State v. McColley

• Citation: 385 A.2d 264,157 N.J.Super. 525
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jon R. McCOLLEY, Defendant-Appellant.
• Decision Date: 28 March 1978
• Court: New Jersey Superior Court – Appellate Division

Page 525

157 N.J.Super. 525

385 A.2d 264

STATE of New Jersey, Plaintiff-Respondent, v. Jon R. McCOLLEY, Defendant-Appellant.

Superior Court of New Jersey,Appellate Division.

Submitted March 7, 1978.

Decided March 28, 1978.

Mohr & Mintz, Colonia, for defendant-appellant (J. Gary Mohr, Colonia, on the brief).

C. Judson Hamlin, Middlesex County Prosecutor, for plaintiff-respondent (Raymond F. Storch, Jr., Asst. Prosecutor, on the brief).

Before Judges LORA, SEIDMAN and MILMED.

PER CURIAM.

Defendant Jon R. McColley appeals his convictions for driving while impaired, in violation of N.J.S.A. 39:4-50(b), and driving while on the revoked list, in violation of N.J.S.A. 39:3-40.

The record shows that on October 31, 1976 at 1:21 a. m. defendant was seen driving a car in a parking lot by two Woodbridge Township police officers who had earlier seen McColley in an intoxicated and disorderly condition in a nearby store.

The parking lot, which is owned by a moving company in which defendant is a principal, is behind the company's business offices and is used primarily to park the company's trucks. Defendant's residence is also located on the lot.

Although there is no fence around the property, a sign stating "No Parking, Private Property" is posted principally to keep nearby beauty parlor customers off the property. There is access from the lot directly onto one street and through a driveway onto a second street. Access to the driveway entrance is blocked during the day but not at night. At the time defendant was apprehended by the police he was moving a friend's car that was parked in the wrong section of the property to another part of the lot. It is uncontested that defendant was not attempting to leave the property and that he was on the revoked list on that date.

Defendant appeals both convictions, contending that N.J.S.A. 39:4-50(b) and N.J.S.A. 39:3-40 do not apply to private property not devoted to public use.

N.J.S.A. 39:4-50(b) provides in pertinent part:

A person who operates a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol shall be subject, for a first offense, to a fine of not less than $50.00 nor more than $100.00 and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of 6 months from the date of his conviction.

In earlier cases we held that the drunk or impaired driving statute applied to the operation of vehicles on private property to which the public had access. State v. Gillespie, 100 N.J.Super. 71, 241 A.2d 239 (App.Div.1968), certif. den. 51 N.J. 274, 239 A.2d 663 (1968); State v. Sisti, 62 N.J.Super. 84, 162 A.2d 297 (App.Div.1960). But we broadened this holding in State v. Magner, 151 N.J.Super. 451, 453, 376 A.2d 1333 (App.Div.1977), to include the drunken or impaired operation of a vehicle irrespective of where it took place, stating that "(t)he failure to include language limiting the offense to public streets and highways persuades us that it was the intention of the Legislature to deal with drunken operation of a motor vehicle, irrespective of where it took place." We further reasoned that the nature of the property on which the driving occurred is irrelevant since there is "no less threat of extraordinary danger of injury to the driver and others or damage to property because that particular folly is performed in a private place than it would were it to occur in a quasi -public or public place." Id. at 454, 376 A.2d at 1334. Accordingly, we affirm defendant's conviction for violation of N.J.S.A. 39:4-50(b).

Defendant challenges his conviction for driving while on the revoked list in violation of N.J.S.A. 39:3-40 on the ground that N.J.S.A. 39:3-10, which provides in part that "(n)o person shall drive a motor vehicle on a public highway in this State unless licensed to do so in accordance with this article," must be read in pari materia with N.J.S.A. 39:3-40 so as to imply a requirement that a person may only be convicted for driving while on the revoked list if he or she drives on a public highway.

N.J.S.A. 39:3-40 provides in pertinent part:

No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.

No person whose motor vehicle registration has been revoked shall operate or permit the operation of such motor vehicle during the period of such revocation.

In State v. O'Grady, 19 N.J.Misc. 559, 21 A.2d 864 (Cty.Ct.1941), the court rejected a contention similar to that here advanced by defendant McColley. In O'Grady defendant likewise argued that the same provision in N.J.S.A. 39:3-10 required that N.J.S.A. 39:4-50(b) be read to prohibit only driving while impaired on a public highway, and that N.J.S.A. 39:4-50 did not apply to private property. The following reasoning in that case is equally applicable in the instant case:

* * * It is true that by virtue of R.S. 39:3-10; N.J.S.A. 39:3-10, no person is permitted to drive a motor vehicle on a public highway unless licensed to do so in accordance with the provisions of said article. But, before obtaining such license, it is equally true that any person exhibiting the proper qualifications had a right to operate a motor vehicle over the highways of this State by complying with the provisions of said article. It is this right and not the license which is forfeited by virtue of the legislation in question. This must be quite clear, because for a first offense the forfeiture was for a period of two years from the date of conviction, whereas, the license is only in force for one year, and for a subsequent violation the forfeiture is perpetual. So that a person operating a motor vehicle in a private place, which he may do without obtaining a license therefor, upon being convicted of violating section 4-50, nevertheless, forfeits his right to obtain a license to drive a motor vehicle in a public place, for the period set forth in the statute and therefore his right to so operate an automobile. (19 N.J.Misc. at 563, 21 A.2d at 867.)

It follows, then, that a person may operate a motor vehicle on private property or in a private place when no license has been issued but not when a license has been revoked or suspended.

Similarly, in State v. Handy, 74 N.J.Super. 294, 181 A.2d 203 (Cty.Ct.1962), it was held that the defendant was properly convicted of violations of both N.J.S.A. 39:3-10 and N.J.S.A. 39:3-40 where he was driving at a time his license was revoked and he had not taken the steps necessary to restore his driving privileges. ...