CARL F. OMARK 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NOT FOR PUBLICATION WITHOUT THE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-6061-07T36061-07T3

CARL F. OMARK,

Appellant,

v.

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Respondent.

________________________________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from a Final Decision of

the Motor Vehicle Commission.

Stephen M. Pascarella, attorney for

appellant.

Anne Milgram, Attorney General,

attorney for respondent (Melissa

Raksa, Assistant Attorney General,

of counsel; Judith Andrejko, Deputy

Attorney General, on the brief).

PER CURIAM

Appellant Carl Omark appeals from a final determination of the New Jersey Motor Vehicle Commission (MVC) suspending his New Jersey driver's license for 730 days without a hearing. We affirm.

By way of background, on December 7, 2006, following his guilty plea, Omark was convicted of driving under the influence (DUI) in the State of Florida, which recorded his blood-alcohol level at time of arrest on June 21, 2006, at .20, and also suspended his Florida reciprocity driving privileges. Upon receipt of the record of conviction, the MVC notified Omark on May 13, 2008, that it proposed to suspend his New Jersey driving privileges because of his Florida conviction, pursuant to the Interstate Driver License Compact (Interstate Compact), N.J.S.A. 39:5D-1 to -14, and N.J.A.C. 13:19-11.1. The notice of suspension stated the details of the conviction, the proposed suspension date June 7, 2008 - and the proposed suspension period 730 days, the statutorily mandated minimum period. N.J.S.A. 39:4-50(a)(2). Omark was also advised of his right to request a hearing and the format of the hearing request, namely that he detail all disputed material facts, and specify all legal issues.

By letter of June 6, 2008, Omark's counsel objected to the proposed license suspension and requested a hearing. The letter did not dispute that Omark entered a guilty plea to a DUI offense on December 7, 2006, in Florida. Alluding instead to his "understanding that the [c]ourt entered judgment in Omark's absence," counsel basically complained about the two-year delay between the "actual event in Florida and the administrative action taken by the [NJ] MV[C]."

By letter of June 27, 2008, the MVC issued its final decision denying Omark's request for a hearing and ordering suspension of his driving privileges for 730 days, the minimum suspension term allowed by law. As to the former, the MVC found that Omark neither contested the fact that he was convicted in Florida for DUI nor identified any disputed material facts or legal issues to warrant a hearing, N.J.A.C. 13:19-1.2(d). As to the latter, the MVC found that Omark's out-of-state alcohol-related conviction was substantially similar to New Jersey's DUI statute, N.J.S.A. 39:4-50, as to come within the purview of the Interstate Compact, and, thus, his driver's license suspension was mandated by law, N.J.S.A. 39:5D-4(a); N.J.S.A. 39:5-30; and N.J.A.C. 13:19-11.1.

On appeal, Omark urges, as a ground for reversal, that the agency action was invalid because of its failure to grant him a hearing where, presumably, he could collaterally attack his Florida conviction. We find no merit to Omark's challenge.

It is well settled that, pursuant to the Interstate Compact, the MVC is authorized to suspend a New Jersey driver's license for an out-of-state alcohol conviction, based on a statute that is substantially similar to that of the home state's. Here, it is undisputed that Omark's conduct in Florida in operating a motor vehicle while impaired is an offense under the New Jersey driving under the influence law, N.J.S.A. 39:4-50(a), just as it was in Florida. See also N.J.A.C. 13:19-11.1. Thus, the mandatory suspension imposed here enforces and effectuates strong public policy set forth by the Legislature. State, Div. of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 419 (App. Div. 2005) (A New Jersey licensed driver who drives while impaired in a Compact party state violates the sovereignty of New Jersey).

To be sure, the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, affords licensees an administrative hearing if there are disputed material facts. N.J.S.A. 52:14B-11. By the same token, a contested case hearing is not required where the material facts are not in dispute. Pepe, supra, 379 N.J. Super. at 419 (no disputed facts or law, therefore, no hearing necessary); Tichenor v. Magee, 4 N.J. Super. 467, 470-71 (App. Div. 1949) (grant of hearing is discretionary and not required when out-of-state conviction was undisputed). Neither is a hearing indicated "where the agency is required by any law to revoke, suspend or refuse to renew a license, as the case may be, without exercising any discretion in the matter, on the basis of a judgment of a court of competent jurisdiction[.]" N.J.S.A. 52:14B-11.

Here, Omark has failed to identify any material facts that are in dispute. He has also failed to refute the existence of his Florida judgment of conviction. Although he argues the judgment is a nullity because secured in his absence, the administrative hearing he seeks is simply not the appropriate forum to try the issue of his guilt or innocence of the Florida charge. Omark's recourse in challenging his Florida conviction was in Florida, where the offense occurred, not in New Jersey. See, e.g., State v. Laurick, 120 N.J. 1, 11-12, certif. denied, 498 U.S. 967 (1990); State v. Ferrier, 294 N.J. Super. 198, 200 (App. Div. 1996), certif. denied, 148 N.J. 461 (1997); Tichenor, supra, 4 N.J. Super. at 471 (where driver did not appeal Maryland conviction for drunk driving, he cannot "assert" invalidity of the same in a reciprocal suspension proceeding by New Jersey). His lack of diligence in meeting that issue in the foreign jurisdiction should not be rewarded by allowing him to collaterally attack his Florida conviction in an administrative hearing in New Jersey on this State's suspension of his driving privileges. Thus, in light of his failure to appeal the Florida conviction, and having instituted no proceedings to test the validity thereof, we conclude that Omark may not successfully assert its invalidity here. Furthermore, we note that Omark's contention that the Florida judgment of conviction is invalid is not supported by any competent evidence in the record.

Affirmed.

 

Thereafter, in July 2007, Omark pled guilty in the municipal court of the Borough of Tinton Falls for a violation of N.J.S.A. 39:4-50 and received a seven-month suspension of driving privileges as a first time offender. His driving privileges were restored in early 2008.

In Fla. Stat. 316.193 "driving under the influence," is virtually identical to the prohibition contained in N.J.S.A. 39:4-50(a) that no person shall "operate[] a motor vehicle while under the influence of intoxicating liquor[.]"

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A-6061-07T3

June 16, 2009