Saturday, December 22, 2012


« Citation




DOCKET NO. A-1971-11T3
October 24, 2012

Argued October 9, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the New Jersey Motor Vehicle Commission.

Linda E. Mallozzi argued the cause for appellant.

Elaine C. Schwartz, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Jennifer R. Budd, Deputy Attorney General, on the brief).

Appellant Robert J. Foehner appeals from the Motor Vehicle Commission's (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver's license due to a fourth conviction for an alcohol-related offense. Because the applicable statutes and published opinions clearly support the MVC's action as a matter of law, we affirm the suspension.
The pertinent facts and procedural history are uncomplicated. On September 21, 2011 appellant was convicted of driving under the influence in the State of Arizona. Pursuant to the Interstate Driver License Compact, N.J.S.A. 39:5D-3, the MVC suspended appellant's New Jersey driving privileges because the Arizona DUI constituted appellant's fourth alcohol-related conviction. The 3,650-day suspension was issued pursuant to N.J.S.A. 39:4-50(a)(3), which requires that upon a third or subsequent DUI, a driver "shall . . . forfeit his right to operate a motor vehicle" in New Jersey "for 10 years."
The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona.
As a result, on October 19, 2011, the MVC sent a suspension notice to appellant indicating that his driving privileges were scheduled to be suspended for 3,650 days because of the Arizona conviction. Printed on the second page of the notice, which included the forty most recent motor vehicle records for appellant, was a portion of appellant's driving history dating from August 17, 1992 to October 18, 2011.
Because of the incomplete information provided by the MVC, appellant requested a hearing on the proposed suspension stating, in part, "[t]here is no basis for the proposed suspension. Mr. Foehner's abstract establishes disputed material facts which support the objection to the suspension."
In a letter dated November 29, 2011, the MVC denied the hearing request and ordered the suspension, effective January 3, 2012. The MVC took the position that appellant's the hearing request did not identify any disputed material facts or legal issues, as required, but merely "indicates that you desire a hearing and your driving record does not warrant a 3,650 suspension term."
Appellant filed a Notice of Appeal on December 28, 2011 and request for a stay of the sanction pending appeal. Appellant also requested that the MVC stay the suspension pending resolution of the appeal. The MVC rejected appellant's request for a stay. We denied the stay.
On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension given the lack of "necessary information upon which the appellant might discern or determine the basis for the agency's decision". We disagree.
Our scope of review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need194 N.J. 413, 422 (2008) (citation omitted); see alsoBrady v. Bd. of Review152 N.J. 197, 210 (1997).
N.J.A.C. 13:19-1.2 sets forth the requirements pertaining to administrative hearing requests. A hearing request must "specify all disputed material facts which the licensee or his or her attorney intends to raise at such hearing." N.J.A.C. 13:19-1.2(d). It must also "set forth all legal issues" intended to be raised, as well as "all arguments on those issues which the licensee wishes the [MVC] to consider."Ibid. Hearing requests are denied for failure to comply with these requirements. N.J.A.C. 13:19-1.2(e). However, no such hearing is required if a State agency is "required by any law to . . . suspend . . . a license . . . without exercising any discretion in the manner" either on the basis of a court's judgment in the matter or by law. N.J.S.A. 52:14B-11; see N.J.A.C. 13:19-1.13(d); see also State of New Jersey, Div. of Motor Vehicles v. Pepe379 N.J. Super. 411, 419 (App. Div. 2005) (no hearing required when there exists no disputed facts or law).
Here, appellant has failed to identify any disputed material facts. He does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, the appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice.1
ince no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed. Pepesupra, 379 N.J. Super. at 419.

1 It appears that the MVC sent appellant's counsel appellant's Certified Driver's Abstract on February 7, 2012, following her request for this document.

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