Kovalsky, Matter of
| Decision Date | 09 July 1984 |
| Citation | 195 N.J.Super. 91,477 A.2d 1295 |
| Parties | In the Matter of William G. KOVALSKY. |
| Court | New Jersey Superior Court — Appellate Division |
Donald G. Kein, Union, for appellant, Kovalsky (Kein & Pollatschek, Union, attorneys).
Moira L. Sullivan, Deputy Atty. Gen., for respondent, Div. of Motor Vehicles (Irwin I. Kimmelman, Atty. Gen.; James J. Ciancia, Asst. Atty. Gen., of counsel).
Before Judges KING, DREIER and BILDER.
The opinion of the court was delivered by
KING, J.A.D.
This case involves the right of the Director of Motor Vehicles to suspend a driver's license for failure to appear and defend a drunken driving charge in Georgia. The Director suspended appellant's license. We agree and affirm.
Here are the facts. Appellant was a resident and licensed driver of New Jersey and worked as a salesperson for a textile manufacturer in New York City. On November 11, 1982 at one a.m. he was arrested and received a summons in Macon, Georgia for driving while under the influence of alcohol. The summons stated that a breath test was administered and that the result was .14% blood alcohol by volume. He posted a $300 bond; a trial date of December 14, 1982 appeared on the summons.
Appellant failed to attend on the trial date. His bond was forfeited in the Macon Municipal Court on January 18, 1983. He testified that he did not appear because it was financially difficult to return to Georgia, because he did not think that he could miss work, and because "I didn't feel I was guilty."
A copy of the summons was forwarded to the New Jersey Division of Motor Vehicles (DMV) and the violation was placed on appellant's driving record, which disclosed that he previously had been convicted in New Jersey of driving while under the influence of alcohol in November 1979.
On April 25, 1983 the DMV sent appellant an order which suspended his driving privileges until he "appeared in court, satisfied the summons and served any license suspension imposed by the court." The reason for this suspension was: On May 25, 1983 the DMV issued a corrected schedule of suspension and, pursuant to N.J.S.A. 39:5-30, N.J.S.A. 39:5-30.1 and N.J.S.A. 39:3-10, suspended his driving privileges for two years as a second offender. The reason stated was: Appellant requested a hearing to contest this suspension.
An administrative hearing was held in September 1983. Appellant admitted that he had been in Macon, Georgia, that he had received the summons, and had posted a $300 bond. He testified that he did not believe that there was a court date on the summons, although his attorney contradicted this statement and the date appears clearly on the face of the summons. Appellant's primary contention at the hearing was that he was not guilty of the offense charged, driving under the influence of intoxicating liquor, and that he had never pled guilty nor been tried and found guilty. The only physical evidence before the Administrative Law Judge was a copy of the Georgia summons received from the DMV which set forth the forfeiture of the $300 bond.
In his opinion the Administrative Law Judge decided against suspension for two reasons. First, he found appellant was not on notice that his driving privileges "were going to be suspended and/or revoked in accordance with N.J.S.A. 39:5-30." Second, he found that there was "nothing in the record to support the State's view that [appellant] was adjudged guilty of driving while intoxicated in Georgia." He concluded that "the assertion of innocence, and the absence of documentary proof, must be believed."
The Director of the Division reversed the Administrative Law Judge's decision. He found that the Administrative Law Judge had essentially converted appellant's failure to appear in Georgia into a valid defense to an administrative suspension. He stated
However, contrary to the Administrative Law Judge, I do not accept respondent's non-appearance as sufficient reason to forego imposition of the proposed suspension. Respondent was fully aware of the serious nature of the drinking-driving charge which had been lodged against him in the State of Georgia, and had ample opportunity to contest the matter on the date of the scheduled hearing. The fact that he failed to do so does not form the basis of a viable defense at the instant administrative proceeding.
Consequently, pursuant to N.J.S.A. 39:5-30, N.J.S.A. 39:5-30.1 and N.J.S.A. 39:3-10, the Director suspended appellant's driving privileges for two years--the mandatory suspension for a second drunk-driving offense--and ordered him to attend and complete an alcohol education and rehabilitation program.
