Traffic Law and Municipal Court- Kenneth Vercammen Edison NJ

PETER WAYNE,

Appellant,

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Respondent.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3008-12T1

____________________________________

Submitted July 3, 2013 – Decided July 12, 2013

Before Judges Axelrad and Fuentes.

On appeal from the New Jersey Motor Vehicle

Commission.

Jeffrey B. Steinfeld, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney

for respondent (Lisa A. Puglisi, Assistant Attorney

General, of counsel; Elaine C. Schwartz, Deputy

Attorney General, on the brief).

PER CURIAM

Peter Wayne, a resident of the State of New Jersey, appeals from the final decision of the Director of the New Jersey Motor Vehicle Commission (MVC or Commission) suspending his driving privileges in this State for ninety days, based on his conviction in the State of New York of operating a motor vehicle A-3008-12T1 2

while his ability was impaired by the consumption of alcohol, in violation of N.Y. Veh. Traf. & Law § 1192.1. We affirm.

The Commission's authority to suspend appellant's driving privileges is derived from New Jersey's participation in the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14 (Compact). In adopting the Compact, the Legislature recognized that, as a matter of public policy, "[t]he safety of [the] streets and highways [of every state] is materially affected by the degree of compliance with State laws and local ordinances relating to the operation of motor vehicles." N.J.S.A. 39:5D-1(a)(1). As an enforcement mechanism, the Compact imposes a reciprocal obligation on every signatory state to honor each other's laws governing the eligibility to operate a motor vehicle. N.J.S.A. 39:5D-1(b)(2).

Here, the MVC notified appellant on January 15, 2013, that it had scheduled the suspension of his driving privileges for a period of ninety days commencing on February 8, 2013, due to his "conviction" in a New York court on July 4, 2012, of the offense of "operating while impaired." The MVC notice gave appellant a choice to accept the suspension or request a hearing specifying "all disputed material facts and legal issues [he] or [his] attorney intend[ed] to raise at a hearing" and submit those legal arguments for consideration by the Commission. The A-3008-12T1 3

Commission reserved the right to deny a hearing and rule on the legal arguments presented if it determined that there were no material facts in dispute and the matter could be resolved as a matter of law. If the Commission rejected appellant's arguments, the license suspension would commence on the date specified in the decision.

Appellant elected to challenge the suspension of his driver's license. Appellant claimed before the Commission, and continues to do so before this court, that his New York conviction was based exclusively on a BAC reading of 0.07%. Because New Jersey sanctions a per se violation of DWI only if a defendant's BAC reading is 0.08% or greater, N.J.S.A. 39:4-50(a), appellant argues that his conviction in New York under N.Y. Veh. Traf. & Law § 1192.1 cannot be "substantially similar in nature," because it is based exclusively on evidence that would have been deemed insufficient to sustain a DWI conviction as a matter of law.

On February 7, 2013, the Commission issued an Order of Suspension without a hearing. The Commission first noted that a hearing was not required under N.J.A.C. 13:19-1.2(d) because appellant contended that his conviction for violating N.Y. Veh. Traf. & Law § 1192.1 was "based exclusively on a breath test reading of 0.07%." Thus, the Commission was required to decide A-3008-12T1 4

only issues of law. In this light, the Commission rejected appellant's argument based on the disparity in the minimum BAC reading required to sustain a conviction between New Jersey and New York and concluded that, under N.J.S.A. 39:5D-4(a)(2) and N.J.A.C. 13:19-11.1(a), it was legally bound to give full force and effect to appellant's New York conviction.

The Commission acknowledged that the two statutes do not use precisely the same words to describe the prohibited conduct. Despite this difference in phraseology, however, the Commission found that the offenses are of a "substantially similar nature." N.J.S.A. 39:5D-4(c). Citing State v. Colley, 397 N.J. Super. 214 (App. Div. 2007), and New Jersey Division of Motor Vehicles v. Pepe, 379 N.J. Super. 411 (App. Div. 2005), the Commission emphasized that "our courts have consistently upheld suspensions imposed pursuant to the Driver License Compact [u]nder [s]ubstantially [s]imilar [c]ircumstances."

On appeal to this court, appellant argues that the New York offense of driving while impaired by the consumption of alcohol under N.Y. Veh. Traf. & Law § 1192.1 is not "substantially similar in nature" to DWI under N.J.S.A. 39:4-50(a), because the Compact requires that the out-of-state conviction be based on driving "while under the influence of intoxicating liquor . . . to a degree which renders the driver incapable of safely driving A-3008-12T1 5

a motor vehicle." N.J.S.A. 39:5D-4(a)(2) (emphasis added). By contrast, the offense defined under N.Y. Veh. Traf. & Law § 1192.1 only requires driving "while impaired by the consumption of alcohol." According to appellant, these phrases "are clearly not equivalent, and should not have been considered as such by the [MVC]." We disagree.

