UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of New Jersey, Appellate Division.
Dean SHEIBAN, Appellant,
v.
NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent.
2007 WL 4472116 (N.J.Super.A.D.)
Argued Nov. 13, 2007.
Decided Dec. 24, 2007.
Background: Driver sought review of New Jersey Motor Vehicle
Commission's suspension of his driver's license for 3600 days.
Holding: The Superior Court, Appellate Division, held that driver's
surrender of his New Jersey driver's license after committing offense
in New York but before his conviction did not deprive New Jersey of
its home-state status under Interstate Driver License Compact.
Affirmed.
On appeal from the New Jersey Motor Vehicle Commission.
Scott A. Gorman argued the cause for appellant (Rem Zeller Law Group,
attorneys; Jeffrey B. Steinfeld, of counsel and on the brief with Mr.
Gorman).
Emily H. Armstrong, Deputy Attorney General, argued the cause for
respondent (Anne Milgram, Attorney General, attorney; Patrick
DeAlmeida, Assistant Attorney General, of counsel; Ms. Armstrong, on
the brief).
Before Judges COLLESTER and C.L. MINIMAN.
PER CURIAM.
*1 Appellant Dean Sheiban appeals from a final administrative order of
the New Jersey Motor Vehicle Commission (MVC) suspending his New
Jersey driving privileges for 3600 days pursuant to the Interstate
Driver License Compact (the Compact), N.J.S.A. 39:5D-1 to -14, based
upon Sheiban's guilty plea to driving while intoxicated in South
Nyack, New York, his third conviction. Because New Jersey has a
significant interest in regulating the out-of-state conduct of a New
Jersey resident and licensee, we affirm.
The facts are undisputed. Sheiban was born on May 5, 1963, and
presumably began driving around 1981. His New Jersey driver history
record begins on March 22, 1984. Over the twenty-two years from that
date to October 23, 2006, the date of the last entry, Sheiban was
involved in nine accidents. He was driving under the influence at the
time of one of those accidents. Sheiban was found guilty of failure to
give a proper signal once, speeding three times, careless driving
twice and unsafe operation of a motor vehicle once. Sheiban was found
guilty of driving under the influence in New Jersey in 1990 and his
license was suspended. In 1998 he was again found guilty of driving
under the influence in New Jersey and his license was suspended again.
On February 18, 2006, Sheiban was charged with driving while
intoxicated in South Nyack, New York. At that time he was living in
New Jersey and held a New Jersey driver's license. The following month
he moved to New York and on March 13, 2006, he surrendered his New
Jersey driver's license. On June 21, 2006, Sheiban pled guilty to
driving while intoxicated, which New York treated as a first offense.
Sheiban completed his New York State Drinking Driver Program on
September 26, 2006, and secured a New York driver license on September
27, 2006.FN1
FN1. Defendant asserts on appeal that he was granted a New York
driver's license in March of 2006 and that it was thereafter suspended
when he pled guilty to the driving-while-intoxicated charge. However,
there is no evidence of record that sup****ts this claim. The Motor
Vehicle Services License Review Associated Responses PDPS License
Status re****t indicates that the New York license was issued, as
opposed to restored, on September 27, 2006, and the Certificate of
Disposition of the driving-while-intoxicated charge indicates that a
fine of $500 and a surcharge of $190 were imposed; it does not
indicate any license suspension.
New York re****ted Sheiban's conviction to New Jersey as the licensing
jurisdiction pursuant to the Compact, N.Y. Veh. & Traffic Law, =A7 516,
on a =93Re****t of Out-of-State Convictions=94 form. The details of this
conviction were posted to Sheiban's driver history record on October
23, 2006, and the MVC issued a Notice of Scheduled Suspension stating
its intention to suspend Sheiban's New Jersey driving privileges for
3600 days in accordance with N.J.S.A. 39:5-30, N.J.S.A. 39:5D-4 and
N.J.A.C. 13:19-11.1.
