IN THE MATTER OF FRANCESCO M. SAVOCA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1406-06T11406-06T1

IN THE MATTER OF

FRANCESCO M. SAVOCA.

__________________________________

 

Submitted October 16, 2007 - Decided October 30, 2007

Before Judges Fuentes and Chambers.

On appeal from the New Jersey Motor Vehicle Commission, No. S0926 26774 11562.

George G. Gussis, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Lewis P. Scheindlin, Assistant Attorney General, of counsel; Emily H. Armstrong, Deputy Attorney General, on the brief).

PER CURIAM

Appellant appeals from the 300 day suspension of his driver's license by the New Jersey Motor Vehicle Commission (NJMVC). Appellant maintains that since he had not received any points for the preceding seven years and due to the hardship loss of the license entails, a single speeding ticket should not trigger a license suspension. We affirm. In light of appellant's massive accumulation of points during his driving history, the suspension was not arbitrary, unreasonable or capricious.

Appellant has been a licensed driver in New Jersey since 1974. In the period from 1974 to 1999, he accumulated 115 points from a total of forty-two separate offenses that included seventeen speeding violations, seven careless driving violations, five reckless driving violations, and two leaving the scene of an accident (with property damage) violations. During this period, his driver's license was suspended multiple times. He attended the Driver Improvement Program in 1975, but continued to accumulate points thereafter.

Appellant's record has improved. Having received no further points from 2000 to 2005, appellant received a three point credit reduction for safe driving for each of those years. Then on November 12, 2005, appellant committed a two-point speeding violation. This violation brought his then accumulated points to eighty-four. As a result, on February 5, 2006, the NJMVC sent appellant a suspension notice, advising that his driving privileges would be suspended for a period of 630 days. Appellant requested a hearing.

The administrative law hearing was held on July 19, 2006. Appellant was represented by counsel and testified at the hearing. Appellant, forty-nine years old, testified to the hardship he would endure if his license were suspended. He makes his living by selling and delivering office supplies and also does security work at various locations. He estimated that he drives about 35,000 miles a year. Since he lives alone and is self-supporting, without his driver's license, he would not be able to support himself and would lose his business. No one appeared on behalf of the NJMVC which relied on its papers, namely the suspension notice and appellant's driver's abstract.

The administrative law judge issued a written initial decision dated August 9, 2006, recommending that the suspension be reduced to 300 days. Appellant filed exceptions to the decision with the NJMVC. On September 22, 2006, the Chief Administrator of the NJMVC issued a final decision suspending appellant's driver's license for a period of 300 days. This appeal followed.

Appellant notes that under the current point system, it would take him twenty-eight years to accumulate enough safe driving credits to eliminate his points. The result is that for many years the accumulation of any points will trigger a license suspension for him. He notes that in the current circumstance, he had gone over seven years with no points, and yet, a single violation has triggered a lengthy license suspension. Appellant contends that the final decision of the Chief Administrator of the NJMVC was arbitrary, capricious and unreasonable; that the point system itself as applied to someone in appellant's circumstances is arbitrary, capricious and unreasonable; and that the suspension violates his protection from double jeopardy set forth in the United States and New Jersey constitutions.

For an agency's decision to be overturned, the decision must have been "arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). When reviewing the agency decision, we must determine whether the agency followed the law, whether substantial evidence in the record supports the decision, and "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." Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). This court owes "substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

The New Jersey motor vehicle point system has been a long standing part of the State's regulatory system of drivers. See No Illegal Points, Citizens for Drivers Rights, Inc. v. Florio, 264 N.J. Super. 318, 323-28 (App. Div.), certif. denied, 134 N.J. 479 (1993) (setting forth the history of this regulatory system). The point system, authorized by statute, and set forth in the NJMVC administrative regulations, assesses a particular number of points to specific motor vehicle violations. N.J.S.A. 39:5-30.5; N.J.A.C. 13:19-10.1. The statute further provides for a reduction in points at the rate of three points every twelve months that the driver has not received new points or had his license suspended. N.J.S.A. 39:5-30.9.

A driver who has accumulated an excessive amount of points may have his license suspended. N.J.S.A. 39:5-30. The regulations set forth a schedule indicating the period of suspension that will be imposed, absent good cause, when a particular number of points has been accumulated in a given time period. N.J.A.C. 13:19-10.2. As the administrative law judge noted, appellant's violation history is "off the chart." The maximum point accumulation addressed by the regulation is thirty-six points accumulated in a period greater than two years for which the period of suspension is "not less than 180 days." N.J.A.C. 13:19-10.2(a)(12). At the time of the hearing, appellant's point accumulation was eighty-four points. Using the formula set forth in the regulations and projecting it forward to cover an accumulation of eighty-four points, NJMVC calculated and assessed a 630 day license suspension.

The regulations give the Chief Administrator of NJMVC discretion to reduce the period of suspension for good cause as follows:

For good cause shown, the Chief Administrator may in his or her discretion permit a person to attend a driver improvement program of the Motor Vehicle Commission in total or partial satisfaction of a period of suspension imposed under (a) above. In exercising his or her discretion, the Chief Administrator shall consider the person's driving record, prior warnings or driver improvement program attendance, maturity and any other aggravating or mitigating factor.

[N.J.A.C. 13:19-10.2(b).]

In this case the facts are not in dispute. Appellant admitted to the speeding violation that triggered the suspension, and he did not contest his driving history as presented by the NJMVC. Rather he contests the agency's failure to exercise its discretion by waiving the suspension. The administrative law judge and the Chief Administrator at the NJMVC did consider the relevant factors that appellant notes; namely, the hardship a suspension would impose because appellant, who lives alone and is self-supporting, and drives for his livelihood, his good driving record for the seven years preceding the speeding ticket that triggered the suspension, the circumstance that due to his hefty accumulation of points for many years a single violation will trigger a suspension, and his age. In light of these factors, appellant's period of suspension was reduced by more than half, from 630 days to 300 days.

Under these circumstances, the period of suspension imposed by the NJMVC was not arbitrary, unreasonable or capricious. Appellant's driving record is egregious. The administrative law judge indicated that it was "one of the worst records I have ever seen," stating that, to his recollection, he had never seen 100 points on a driving record. The commissioner noted the need for uniformity in imposing the law. Indeed, people with much better driving records than appellant face subsequent suspensions when they commit an additional violation. With respect to hardship, the Chief Administrator stated that "[n]eed alone cannot be the deciding factor, since in today's motorized society virtually everyone needs a driver's license to earn a living and perform normal daily activities."

Finally, appellant's argument that the assessment of points by the NJMVC constitutes a second punishment in violation of the constitutional protection against double jeopardy under the Fifth Amendment has already been addressed and rejected by this court. No Illegal Points, Citizens for Drivers Rights, Inc. v. Florio, supra, 264 N.J. Super. at 332-33.

Affirmed.

 

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A-1406-06T1

October 30, 2007