GREGORYP. MARKOWIEC v. NEW JERSEY MOTOR VEHICLE COMMISSION

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2492-15T1



GREGORY P. MARKOWIEC,

        Appellant,

v.

NEW JERSEY MOTOR VEHICLE
COMMISSION,

     Respondent.
_____________________________

              Submitted May 24, 2017 – Decided February 2, 2018

              Before Judges Fuentes and Gooden Brown.

              On appeal from the New Jersey Motor Vehicle
              Commission.

              Kevin T. Conway, attorney for appellant.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Brad M. Reiter,
              Deputy Attorney General, on the brief).

        The opinion of the court was delivered by

FUENTES, P.J.A.D.

        Gregory P. Markowiec appeals from the final decision of the

New Jersey Motor Vehicle Commission (MVC) to suspend his driving
privileges in this State for a period of ten years after he pleaded

guilty to driving while ability impaired (DWAI), in violation of

N.Y. Veh. & Traf. Law § 1192(1).           At the time he pleaded guilty,

appellant had two prior convictions for driving while intoxicated

(DWI) in New Jersey, in violation of 
N.J.S.A. 39:4-50.              Appellant

argues the New York State conviction does not qualify as a DWI

under New Jersey law.      Alternatively, appellant argues the MVC

should have granted his request for a hearing before suspending

his driver's license.      We reject these arguments and affirm.

     Appellant was arrested in New York State on January 11, 2015,

and charged with DWAI, in violation of N.Y. Veh. & Traf. Law §

1192(1), which provides, in relevant part: "[n]o person shall

operate a motor vehicle while the person's ability to operate such

motor   vehicle   is   impaired   by       the   consumption   of   alcohol."

Appellant pleaded guilty to this offense on August 28, 2015.

     In a notice of schedule suspension dated October 20, 2015,

the MVC informed appellant that pursuant to 
N.J.S.A. 39:4-50,


N.J.S.A. 39:5D-4, and N.J.A.C. 13:19-11.1, it had "scheduled the

suspension of your New Jersey driving privilege because you were

convicted of an alcohol-related violation" in New York State.


N.J.S.A. 39:5D-4(a)(2) provides:

           The licensing authority in the home State, for
           the purposes of suspension, revocation or
           limitation of the license to operate a motor

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           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(a)(2).]

N.J.A.C.   13:19-11.1(a)     also   provides,     in   relevant   part,   that

"[o]ut-of-state convictions . . . for operating a motor vehicle

while under the influence of intoxicating liquor . . . shall be

given the same effect as if such conviction . . . had occurred in

this State."

     By letter dated November 9, 2015, addressed to the MVC,

appellant acknowledged the receipt of the notice to suspend his

driver's license, but argued that his New York conviction for

"driving   while    impaired"   was   not   the   legal   equivalent      of   a

conviction under 
N.J.S.A. 39:4-50.

           I submit that the Greene County District
           Attorney's Office could not prove that I was
           driving while intoxicated due to the fact that
           there was no chemical test performed on my
           blood, urine, or breath. Instead, the Greene
           County District Attorney's Office conceded
           that I am guilty of New York Vehicle and

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          Traffic Law §1192.1 and this plea was accepted
          by the sitting judge in the Town of Catskill
          Justice Court.

    Quoting the statutory language in New York Vehicle and Traffic

Law §1192.1, appellant claimed: "[i]n the State of New York, test

results in the amount of .05% to .07% are generally the only

readings considered in a DWAI case."    Appellant asserted that he

"only admitted that my blood alcohol level was below a .08%

[reading] which is the threshold for the New Jersey Driving While

Intoxicated offense."     Appellant did not submit a transcript of

the proceedings before the New York court to support his claim.

Appellant concluded his letter by requesting the MVC to reverse

its decision to revoke his driving privileges "that is currently

being imposed upon me."    If the MVC rejected his argument and the

letter was "insufficient as an appeal," appellant requested "an

immediate hearing regarding . . . the revocation of [his] New

Jersey driving privileges."

    On January 8, 2016, Raymond P. Martinez, the Chairman and

Chief Administrator of the MVC, issued an "Order of Suspension"

and "Denial of Hearing Request/Final Decision," explaining in

detail the legal and factual basis for suspending appellant's

driving privileges for ten years, effective February 8, 2016.      We

incorporate by reference the Chief Administrator's comprehensive,

well-reasoned analysis.

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       Both New York and New Jersey are signatories to the Interstate

Driver License Compact Agreement (Compact), 
N.J.S.A. 39:5D-1 to -

14. In adopting the Compact, the Legislature declared, as a matter

of public 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).]

       In State v. Zeikel, 
423 N.J. Super. 34, 44 (App. Div. 2011),

we held that in adopting the Compact, the Legislature did not

intend    "that   a   finding   of   substantial   similarity"   between   a

conviction of DWAI based on N.Y. Veh. & Traf. Law § 1192(1) and a

conviction of DWI based on 
N.J.S.A. 39:4-50 "turn on evidence of

the BAC1 level."       Indeed, in Zeikel we reaffirmed that "'prior

convictions for operating under the influence or operating while



1
    BAC refers to "Blood Alcohol Concentration."

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the ability to do so is impaired are both for violations of the

same statute. We see no reason for treating a conviction of either

one any differently for second or subsequent offender purposes.'"

Id. at 45-46 (quoting State v. Culbertson, 
156 N.J. Super. 167,

172 (App. Div. 1978)).

     Notwithstanding this legal standard, appellant argues he is

entitled to relief under 
N.J.S.A. 39:4-50(a)(3), which allows a

court   to   exclude   a   prior   conviction   if   "the   defendant   can

demonstrate by clear and convincing evidence that the conviction

in the other jurisdiction was based exclusively upon a violation

of a proscribed blood alcohol concentration of less than 0.08%."

The record before us does not provide any basis for such relief.

As MVC Chief Administrator Martinez correctly found in his January

8, 2016, Order of Suspension:

             [I]n the absence of any official court plea
             transcript or court order signed by the judge
             that would serve to establish that [the plea]
             was allowed to be entered based solely on a
             BAC of below .08% and without an admission or
             other evidence . . . of impaired driving
             ability, your conviction does not fit the very
             limited exception in 
N.J.S.A. 39:4-50(a)(3).

     We discern no legal or factual basis to disturb the MVC's

January 8, 2016 order suspending appellant's driving privileges

for ten years effective February 8, 2016.

     Affirmed.


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