SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
NEW JERSEY MOTOR VEHICLE
COMMISSION,,
v.
LARISSA A. GETHARD,
________________________________
Submitted January 30, 2012 -
Decided
Before Judges Sabatino and Ashrafi.
On appeal from a Final Decision of the New Jersey
Motor Vehicle Commission.
Geldhauser, Shiffman & Rizzo, LLC, attorneys
for appellant (John P. Shiffman, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for
respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Elaine
C. Schwartz, Deputy Attorney General, on the brief).
PER CURIAM
Appellant
Larissa A. Gethard contests a final agency decision of the New Jersey Motor
Vehicle Commission ("MVC") suspending her driver's license for ninety
days because she had been convicted in the State of New York for operating a
vehicle while her driving ability was impaired. Because the applicable statutes and published judicial
opinions clearly support the MVC's action as a matter of law, we affirm the
suspension.
The
pertinent facts and procedural history are uncomplicated and substantially
undisputed. On November 20, 2010,
appellant was charged in New York State with driving while intoxicated,
N.Y.
Veh. & Traf. Law § 1192(3).
On February 7, 2011, she was convicted
of the lesser-included offense of driving while impaired,
N.Y. Veh. &
Traf. Law § 1192(1). The New
York authorities notified the MVC of the conviction, as required by an
interstate compact.
N.J.S.A.
39:5D-3.
On
March 18, 2011, the MVC notified appellant that her New Jersey driver's license
would be suspended for ninety days starting on April 11, 2011, because she had
been convicted in New York for operating a vehicle while impaired. The ninety-day suspension was the
minimum length authorized by statute. N.J.S.A. 39:4-50(a). Various customary monetary charges were also imposed, which
are not the subject of this appeal.
The notice stated that appellant could request a hearing, but such a
request had to specify all legal and factual issues that she wanted to raise,
and she had to present all arguments on those issues. If she did not do so, the request would be denied. See N.J.A.C. 13:19-1.2(e).
Appellant's
counsel requested a hearing, but he initially did not specify any issues and
arguments and therefore his request was denied. The MVC then issued a superseding notice of suspension,
dated May 3, 2011, setting a new date, May 31, 2011, for the suspension. Appellant's attorney then requested
reconsideration of the MVC's denial of a hearing. This time, he asserted there was a material issue with
regard to appellant's offense in New York and whether her license should have
been suspended. He asserted that "the
New Jersey Legislature has specifically excluded the acts of this
defendant" from violations that require suspension of her New Jersey
license. The request for
reconsideration was denied.
The
MVC denied appellant's request to stay the suspension of her license pending
this appeal. However, we granted
such a stay of the suspension after the appeal was filed.
The
applicable reciprocity law is as follows.
Pursuant to the interstate compact, as codified in New Jersey at N.J.S.A.
39:5D-3, a state is required, where a non-resident commits a motor vehicle
offense, to report that offense to the driver's home state. N.J.S.A. 39:5D-4 further
provides:
(a) The
licensing authority in the home State, for the purposes of suspension . . . of
the license to operate a motor vehicle, shall give the same effect to the
conduct reported, pursuant to Article III of this compact, as it would if such
conduct had occurred in the home State . . . in the case of convictions for:
.
. . .
(2) Driving
a motor vehicle while under the influence of intoxicating liquor or a narcotic
drug, or under the influence of any other drug to a degree which renders the
driver incapable of safely driving a motor vehicle[.]
Subsection (c) of N.J.S.A.
39:5D-4 further states that if the law of another state does not describe an
offense in precisely the same words used in N.J.S.A. 39:5D-4(a), i.e.,
"[d]riving a motor vehicle while under the influence of intoxicating
liquor," the description used in N.J.S.A. 39:5D-4(a) shall be
construed to apply to "violations of a substantially similar nature."