Sheiban timely requested a hearing to challenge the suspension,
although he did not dispute that he was a New Jersey licensed driver
at the time of the offense nor did he dispute his conviction of that
offense. Rather, he asserted that he was no longer a New Jersey
licensed driver and that the offense occurred outside New Jersey. The
request for a hearing asserted that Sheiban was convicted as a New
York driver, that New York imposed punishment and suspended his New
York driving privileges and that, with his New York privileges
restored at the time of the proposed suspension, he had a
constitutional right to operate a motor vehicle in all fifty states
and any United States territory.
*2 The MVC denied the request for a hearing pursuant to N.J.A.C.
13:19-1.2(d) because no fact disputes were raised and no legal
arguments were advanced. The MVC issued its final decision based on
the written record and suspended Sheiban's driving privileges for 3600
days starting on January 22, 2007. This appeal followed and a motion
for stay pending appeal was denied.
Sheiban raises only one issue on appeal, that =93[t]he [MVC] lacked the
statutory authority to suspend appellant's New Jersey driving
privileges when appellant was neither a resident nor a licensee of New
Jersey at the time of his New York conviction because a driver's home
state and state of residence are determined by the driver's status at
the time of conviction.=94
In reviewing final agency action, we are restricted to the following
four inquires:
(1) whether the agency's decision offends the State or Federal
Constitution; (2) whether the agency's action violates express or
implied legislative policies; (3) whether the record contains
substantial evidence to sup****t the findings on which the agency based
its action; and (4) whether in applying the legislative policies to
the facts, the agency clearly erred in reaching a conclusion that
could not reasonably have been made on a showing of the relevant
factors.
[George Harms Const. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27, 644 A.
2d 76 (1994).]
Sheiban does not claim any constitutional infirmity nor does he assert
that the record lacks substantial evidence to sup****t the MVC's
factual determinations. Rather, he raises only an issue of law with
respect to the proper interpretation and application of N .J.S.A.
39:5D-4. In this respect, =93[a]n administrative agency's interpretation
of statutes and regulations within its implementing and enforcing
responsibility is ordinarily entitled to our deference .=94 In re Appeal
by Progressive Cas. Ins. Co., 307 N.J.Super. 93, 102, 704 A.2d 562
(App.Div.1997). Nevertheless, =93we are not bound by the agency's legal
opinions.=94 Levine v. State of N.J., Dep't of Transp., 338 N.J.Super.
28, 32, 768 A.2d 192 (App.Div.2001) (citing G.S. v. Dep't of Human
Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170, 723 A.2d 612
(1999)).
Once Sheiban pled guilty to driving while intoxicated, New York was
obligated to re****t the conviction to New Jersey:
The licensing authority of a party State shall re****t each conviction
of a person from another party State occurring within its jurisdiction
to the licensing authority of the home state of the licensee.
[N.Y. Veh. & Traffic Law, =A7 516.]
New Jersey has a reciprocal obligation. See N.J.S.A. 39:5D-3. =93 =91Home
State=92 means the State which has issued and has the power to suspend
or revoke the use of the license or permit to operate a motor
vehicle.=94 N.J.S.A. 39:5D-2(b). Once that re****t has been received, the
home state is required to take certain action:
(a) The licensing authority in the home State, for the purposes of
suspension, revocation or limitation of the license to operate a motor
vehicle, shall give the same effect to the conduct re****ted, pursuant
to Article III of this compact, as it would if such conduct had
occurred in the home State, shall apply the penalties of the home
State or of the State in which the violation occurred, in the case of
convictions for:
*3 ....
(2) Driving a motor vehicle while under the influence of intoxicating
liquor or a narcotic drug, or under the influence of any other drug to
a degree which renders the driver incapable of safely driving a motor
vehicle[.]
[N.J.S.A. 39:5D-4.]
