RUTH E. OLSVARY v. NEW JERSEY MOTOR VEHICLE COMMISSION

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5604-07T35604-07T3

RUTH E. OLSVARY,

Appellant,

v.

NEW JERSEY MOTOR

VEHICLE COMMISSION,

Respondent.

___________________________

 

Submitted April 1, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from a Final Decision of the New Jersey Motor Vehicle Commission.

Law Office of Paul W. Bergrin, P.C., attorneys for appellant (Robert Carter Pierce, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Judith Andrejko, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Ruth E. Olsvary appeals from a final decision of the Motor Vehicle Commission (MVC) that denied her request for an administrative hearing and upheld the suspension of her New Jersey driving privileges following her plea of nolo contendere to a Florida charge of driving while intoxicated. Appellant argues the agency's failure to conduct an administrative hearing prior to the imposition of the suspension was a denial of due process and the length of the suspension was illegal. We disagree and affirm.

Appellant, a New Jersey licensee, was charged with driving under the influence of alcohol while driving in Dade County Florida on April 2, 2007. Appellant presumably refused to allow a breath chemical test, as the arrest report lists ".000" as her blood alcohol concentration (BAC). Thereafter, appellant entered a plea of nolo contendere and was sentenced to six months probation. Applicable fines and a six-month license suspension were also imposed. Appellant's probation was transferred to New Jersey.

Pursuant to the Interstate Driver License Compact (the Compact), N.J.S.A. 39:5D-1 to -14, the Florida conviction was transmitted to the MVC. Appellant mistakenly believed her New Jersey driving privileges were suspended contemporaneously with her Florida privileges. She completed the Florida sentence on June 10, 2008.

Prior to June 10, 2008, appellant received a suspension notice from the Commissioner of the MVC. The notice stated any request for a hearing

must specify all disputed 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 your 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.

Appellant contested the suspension. The correspondence from counsel listed the following in response to the above directions:

THIS LETTER SHALL SERVE AS NOTICE that [appellant] hereby contests the scheduled suspension of her driving privileges and, as such, hereby requests a hearing, based upon issues surrounding her United States Constitutional rights made applicable to the State of New Jersey via the Fourteenth Amendment and comparable State Constitutional Rights, more specifically, and without limitation:

1. The State's inability to provide the appropriate proofs;

2. The State's lack of notice and due process . . .;

3. The issue of double jeopardy;

4. Cruel and unusual punishment; and

5 Defects regarding [appellant's] out-of-state conviction.

The MVC denied appellant's hearing request because she failed to specify the proposed disputed facts and legal issues to be presented. N.J.A.C. 13:19-1.2(d). The MVC ordered suspension of appellant's New Jersey driving privileges for 210 days, effective July 23, 2008. Appellant filed a request to reconsider the determination, which was denied by the Commissioner who also denied appellant's request for a stay of the suspension pending appeal.

On appeal, appellant argues the MVC's denial of an administrative hearing to determine the validity of the proposed suspension of her New Jersey driving privileges impinged her rights of due process because: (1) the notice of suspension inaccurately states the date of the Florida conviction; (2) the inordinate delay between the start of her Florida suspension and the MVC's suspension and issuance of notice of intention to suspend prejudiced appellant's ability to concurrently serve the two suspensions; and (3) appellant was denied a hearing. Additionally, appellant argues any suspension cannot exceed ninety days, as provided in N.J.S.A. 39:4-50, as this was her first offense.

The Compact provides for cooperation among states in reporting driving offenses and disciplining licensees. The underlying policy of the Compact, "is to encourage the reciprocal recognition of motor vehicle violations that occurred in other jurisdictions, thereby increasing the probability that safety on highways would improve overall." State v. Colley, 397 N.J. Super. 214, 219 (App. Div. 2007).

When the MVC receives a report of a licensee's conviction for "[d]riving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug," the statute mandates the agency "shall give the same effect to the conduct reported, . . . as it would if such conduct had occurred in the home State," and contemplates the agency may impose either the penalty of New Jersey or the penalty required by the state of conviction. N.J.S.A. 39:5D-4(a)(2); see New Jersey Div. of Motor Vehicles v. Egan, 103 N.J. 350, 355-56 (1986) (under both N.J.S.A. 39:5-30.1 and N.J.S.A. 39:5D-4, the DMV Director may impose either the penalty of New Jersey or that of the state where the offense occurred).

