State v. Wenof

• Decision Date: 17 July 1968
• Docket Number: No. A,A
• Citation: 246 A.2d 59,102 N.J.Super. 370
• Parties: STATE of New Jersey, Plaintiff, v. Carl WENOF, Defendant. pp 8--67. --Criminal, New Jersey
• Court: New Jersey County Court

Page 370

102 N.J.Super. 370

246 A.2d 59

STATE of New Jersey, Plaintiff, v. Carl WENOF, Defendant.

No. App 8--67.

Camden County Court Law Division--Criminal, New Jersey.

July 17, 1968.

Victor Librizzi, Jr., Asst. Atty. Gen., for the State (Arthur J. Sills, Atty. Gen., attorney).

Gerald E. Haughey, Camden For defendant.

HEINE, J.S.C. (temporarily assigned).

Defendant appeals his conviction of violating R.S. 39:3--40, N.J.S.A., driving when his license had been suspended or revoked. The statute in pertinent part provides:

'No person * * * whose driver's license * * * has been suspended or revoked * * * shall personally operate a motor vehicle during the period of * * * suspension, revocation, or prohibition. * * * A person violating any provision of this section shall be fined not less than $200.00 nor more than $1,000.00, or be imprisoned in the county jail for not more than 6 months, or both.'

The facts are stipulated. On December 19, 1965 defendant was given a summons for speeding. He failed to appea or answer the summons. On May 20, 1966 the Director of the Division of Motor Vehicles sent him written notice of proposed suspension of his driving privileges for failure to satisfy the summons. The notice was sent by ordinary mail addressed to defendant's address as listed by him in his application for driver's license. The notice indicated that the suspension was to be effective June 10, 1966 unless written evidence was furnished the Division of Motor Vehicles that the court summons had been satisfied. Defendant did not respond to the notice, whereupon the Director on July 22, 1966 sent him by ordinary mail addressed to the same address an order that his driver's license had been suspended. A copy of the order was sent to the local police department. The officer reported that he was unable to comply with the order to collect the driver's license certificate because defendant had moved and left no forwarding address.

On February 15, 1966 defendant was given a summons for speeding. He failed to appear or answer the summons. On September 1, 1966 the Director sent defendant written notice of proposed suspension of his driving privileges for failure to satisfy the summons. This notice was sent by ordinary mail to the same address. The suspension was to be effective September 22, 1966 unless the summons was previously satisfied. Defendant did not respond to this notice, whereupon the Director on October 20, 1966 sent him by ordinary mail addressed to the same address an order that his driver's license had been suspended. A copy of the order was sent to the local police department. On November 1, 1966 the local officer reported that he was unable to comply with the license collection order because the address proved to be a business address and defendant had moved therefrom some six months ago. He had left no forwarding address with the postal authorities.

On June 2, 1967, while the above suspensions were still in force and effect, defendant was apprehended a third time for speeding. He was given a summons. A subsequent routine check by the police revealed that defendant was driving while still on the revoked list. A summons was then issued for the instant violation. His license still showed the same address.

Defendant denies receipt of any of the above notices relating to his suspensions. It is admitted that the notices were mailed but not received. He consequently contends that his driving privilege was suspended without due process and he is therefore not guilty of the charge.

Preliminarily, it might appear that the reason assigned for reversal of the conviction constitutes a collateral attack upon the determination of the Director of Motor Vehicles that could only be made by direct review by the Appellate Division under the provisions of R.R. 4:88--8. Normally, attempts to question or collaterally attack prior decisions of an administrative agency are rejected by the courts except on grounds that the agency lacked jurisdiction over the subject-matter or the person. Maguire v. Van Meter, 121 N.J.L. 150, 1 A.2d 445 (E. & A.1938); Clay v. Civil Service Commission, 89 N.J.L. 194, 98 A. 312 (E. & A. 1916); Miske v. Habay, 1 N.J. 368, 63 A.2d 883 (1949); Handlon v. Belleville, 4 N.J. 99, 107 (1950); 2 Am.Jur.2d, 299, § 493; 30A Am.Jur. 794, § 881. Since the determination of whether there was due process in the revocation proceedings runs parallel to and is subsumed by answer to the question of whether the Director had jurisdiction over the person of defendant, this court elects to answer the question.

N.J.S.A. 39:5--30 provides in pertinent part as follows:

'Every registration certificate and every license certificate to drive motor vehicles may be suspended or revoked, and any person may be prohibited from obtaining a driver's license or a registration certificate, and the reciprocity privilege of any nonresident may be suspended or revoked by the commissioner for a violation of any of the provisions of this Title or on any other reasonable grounds, after due notice in writing of such proposed suspension, revocation or prohibition and the ground thereof.'

The question to be answered here is what is 'due notice in writing of such proposed suspension.' No attack is made upon the specificity of the grounds stated in the notice. Compare Bechler v. Parsekian, 36 N.J. 242, 176 A.2d 470 (1961); Cresse v. Parsekian, 81 N.J.Super. 536, 196 A.2d 256 (App.Div.163), affirmed 43 N.J. 326, 204 A.2d 348 (1964); State v. Martin, 75 N.J.Super. 413, 183 A.2d 431 (App.Div.1962). Rather, it is contended that 'due notice' requires actual notice.

It is no longer arguable that a driver's license or privilege may not be revoked without procedural due process. Bechler v. Parsekian, supra. Additionally, the court there stated the proposition that the Director has wide discretion in the procedures he may care to utilize, provided he act fairly. 36 N.J., at p. 255, 176 A.2d 470. But that is not to say that procedural due process can be satisfied only with actual service of the notice. 'No foll-proof system of giving notice exists. Since perfection is unattainable, the best one can hope for is the creation of methods reasonably calculated to produce the desired result without imposing unrealistically heavy burdens on the party charged with the duty of notification.' Gellhorn and Byse, Administrative Law, 852 (4th ed. 1960). There is always a risk that notice may not reach the intended person, but this is not the test for legal sufficiency. The test, is rather, whether the notice was reasonably calculated to reach the intended parties. State by Parsons v. Standard Oil Co., 5 N.J. 281, 305--306, 74 A.2d 565 (1950); Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949).

The statute here involved does not prescribe the method of giving due notice of the proposed suspension. It has been recognized that notice sent by ordinary mail will be received....