DEAN SHEIBAN 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NOT FOR PUBLICATION WITHOUT THE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-2782-06T52782-06T5

DEAN SHEIBAN,

Appellant,

v.

NEW JERSEY MOTOR VEHICLE COMMISSION,

Respondent.

____________________________________

 

Argued: November 13, 2007 - Decided:

Before Judges Collester and C.L. Miniman.

On appeal from the New Jersey Motor Vehicle Commission.

Scott A. Gorman argued the cause for appellant (Rem Zeller Law Group, attorneys; Jeffrey B. Steinfeld, of counsel and on the brief with Mr. Gorman).

Emily H. Armstrong, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Armstrong, on the brief).

PER CURIAM

Appellant Dean Sheiban appeals from a final administrative order of the New Jersey Motor Vehicle Commission (MVC) suspending his New Jersey driving privileges for 3600 days pursuant to the Interstate Driver License Compact (the Compact), N.J.S.A. 39:5D-1 to -14, based upon Sheiban's guilty plea to driving while intoxicated in South Nyack, New York, his third conviction. Because New Jersey has a significant interest in regulating the out-of-state conduct of a New Jersey resident and licensee, we affirm.

The facts are undisputed. Sheiban was born on May 5, 1963, and presumably began driving around 1981. His New Jersey driver history record begins on March 22, 1984. Over the twenty-two years from that date to October 23, 2006, the date of the last entry, Sheiban was involved in nine accidents. He was driving under the influence at the time of one of those accidents. Sheiban was found guilty of failure to give a proper signal once, speeding three times, careless driving twice and unsafe operation of a motor vehicle once. Sheiban was found guilty of driving under the influence in New Jersey in 1990 and his license was suspended. In 1998 he was again found guilty of driving under the influence in New Jersey and his license was suspended again.

On February 18, 2006, Sheiban was charged with driving while intoxicated in South Nyack, New York. At that time he was living in New Jersey and held a New Jersey driver's license. The following month he moved to New York and on March 13, 2006, he surrendered his New Jersey driver's license. On June 21, 2006, Sheiban pled guilty to driving while intoxicated, which New York treated as a first offense. Sheiban completed his New York State Drinking Driver Program on September 26, 2006, and secured a New York driver license on September 27, 2006.

New York reported Sheiban's conviction to New Jersey as the licensing jurisdiction pursuant to the Compact, N.Y. Veh. & Traffic Law, 516, on a "Report of Out-of-State Convictions" form. The details of this conviction were posted to Sheiban's driver history record on October 23, 2006, and the MVC issued a Notice of Scheduled Suspension stating its intention to suspend Sheiban's New Jersey driving privileges for 3600 days in accordance with N.J.S.A. 39:5-30, N.J.S.A. 39:5D-4 and N.J.A.C. 13:19-11.1.

Sheiban timely requested a hearing to challenge the suspension, although he did not dispute that he was a New Jersey licensed driver at the time of the offense nor did he dispute his conviction of that offense. Rather, he asserted that he was no longer a New Jersey licensed driver and that the offense occurred outside New Jersey. The request for a hearing asserted that Sheiban was convicted as a New York driver, that New York imposed punishment and suspended his New York driving privileges and that, with his New York privileges restored at the time of the proposed suspension, he had a constitutional right to operate a motor vehicle in all fifty states and any United States territory.

The MVC denied the request for a hearing pursuant to N.J.A.C. 13:19-1.2(d) because no fact disputes were raised and no legal arguments were advanced. The MVC issued its final decision based on the written record and suspended Sheiban's driving privileges for 3600 days starting on January 22, 2007. This appeal followed and a motion for stay pending appeal was denied.

Sheiban raises only one issue on appeal, that "[t]he [MVC] lacked the statutory authority to suspend appellant's New Jersey driving privileges when appellant was neither a resident nor a licensee of New Jersey at the time of his New York conviction because a driver's home state and state of residence are determined by the driver's status at the time of conviction."

In reviewing final agency action, we are restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) 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.

[George Harms Const. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994).]