We have a limited function in reviewing a proceeding involving suspension of a motorist's driving privileges. We do not interfere with the agency's exercise of discretion in the absence of abuse, and sustain its decision when it is supported by substantial, credible evidence in the record as a whole. David v. Strelecki, 51 N.J. 563, 565, cert. denied, 393 U.S. 933, 89 S. Ct. 291, 21 L. Ed. 2d 269 (1968); Cresse v. Parsekian, 81 N.J. Super. 536, 548 (App. Div. 1963), aff'd, 43 N.J. 326 (1964).

We easily dispose of the first challenge advanced by appellant that she was denied due process because the notice of suspension identified a conviction for operating a vehicle under the influence of liquor on May 2, 2007, when the offense occurred on April 2, 2007. Indisputably, this was an inconsequential clerical error because the notice correctly recited the date of conviction, that is, December 10, 2007. Appellant demonstrates no prejudice emanating from this error. Consequently, we reject her suggestion the notice was fatally defective.

We also find unavailing appellant's claim of prejudice due to the delay in the MVC's transmittal of her notice of suspension. The record contains no support for appellant's suspicion that the MVC received the record from Florida on or about May 2, 2007. Florida's report of appellant's out-of-state conviction was stamped received by the MVC on April 28, 2008. The MVC's notice to appellant was prepared on May 13, 2008. The MVC cannot control the actions of, or delays by, its counterparts.

"[T]he Compact does not establish time limits for reciprocal acts of suspension and that acceptance of [appellant's] position would undercut the strong state policy embodied in the Compact." Boyd v. Div. of Motor Vehicles, 307 N.J. Super. 356, 359 (App. Div), certif. denied, 154 N.J. 608 (1998). Although the delay is unfortunate, and "[w]hile it would certainly be desirable to take whatever action can be taken to minimize such delays in the future, we do not believe it is reasonable, or even permissible, for us to visit the sins of another state (if there were sins) on the [MVC] and thus frustrate the legislative policy embodied in the Interstate Compact." Ibid.; Division of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 416 (App. Div. 2005).

Our review reveals appellant presented no disputed issues of material fact when requesting a hearing. N.J.A.C. 13:19-1.2(c). Moreover, she provided no legal basis to set aside the MVC's decision to impose a suspension of her driving privileges, authorized by N.J.S.A. 39:5D-4 and N.J.S.A. 39:4-50, and supported by the undisputed evidence in the record. Failure to do so obviates the need for an evidentiary hearing. N.J.A.C. 13:19-1.2(e); 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); Pepe, supra, 379 N.J. Super. at 419.

Finally, we review appellant's challenge to the length of the issued New Jersey suspension. The period of suspension imposed when a New Jersey driver operates a motor vehicle with a BAC level of 0.10% or higher is "not less than seven months nor more than one year." N.J.S.A. 39:4-50(a)(1)(ii). Appellant asserts the Florida conviction was unaccompanied by a BAC reading, therefore, the period of suspension is governed by subsection (i) providing a period of suspension of three months for a BAC of "0.08% or higher but less than 0.10%[.]" N.J.S.A. 39:4-50(a)(1)(i).

The Florida statute governing appellant's conviction states:

(1) A person is guilty of the offense of driving under the influence . . . if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, . . . when affected to the extent that the person's normal faculties are impaired;

(b) . . . ; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

[Fla. Stat. 316.193]

This statute is similar to New Jersey's statute governing driving while intoxicated, N.J.S.A. 39:4-50. We also note, appellant's apparent refusal to submit a breath sample when arrested in Florida precluded evidence of her breath-alcohol level. As required by N.J.S.A. 39:4-50.4(a)(1)(ii), such refusal requires a license suspension of not less than seven months and not more than one year.

 
Affirmed.

(continued)

(continued)

9

A-5604-07T3

April 29, 2009