GREGORY W. LYPOWY v. NEW JERSEY MOTOR VEHICLE COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2667-07T22667-07T2

GREGORY W. LYPOWY,

Appellant,

v.

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Respondent.

__________________________

 

Argued January 21, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from a Final Decision of the

Motor Vehicle Commission.

Paulette L. Pitt argued the cause for

appellant (Fusco & Macaluso, attorneys;

A.J. Fusco, Jr., of counsel; Ms. Pitt,

on the brief).

Mala Narayanan, Deputy Attorney General,

argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa,

Deputy Attorney General, of counsel; Ms.

Narayanan, on the brief).

PER CURIAM

Defendant appeals from an Order of the Chief Administrator of the Motor Vehicle Commission ("Commission") suspending defendant's driver's license for a period of ten years. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's first conviction for driving while intoxicated occurred in 1981 in New York. He was again arrested for driving while intoxicated in December 1982 in Wanaque, New Jersey, and was convicted of this offense in 1983. His attorney at the time successfully argued to the court that defendant should be sentenced under State v. Davis, 95 N.J. Super. 19 (Cty. Ct. 1967), as a first-time offender because it was his first New Jersey conviction.

In February 1983, defendant was again arrested for driving while intoxicated, this time in Glen Rock, New Jersey. According to the Commission, this resulted in a conviction for driving while intoxicated and for refusal to take a Breathalyzer. Defendant's brief omits this episode entirely from its recitation of defendant's driving history.

In 2000, defendant was again charged with driving while intoxicated. He was convicted in Fort Lee.

In 2007, defendant was again convicted of driving while intoxicated. This offense occurred in New York, as had his first offense. New York reported this conviction to New Jersey in accordance with the Interstate Compact, N.J.S.A. 39:5D-1 to -14.

N.J.S.A. 39:4-50(a)(3) directs that the driver's license of an individual who has been convicted of driving while intoxicated three or more times shall be suspended for ten years. When the Motor Vehicle Commission received notification of defendant's 2007 conviction, it notified him that his license would be suspended for ten years.

When defendant received notification that his license was to be suspended, he requested a hearing. His request, however, was denied, and the suspension was issued.

Defendant argues on appeal that the denial of a hearing was error because it deprived him of the opportunity to demonstrate that his 2007 New York State conviction should not be treated as a third conviction for purposes of N.J.S.A. 39:4-50(a)(3). The fundamental premise of defendant's argument, however, is flawed.

Defendant contends that his 1981 New York State conviction should not be counted because New York does not count prior out-of-state convictions. That, however, is immaterial to the manner in which New Jersey treats prior out-of-state convictions.

Defendant also contends that because his 1983 conviction in Wanaque occurred more than ten years before his 2007 conviction in New York State, it should not count for purposes of triggering the ten-year period of suspension. He supports this proposition by pointing to that portion of N.J.S.A. 39:4-50 which provides that

if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

[N.J.S.A. 39:4-50(a)(3).]

The short answer is that the statute contains no step-down provision for any conviction beyond a third.

We reject defendant's assertion that he was entitled to a hearing before the Commission. The purpose of a hearing is to resolve disputed questions of fact. Here, there were no disputed questions of fact. Defendant did not dispute the contents of his driving record.

 
Defendant's final argument is that the trial court, rather than suspending his license, should have ordered the installation of an interlock device upon his vehicle. The statutory provision for interlock devices, however, only allows their installation after the period of suspension has been served. N.J.S.A. 39:4-50.17. They are not intended to be installed in lieu of suspension.

Affirmed.

(continued)

(continued)

4

A-2667-07T2

February 24, 2009