bill, in its substitute form, requires that a person whose blood alcohol concentration is 0.10% or greater be considered guilty of driving while intoxicated. Current law merely creates a presumption that such a person was under the influence of intoxicating liquor.” This statement does not deal with the issue of when the proscribed blood-alcohol level must exist. However, by relating the new provision to that which was deleted, it is fair to assume that the legislature intended to continue to make pivotal the time of driving rather than, as the Court would have it, the time of testing. This is especially true in light of the statutory language ultimately used.
The remainder of the committee statements reveals only that the drunk driving law was amended so that New Jersey would meet the federal eligibility requirements for additional monetary grants.
As originally proposed, Senate Bill No. 1833 (1983 Amendments) provided in relevant part:
*530A person charged under * * * this section whose blood alcohol concentration is 0.10% or more by weight as shown by a chemical analysis of a blood, breath, urine or other bodily substance sample taken within four hours of the alleged offense shall be guilty of [operating a motor vehicle while under the influence of intoxicating liquor.] (Emphasis added).
Defendant concedes that had this proposal been enacted, he would have been guilty because his blood alcohol reading of .11% was obtained within four hours of operation. But he argues, and I agree, that this proposal demonstrates legislative consideration of a statute that would have embraced the Court’s holding today and a legislative choice not to enact it. That circumstance supports the conclusion that the legislature’s attention was on the time of driving rather than on the time of testing.
IV
The foregoing conclusion finds support as well in case law both in this state and elsewhere. Before the Appellate Division decision in this case no New Jersey court had held that the critical time under N.J.S.A. 39:4-50(a) was the time of testing rather than the time of driving. In State v. Miller, — N.J.Super. — (App.Div.1985), the defendant was found guilty in the municipal court of driving with a blood alcohol level of at least .10%. This conviction was based on two breathalyzer tests administered thirty minutes and thirty-nine minutes after defendant’s arrest, resulting in readings of .11% and .12% respectively. However, defendant produced an expert who testified that at the time defendant was driving, his blood alcohol level was .09%. The Appellate Division reversed the conviction on the ground that this expert testimony was uncon-tradicted by the State. The court held:
It is not enough simply to say, in the face of breathalyzer evidence and the expert testimony, that defendant must have had .10% blood alcohol. If the uncontradicted testimony of defendant * * * and his expert are not believed by the court, that disbelief has to be stated, along with a reasonable basis for it. [— N.J.Super. at —.]
Hence the critical time was the time of driving and not the time of testing. To the same effect see State v. O’Connor, — *531N.J.Super. — (App.Div.1984). As the court stated in State v. D’Agostino, 203 N.J.Super. 69, 77 (Law Div.1984):
It remains the obligation of the State to prove beyond a reasonable doubt what was the blood alcohol concentration of the defendant at the time he was driving. And since the breathalyzer and other scientific tests are performed some period of time after the driving has been completed, there mil always arise the problem of extrapolating the results of the scientific tests to an earlier time to determine the condition of the defendant at the time he was operating a motor vehicle. (Emphasis added).
Prior to the 1983 Amendment to N.J.S.A. 39:4-50(a), the case law held that the stated presumptions contained in N.J.S.A. 39:4-50.1 arose only when the defendant’s blood alcohol reached a certain level at the time of operation. In State v. Prociuk, 145 N.J.Super. 570, 576 (County Ct.1986), the court said:
Obviously, in almost every case involving a breathalyzer the tests are given at least 30 minutes after the arrest. The trial court then infers what the reading was at the time defendant operated his motor vehicle. Since breathalyzers are not kept in police vehicles, there is no other practical way to use a breathalyzer. (Emphasis added).
Thus, today’s opinion represents a clear departure from existing interpretations of N.J.S.A. 39:4-50(a).
