Motor Vehicle Articles, 39 Motor Vehicle laws and Municipal Court

Monday, August 27, 2012

49 CFR 383.51Disqualification of drivers -1 year loss of CDL(8) Causing a fatality through the negligent operation of a CMV, including but not limited to the crimes of motor vehicle manslaughter, homicide by motor vehicle and negligent homicide

Disqualification of drivers.
	Print

Regulations current to Feb 29, 2012

(d) Disqualification for railroad-highway grade crossing offenses. Table 3 to §383.51 contains a list of the offenses and the periods for which a person who is required to have a CLP or CDL is disqualified, when the driver is operating a CMV at the time of the violation, as follows:

Search for
Examples: Medical Form, 391.53, 391

Related Links

Subpart D - Driver disqualifications and penalties

§ 383.51Disqualification of drivers.(a) General.(1) A person required to have a CLP or CDL who is disqualified must not drive a CMV.(2) An employer must not knowingly allow, require, permit, or authorize a driver who is disqualified to drive a CMV.(3) A holder of a CLP or CDL is subject to disqualification sanctions designated in paragraphs (b) and (c) of this section, if the holder drives a CMV or non-CMV and is convicted of the violations listed in those paragraphs.(4) Determining first and subsequent violations. For purposes of determining first and subsequent violations of the offenses specified in this subpart, each conviction for any offense listed in Tables 1 through 4 to this section resulting from a separate incident, whether committed in a CMV or non-CMV, must be counted.(5) The disqualification period must be in addition to any other previous periods of disqualification.(6) Reinstatement after lifetime disqualification. A State may reinstate any driver disqualified for life for offenses described in paragraphs (b)(1) through (8) of this section (Table 1 to §383.51) after 10 years, if that person has voluntarily entered and successfully completed an appropriate rehabilitation program approved by the State. Any person who has been reinstated in accordance with this provision and who is subsequently convicted of a disqualifying offense described in paragraphs (b)(1) through (8) of this section (Table 1 to §383.51) must not be reinstated.(b) Disqualification for major offenses.Table 1 to §383.51 contains a list of the offenses and periods for which a person who is required to have a CLP or CDL is disqualified, depending upon the type of vehicle the driver is operating at the time of the violation, as follows:Table 1 to § 383.51

If a driver operates a motor vehicle and is convicted of:	For a first conviction or refusal to be tested while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a first conviction or refusal to be tested while operating a non-CMV, a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a first conviction or refusal to be tested while operating a CMV transporting hazardous materials required to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F), a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a second conviction or refusal to be tested in a separate incident of any combination of offenses in this Table while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a second conviction or refusal to be tested in a separate incident of any combination of offenses in this Table while operating a non-CMV, a CLP or CDL holder must be disqualified from operating a CMV for * * *
(1) Being under the influence of alcohol as prescribed by State law * * *	1 year	1 year	3 years	Life	Life.
(2) Being under the influence of a controlled substance * * *	1 year	1 year	3 years	Life	Life.
(3) Having an alcohol concentration of 0.04 or greater while operating a CMV * * *	1 year	Not applicable	3 years	Life	Not applicable.
(4) Refusing to take an alcohol test as required by a State or jurisdiction under its implied consent laws or regulations as defined in §383.72 of this part * * *	1 year	1 year	3 years	Life	Life.
(5) Leaving the scene of an accident * * *	1 year	1 year	3 years	Life	Life.
(6) Using the vehicle to commit a felony, other than a felony described in paragraph (b)(9) of this table * * *	1 year	1 year	3 years	Life	Life.
(7) Driving a CMV when, as a result of prior violations committed operating a CMV, the driver's CDL is revoked, suspended, or canceled, or the driver is disqualified from operating a CMV	1 year	Not applicable	3 years	Life	Not applicable.
(8) Causing a fatality through the negligent operation of a CMV, including but not limited to the crimes of motor vehicle manslaughter, homicide by motor vehicle and negligent homicide	1 year	Not applicable	3 years	Life	Not applicable.
(9) Using the vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance * * *	Life-not eligible for 10-year reinstatement	Life-not eligible for 10-year reinstatement	Life-not eligible for 10-year reinstatement	Life-not eligible for 10-year reinstatement	Life-not eligible for 10-year reinstatement

(c) Disqualification for serious traffic violations.Table 2 to §383.51 contains a list of the offenses and the periods for which a person who is required to have a CLP or CDL is disqualified, depending upon the type of vehicle the driver is operating at the time of the violation, as follows:Table 2 to § 383.51

