Wnuck v. NJ Div. of Motor Vehicles

• Decision Date: 31 January 2001
• Parties: Scott F. WNUCK, Petitioner-Appellant, v. NEW JERSEY DIVISION OF MOTOR VEHICLES, Respondent-Respondent.
• Court: New Jersey Superior Court

766 A.2d 312

337 N.J. Super. 52

Scott F. WNUCK, Petitioner-Appellant, v. NEW JERSEY DIVISION OF MOTOR VEHICLES, Respondent-Respondent.

Superior Court of New Jersey, Appellate Division.

Submitted December 20, 2000.

Decided January 31, 2001.

Scott F. Wnuck, appellant pro se.

John J. Farmer, Jr., Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Sue Kleinberg, Deputy Attorney General, on the brief).

Before Judges BAIME, CARCHMAN and LINTNER.

The opinion of the court was delivered by LINTNER, J.A.D.

Defendant appeals the imposition of a surcharge by the Director of Motor Vehicles (the Director), resulting from defendant's third conviction for driving while intoxicated (DWI). N.J.S.A. 39:4-50. Defendant was convicted of DWI on August 19, 1998, in Hackettstown Municipal Court. Defendant's driving privileges were suspended for ten years, N.J.S.A. 39:4-50(a)(3), and he was surcharged in accordance with N.J.S.A. 17:29A-35(b)(1)(a). He contends that as a Pennsylvania resident he is not subject to the insurance surcharge associated with his conviction. We disagree and hold that a non-resident driver, convicted of a violation of N.J.S .A. 39:4-50, though not licensed in New Jersey, is subject to an insurance surcharge pursuant to N.J.S.A. 17:29A-35(b)(1)(a).

On June 7, 1999, the Surcharge Administration Office of the Division of Motor Vehicles advised defendant that it was aware that he disputed the surcharge based upon "Pennsylvania licensure and residency." The letter also informed defendant that, in order to dispute the surcharge in question, he must provide proof of residency at the time of the violation, March 1, 1998. It listed the following items as acceptable proof:

1. W-2 tax statements

2. Utility bills (phone/electric)

3. Mortgage/rental receipts

4. Auto insurance/registration

5. Voter registration

6. Pennsylvania Motor Vehicle Driving Abstract

On July 1, 1999, defendant wrote to the Division of Motor Vehicles (DMV) stating the following:

I am sending you what material I have as proof of my Pennsylvania residency. Since selling my house in Pennsylvania in 1995 I have rented a room and part of a barn at a relative's residents. I mostly used this space for storage and to maintain residency but I do occasionally reside there.

I must work in New Jersey as ... that is my Union's territory and that is where the jobs ... are. I also am forced to remain in New Jersey as the municipal judge in Hackettstown sentenced me to 540 hours of community service and gave me one year to complete it. He has threatened to jail me one day for every hour not completed by September 1, 1999. I am due in court for review of my compliance on that date. I have in the past several years used various addresses in New Jersey as a convenience in certain matters. I also have put my girlfriend's utility bills in my name as her credit was effectively ruined by her ex-husband.

In the past year, I have spent nearly all my time here in New Jersey at my girlfriend's or my father's home. I can assure you though as soon as this community service is complete I will be trying to return to Pennsylvania full-time. In 1997 I had to pay taxes in New Jersey and Pennsylvania and it cost me an additional $500, so in 1998 since after the conviction I was stuck here anyway I... filed in New Jersey.

Defendant also enclosed and made reference to his current driver's licence, automobile insurance identification card, automobile registration, which expired on June 30, 1998, and Pennsylvania driver's abstract, all of which listed his address as 730-16 Milford Rd., #265, E. Stroudsburg, PA 18301.

On September 15, 1999, the Surcharge Administration Office advised defendant:

Your response to our June 1999 request for proof of Pennsylvania residency at the time of your March 1, 1998 "Driving While Intoxicated" violation was received and reviewed along with the attached correspondence. However, a review of this residency documentation was not sufficient or specific as requested to support your residency. Therefore, we have determined that the insurance surcharge issued is valid and must be paid as billed.

Please be aware, having an out-of-state license is not always sufficient to void payment of insurance surcharges. There is no provision within the surcharge law that prevents the State of New Jersey from assessing any motorist who violated N.J.S.A. Title 39 while traveling within the boundaries of this state.

Defendant was further advised that the decision embodied in the letter of September 15 constituted a final decision of the DMV.

Defendant essentially argues three points on appeal. He maintains that (1) the DMV determination was inconsistent with its prior determination that defendant's 1995 conviction was not surchargeable; (2) sufficient proof was submitted to show that he was a resident of Pennsylvania; and (3) it is improper to impose a surcharge on persons who are convicted of motor vehicle offenses in New Jersey even though they reside and are licensed in another State.

It is settled that "[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co., 307 N.J.Super. 93, 102, 704 A.2d 562 (App.Div.1997); Krupp v. Board of Educ. of Union Cty. Reg. High Sch., 278 N.J.Super. 31, 37-38, 650 A.2d 366 (App.Div.1994), certif. denied, 140 N.J. 277, 658 A.2d 301 (1995). Further, we defer to the agency's expertise in relation to technical matters. In re Petition of Adamar of New Jersey, Inc., 222 N.J.Super. 464, 470, 537 A.2d 704 (App. Div.1988). Our task, which is a limited one, is to decide whether: (1) the agency's action violates express or implied legislative policies; (2) the record contains substantial evidence to support the findings; and (3) in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made upon a showing of the relevant facts. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175, 729 A.2d 1 (1999). Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed. Ibid.

We are satisfied that the determination by the Director is factually supported by defendant's own statements concerning his New Jersey residency however, we hold that, regardless of defendant's residency, he is subject to the insurance surcharge because he was found guilty of DWI within our state. N.J.S.A. 17:29A-35(b). We have held that N.J.S.A. 17:29A-35(b), which authorizes the surcharge imposed here, "shall apply to all drivers" and is chargeable to a driver licenced by New Jersey who is convicted of DWI in the State of New York, even though his actual residence is also in New York. In re Edmond D. Johnson, 226 N.J.Super. 1, 7, 543 A.2d 454 (App.Div. 1988). N.J.S.A. 17:29A-35(b)(1)(a) requires that a surcharge be levied for convictions under N.J.S.A. 39:4-50 and "for offenses committed in other jurisdictions of a substantially similar nature." N.J.S.A. 17:29A-35(b)(2). Where the surcharge is not paid, N.J.S.A. 17:29A-35(b)(2) authorizes the Director to suspend the driver's license. The Director may also issue a certification to the Clerk of the Superior Court in order to docket a judgment for the amount owed.

Defendant contends that if a surcharge can be imposed on a nonresident licenced...