Div. of Motor Vehicles v. Pepe

• Decision Date: 01 August 2005
• Citation: 879 A.2d 747,379 N.J. Super. 411
• Parties: STATE of New Jersey, DIVISION OF MOTOR VEHICLES, Plaintiff-Respondent, v. Michael D. PEPE, Defendant-Appellant.
• Court: New Jersey Superior Court

879 A.2d 747

379 N.J. Super. 411

STATE of New Jersey, DIVISION OF MOTOR VEHICLES, Plaintiff-Respondent, v. Michael D. PEPE, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued May 11, 2005.

Decided August 1, 2005.

Mark W. Phillips, argued the cause for appellant (Rylak and Gianos, attorneys, Clinton; Mr. Phillips, on the brief).

Emily H. Armstrong, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Kelly J. Williams, Deputy Attorney General, on the brief).

Before Judges NEWMAN, R.B. COLEMAN and BILDER.

The opinion of the court was delivered by

R.B. COLEMAN, J.A.D.

Defendant Michael Pepe appeals from the final decision of the New Jersey Division of Motor Vehicles (NJDMV) suspending Pepe's New Jersey driver's license for his out-of-state (New York) conviction of driving while intoxicated. Pepe did not receive a concurrent suspension of his driving privileges in New Jersey. He contends he is now being prejudiced in that he has moved back to New Jersey and his job could be in jeopardy if he is unable to drive. Stated more fully, his arguments are as follows:

I. THE NEW JERSEY DIVISION OF MOTOR VEHICLES ERRED IN REFUSING TO GRANT THE DEFENDANT'S REQUEST FOR A HEARING.

II. THE PERIOD OF SUSPENSION IMPOSED BY THE DIVISION OF MOTOR VEHICLES EXCEEDS THAT WHICH IS PERMITTED BY THE NEW JERSEY ADMINISTRATIVE CODE.

III. TO PUNISH THE DEFENDANT IN NEW JERSEY FOR THE SAME OFFENSE FOR WHICH HE WAS PUNISHED IN NEW YORK VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS AND

SUBJECTS HIM TO DOUBLE JEOPARDY.

IV. TO SUBJECT THE DEFENDANT TO AN ADDITIONAL ADMINISTRATIVELY IMPOSED PERIOD OF SUSPENSION IN NEW JERSEY FOR AN OFFENSE THAT OCCURRED IN THE STATE OF NEW YORK WHERE OTHER NEW JERSEY RESIDENTS WHO COMMIT THE SAME OFFENSE IN THE STATE OF NEW JERSEY ARE NOT SUBJECTED TO AN ADDITIONAL ADMINISTRATIVELY IMPOSED PERIOD OF SUSPENSION, VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION.

V. PRINCIPLES OF COMITY AND RES JUDICATA PREVENT FURTHER SUSPENSION OF THE DEFENDANT'S DRIVING PRIVILEGES.

VI. THE IMPOSITION OF AN ADDITIONAL PERIOD OF SUSPENSION IN THIS CASE CONSTITUTES THE IMPOSITION OF SANCTIONS BEYOND WHAT IS NEEDED TO REFORM MR. PEPE.

VII. THE NJDMV SHOULD BE PRECLUDED FROM IMPOSING ANY ADDITIONAL PERIOD OF SUSPENSION IN THIS CASE AS MR. PEPE HAS SUFFERED SUBSTANTIAL PREJUDICE DUE TO THE DELAYS AND INACTION OF THE NJDMV.

These arguments are without merit. We affirm the decision of NJDMV.

On August 18, 2002, Pepe was arrested in Nassau County, New York, and charged with driving while intoxicated with a blood alcohol content (BAC) equal to or exceeding.10 percent, a per se violation in New York and in New Jersey.¹ As a result of defendant's arrest, his driving privileges in New York were automatically suspended and four months later on December 20, 2002, when he pled guilty and was sentenced, the court ordered an additional suspension of two months. It also required that Pepe complete a ten week educational course on alcohol and chemical dependency, a sixteen hour course in a New York State DMV drunk driving program, attend sixteen individual counseling sessions and attend eighteen group counseling sessions. In addition, Pepe was placed on probation for a period of three years and required to pay fines in the amount of $1,070. His driving privileges could not be restored until such time that he completed his course requirements and paid the fines; however, the court permitted him to apply for a conditional license so that he could work and attend his courses after the completion of the additional two month suspension.