If the driver operates a motor vehicle and is convicted of:	For a second conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a second conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a non-CMV, a CLP or CDL holder must be disqualified from operating a CMV, if the conviction results in the revocation, cancellation, or suspension of the CLP or CDL holder's license or non-CMV driving privileges, for * * *	For a third or subsequent conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a third or subsequent conviction of any combination of offenses in this Table in a separate incident within a 3-year period while operating a non-CMV, a CLP or CDL holder must be disqualified from operating a CMV, if the conviction results in the revocation, cancellation, or suspension of the CLP or CDL holder's license or non-CMV driving privileges, for * * *
(1) Speeding excessively, involving any speed of 24.1 kmph (15 mph) or more above the posted speed limit	60 days	60 days	120 days	120 days.
(2) Driving recklessly, as defined by State or local law or regulation, including but, not limited to, offenses of driving a motor vehicle in willful or wanton disregard for the safety of persons or property	60 days	60 days	120 days	120 days.
(3) Making improper or erratic traffic lane changes	60 days	60 days	120 days	120 days.
(4) Following the vehicle ahead too closely	60 days	60 days	120 days	120 days.
(5) Violating State or local law relating to motor vehicle traffic control (other than a parking violation) arising in connection with a fatal accident	60 days	60 days	120 days	120 days.
(6) Driving a CMV without obtaining a CDL	60 days	Not applicable	120 days	Not applicable.
(7) Driving a CMV without a CDL in the driver's possession1	60 days	Not applicable	120 days	Not applicable.
(8) Driving a CMV without the proper class of CDL and/or endorsements for the specific vehicle group being operated or for the passengers or type of cargo being transported	60 days	Not applicable	120 days	Not applicable.
(9) Violating a State or local law or ordinance on motor vehicle traffic control prohibiting texting while driving.2	60 days	Not applicable	120 days	Not applicable.
(10) Violating a State or local law or ordinance on motor vehicle traffic control restricting or prohibiting the use of a hand-held mobile telephone while driving a CMV.2	60 days	Not applicable	120 days	Not applicable.

1Any individual who provides proof to the enforcement authority that issued the citation, by the date the individual must appear in court or pay any fine for such a violation, that the individual held a valid CDL on the date the citation was issued, shall not be guilty of this offense.2Driving, for the purpose of this disqualification, means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.

Table 3 to § 383.51

If the driver is convicted of operating a CMV in violation of a Federal, State or local law because * * *.	For a first conviction a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a second conviction of any combination of offenses in this Table in a separate incident within a 3-year period, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a third or subsequent conviction of any combination of offenses in this Table in a separate incident within a 3-year period, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *
(1) The driver is not required to always stop, but fails to slow down and check that tracks are clear of an approaching train * * *	No less than 60 days	No less than 120 days	No less than 1 year.
(2) The driver is not required to always stop, but fails to stop before reaching the crossing, if the tracks are not clear * * *	No less than 60 days	No less than 120 days	No less than 1 year.
(3) The driver is always required to stop, but fails to stop before driving onto the crossing * * *	No less than 60 days	No less than 120 days	No less than 1 year.
(4) The driver fails to have sufficient space to drive completely through the crossing without stopping * * *	No less than 60 days	No less than 120 days	No less than 1 year.
(5) The driver fails to obey a traffic control device or the directions of an enforcement official at the crossing * * *	No less than 60 days	No less than 120 days	No less than 1 year.
(6) The driver fails to negotiate a crossing because of insufficient undercarriage clearance * * *	No less than 60 days	No less than 120 days	No less than 1 year.

(e) Disqualification for violating out-of-service orders. Table 4 to §383.51 contains a list of the offenses and periods for which a person who is required to have a CLP or CDL is disqualified when the driver is operating a CMV at the time of the violation, as follows:TABLE 4 TO § 383.51

If the driver operates a CMV and is convicted of * * *	For a first conviction while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a second conviction in a separate incident within a 10-year period while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *	For a third or subsequent conviction in a separate incident within a 10-year period while operating a CMV, a person required to have a CLP or CDL and a CLP or CDL holder must be disqualified from operating a CMV for * * *
(1) Violating a driver or vehicle out-of-service order while transporting nonhazardous materials	No less than 180 days or more than 1 year	No less than 2 years or more than 5 years	No less than 3 years or more than 5 years.
(2) Violating a driver or vehicle out-of-service order while transporting hazardous materials required to be placarded under part 172, subpart F of this title, or while operating a vehicle designed to transport 16 or more passengers, including the driver	No less than 180 days or more than 2 years	No less than 3 years or more than 5 years	No less than 3 years or more than 5 years.

[67 FR 49756, July 31, 2002, as amended at 68 FR 4396, Jan. 29, 2003; 72 FR 36787, July 5, 2007; 75 FR 59134, Sept. 27, 2010; 76 FR 26879, May 9, 2011; 76 FR 75486, Dec. 2, 2011]

Thursday, August 16, 2012

39:4-129b Leaving scene of accident property damage

39:4-129b Leaving scene of accident property damage

39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both. The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.

