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In re Arndt

Decided: June 24, 1975.

IN THE MATTER OF ALBERT H. ARNDT, DEFENDANT-APPELLANT


For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan and Schreiber and Judge Conford. For affirmance -- Justices Pashman and Clifford. Conford, P.J.A.D., Temporarily Assigned. Clifford, J. (dissenting). Pashman, J. authorizes me to express his concurrence in this dissenting opinion.

Conford

We granted certification 67 N.J. 98 (1975), to review a judgment of the Appellate Division affirming a six-months suspension of appellant's driving license by the Director of the Division of Motor Vehicles because of appellant's refusal to submit to a breath chemical test after having been arrested on suspicion of driving while under the influence of intoxicating liquors. See N.J.S.A. 39:4-50.4; State v. Pandoli, 109 N.J. Super. 1, 4 (App. Div. 1970).

Our grant of certification in this case was not based upon any question concerning the substantive correctness of the Director's action in the light of the circumstances attending appellant's arrest and his refusal to submit to the test, but upon the grossly inordinate delay in instituting the suspension proceedings after notification to the Director of appellant's default and in adjudicating the suspension after the hearing.

Defendant was arrested August 22, 1971; the arresting police officer notified the Director of the refusal to take the test September 2, 1971; the notice of proposed suspension was sent to the appellant by the Director April 27, 1973, almost 20 months later; the hearing by the hearing officer was conducted May 25, 1973; appellant filed exceptions on June 18, 1973 to a recommendation by the hearing officer for a suspension dated June 14, 1973; and the Director decided the matter against appellant on April 3, 1974. The order of suspension was served April 18, 1974. Thus two years and eight months passed between arrest and license

suspension, punctuated by periods of administrative inaction by the State agency of approximately 20 months and 10 months.

Some time between the arrest and the hearing appellant was acquitted of a charge of drunken driving in the Hightstown Municipal Court.

We consider initially appellant's contention that the suspension proceedings were defective in that the State has not established that there was present in the police barracks at the time of his refusal to take the breath test a qualified operator to administer the test. At the hearing, the arresting officer was not able to remember the name of the operator who was present, but he testified that it is standard practice for one officer to be available at all times to administer such a test. Assuming affirmative proof by the State of the availability of such an officer is a predicate of liability to suspension, a point we need not here decide, the evidence adduced warrants a finding that the officer was present. Evid. R. 49. But the incident is one of several imperfections in the arresting officer's recollection of what transpired at the barracks, including appellant's condition, underscoring the undesirability of so long a period of time between arrest and hearing as occurred here.

We address the matter of the administrative delays in prosecution of these proceedings. N.J.S.A. 39:4-50.4 provides that the arresting officer shall deliver to the Director his sworn report of the driver's refusal to submit to the test and that "[ u ] pon receipt of such a report", if the Director finds the report to be in order, "he shall * * * suspend the person's license * * * unless such person, within 10 days of the date of such notice * * *" requests a hearing (emphasis added). It is clear from this language that the Legislature contemplated that the Director should move promptly to process the violation after notification by the police. This direction is apparently designed primarily to serve the statutory policy of protecting the traveling public by removing the offending driver from the highways with reasonable dispatch.

See Atkinson v. Parsekian, 37 N.J. 143, 155 (1962); David v. Strelecki, 51 N.J. 563, 566 (1968).

Nevertheless, license-revocation proceedings do realistically affect drivers in a serious way, often threatening their ability to earn a livelihood, and it is settled they must meet those incidents of fairness underlying due process. Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); David v. Strelecki, supra (51 N.J. at 566). We have, moreover, not hesitated (as a matter of judicial policy) to impose principles of fundamental procedural fairness on administrative agencies and trial tribunals beyond constitutional demands. See Monks v. N.J. State Parole Board, 58 N.J. 238 (1971) and Rodriguez v. Rosenblatt et al., 58 N.J. 281, 294 (1971) and cases cited in the latter opinion. In this regard, the language noted above from N.J.S.A. 39:4-50.4 would appear to suggest a complementary policy entitling an arrested motorist to have inchoate suspension proceedings pursued against him by the Division of Motor Vehicles within a reasonable time after notification of refusal of a breath refusal test. Judicial compulsion of agency adherence to that policy would subserve not only the right of the charged individual to be free of unconscionable, harassing delay in a matter so bound up with a citizen's well being as the integrity of his driving license, but also the public interest in prompt removal of unfit drivers from the highways, Cf. In re Emberton, 109 N.J. Super. 211 (App. Div. 1970), holding that the delay of a decision on a driving license revocation for two years after a hearing did not constitute the denial of a speedy trial in the constitutional sense applicable to criminal prosecutions.

Taken together, the delays between filing of the arresting officer's report and activation of the suspension proceedings and between the hearing thereon and decision in this case warrant the language of reproval used by the United States Supreme Court in Smith v. Ill. Bell Tel. Co., 270 ...


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