NEW JERSEY MOTOR VEHICLE COMMISSION v. JOHN W. WANECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-5042-11T1

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Petitioner-Respondent,

v.

JOHN W. WANECK,

Respondent-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN W. WANECK,

Defendant-Appellant.

August 15, 2014

 

 

Before Judges Sapp-Peterson, Maven and Hoffman.

 

On appeal from the New Jersey Motor Vehicle Commission and the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-9-12.

 

Jay J. Friedrich argued the cause for appellant (Friedrich & Friedrich, LLC, attorneys; Mr. Friedrich, on the brief).

 

Elaine C. Schwartz, Deputy Attorney General, argued the cause for respondent New Jersey Motor Vehicle Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Schwartz, on the brief).

 

Jacqueline Choi, Assistant Prosecutor, argued the cause for respondent State of New Jersey (John J. Molinelli, Bergen County Prosecutor, attorney; Ms. Choi, of counsel and on the brief).

 

PER CURIAM

We address two appeals1 by John W. Waneck (defendant) arising out of a fatal motor vehicle accident. The first appeal challenges the revocation of defendant's driving privileges by the Director of the New Jersey Motor Vehicle Commission (Director or MVC) for careless driving. The second appeal challenges his conviction of driving while intoxicated (DWI), N.J.S.A. 39:4-50, entered by the Law Division. After careful review, we affirm the revocation of defendant's driving privileges by the MVC as well as his conviction and sentence for DWI.

I.

We initially summarize the procedural history of both cases. Regarding the municipal court proceedings, on February 24, 2008, defendant was issued a summons returnable in the Westwood Borough Municipal Court for DWI. Following a trial in 2011, the municipal court judge found defendant guilty of DWI and imposed the following sentence: thirty days in jail; driver's license suspension for one year; installation of an ignition interlock device; a fine of $506 and other mandatory financial penalties.

Defendant appealed his conviction to the Law Division pursuant to Rule 3:23-8(a) and was again found guilty of DWI in May 2012. The Law Division judge imposed the same sentence as the municipal court judge, except he ordered defendant to perform thirty days of community service instead of thirty days of incarceration.2

Regarding the administrative proceedings, on October 27, 2008, the MVC issued a notice of proposed driver's license suspension to defendant pursuant to N.J.S.A. 39:5-30. The proposed period of suspension was for thirty-six months. The notice alleged that on February 24, 2008, defendant violated N.J.S.A. 39:4-97 (careless driving) and N.J.S.A. 39:4-50 (DWI), and was involved in an accident resulting in "death or serious bodily injury . . . ."

On December 1, 2010, an administrative hearing was held before an Administrative Law Judge (ALJ). On January 14, 2011, the ALJ issued a written initial decision concluding that defendant violated N.J.S.A. 39:4-97. With respect to the DWI charge, the ALJ held that the MVC "abandoned" this allegation because the MVC had not provided laboratory test results establishing defendant's blood alcohol content (BAC). The ALJ found the MVC had proven the allegation of careless driving by a preponderance of the evidence and recommended a one-year license suspension. In a final decision dated September 13, 2011, the MVC adopted the ALJ's findings of fact and conclusions, but reduced defendant's license suspension to sixty days.

Defendant now appeals directly to this court from the administrative determination by the MVC revoking his driving privileges for sixty days. R. 2:2-3(a)(2). He also appeals the DWI conviction, alleging that the Law Division erred in its determination of guilt.

We discern the following facts from the record. At approximately 7:50 p.m. on Sunday, February 24, 2008, the Westwood Police Department received an emergent telephone call from Cynthia Waneck3. Cynthia indicated that her mother, Joan, "had been run over by the vehicle her father had been driving and was trapped beneath the car."

Earlier that evening, defendant and Joan attended a seventy-fifth birthday party in Washington Township for an acquaintance. Defendant stated that they arrived at the party between 3:00 and 3:30 p.m. and left the party between 6:00 and 7:00 p.m. in an effort to arrive home in time to watch the Academy Awards show. Defendant and Joan drank a few glasses of wine at the party.

After leaving the party, they drove to Cynthia's house to pick up their dog. Defendant placed the car's transmission into "park," observed his wife exit the vehicle, and listened to the radio. Defendant stated that some time had passed so he honked the car horn a few times.