In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

(b)

The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than $200 nor more than $400, or be imprisoned for a period of not more than 30 days, or both, for the first offense, and for a subsequent offense, shall be fined not less than $400 nor more than $600, or be imprisoned for a period of not less than 30 days nor more than 90 days or both.

In addition, a person who violates this subsection shall, for a first offense, forfeit the right to operate a motor vehicle in this State for a period of six months from the date of conviction, and for a period of one year from the date of conviction for any subsequent offense.

(c)

The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person.

In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection.

(d)

The driver of any vehicle which knowingly collides with or is knowingly involved in an accident with any vehicle or other property which is unattended resulting in any damage to such vehicle or other property shall immediately stop and shall then and there locate and notify the operator or owner of such vehicle or other property of the name and address of the driver and owner of the vehicle striking the unattended vehicle or other property or, in the event an unattended vehicle is struck and the driver or owner thereof cannot be immediately located, shall attach securely in a conspicuous place in or on such vehicle a written notice giving the name and address of the driver and owner of the vehicle doing the striking or, in the event other property is struck and the owner thereof cannot be immediately located, shall notify the nearest office of the local police department or of the county police of the county or of the State Police and in addition shall notify the owner of the property as soon as the owner can be identified and located. Any person who violates this subsection shall be punished as provided in subsection (b) of this section.

(e)

There shall be a permissive inference that the driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property has knowledge that he was involved in such accident.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.

There shall be a permissive inference that the registered owner of the vehicle which was involved in an accident subject to the provisions of this section was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

school zone dwi 39:4-50g

school zone dwi 39:4-50g
(g)

When a violation of this section occurs while:

(1)

on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(2)

driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(3)

driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution, the convicted person shall: for a first offense, be fined not less than $500 or more than $800, be imprisoned for not more than 60 days and have his license to operate a motor vehicle suspended for a period of not less than one year or more than two years; for a second offense, be fined not less than $1,000 or more than $2,000, perform community service for a period of 60 days, be imprisoned for not less than 96 consecutive hours, which shall not be suspended or served on probation, nor more than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem appropriate under the circumstances and have his license to operate a motor vehicle suspended for a period of four years; and, for a third offense, be fined $2,000, imprisoned for 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center, and have his license to operate a motor vehicle suspended for a period of 20 years; the period of license suspension shall commence upon the completion of any prison sentence imposed upon that person.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.

It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

(h)

A court also may order a person convicted pursuant to subsection (a) of this section, to participate in a supervised visitation program as either a condition of probation or a form of community service, giving preference to those who were under the age of 21 at the time of the offense. Prior to ordering a person to participate in such a program, the court may consult with any person who may provide useful information on the defendant's physical, emotional and mental suitability for the visit to ensure that it will not cause any injury to the defendant. The court also may order that the defendant participate in a counseling session under the supervision of the Intoxicated Driving Program Unit prior to participating in the supervised visitation program. The supervised visitation program shall be at one or more of the following facilities which have agreed to participate in the program under the supervision of the facility's personnel and the probation department:

Thursday, July 12, 2012

N.J. ATTORNEY GENERAL’S STANDARD STATEMENT FOR MOTOR VEHICLE OPERATORS (N.J.S.A. 39:4-50.2(e)) (revised & effective July 1, 2012)

N.J. ATTORNEY GENERAL’S STANDARD STATEMENT

FOR MOTOR VEHICLE OPERATORS (N.J.S.A. 39:4-50.2(e))

(revised & effective July 1, 2012)

Enter Defendant’s Name ______________________________________

The police officer shall read the following:

1. You have been arrested for driving while intoxicated. N.J.S.A. 39:4-50.

2. The law requires you to submit samples of your breath for the purpose of testing to determine

alcohol content.

3. A record of the taking of the breath samples, including the test results, will be made. Upon your request, a copy of that record will be made available to you.

4. After you have provided samples of your breath for testing, you have the right, at your own expense, to have a person or physician of your own selection take independent samples of your breath, blood or urine for independent testing.

5. If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated.

6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license

revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.

7. You have no legal right to have an attorney, physician or anyone else present for the purpose of taking the breath samples. You have no legal right to refuse to give, or delay giving, samples of your breath. \

8. Any response from you that is ambiguous or conditional, in any respect, to my request that you provide breath samples, will be treated as a refusal to submit to breath testing. Even if you agree to take the test, but then do not follow my instructions, do not properly perform the test, or do not provide sufficient breath samples, I will charge you with refusal to submit to breath testing.

9. I repeat, the law requires you to submit samples of your breath for testing. Will you submit the samples of your breath?

Answer ________________________

If the arrested person does not respond, or gives any ambiguous or conditional answer short of an unequivocal “yes,” the police officer shall read the following.

Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than “yes,” I will charge you with refusal. Now, I ask you again, will you submit to breath testing?

Answer _______________________

Wednesday, July 11, 2012

NJDOT suspends issuance of violations at 63 intersections where red light cameras are used to enforce the law

NJDOT suspends issuance of violations
at 63 intersections where red light cameras
are used to enforce the law
21 towns in the pilot program ordered to re-certify
timing of yellow lights

(Trenton) - The New Jersey Department of Transportation has directed 21 of the 25 municipalities that are participating in a pilot program to suspend issuing summonses to motorists on the basis of video evidence provided by cameras placed at intersections.

The suspension order affects 63 of the 85 intersections statewide where red light cameras are operating or have been approved for operation. It affects all locations in 19 participating municipalities and one intersection in each of two other municipalities.

The pilot program, authorized by an act of the Legislature in 2008 and implemented beginning in 2009, aims to determine whether red light cameras promote safety by reducing the frequency and severity of crashes at intersections that have a history of motorists running red lights.

NJDOT, which is administering the five-year pilot program, has ordered that the issuance of new violation summonses be suspended at the 63 intersections because it has come to the attention of the Department that the pilot program legislation specifies a formula to determine the proper duration of the yellow light in a traffic signal that differs from the legally required, nationally accepted formula that NJDOT or municipalities use when installing traffic signals. The difference in the formulas may or may not require a longer duration for the yellow light.

Every traffic signal at each of the 85 intersections in the pilot program conforms to the nationally accepted standard used by NJDOT.

However, traffic signals at only 22 of the 85 intersections were certified in accordance with the formula specified in the legislation.

NJDOT has notified the 21 affected municipalities of the variance in the formulas and has directed each to perform an analysis that conforms to the formula in the legislation.

• If the analysis shows that the duration of a yellow light meets the minimum duration as required by the legislation, municipalities will be permitted to issue violation notices for violations that occur during the suspension period, and continue issuing violation notices.

• If the analysis shows that a signal does not display a yellow light long enough to meet the formula in the legislation, that intersection will be removed from the pilot program.

The violation suspension and signal re-certification directives affect all cameras installed at intersections in the following 19 municipalities:

Newark, Linden, Wayne, Palisades Park, Union Township, Springfield (Union County), Roselle Park, Rahway, Englewood Cliffs, Pohatcong, Piscataway, Edison, East Windsor, Lawrence, Cherry Hill, Stratford, Monroe, Brick and Glassboro.

The order affects one location in each of the following two municipalities:

In Jersey City at JFK Boulevard (CR 501) and Communipaw Avenue and Woodbridge at Route 1 and Avenel Street.

Click here for a complete list of the 85 intersections approved for red light camera enforcement.

The intersections not affected by the directives include one in Deptford, one in East Brunswick, four in Gloucester and one in New Brunswick. Additionally, 12 of 13 intersections equipped with cameras in Jersey City and three of four intersections in Woodbridge are excluded from the directives.

NJDOT has directed affected municipalities to conduct their traffic analyses and submit certifications to the Department no later than August 1, 2012.

Yellow time calculations

NJDOT follows the legally required engineering and safety standards in the Manual on Uniform Traffic Control Devices, which requires a minimum duration of the yellow light to equal one-tenth of the posted speed limit on the approaching road. This is a safety standard designed to provide motorists with sufficient time to respond to the yellow light and prevent collisions.

For example, where the approaching road has a posted speed of 40 miles per hour, the signal must display yellow for a minimum of four seconds. NJDOT rounds up to the nearest whole second, so in instances where the approaching speed limit is 45 miles per hour, the signal displays a yellow light for five seconds.

The formula in the legislation to determine pilot-program eligibility requires an analysis of vehicle speeds as they approach the intersection where a red light camera installation is proposed. The formula requires a yellow signal of at least three seconds if at least 85 percent of the approaching traffic travels at speeds of 25 miles per hour or less.

For each five mile-per-hour increase in vehicle speed above 30 miles per hour, the minimum duration of the yellow light must be increased by 0.5 seconds, according to the legislation.

This requirement aims to ensure that the traffic signal is timed properly to provide motorists with sufficient time to avoid a violation and fine by entering an intersection when the light is red.

Friday, July 6, 2012

NJ MOTOR VEHICLE COMMISSION v. LARISSA A. GETHARD

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4657-10T3

NEW JERSEY MOTOR VEHICLE

COMMISSION,,

LARISSA A. GETHARD,

________________________________

February 10, 2012

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[1] 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),[2] 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)[3] (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%).[4] 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.

[1] The record is unclear whether appellant pled guilty to the New York offense or instead was found guilty after a trial.

[2] 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."

[3] At our invitation, counsel have furnished the court with supplemental briefs addressing the recent decision in Zeikel.

[4] 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.