Sunday, April 27, 2014

suspension appeal rejected where driver presented no factual disputes or legal arguments that made such a hearing necessary THOMAS L. COLAMECO, Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION






January 14, 2014
                                                                                  SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-2729-12T3

Argued November 6, 2013 – Decided

Before Judges Espinosa and O'Connor.

On appeal from the New Jersey Motor Vehicle Commission.


            Thomas L. Colameco appeals from a final decision of the New Jersey Motor Vehicle Commission (NJMVC) that reduced a previously imposed suspension of his license and denied his request for a hearing.  We affirm.
            The record includes three notices from the NJMVC to Colameco, all sent to the same Swedesboro address, advising him that his driving privileges had been suspended.  The first notice, sent in November 2010, advised that Colameco's driving privileges were suspended "indefinitely" due to his failure to pay insurance surcharges.  A second notice, dated May 31, 2011, advised Colameco his driving privileges were suspended as of July 29, 2011, "indefinitely" because he failed to answer a summons in the Logan Township municipal court in February 2011.  A third notice, dated November 20, 2011, advised Colameco his driving privileges were suspended as of that date "indefinitely" because he failed to submit payment for his insurance surcharge assessment.  The November 2011 notice set forth the requirements for satisfying the suspension and stated further:
To restore your driving privilege, you must pay a $100 fee and satisfy the requirements of all license suspensions on your driving record.  You may not drive until you receive written notification from the Chief Administrator.  If you continue to drive while suspended, you could face up to five years in jail.

            On December 9, 2011, Colameco was arrested and charged with violations of N.J.S.A. 39:4-50 (DWI), N.J.S.A. 39:6B-2 (driving without liability insurance), and N.J.S.A. 39:4-81 (failure to observe a traffic control device).  On December 18, 2011, nine days after his arrest, Colameco paid the necessary restoration fees and program fee and his driving privileges were restored.  The restoration notice was addressed to the same Swedesboro address as the earlier notices regarding the suspension of his privileges.
            On November 20, 2012, Colameco entered a guilty plea to the DWI offense and the remaining charges were dismissed on the prosecutor's motion.  The sentence included a suspension of Colameco's driving privileges for ninety days.
            On December 16, 2012, NJMVC issued a notice to Colameco that his driving privileges were suspended as of that date for a period of 180 days.  The notice stated that the suspension was in addition to other driving suspensions outstanding as of November 20, 2012, and advised:
By authority of N.J.S.A. 39:3-40, 39:5-30 and N.J.A.C. 13:19-10.8, the Motor Vehicle Commission suspended your New Jersey driving privilege because you operated a motor vehicle during a period of driving privilege suspension.

            Colameco requested a hearing before NJMVC regarding this suspension.  Through counsel, he asserted the following as "contested issues":
1.         Mr. Colameco was not personally charged with a violation of N.J.S.A. 39:3-40 on or about November 21, 2012.

2.         Mr. Colameco did not violate N.J.S.A. 39:3-40 on or about November 21, 2012.

3.         NJMVC's entry of a violation, and subsequent assessment of a surcharge and suspension based upon an alleged violation of N.J.S.A. 39:3-40 on or about December 16, 2012 was erroneous or otherwise in error.

            NJMVC denied the request for a hearing.  In the denial letter, the Chairman and Chief Administrator set forth his findings and decision as follows:
I find as a fact that you were convicted of 39:4-50 (Operating Under the Influence Liq/Drugs) on 12/10/2011, and this was during a period of suspension that began on 11/28/2010 and ended on 12/19/2011.

On 01/16/2013 you requested an opportunity to be heard hearing.  No legal arguments were set forth in that request nor were any facts disputed.  Because no facts or legal issues are in dispute there is no need for an opportunity hearing on this matter and the request for a hearing is denied pursuant to N.J.A.C. 13:19-10.8.

            However, after considering Colameco's driver history record, mitigating circumstances indicated in his request, and his need for driving privileges, the Chairman reduced the period of suspension to thirty days.  Colameco's suspension was stayed thereafter pending this appeal.
            The sole issue Colameco argues in this appeal is that NJMVC violated his due process rights by failing to provide notice and failing to provide him with a hearing.  His contention regarding the lack of notice is that NJMVC failed to advise him of the date for which the alleged misconduct - driving while privileges were suspended - occurred. 
            This argument lacks any merit.  Colameco has not argued that he did not receive the three notices of suspension that advised him unequivocally that his driving privileges were suspended - indefinitely - from as early as November 2010.  Colameco has not argued he was unaware of the suspension when he continued to drive.  Indeed, his payment of required fees and restoration of his privileges just nine days after his DWI arrest belie any suggestion to the contrary.
            As the NJMVC noted in denying Colameco's request for a hearing, he presented no factual disputes or legal arguments that made such a hearing necessary.  In this appeal, he contends that "there may be speedy trial issues as well as a host of other issues for which a hearing and factual findings may be necessary" and asks for "a hearing so facts may be developed."  Like the request to the NJMVC, these arguments fail to present either a factual dispute or a legal argument that would necessitate a hearing.  We therefore find this argument to lack any merit as well.

            Affirmed.  The order staying the thirty-day suspension of Colameco's driving privileges is vacated.