Cynthia arrived home around 8:00 p.m. and found her father's vehicle in front of her house, partially blocking her driveway. She walked over to the driver's side of her father's vehicle and "asked him where my mom was." Defendant replied her mother "was in the house," so Cynthia walked up her driveway into her home to look for her mother. When she could not find her mother, she returned to the car and said, "Dad, mom is not in there." Defendant replied, "[s]he must be," so Cynthia walked back into the house to check again.

Cynthia searched her home again but to no avail. She went back outside and started looking around the immediate area, and discovered her mother's body, substantially underneath her father's car. She saw her mother's head between "the edge of the driveway, and partially right next to the rear of the car."

Cynthia called the police and Patrolman Peter Cassells of the Westwood Police Department was dispatched to the scene. Upon arrival, he saw defendant and Cynthia standing by the vehicle and observed that the bottom of the vehicle was touching Joan and she was "compressed," and that part of her scalp looked like it was pulled back from her head. He determined that Joan was trapped underneath the car and immediately requested emergency services.

Patrolman Cassells went to the passenger's side of the car and observed a pool of blood next to the curb. He observed Joan's body lying motionless completely underneath the vehicle with her head near the B-Pillar of the car, which separates the front and rear passenger's side doors. Joan's legs were extended towards the driver's side underneath the vehicle. In order to get Joan out from under the car, the vehicle had to be lifted off her. According to Patrolman Cassells, "Mr. Waneck appeared to be in shock and he repeated, 'I don't know what happened. I don't know how the accident happened.'"

Once other units arrived on the scene, Patrolman Cassells asked Cynthia and defendant to step inside a neighbor's house. There were a number of people present in the neighbor's home, including other neighbors and paramedics. Patrolman Cassells spoke to defendant inside the house, where he detected an odor of an alcohol coming from defendant. Cynthia testified that while they were in their neighbor's house, "people [were] trying to help [defendant], trying to offer [defendant] stuff[.]"

A short while later, Cynthia and Patrolman Cassells were advised that Joan had passed away. Cynthia expressed concern her father was going to have a heart attack as he previously had a heart attack. An ambulance then transported defendant to the hospital.

Patrolman Mark Foley escorted defendant to Valley Hospital due to his complaints of health issues and to retrieve a blood sample for the "purpose of establishing a DWI[.]" During the five or six minute ambulance trip to the hospital, defendant "had a strong odor of alcohol emanating from him. . . . [and] seemed confused, a little lethargic." Based upon his observations, Patrolman Foley concluded defendant was "impaired by alcohol and should not have been driving a motor vehicle that evening."

At the hospital, Patrolman Foley explained to defendant he was going to have blood drawn for the DWI. Defendant did not indicate any objection and the blood was drawn and given to the officer.

Defendant was then transported to the police station where shortly before midnight, Detective William Valentine took defendant's statement. In the presence of Cynthia, Detective Valentine, and Detective Sergeant Gerald Fortunate, defendant spontaneously uttered, "'I don't know what happened. I had a couple of glasses of wine and I must have hit her. Please tell me what happened.'" Defendant was read his Miranda4 rights by Detective Valentine and signed a confirming waiver form.

On February 25, 2008, the Bergen County Medical Examiner, Dr. Mary Ann Clayton, conducted a postmortem examination of Joan. She observed Joan's body to have petechia hemorrhaging present on her face, head, neck, upper torso shoulders and arms. Additionally, she had an approximate twelve inch laceration to her scalp, multiple fractures to her ribs and bruising on her back, chest and legs. Dr. Clayton determined the cause of death was "compression asphyxia" and the manner of death was "accidental."

Cynthia described her mother's medical condition at the time of the accident, indicating her mother "was not that well. She had a history of tripping, falling, slipping. She had broken a hip not too long ago . . . ." She stated her mother suffered from dizziness and had fallen in the bathroom.

The New Jersey State Police, Office of Forensic Sciences, determined that Joan's BAC was .228. Additionally, defendant's BAC was .146.

On July 28, 2011, defendant moved before the municipal court judge to dismiss the DWI charge on the grounds that the ALJ concluded he was not guilty of DWI. The judge denied the motion, rejecting defendant's argument that collateral estoppel required dismissal. Trial then proceeded on the DWI charge. The State presented the testimony of Patrolmen Cassells and Foley; Detective Sergeant Fortunate; Detective John Accardi of the Bergen County Prosecutor's Office; Tony Harrison, an emergency room technician at Valley Hospital; and Lisa Comunale, a forensic scientist with the New Jersey State Police Forensic Laboratory. Cynthia testified on behalf of defendant.