Sheiban does not claim any constitutional infirmity nor does he assert that the record lacks substantial evidence to support the MVC's factual determinations. Rather, he raises only an issue of law with respect to the proper interpretation and application of N.J.S.A. 39:5D-4. In this respect, "[a]n administrative agency's interpretation of statutes and regula-tions within its implementing and enforcing responsibility is ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997). Nevertheless, "we are not bound by the agency's legal opinions." Levine v. State of N.J., Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999)).

Once Sheiban pled guilty to driving while intoxicated, New York was obligated to report the conviction to New Jersey:

The licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home state of the licensee.

[N.Y. Veh. & Traffic Law, 516.]

New Jersey has a reciprocal obligation. See N.J.S.A. 39:5D-3. "'Home State' means the State which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle." N.J.S.A. 39:5D-2(b). Once that report has been received, the home state is required to take certain action:

(a) The licensing authority in the home State, for the purposes of suspension, revocation or limitation 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, shall apply the penalties of the home State or of the State in which the violation occurred, 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[.]

[N.J.S.A. 39:5D-4.]

Sheiban contends that New Jersey was not the home state at the time of conviction and, as a result, has no real interest sufficient to require it to comply with N.J.S.A. 39:5D-4. He contends that New Jersey has a greater interest in regulating the conduct of motorists when New Jersey is the situs of the violations or when the violators are New Jersey licensees, citing State, Div. of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 419 (2005). He urges that New Jersey has little interest and no statutory authority to regulate the conduct of out-of-state drivers who commit offenses outside New Jersey, citing Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 57-59 (App. Div. 2001). This is so, he argues, because drivers who are licensed by other states at the time of conviction are less likely to drive in New Jersey than drivers who reside in or are licensed by New Jersey at the time of their conviction. Additionally, Sheiban contends that determining the imposition of a penalty based on the driver's residence and licensure at the time of conviction is consistent with the plain language of the Compact, citing N.J.S.A. 39:5D-4.

Finally, Sheiban asserts that measuring the right to suspend based on the date of conviction will permit New Jersey to suspend the licenses of out-of-state drivers who commit violations in New Jersey and who move to New Jersey prior to conviction. Concomitantly, using the date of conviction will permit New Jersey drivers to avoid the suspension of their New Jersey license if they are willing to relocate prior to conviction and surrender their New Jersey licenses. This result, he urges, is consistent with New Jersey's greater interest in regulating the licensure of drivers who will be operating their vehicles regularly in New Jersey. We do not find these arguments persuasive.

When New Jersey became a member of the Compact in 1966, L. 1966, c. 73, 1, it adopted the Compact's findings:

(1) The safety of their streets and highways is materially affected by the degree of compliance with State laws and local ordinances relating to the operation of motor vehicles.

 
(2) Violation of such a law or ordinance is evidence that the violator engages in conduct which is likely to endanger the safety of persons and property.

 
(3) The continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated.

 
[N.J.S.A. 39:5D-1(a).]

It also adopted Compact policy to:

(1) Promote compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles by their operators in each of the jurisdictions where such operators drive motor vehicles.

 
(2) Make the reciprocal recognition of licenses to drive and eligibility therefor more just and equitable by considering the over-all compliance with motor vehicle laws, ordinances and administrative rules and regulations as a condition precedent to the continuance or issuance of any license by reason of which the licensee is authorized or permitted to operate a motor vehicle in any of the party States.

[N.J.S.A. 39:5D-1(b).]

These findings and policies infuse our consideration of Sheiban's arguments. We have previously recognized that a "strong state policy [is] embodied in the Compact." Boyd v. Div. of Motor Vehicles, 307 N.J. Super. 356, 359 (App. Div.) (holding that New Jersey home state suspension was not required to be concurrent with another party state's suspension of reciprocity driving privileges in that state), certif. denied, 154 N.J. 608 (1998).