Authority elsewhere is likewise against today’s holding. Several of our sister states have enacted “per se” statutes that, unlike the one before us, expressly look to the time of testing rather than, or in addition to, the time of driving. See State v. Sigmon, 74 N.C.App. 479, 328 S.E.2d 843 (1985); People v. LaMontagne, 91 Misc.2d 263, 397 N.Y.S.2d 872 (App.Term 1977); Slaughter v. State, 322 A.2d 15 (Del.Super.1974); Minn. Stat.Ann. (Highway Traffic Regulation) Sec. 169.121, Subdivision 1 (“It is a misdemeanor for any person to drive * * * any motor vehicle within this state * * * (d) when the person’s alcohol concentration is .10 or more; or (e) when the person’s alcohol concentration as measured within two hours of the time of driving is .10 or more.”); Okla.Stat.Ann. (Motor Vehicles) 47 Sec. 11-902A1 (“It is unlawful * * * for any person to drive * * * a motor vehicle within this State who: 1. Has a blood or breath alcohol concentration * * * of ten-hundredths (0.10) or more at the time of a test of such person’s blood or breath administered *532within two (2) hours after the arrest of such person.”). But those states with statutes similar to the one at issue here have uniformly rejected the interpretation landed on today by this Court. See State v. Conway, 75 Or.App. 430, 707 P.2d 618 (1985); Schumaker v. State, 704 S.W.2d 548 (Tex.Crim.App.1986). In fact, some jurisdictions have gone so far as to hold that “relation back testimony is necessary to establish the defendant’s blood alcohol content at the time of actual operation.” State v. Dumont, 146 Vt. 252, 499 A.2d 787, 789 (1985). Similarly, the Court of Appeals of Idaho refused to accept the time of testing in State v. Knoll, 110 Idaho 678, 718 P.2d 589 (1986) . The court held that the “lapse of time between an alleged offense and the administration of a blood-alcohol test” goes to the weight of that evidence. Id., 718 P.2d at 594; see also State v. George, 77 N.C.App. 470, 472, 336 S.E.2d 93, 95 (1985) (evidence of blood-alcohol level more than three hours after defendant drove sufficient to survive motion to dismiss charge of driving under influence). And in People v. Pritchard, 162 Cal.App.3d Supp. 13, 15, 209 Cal.Rptr. 314, 315 (App.Dep’t Super.Ct.1984), the court stated:
In order to support a conviction of a violation of [the statute], "the People * * * must prove beyond a reasonable doubt that at the time he was driving, [the defendant’s] blood alcohol exceeded 0.10 percent.” Generally, this will have to be established by circumstantial evidence. (Citation omitted).
V
I would therefore hold, consistent with the view of the Attorney General, that a breathalyzer test result obtained a reasonable time after an arrest should be viewed as indicating “the presumptive equivalent of the amount of alcohol at the time the offense was committed.” The Attorney General made explicit at oral argument before this Court what is implicit in the foregoing from his brief, namely, that the critical time of the offense is the time the vehicle is operated. To be precise, the Deputy Attorney General acknowledged his disagreement with the Appellate Division’s interpretation of N.J.S.A. 39:4-50(a), the position of his office being that the statute requires a *533demonstration of “a .10% [blood alcohol content] or greater at the time of operation.” Moreover, the Attorney General concedes that the State’s prima facie case can be defeated by persuasive extrapolation evidence, on the production of which the defendant bears the burden. I agree.
I agree not just because I have worked my way through the problem to the same answer as that reached by the Attorney General, but I agree because I am satisfied that in this case we should pay heed to the position of the State’s chief law enforcement officer. On questions of law — here, criminal law — that officer’s view is entitled to no more deference than that of any other litigant; but on questions that turn in large measure on how, as a practical matter, those laws are enforced in the field and pursued in the courtroom, the Attorney General knows more than do the members of the Court. At least more than this member of the Court. It is his resources, and those of the county prosecutors under his supervision and the various municipal enforcement agencies, that are at risk. And if he believes — as he does — that the system can work by treating a breathalyzer reading taken a reasonable time after arrest as establishing a prima facie case, and then permitting a defendant to come forward with extrapolation evidence for the purpose of overcoming that prima facie case, then I for one would give some deference to that position to the extent that it affects our resolution of the case. We invited the Attorney General’s participation in this case as amicus. That means he is a friend of the Court, here to help us. I would accord him a more friendly reception than he has received at the hands of the Court.
I would reverse and remand for retrial consistent with the propositions stated in this opinion.
For affirmance — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For reversal and remandment — Justice CLIFFORD — 1.