At the conclusion of the State's case, defendant moved for dismissal on grounds that the State had not proved operation of the vehicle. The judge denied the motion. Defense counsel then attempted to enter the transcript of the hearing before the ALJ into evidence.5 The prosecutor objected and the judge sustained the objection.

Cynthia was the only defense witness presented. On direct examination, Cynthia stated that while she was at her neighbors after the incident, she asked that her father "have something to drink." The following colloquy then occurred between defense counsel and Cynthia:

Q: Okay. And do you know what was given . . . to him?

 

A: Not exactly.

 

. . . .

 

Q: Okay. Can you describe what was given to him? Was it a bottle? Was it a glass?

 

A: It was a glass.

 

Q: All right.

 

A: It had ice. It had liquid in it.

 

Q: Do you know what the liquid was?

 

[Prosecutor]: Objection. She said that she doesn't know.

 

[Judge]: Is that correct?

 

Q: Do you know what it is?

 

A: I do I do know what it is.

 

Q: What was it?

 

A: Scotch.

 

Q: And how do you know it was scotch?

 

A: Because that's what I was told?

 

Q: And who told you that?

 

A: The

 

[Prosecutor]: Judge, I ask that that be stricken.

 

[Judge]: Yeah. Stricken.

 

The municipal court judge found the State proved a "per se" violation of DWI, under N.J.S.A. 39:4-50(a), based upon defendant's BAC of .146. He also found the State proved DWI by observational and circumstantial evidence. Operation of a motor vehicle was proven by admission, as two officers testified that defendant admitted that he operated the vehicle from the party to Cynthia's house.

The municipal court judge further found that Joan would not have been able to fit under the car without having been run over. He found that "[Joan] was under that vehicle because of some operation by [defendant] . . . . [who] had no idea what happened, . . . [and] that's indicative of his being under the influence of alcohol." The judge concluded the State had established proof beyond a reasonable doubt and found guilty of DWI.

The Law Division judge found defendant guilty de novo. He found there was an admission by defendant as to drinking at the party and that he drove to his daughter's home. The judge reviewed the circumstantial evidence, the testimony, particularly the observations of Patrolman Cassells, and defendant's .146 BAC reading, and concluded the State had proven the DWI charge beyond a reasonable doubt and found defendant guilty.

II.

Defendant seeks reversal of the administrative revocation of his driving privileges for sixty days based upon his argument that the MVC applied the wrong burden of proof. Specifically, defendant argues that no license revocation should have occurred without a finding he violated the careless driving statute "beyond a reasonable doubt." We disagree.

"A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving." N.J.S.A. 39:4-97.

The statute contains no limitation on the length of the suspension which the Director may impose, and no fixed standards to control the exercise of this power. In addition, the Legislature has given him [or her] powers greater, in some respects, than those of a judge. He [or she] may suspend or revoke a driver's license for a violation of any provision of the motor vehicle act or on any other reasonable grounds, whereas a judge may only revoke, and then only for a "willful violation." N.J.S.A. 39:5-30. And the Legislature has given these greater powers to the Director in spite of the fact that before a judge the evidence must prove a defendant guilty beyond a reasonable doubt, whereas the Director may act upon a mere preponderance of the evidence.

[Cresse v. Parsekian, 81 N.J. Super. 536, 548-549 (App. Div. 1963), aff'd, 43 N.J. 326 (1964) (internal quotation marks and citations omitted).]

"In proceedings before an administrative agency . . . it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." Atkinson v. Parsekian, 37 N.J. 143, 149 (1962).

Our review of decisions by administrative agencies is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In our review, we only determine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

 

[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995)).]

 

"[I]f substantial evidence supports the agency's decision, a court may not substitute its own judgment for the agency's even though the court might have reached a different result . . . ." Id. at 483 (citation and internal quotation marks omitted).