Under our statutory law, the testimony of the appellant and the uncontested admission of the summons as evidence of his forfeiture of bail, was sufficient, competent evidence upon which to suspend his driving privileges. N.J.S.A. 39:5-30, which governs suspension of driving licenses, provides in pertinent part
Every registration certificate and every license certificate to drive a motor vehicle may be suspended ... for a violation of any provision of this Title or any other reasonable grounds.... [Emphasis added].
In Tichenor v. Magee, 4 N.J. Super. 467, 471, 67 A.2d 895 (App.Div.1949), we held that an out-of-state conviction for driving while under the influence of intoxicating liquor "is reasonably comprehended within the term 'other reasonable grounds' (R.S. 39:5-30) justifying defendant's revocation of plaintiff's New Jersey license."
The facts in Tichenor were like this case. There plaintiff was arrested in Maryland for driving while under the influence but claimed that the conviction entered against him was "a nullity." Nonetheless, this court found that the Maryland conviction was valid. We stated His deliberate failure to appear at a hearing scheduled the day following his arrest in Maryland, his failure to take an appeal from the judgment of conviction and having instituted no proceedings to test the validity thereof, plaintiff cannot successfully assert its invalidity here.
... Upon conviction of a person for operating an automobile while under the influence of intoxicating liquor over the highways of this State, his right to operate a motor vehicle is forfeited for a period of two years. R.S. 39:4-50. It reasonably follows that one holding a New Jersey driver's license, upon proof of a conviction for that offense in another state, should not be permitted to continue to operate a motor vehicle in New Jersey. [4 N.J. Super. at 471, 67 A.2d 895].
See also Farrell v. Strelecki, 88 N.J. Super. 221, 222-223, 211 A.2d 398 (App.Div.1965) ().
The proposition that an out-of-state conviction is an adequate basis for suspending a New Jersey resident's driving privilege has been codified in N.J.S.A. 39:5-30.1, L. 1953, c. 429, § 1, which provides
Whenever the reciprocity driving privilege of any New Jersey resident is suspended or revoked by lawful authority in another State upon a conviction of a violation of the Motor Vehicle Act of such State and the report of such conviction is transmitted by the motor vehicle administrator of such State to the Director of the Division of Motor Vehicles of this State pursuant to any law providing for reciprocal exchange thereof, the director may suspend or revoke the driving privilege of such resident in this State, in the manner prescribed by section 39:5-30 of the Revised Statutes, for a period not less than that for which the reciprocity driving privilege was suspended or revoked in such other State nor more than the period for which the driving privilege would have been suspended or revoked had a conviction of a like offense occurred in this State.
The crucial question here is whether there was competent evidence of an out-of-state conviction to warrant the suspension of appellant's driving privileges pursuant to N.J.S.A. 39:5-30 and N.J.S.A. 39:5-30.1. The appellant contends that no competent evidence of a conviction was presented. The Administrative Law Judge agreed. But, an examination of the interrelationship of Georgia's motor vehicle laws, our motor vehicle laws, and the evidence, refute the appellant's contention.
Appellant conceded that he received a summons for operating a motor vehicle while under the influence of alcohol in violation of Georgia law, that he posted a $300 bond, and that he failed to appear on the trial date marked on the face of the summons. Consequently, as certified on the summons, he forfeited the $300 bond.
As in New Jersey, driving under the influence of alcohol is prohibited in Georgia, see Georgia Code § 68A-902 (Cum.Supp.1983), and a conviction of that offense required a mandatory license suspension. Id. § 68B-305 (Cum.Supp.1983). The definition of conviction, as related to motor vehicle offenses, is provided at § 68B-101 (Cum.Supp.1983)
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(4) "Conviction" means a forfeiture of bail or collateral deposited to secure a defendant's appearance in court, the payment of a fine, a plea of guilty, or finding of guilt on a traffic violation charge, regardless of whether the sentence is suspended, probated, or rebated. [Emphasis added].
Therefore, appellant's failure to appear at the scheduled hearing and his subsequent forfeiture of bond amounted to a conviction for the offense charged under Georgia law. 1
Appellant urges a reversal claiming that he was not guilty of the offense, never pled guilty to...
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