TAMMY J. FORD 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NOT FOR PUBLICATION WITHOUT THE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-0

TAMMY J. FORD,

Appellant,

v.

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Respondent.

__________________________

February 14, 2014

Submitted February 5, 2014 Decided

Before Judges Fasciale and Haas.

On appeal from the New Jersey Motor Vehicle Commission.

Law Offices of Albert H. Wunsch, III, attorneys for appellant (Paul A. Krauss, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Elaine C. Schwartz, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Tammy Ford appeals from the January 30, 2013 final decision of the New Jersey Motor Vehicle Commission (MVC) suspending her driving privileges for 3650 days because she was convicted in New York State for driving while her ability was impaired by alcohol. This conviction was her third Driving While Intoxicated (DWI)-type offense.1 We affirm.

Appellant is a resident of New Jersey and has a New Jersey driver's license. On April 17, 2012, appellant was arrested in South Nyack, New York and charged with five traffic offenses, including DWI, in violation of N.Y. Veh. & Traf. Law 1192(3).2 On October 1, 2012, appellant pled guilty to the lesser-included offense of driving while impaired (DWAI) in violation of N.Y. Veh. & Traf. Law 1192(1). The New York authorities notified the MVC of the conviction, as required by an interstate compact. N.J.S.A. 39:5D-3.

On December 30, 2012, the MVC notified appellant that her New Jersey driving privileges would be suspended for 3650 days because she had been convicted of a third alcohol-related offense in New York. The notice advised appellant that she could request a hearing to contest the suspension, but that the request would be denied if she did not specify all factual disputes and legal issues she intended to raise at a hearing. By letter dated January 14, 2013, appellant's attorney requested a hearing on the proposed suspension. The letter stated:

We hereby request a hearing on the proposed suspension. [Appellant] disputes that the listed violation qualifies as a third offense DUI violation as it occurred out of state and the out of state law is not substantially similar to New Jersey's driving under the influence law.

[Appellant] will rely upon the decision in [N. J. Div. of Motor Vehicles v. Ripley, 364 N.J. Super. 343 (App. Div. 2003)] and its progeny to show that her plea in New York State was to an offense that is not substantially similar to N.J.S.A. 39:4-50.

On January 30, 2013, the MVC issued a written decision, denying a hearing and ordering a 3650-day suspension of appellant's driver's license to begin on March 1, 2013. Appellant did not seek a stay of the suspension. This appeal followed.

Appellant no longer contests that a DWI offense in another jurisdiction requires that the MVC suspend the offender's driving privileges in New Jersey. New Jersey is a signatory of the Interstate Driver License Compact (IDLC), N.J.S.A. 39:5D-1 to -14, which is an interstate agreement by which each participating state agrees to treat an out-of-state conviction for DWI (or driving under the influence (DUI)) as if the conviction had occurred within its own jurisdiction, as long as the out-of-state conviction was "of a substantially similar nature" as the home state's law. N.J.S.A. 39:5D-4(a)(2), (c).

On appeal, appellant contends that her DWAI conviction in New York was not an offense "substantially similar" to DWI under N.J.S.A. 39:4-50. We disagree. In State v. Zeikel, 423 N.J. Super. 34, 48-49 (App. Div. 2011), we held that a violation of DWAI under N.Y. Veh. & Traf. Law 1192(1) is "substantially similar" to a DWI violation in New Jersey. We applied prior precedent under the IDLC to support our holding. Zeikel, supra, 423 N.J. Super. at 45 (citing N.J. Div. of Motor Vehicles v. Lawrence, 194 N.J. Super. 1 (App. Div. 1983)). We perceive no basis for deviating from these controlling precedents here.

Contrary to appellant's argument, this case is not controlled by our prior decision in Ripley. As we explained in Zeikel, in Ripley, supra, 364 N.J. Super. at 349,

we held that a conviction under Utah's alcohol-related reckless driving statute was not "substantially similar" to a New Jersey DWI conviction. In Ripley, we acknowledged New Jersey's broad definition of DWI but nevertheless concluded that Utah's law was not substantially similar because it lacked "any specific or minimum level of intoxication or [BAC], . . . [it] merely require[d] some consumption of alcohol in connection with the reckless driving." We said that, for an out-of-state law to be substantially similar, it must require the consumption of alcohol to cause some degree of impairment of the defendant's driving ability.

[Zeikel, supra, 423 N.J. Super. at 46 (alterations in original) (citations omitted).]

We found that the New York DWAI statute was distinguishable from the Utah law, and stated:

[T]he out-of-state conviction [involved in Ripley] was not substantially similar because Utah's law did not require a causal link between the alcohol consumption and offensive conduct. We viewed "impaired driving ability" as the crucial element necessary to apply the statute of another jurisdiction as substantially similar to New Jersey's DWI statute. In contrast to the Utah statute, New York's DWAI statute required the consumption of alcohol to impair driving ability.

[Id. at 47 (citations omitted).]

Thus, because we have consistently held that New York's DWAI statute is "substantially similar" to New Jersey's DWI law, we reject appellant's contention on this point.

Finally, the MVC properly denied appellant's request for a hearing concerning the proposed suspension. Entitlement to a "trial-type hearing in administrative proceedings is generally limited to the situation where adjudicatory facts that is, facts pertaining to a particular party are in issue." High Horizons Dev. Co. v. N.J. Dep't of Transp., 120 N.J. 40, 49 (1990) (internal quotation marks omitted). "Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent[.]" Ibid. Furthermore, "[i]t is the presence of disputed adjudicative facts, not the vital interests at stake, that requires the protection of formal trial procedure." Id. at 53. The pertinent facts of the present case were not in dispute and appellant never specified any facts or evidence that she intended to produce at a hearing. Her challenge to the proposed suspension was limited to her contention that, as a matter of law, the New York DWAI statute was not "substantially similar" to New Jersey's DWI law. Because this matter solely involved questions of statutory interpretation and the application of established judicial precedents, a hearing was not necessary.

1 Appellant's two prior DWI convictions occurred in New Jersey.

2 The remaining charges have no relevance to this appeal.