On January 13, 2003, the State of New York sent the NJDMV notice of Pepe's December 20, 2002, DWI conviction. On May 7, 2003, NJDMV issued a Notice of Scheduled Suspension stating its intent to suspend Pepe's New Jersey driving privileges for one-hundred eighty 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, due to his conviction for an alcohol related violation in New York. The effective date of the suspension was to have been May 31, 2003, however, Pepe requested a hearing to challenge the proposed suspension. He asserted, and continues to assert, that he was prejudiced by the delay of more than four months by the State of New Jersey before it advised him that it intended to suspend his driving privileges. He contends he believed his New Jersey driving privileges had already been suspended along with his driving privileges in New York. He states that if he had been informed promptly of NJDMV's intention to suspend his privileges, he could have voluntarily accepted the suspension in order that it could have been served concurrently with his New York suspension.

The State points out that although Pepe was residing in New York at the time of his arrest and that state's suspension of his driving privileges, he had never surrendered his New Jersey driver's license. He was at all times a New Jersey licensed driver. As such, New York had the authority to suspend Pepe's driving privileges in that state, but it could not revoke/suspend the driver's license issued by his home state of New Jersey. On the other hand, as a result of the Interstate Driver License Compact, to which New Jersey and New York are parties, NJDMV is expressly authorized to suspend the driving privileges of a person convicted of driving while under the influence of alcohol in another party State. Cf. New Jersey Div. of Motor Vehicles v. Ripley, 364 N.J.Super. 343, 346-347, 835 A.2d 1252 (App.Div.2003) (reversing a two year suspension in New Jersey because defendant's Utah conviction of alcohol-related reckless driving pursuant to a guilty plea would not constitute a conviction of the offense of driving under the influence in New Jersey).

In pertinent part, the relevant provision of the New Jersey version of the Interstate Driver License Compact, N.J.S.A. 39:5D-4, provides:

(a) The licensing authority in the home State, for the purposes of suspension... of the license to operate a motor vehicle, shall give the same effect to the [report of conviction from another party State] 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[.]

The six month suspension imposed by NJDMV is in accordance with the statute, N.J.S.A. 39:4-50, and was not redundant to the penalty imposed in New York, which involved only defendant's driving privileges within that state. Boyd v. Div. of Motor Vehicles, 307 N.J.Super. 356, 360, 704 A.2d 1029 (App.Div.), certif. denied, 154 N.J. 608, 713 A.2d 499 (1998) (upholding New Jersey suspension of license in spite of nine and one-half months delay between New York suspension of driving privileges and defendant's receipt of the New Jersey notice of intention to suspend license).

Like the delay in Boyd, supra, 307 N.J.Super. at 359,704 A.2d 1029, the four month delay between NJDMV's receipt of notice of Pepe's New York conviction and its issuance of its Notice of Scheduled Suspension is unfortunate; but we are satisfied the delay in the administrative process in New Jersey did not result in substantial prejudice to defendant. See also In re Garber, 141 N.J.Super. 87, 91, 357 A.2d 297 (App.Div.),certif. denied,71 N.J. 494, 366 A.2d 650 (1976) ("Delay will not generally affect the validity of an administrative determination, particularly where no prejudice is shown."); cf. In re Arndt, 67 N.J. 432, 341 A.2d 596 (1975) (where a grossly inordinate delay of twenty months occurred between defendant's refusal to submit to a breath chemical test and the issuance of a notice of proposed suspension and defendant was prejudiced by the arresting officer's poor recollection of material facts).

The suspension of defendant's driving privileges in New York commenced automatically upon his arrest on August 18, 2002. At the time of his actual conviction of that charge on December 20, 2002, the New York court ordered that his suspension there continue for two more months. He had already served five months of the ultimate six month New York suspension by the time New York notified NJDMV in mid-January 2003. Thus, even an immediate notification by NJDMV of its intention to...