Sheiban contends that New Jersey was not the home state at the time of
conviction and, as a result, has no real interest sufficient to
require it to comply with N.J.S.A. 39:5D-4. He contends that New
Jersey has a greater interest in regulating the conduct of motorists
when New Jersey is the situs of the violations or when the violators
are New Jersey licensees, citing State, Div. of Motor Vehicles v.
Pepe, 379 N.J.Super. 411, 419, 879 A.2d 747 (2005). He urges that New
Jersey has little interest and no statutory authority to regulate the
conduct of out-of-state drivers who commit offenses outside New
Jersey, citing Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.Super.
52, 57-59, 766 A.2d 312 (App.Div.2001). This is so, he argues, because
drivers who are licensed by other states at the time of conviction are
less likely to drive in New Jersey than drivers who reside in or are
licensed by New Jersey at the time of their conviction. Additionally,
Sheiban contends that determining the imposition of a penalty based on
the driver's residence and licensure at the time of conviction is
consistent with the plain language of the Compact, citing N.J.S.A.
39:5D-4.
Finally, Sheiban asserts that measuring the right to suspend based on
the date of conviction will permit New Jersey to suspend the licenses
of out-of-state drivers who commit violations in New Jersey and who
move to New Jersey prior to conviction. Concomitantly, using the date
of conviction will permit New Jersey drivers to avoid the suspension
of their New Jersey license if they are willing to relocate prior to
conviction and surrender their New Jersey licenses. This result, he
urges, is consistent with New Jersey's greater interest in regulating
the licensure of drivers who will be operating their vehicles
regularly in New Jersey. We do not find these arguments persuasive.
When New Jersey became a member of the Compact in 1966, L. 1966, c.
73, =A7 1, it adopted the Compact's findings:
(1) The safety of their streets and highways is materially affected by
the degree of compliance with State laws and local ordinances relating
to the operation of motor vehicles.
(2) Violation of such a law or ordinance is evidence that the violator
engages in conduct which is likely to endanger the safety of persons
and property.
(3) The continuance in force of a license to drive is predicated upon
compliance with laws and ordinances relating to the operation of motor
vehicles, in whichever jurisdiction the vehicle is operated.
[N.J.S.A. 39:5D-1(a).]
It also adopted Compact policy to:
(1) Promote compliance with the laws, ordinances, and administrative
rules and regulations relating to the operation of motor vehicles by
their operators in each of the jurisdictions where such operators
drive motor vehicles.
*4 (2) Make the reciprocal recognition of licenses to drive and
eligibility therefor more just and equitable by considering the over-
all compliance with motor vehicle laws, ordinances and administrative
rules and regulations as a condition precedent to the continuance or
issuance of any license by reason of which the licensee is authorized
or permitted to operate a motor vehicle in any of the party States.
[N.J.S.A. 39:5D-1(b).]
These findings and policies infuse our consideration of Sheiban's
arguments. We have previously recognized that a =93strong state policy
[is] embodied in the Compact.=94 Boyd v. Div. of Motor Vehicles, 307
N.J.Super. 356, 359, 704 A.2d 1029 (App.Div.) (holding that New Jersey
home state suspension was not required to be concurrent with another
party state's suspension of reciprocity driving privileges in that
state), certif. denied, 154 N.J. 608, 713 A.2d 499 (1998).
When we decided In re Johnson, we rejected the licensee's argument
that his state of residence at the time of the offense controlled New
Jersey's status as a =93home state.=94 226 N.J.Super. 1, 5, 543 A.2d 454
(App.Div.1988). In that case, Johnson held dual licenses in New Jersey
and New York, in violation of N.J.S.A. 39:3-10. Ibid. We reasoned that
the Director of the Division of Motor Vehicles (now the MVC) had
authority under N.J.S.A. 39:5-30(a) to suspend a license even where
the licensee was not a New Jersey resident. Id. at 4, 543 A.2d 454.