Here, the findings and conclusions made by the ALJ are supported by witness testimony and evidence presented at the hearing. In its final decision, the MVC adopted the ALJ's findings of fact and conclusions in whole, but reduced defendant's license suspension. The MVC summarized the pertinent findings and conclusions:

The ALJ found, based on sufficient credible evidence in the record, in the form of the testimony of [Patrolman] Peter Cassells, Detective William Valentine, and Cynthia . . . , that (1) the decedent was located under the [defendant's] car; (2) based on [Patrolman] Cassells'[s] observation at the scene, it would have been impossible for the decedent to have slipped and fallen to her location because of the limited clearance between the curb and the car as well as the vehicle and the asphalt; and . . . she could not have rolled under the vehicle . . . (3) the cause of death was "compression asphyxia" and the vehicle had to be pneumatically lifted off decedent's body. . . . and (4) based on [Cynthia's] testimony and Detective Valentine's testimony concerning [defendant's] admissions during his statement to police, [defendant] had driven to the location and the "circumstances strongly indicate that [defendant] was the driver of the vehicle when it ran over the decedent" and that [defendant] was in the position of control of the vehicle at that time, as he "was in the driver seat when Cynthia . . . arrived at the scene and there is no indication whatsoever that anyone else was the driver of the vehicle."

 

Following its independent review of the record, the MVC agreed "with the ALJ's weighing and analysis of the evidence and the inferences made therefrom."

The conclusion that defendant violated N.J.S.A. 39:4-97 is supported by substantial credible evidence. The MVC's determination here was supported by the record and is not arbitrary, capricious, or unreasonable. As such, it is entitled to our deference. See In re Carter, supra, 191 N.J. at 486.

III.

Defendant presents the following arguments on his appeal of the Law Division decision finding him guilty of DWI:

I. UNDER THE HOLDING IN STATE V. O'LOUGHLIN, 270 N.J. SUPER. 472 [(App. Div.)] (1994), THE BLOOD TEST RESULTS MUST BE SUPPRESSED BECAUSE ORAL STATEMENTS WHICH VIOLATE A DEFENDANT'S COMMON LAW [PRIVILEGE] AGAINST SELF-INCRIMINATION AND GIVE RISE TO PROBABLE CAUSE LEADING TO A BLOOD SEIZURE VIOLATE A DEFENDANT'S FOURTH AMENDMENT RIGHTS.

 

II. ALL ORAL STATEMENTS MADE BY JOHN WANECK MUST BE SUPPRESSED UNDER MIRANDA JURISPRUDENCE.

 

III. THE POST MIRANDA STATEMENTS OF JOHN WANECK ARE INADMISSIBLE UNDER THE HOLDING OF STATE V. O'NEILL, [ 193 N.J. 148 (2007)].

 

IV. THE BLOOD TEST TAKEN FROM JOHN WANECK WAS AN UNCONSTITUTIONAL VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE IT DOES NOT QUALIFY AS A SEARCH INCIDENT TO ARREST.

 

V. PROBABLE CAUSE DID NOT EXIST TO ARREST JOHN WANECK.

 

VI. THE COURT FINDING THAT THE PROSECUTION [PROVED] BEYOND A REASONABLE DOUBT THAT JOHN WANECK OPERATED [THE] MOTOR VEHICLE [WAS] PLAIN ERROR AND ITS DECISION SHOULD BE REVERSED.

 

VII. UNDER THE HOLDING OF STATE V. TISCHIO, [ 208 N.J. SUPER. 343 (APP. DIV. 1986), AFF'D, 107 N.J. 504 (1987)], THE BLOOD TEST OF JOHN WANECK MUST BE [SUPPRESSED] AS THE COURT COMMITTED PLAIN ERROR.

 

VIII. PLAIN ERROR WAS COMMITTED WHEN THE TESTIMONY OF CYNTHIA WANECK WAS STRICKEN FROM THE RECORD AND THE COURT'S PROHIBITION TO USE THE ADMINISTRATIVE LAW TRIAL TRANSCRIPT.

 

IX. THE STANDARD OF PROOF TO ESTABLISH GUILT OR [INNOCENCE] OF N.J.S.A. 39:4-50 IS BY THE PREPONDERANCE OF EVIDENCE OR BEYOND A REASONABLE DOUBT AND HOW IT AFFECTS EQUITABLE DEFENSE OF THE ISSUE OF PRECLUSION.

 

Having reviewed defendant's arguments in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Eugene Austin's oral decision. We add the following comments.

The scope of appellate review of a de novo conviction by the Law Division following a municipal court appeal is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). Our review, of course, is of the findings of the Law Division, not the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). On de novo review, Judge Austin applied the correct standard by making his own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. Locurto, supra, 157 N.J. at 473-74.