Before we address appellant's legal arguments directly, we must take note of the lack of evidence supporting appellant's emphatic assertion that his New York conviction was based "exclusively" on his BAC reading of 0.07%. The record before us includes a "Bill of Particulars" provided to appellant pursuant to Sections 100.25 and 200.95 of New York's Criminal Procedure Law. These documents show that the arresting officer initially stopped appellant's car based on speeding. In fact, appellant was charged with speeding based on a verified radar reading of 55 MPH in a 40 MPH zone.

Once lawfully stopped for speeding, the officer concluded he had probable cause to arrest appellant for driving while impaired based on his observation that appellant had an "Odor of Alcoholic Beverage," "Glassy Eyes," "Impaired Speech," and "Impaired Motor Coordination." According to the officer, appellant also failed to perform a number of field sobriety tests, including "Walk and Turn" and "One Leg Stand." The A-3008-12T1 6

officer finally indicated in his report that appellant told him that he had consumed three to four beers.

The only undisputed fact in this record is that appellant pleaded guilty in a New York court to driving while impaired on July 4, 2012, in violation of N.Y. Veh. Traf. & Law § 1192.1. We do not have the transcript of the plea hearing or any other definitive indication from the New York court showing that appellant's conviction was based exclusively on his BAC reading.

In fact, appellant included in his appendix a letter purporting to be from the attorney who represented him in connection with this matter in New York. This letter, dated October 25, 2012, "confirm[ed] the disposition of the charges pending against [appellant] in the [Town of Hamptonburgh Justice Court]." As to the particulars of the disposition, appellant's New York counsel stated as follows:

When we appeared in Court on October 24, 2012, you pled guilty to the charge of Driving While Ability Impaired/Alcohol in full satisfaction of all charges. As a result of the plea, the Court imposed a fine in the amount of $300.00 plus a surcharge of $260.00 for a total amount of $560.00. . . .

. . . .

Further, your privileges to drive in New York State were suspended for a period of ninety (90) days. Also, as part of your sentence the Court ordered that you attend the Victim Impact Panel (VIP) on November A-3008-12T1 7

15, 2012. The Court provided you with all the necessary information regarding the VIP.

[(First emphasis added).]

Thus, the Commission's acceptance of appellant's assertion that his conviction for driving while impaired was based exclusively on a BAC reading of 0.07% is not supported by the record. As such, we are not bound to defer to it. See Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). However, the doctrine of judicial estoppel precludes appellant from challenging the Commission's reliance on that assertion as a basis for denying appellant's request for a plenary hearing pursuant N.J.A.C. 13:19-1.2(d). Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 72-73 (2012).

With these principles as backdrop, we now address appellant's arguments. Because the issues raised by appellant and addressed by the Commission involved only questions of law, we review the Commission's decision under a de novo standard. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

We begin our analysis with the language in the Compact. N.J.S.A. 39:5D-4(c) provides that:

If the laws of a party State do not provide for offenses or violations denominated or described in precisely the A-3008-12T1 8

words employed in subdivision (a) of this article, such party State shall construe the denominations and descriptions appearing in subdivision (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature and the laws of such party State shall contain such provisions as may be necessary to ensure that full force and effect is given to this article.

[(Emphasis added).]

As construed by New York's highest judicial tribunal, "impairment" under N.Y. Veh. Traf. & Law § 1192.1 "means that the actor by 'voluntarily consuming alcohol . . . has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a responsible and prudent driver.'" In re Johnston, 75 N.Y.2d 403, 409-10 (1990) (quoting People v. Cruz, 48 N.Y.2d 419, 427 (1979)).

In Division of Motor Vehicles v. Lawrence, 194 N.J. Super. 1, 2-3 (App. Div. 1983), we reviewed the exact language at issue here and held that the New York offense was "substantially similar in nature" to a DWI conviction under N.J.S.A. 39:4-50(a). Comparing the language and policy goals of the statutes, we concluded that both laws "deal with alcohol-related offenses and are aimed to deter and punish drunk drivers." Id. at 3. Our State's DWI statute is broad enough to encompass New York's driving while impaired by the consumption of alcohol offense, A-3008-12T1 9

because N.J.S.A. 39:4-50(a) prohibits not only "intoxication" but also "a 'general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so affected in judgment as to make it improper for him to drive on the highways.'" Id. at 3 (quoting State v. Johnson, 42 N.J. 146, 165 (1964)).

Here, the Commission correctly enforced the Compact by imposing on appellant the penalties provided under N.J.S.A. 39:4-50(a) for a first time offender. We thus affirm substantially for the reasons expressed by the Commission in its February 7, 2013 final order of suspension. Our order dated March 7, 2013, staying the execution of the Commission's order of suspension pending the outcome of this appeal is vacated.

Affirmed.

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