Tuesday, February 4, 2014

NJ driver suspended for out of state dwi where he was licensed in NJ at time of arrest

Submitted January 15, 2014 – Decided 
Before Judges Fuentes and Simonelli. 
On appeal from the New Jersey Motor Vehicle Commission. 
February 3, 2014 
DOCKET NO. A-2805-12T2 
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Elaine C. Schwartz, Deputy Attorney General, on the brief). 
Appellant Giustino A. DiPopolo appeals from the January 9, 2013 final decision of respondent New Jersey Motor Vehicle Commission (MVC) to deny his request for a hearing and suspend his New Jersey driver's license for 3650 days pursuant to the A-2805-12T2 2 

Interstate Driver License Compact (the Compact), N.J.S.A. 39:5D- 1 to -14, N.J.S.A. 39:5-30, and N.J.A.C. 13:19-11.1, based on his out-of-state (New York) conviction of driving while intoxicated (DWI). We affirm. 
The facts are undisputed. Prior to September 2011, appellant had two DWI convictions. On September 16, 2011, he was arrested in New York and charged with DWI. At that time of the offense, appellant resided in New Jersey and held a valid New Jersey driver's license. On October 19, 2011, he moved to New York and surrendered his New Jersey driver's license. 
Appellant pled guilty to DWI on August 23, 2012. On August 26, 2012, New York reported appellant's conviction to New Jersey as the licensing jurisdiction pursuant to the Compact. See N.Y. Veh. & Traff. Law, § 516. The MVC posted the conviction on appellant's New Jersey Abstract of Driver History Record. On September 10, 2012, appellant obtained a New York driver's license. 
On November 20, 2012, the MVC issued a Notice of Scheduled Suspension stating its intention to suspend appellant's New Jersey driver's license for 3650 days, effective December 14, 2012, in accordance with N.J.S.A. 39:5D-4, N.J.S.A. 39:5-30, and A-2805-12T2 3 

N.J.A.C. 13:19-11.1.1 The MVC also advised appellant that if he requested a hearing, 
1 As a third-time offender, appellant's driving privileges were subject to a ten-year (3650 days) suspension. N.J.S.A. 39:4-50(a)(3). 
[the] request must specify all disputed material facts and legal issues you or your attorney intend to raise at a hearing and must present all arguments on those issues you wish the Commission to consider. If [the] request fails to set forth any disputed material facts, legal issues, or arguments of such issues, the request will be denied and a suspension will become effective on a date specified by the Commission and constitute the Commission's final decision in this matter. 
[(Emphasis added).] 
Appellant timely requested a hearing, asserting that because he was not a New Jersey resident or licensee at the time of conviction, New Jersey was not his "home State" for purposes of the Compact. Because appellant did not advance any disputed material facts, legal issues or arguments, the MVC denied his request for a hearing. On January 9, 2013, the MVC issued a final decision based on the record and suspended appellant's driver's license for 3650 days, effective February 4, 2013. 
Our role in reviewing the decision of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court A-2805-12T2 4 

must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In determining whether agency action is arbitrary, capricious, or unreasonable, we must examine: 
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. 
[Ibid. (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).] 
We "'may not substitute [our] own judgment for the agency's, even though [we] might have reached a different result.'" Ibid. (quoting Carter, supra, 191 N.J. at 483). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Ultimately, however, the burden of proving that an agency action is arbitrary, capricious, or unreasonable is on the challenger. Bueno v. Bd. of Tr.'s, 422 N.J. Super. 227, 234 (App. Div. 2011) (citations omitted). A-2805-12T2 5 