At the outset, defendant's claims that his statements and blood-test results must be suppressed because of alleged constitutional violations are procedurally barred. Defendant did not raise these issues before the municipal court or the Law Division. "Ordinarily, a defendant's failure to make a pretrial motion to the municipal court seeking to suppress evidence constitutes a waiver of an objection during trial to the admission of the evidence on the ground that the evidence was unlawfully obtained." State v. McLendon, 331 N.J. Super. 104, 107 (App. Div. 2000); see also R. 7:5-2(d). Defendant does not address this procedural bar by setting forth facts from which it may be concluded there is good cause for us to exercise original jurisdiction in this matter. See State v. Harris, 181 N.J. 391, 417 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Moreover, the record clearly indicates defendant was not subject to a custodial interrogation at the time he was questioned at the home of his daughter's neighbor. The record contains no indication that he was in a coercive environment; he was neither isolated, nor was he in handcuffs. The court credited the testimony that defendant was taken to the neighbor's house to remove him from the scene where his wife lay dead.

Likewise, defendant failed to challenge the admissibility of the blood tests results based upon the lack of probable cause to arrest for DWI, before the municipal court or Law Division. There, he only argued the results should be suppressed because he was not given the option of taking a breathalyzer, an argument he has since abandoned. Regardless of whether he raised the issue in a timely manner, the record contains substantial credible evidence to support a finding of probable cause to arrest. Defendant acknowledged he had been drinking and Patrolman Cassells detected an odor of alcohol on his breath. Further, he had no explanation as to what happened to his wife, despite the fact he had been driving his vehicle, pulled it into his daughter's driveway and knew his wife had left the vehicle to go into their daughter's home.

Defendant further argues there were two trials on identical issues of law and fact. Defendant contends the State first chose to proceed with his matter administratively and only after receiving a less-than-favorable decision, then decided to proceed in municipal court. Defendant argues the ALJ, using the preponderance of the evidence standard, determined defendant was not guilty of N.J.S.A. 39:4-50; whereas the municipal court judge, using the higher standard of proof, beyond a reasonable doubt, found defendant guilty. This argument clearly lacks substantive merit.

"It is well settled the Legislature has the constitutional power to impose both a criminal and civil or administrative sanction with respect to the same act or omission. The double jeopardy clause merely prohibits attempting a second time to punish criminally for the same offense." Atkinson, supra, 37 N.J. at 154-55 (internal citations omitted).

The proceedings before the Director under N.J.S.A. 39:5-30 are administrative and not criminal, even though they arise out of the commission of an offense punishable by the courts. Although the suspension or revocation of a driver's license by the Director may appear to be punishment to the wrongdoer, this is not enough to characterize the statutory grant of power as criminal in nature. The primary object of the statute is to foster safety on the highway and not to impose criminal punishment to vindicate public justice.

 

[Id. at 155 (internal citations omitted).]

Defendant's argument that the ALJ found defendant "not guilty" of DWI is factually incorrect. With respect to that charge, the ALJ found that "it appears the MVC has abandoned this charge." There was no finding of guilt or innocence.

We do agree with defendant that the municipal court judge mistakenly exercised his discretion when he refused to allow defense counsel to cross-examine Patrolman Cassells with the transcript of his testimony before the ALJ regarding whether defendant was given anything to drink at the neighbor's house. The testimony before the ALJ that he did not recall observing defendant drinking anything can, arguably, be considered inconsistent with his later testimony in municipal court that he did not see defendant drinking anything. Although the court could also conclude that it was not, this should have been allowed. We conclude, however, the failure to do so was not "clearly capable of producing an unjust result," R. 2:10-2,, since there was substantial credible evidence in the record to support the finding of DWI before he went to the neighbor's house most notably, his admission that he had been drinking, his operation of the vehicle, and the location of his wife's body under the vehicle. Moreover, defendant's .146 BAC established a per se violation under N.J.S.A. 39:4-50(a). State v. Howard, 383 N.J. Super. 538, 548 (App. Div. 2006). We conclude, therefore, the record contains sufficient credible evidence to support finding defendant guilty beyond a reasonable doubt of violating N.J.S.A. 39:4-50.

Affirmed. The stay of defendant's sentence pending appeal is vacated. The matter is remanded to the Law Division for imposition of the balance of defendant's sentence forthwith. We do not retain jurisdiction.

 

 

1 These back-to-back appeals, filed by separate plaintiffs against the same defendant, are consolidated for purposes of this opinion.

2 With the exception of the license suspension, the judge stayed imposition of sentence pending appeal.

3 To avoid confusion, we refer to Cynthia Waneck and Joan Waneck by their first names.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

5 Defense counsel also unsuccessfully attempted to use the transcript of the hearing before the ALJ to cross-examine Patrolman Cassells.