Indeed, we noted that the statute permits the =93Director to suspend a
driver's reciprocity privilege on =91any other reasonable grounds.=92 =93
Ibid. We held:
Therefore, appellant's status as a New Jersey licensee provided the
requisite authorization for the Director to suspend that license for
an alcohol related motor vehicle violation, regardless of whether the
violation occurred within New Jersey or whether appellant was a New
Jersey resident at the time of the offense.
[Ibid.]
We pointed out that the definition of =93home state=94 made no reference
to the state of residence but only the state with the power to suspend
or revoke a license. Id. at 5, 543 A.2d 454 (citing N.J.S.A.
39:5D-2(b)). We explained =93that one of the primary objectives of the
Driver License Compact was to prevent drivers from holding motor
vehicle licenses from more than one state and prorating their motor
vehicle violations among different states in order to avoid suspension
of their licenses.=94 Id. at 6, 543 A.2d 454. We explained,
A do***ent entitled =93The Driver License Compact,=94 which was issued by
the Secretariat of the American Association of Motor Vehicle
Administrators contem****aneously with the adoption of the compact,
describes its objectives as follows:
The Driver License Compact was developed to give states a means for
cooperative action to control problem drivers. Basically, it provides
for an orderly method for exchange of information to keep unsafe or
poor risk drivers from ac***ulating violations in many jurisdictions
and escaping control action on the part of the state in which he holds
a driver's license. It further provides a method for implementing the
=93one license=94 concept so that drivers may not hold licenses in more
than one jurisdiction and thus be able to prorate violations among
them.
*5 ....
Value of the Compact in traffic safety is obvious. Drivers who commit
serious traffic law violations when away from home should not escape
corrective action by the state in which they are licensed. Nor should
they be able to hold licenses in more than one jurisdiction and thus
be able to prorate violations among them to escape the rightful
consequences of their dangerous practices.
[Ibid. (emphasis added).]
In Wnuck, supra, we concluded that a Pennsylvania resident was subject
to a ten-year suspension of his driver's license and an insurance
surcharge in connection with his conviction of driving while
intoxicated in New Jersey. 337 N.J.Super. at 57, 766 A.2d 312. And in
Pepe, supra, we rejected a challenge to the suspension of a New Jersey
driver's license where, although the licensee resided in New York at
the time of the violation, he never surrendered his New Jersey license
because New York could not suspend or revoke his New Jersey license.
379 N.J.Super. at 415-16, 879 A.2d 747.
It is readily evident here that the policy of the Compact to present
licensees from =93prorat[ing] violations among [the various states] to
escape the rightful consequences of their dangerous practices,=94 In re
Johnson, supra, 226 N.J.Super. at 6, 543 A.2d 454, and to =93[p]romote
compliance with the laws, ordinances, and administrative rules and
regulations relating to the operation of motor vehicles by their
operators in each of the jurisdictions where such operators drive
motor vehicles,=94 N.J.S.A. 39:5D-1(b)(1), will be frustrated were we to
conclude that the state of residence and licensure at the time of
conviction, rather than violation, determined the identity of the
=93home state=94 pursuant to the Compact.
Accordingly, we hold that surrender of a driver's license after
committing a driving-while-intoxicated offense but before conviction
does not deprive New Jersey of its home-state status under the
Compact. We also note that there was no evidence before the MVC or
before us that established that Sheiban was licensed in New York at
any time prior to September 27, 2006. Therefore, New Jersey remained
his licensing home state despite the surrender of his driver's
license. When a New Jersey driver operates his vehicle while under the
influence of alcohol in a Compact party state, that driver =93violate[s]
the sovereignty of New Jersey, the state that issued him a driver's
license,=94 Pepe, supra, 379 N.J.Super. at 419, 879 A.2d 747, which
license permitted him to enjoy reciprocal driving privileges
throughout the United States.
Affirmed.
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