Furthermore, it is well settled that "'[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to [this court's] deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (alteration in original) (quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)). Thus, we should "place[] great weight on the interpretation of legislation by the administrative agency to whom its enforcement is entrusted," Peper v. Princeton Univ. Bd. of Tr.'s, 77 N.J. 55, 69-70 (1978) (citations omitted), as long as its interpretation "is not plainly unreasonable." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984) (citations omitted). 
Nevertheless, this court is "'not bound by the agency's legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif. denied, 200 N.J. 210-11 (2009). Thus, "[s]tatutory and regulatory construction is a purely legal issue subject to de novo review." Ibid. (citation omitted). 
Appellant does not dispute he was a New Jersey licensee at the time of the offense. Nor does he assert that the record A-2805-12T2 6 

lacks substantial credible evidence to support the MVC's decision. Rather, he raises an issue of law with respect to the proper interpretation and application of N.J.S.A. 39:5D-4, contending that he was not subject to suspension of his New Jersey driver's license pursuant to the Compact because New Jersey was not his "home State" at the time of conviction. He also contends that the MVC violated his due process right to an administrative hearing. We disagree with both contentions. 
The MVC suspended appellant's driver's license pursuant to N.J.S.A. 39:5-30(a), which provides: 
Every registration certificate, every license certificate, [and] every privilege to drive motor vehicles . . . may be suspended or revoked, and any person may be prohibited from obtaining a driver's license or a registration certificate . . . and the reciprocity privilege of any nonresident may be suspended or revoked by the director for a violation of any of the provisions of this Title or on any other reasonable grounds, after due notice in writing of such proposed suspension, revocation or prohibition and the ground thereto. 
The statute "confers expansive authority on the [MVC] to suspend a driver's reciprocity privilege on 'any other reasonable grounds' even if the driver is neither a New Jersey resident nor a New Jersey licensee." In re Johnson, 226 N.J. Super. 1, 4 (App. Div. 1988) (quoting N.J.S.A. 39:5-30(a)). "This includes the operation of a motor vehicle in another state while impaired A-2805-12T2 7 

by alcohol." Ibid. "Therefore, appellant's status as a New Jersey licensee provided the requisite authorization for [the MVC] to suspend that license for an alcohol related motor vehicle violation, regardless of whether the violation occurred within New Jersey or whether appellant was a New Jersey resident at the time of the offense." Ibid. (emphasis added); see also Div. of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 425-16 (App. Div. 2005) (affirming the suspension of a non-resident's New Jersey driver's license where the driver held the license at the time of the violation). Accordingly, it is the driver's status as a New Jersey licensee, not resident, that governs the MVC's authority to suspend a driver's license pursuant to N.J.S.A. 39:5-30(a). 
The Compact enforces the MVC's authority to suspend a driver's license based on an out-of-state DWI conviction: 
The licensing authority in the home State, for the purposes of suspension, revocation or limitation 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, shall apply the penalties of the home State or of the State in which the violation occurred, in the case of convictions for: 
. . . . 
Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of A-2805-12T2 8 

any other drug to a degree which renders the driver incapable of safely driving a motor vehicle[.] 
[N.J.S.A. 39:5D-4(a)(2).] 
The statute does not define "home state" as the state of residence but rather as "'the State which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle.'" Johnson, supra, 226 N.J. Super. at 5 (quoting N.J.S.A. 39:5D-2(b)). 
Here, New Jersey issued the driver's license appellant held at the time of the offense and had the power at that time to suspend or revoke it. Thus, New Jersey fits within the Compact's definition of a "home State." Ibid. Accordingly, we hold that the surrender of a New Jersey driver's license after committing an out-of-state DWI offense but before conviction does not deprive New Jersey of its home-State status under the Compact. It is the driver's status as a New Jersey licensee at the time of the offense, not the time of conviction, that governs the MVC's authority to suspend a driver's license pursuant to the Compact. We conclude there is sufficient credible evidence in the record as a whole supporting the MVC's decision to suspend appellant's New Jersey driver's license for 3650 days. R. 2:11-3(e)(1)(D). A-2805-12T2 9 

Appellant's contention that the MVC violated his due process rights lacks merit. No disputed issues of material fact existed. Hence, no evidentiary hearing was required. Frank v. Ivy Club, 120 N.J. 73, 98 (1990), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991). 


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