Kilkenny, Carton and Fulop. The opinion of the court was delivered by Fulop, J.s.c. (temporarily assigned).
This is an appeal in lieu of prerogative writs pursuant to R.R. 4:88-8 to compel the Director of the Division of Motor Vehicles to expunge from John Howe's driving record the notation that his driver's license had been suspended for 30 days from February 9 to March 10, 1966.
On January 9, 1966 a police officer charged Howe with driving his automobile at 60 miles per hour in a 50-mile zone in Piscataway Township, in violation of N.J.S.A. 39:4-98 and 99. On January 18, 1966 Howe entered a plea of guilty in the Municipal Court of Piscataway Township and was sentenced to pay a fine of $10 and $5 costs.
Howe contends that he told the judge of the municipal court that he had not driven at more than 55 miles per hour and that he was pleading guilty to exceeding the speed limit but not to driving at 60 miles per hour. However, the municipal court reported to the Director of the Division of Motor Vehicles that Howe had been convicted of driving at 60 miles per hour in a 50-mile zone.
On February 4, 1966 the Director notified Howe of the suspension of his driving privileges for 30 days, and demanded that he surrender his license to the Division. On February 8, 1966 Howe mailed in his license with a letter in which he set forth his contention as above mentioned and
added, "I wish to appeal the suspension based upon the fact that the charge of speeding 60 m.p.h. was incorrect." The Division refused a hearing on the ground that the municipal court conviction was conclusive of the facts, and under the regulations of the Division a 30-day suspension became mandatory upon a first conviction of driving ten miles or more over the speed limit in a 50-mile zone. No appeal was taken from that ruling. On March 10, 1966 the Division restored Howe's driving license.
On February 20, 1966, while his license was suspended, Howe drove his automobile, was apprehended, and was charged with driving while his license was suspended, in violation of N.J.S.A. 39:3:40. On March 9, 1966 Howe's attorney telephoned and wrote the judge of the Municipal Court of Piscataway Township requesting that he review the speeding conviction "for a possible re-determination" under the authority of R.R. 8:7-11. On March 15, 1966 Howe and his attorney appeared before the municipal court and satisfied the judge that Howe had been under the impression that he was pleading guilty to driving at 55 miles per hour and did not discover his error until some time in February. The "matter was reopened and tried."
The officer testified that Howe had driven at 60 miles per hour in a 50-mile zone, but could not recall the distance clocked and admitted that the speedometer of the police car had not been calibrated since August 18, 1965. Howe testified that he was not going above 55 miles per hour "and that the officer agreed with that speed at the time of issuance of the summons." The judge found him guilty of speeding at 58 miles per hour. The court reimposed the original fine and costs, "and no further penalty as to revocation was imposed, since counsel represented that the 30-day revocation period imposed by the Division had already been served." These facts were certified to the Division by the judge of the municipal court by letter dated March 16, 1966.
On March 16, 1966 Howe's attorney wrote to the Division asserting that the order of suspension dated February 4,
1966 was invalid in view of the redetermination by the municipal court, and requested that the record of the suspension should be removed from the Division's records. The Division entered a notation of the redetermination on its record but, on the advice of the office of the Attorney General, declined to expunge the record of the license suspension.
Howe instituted an action in lieu of prerogative writs in the Law Division of the Superior Court to compel the Director to expunge the record of the suspension. The Law Division judge noted that the action was for the review of a final decision of a state agency and that R.R. 4:88-8(a) provides that "Review of the final decision or action of any state administrative agency, other than those governed by Rules 5:2-5 and 5:2-9, ...