Appellant
contends that her conviction in New York for a violation of that state's
driving-while-ability-impaired ("DWAI") statute,
N.Y. Veh. &
Traf. Law § 1192(1),
is not "substantially similar" to our State's statute prohibiting
driving a motor vehicle while under the influence of intoxicating liquor or a
narcotic drug, specifically,
N.J.S.A. 39:4-50 ("DWI"). We rejected that same legal contention
in
Div. of Motor Vehicles v. Lawrence, 194
N.J. Super. 1, 2-3
(App. Div. 1983), concluding that a New York DWAI conviction was "of a 'substantially
similar nature'" as a New Jersey DWI conviction. More
recently, we reached the same conclusion, albeit in a slightly different
procedural context involving the treatment of prior offenses for purposes of
the repeat-offender provision in
N.J.S.A. 39:4-50, in
State v. Zeikel,
423
N.J. Super. 34, 44-49 (App. Div. 2011)
(finding such substantial similarity, absent "clear and convincing proof"
from the licensee, as required by
N.J.S.A. 39:4-50(a)(3), that the New
York DWAI offenses were based "exclusively" on a blood alcohol
content ("BAC") of less than 0.08%).
Appellant
argues that
Zeikel and
Lawrence do not control the result in this
case, and that the applicable New Jersey and New York statutes are not, in
fact, substantially similar. She
suggests that a New York DWAI conviction should instead be treated in this
State like a reckless driving offense under
N.J.S.A. 39:4-96, and not as
a DWI conviction under
N.J.S.A. 39:4-50. We disagree, substantially for the reasons that have been
expressed in
Zeikel and
Lawrence which are the controlling
precedents.
The
MVC's final agency decision is affirmed.
The stay of appellant's driver's license suspension is vacated,
effective March 15, 2012, a peremptory date which shall not be extended absent
relief obtained by appellant from the Supreme Court.
Appellant asserted in her submission to
the MVC that
N.Y. Veh. & Traf. Law § 1192(1) "is based entirely
upon a blood-alcohol content of .05-.07." However,
N.Y. Veh. & Traf. Law § 1195(2)b
provides that evidence of a blood-alcohol content of more than .05 but less
than .07 is relevant evidence, but is not given prima facie effect in
determining whether a driver's ability to operate a vehicle was impaired. Thus, a DWAI conviction in New York may
not necessarily be solely based upon blood-alcohol content.
See People v. McDonald, 811
N.Y.S.2d 492, 493 (App. Div. 2006) (affirming the defendant's DWAI
conviction based on, among other things, the officer's observations of the
defendant and the defendant's admission to consuming alcohol even though the
defendant did not submit to a blood-alcohol test). Additionally,
N.Y. Veh. & Traf. Law § 1195(2)c
states that evidence of a blood-alcohol content of more than .07 but less than
.08 "shall be given prima facie effect in determining whether the ability
of such person to operate a motor vehicle was impaired by the consumption of
alcohol."
It is unclear whether the terms of
N.J.S.A.
39:4-50(a)(3) affording licensees the possibility of showing that a prior
out-of-state conviction should not be treated as a prior offense for purpose of
the enhanced penalties in
N.J.S.A. 39:4-50 for repeat DWI offenders, can
apply to reciprocal suspensions under
N.J.S.A. 39:5D-4(a). Even if, for the sake of argument,
those terms were imputed into
N.J.S.A. 39:5D-4(a), appellant can obtain
no benefit from them on this record.
Like the appellant in
Zeikel, appellant in this case also fails
to provide clear and convincing proof that her February 2011 conviction in New
York for DWAI was based upon a blood alcohol content reading of less than
0.08%. Although there is a
suggestion in the record that appellant's blood alcohol reading in New York may
have been between 0.05% and 0.08%, there is no documentary proof supplied that
"clearly and convincingly" shows that appellant's level was below
0.08% and that her New York conviction was "exclusively" based upon
such a below-0.08% reading and not based, for example, upon observations or
other proof of impairment.
