NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2492-15T1
GREGORY P. MARKOWIEC,
NEW JERSEY MOTOR VEHICLE
Submitted May 24, 2017 – Decided February 2, 2018
Before Judges Fuentes and Gooden Brown.
On appeal from the New Jersey Motor Vehicle
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
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. 39:5D-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
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.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
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
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
Traffic Law §1192.1 and this plea was accepted
by the sitting judge in the Town of Catskill
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,
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
(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.
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
BAC refers to "Blood Alcohol Concentration."
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
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.