When we decided In re Johnson, we rejected the licensee's argument that his state of residence at the time of the offense controlled New Jersey's status as a "home state." 226 N.J. Super. 1, 5 (App. Div. 1988). In that case, Johnson held dual licenses in New Jersey and New York, in violation of N.J.S.A. 39:3-10. Ibid. We reasoned that the Director of the Division of Motor Vehicles (now the MVC) had authority under N.J.S.A. 39:5-30(a) to suspend a license even where the licensee was not a New Jersey resident. Id. at 4. Indeed, we noted that the statute permits the "Director to suspend a driver's reciprocity privilege on 'any other reasonable grounds.'" Ibid. We held:

Therefore, appellant's status as a New Jersey licensee provided the requisite authorization for the Director to suspend that license for an alcohol related motor vehicle violation, regardless of whether the violation occurred within New Jersey or whether appellant was a New Jersey resident at the time of the offense.

[Ibid.]

We pointed out that the definition of "home state" made no reference to the state of residence but only the state with the power to suspend or revoke a license. Id. at 5 (citing N.J.S.A. 39:5D-2(b)). We explained "that one of the primary objectives of the Driver License Compact was to prevent drivers from holding motor vehicle licenses from more than one state and prorating their motor vehicle violations among different states in order to avoid suspension of their licenses." Id. at 6. We explained,

A document entitled "The Driver License Compact," which was issued by the Secretariat of the American Association of Motor Vehicle Administrators contemporane-ously with the adoption of the compact, describes its objectives as follows:

The Driver License Compact was developed to give states a means for cooperative action to control problem drivers. Basic-ally, it provides for an orderly method for exchange of information to keep unsafe or poor risk drivers from accumulating viola-tions in many jurisdictions and escaping control action on the part of the state in which he holds a driver's license. It further provides a method for implementing the "one license" concept so that drivers may not hold licenses in more than one jurisdiction and thus be able to prorate violations among them.

. . . .

Value of the Compact in traffic safety is obvious. Drivers who commit serious traffic law violations when away from home should not escape corrective action by the state in which they are licensed. Nor should they be able to hold licenses in more than one jurisdiction and thus be able to prorate violations among them to escape the rightful consequences of their dangerous practices.

[Ibid. (emphasis added).]

In Wnuck, supra, we concluded that a Pennsylvania resident was subject to a ten-year suspension of his driver's license and an insurance surcharge in connection with his conviction of driving while intoxicated in New Jersey. 337 N.J. Super. at 57. And in Pepe, supra, we rejected a challenge to the suspension of a New Jersey driver's license where, although the licensee resided in New York at the time of the violation, he never surrendered his New Jersey license because New York could not suspend or revoke his New Jersey license. 379 N.J. Super. at 415-16.

It is readily evident here that the policy of the Compact to present licensees from "prorat[ing] violations among [the various states] to escape the rightful consequences of their dangerous practices," In re Johnson, supra, 226 N.J. Super. at 6, and to "[p]romote compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles by their operators in each of the jurisdictions where such operators drive motor vehicles," N.J.S.A. 39:5D-1(b)(1), will be frustrated were we to conclude that the state of residence and licensure at the time of conviction, rather than violation, determined the identity of the "home state" pursuant to the Compact.

Accordingly, we hold that surrender of a driver's license after committing a driving-while-intoxicated offense but before conviction does not deprive New Jersey of its home-state status under the Compact. We also note that there was no evidence before the MVC or before us that established that Sheiban was licensed in New York at any time prior to September 27, 2006. Therefore, New Jersey remained his licensing home state despite the surrender of his driver's license. When a New Jersey driver operates his vehicle while under the influence of alcohol in a Compact party state, that driver "violate[s] the sovereignty of New Jersey, the state that issued him a driver's license," Pepe, supra, 379 N.J. Super. at 419, which license permitted him to enjoy reciprocal driving privileges throughout the United States.

Affirmed.

Defendant asserts on appeal that he was granted a New York driver's license in March of 2006 and that it was thereafter suspended when he pled guilty to the driving-while-intoxicated charge. However, there is no evidence of record that supports this claim. The Motor Vehicle Services License Review Associated Responses PDPS License Status report indicates that the New York license was issued, as opposed to restored, on September 27, 2006, and the Certificate of Disposition of the driving-while-intoxicated charge indicates that a fine of $500 and a surcharge of $190 were imposed; it does not indicate any license suspension.

(continued)

(continued)

13

A-2782-06T5

December 24, 2007