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In re Kovalsky

Decided: July 9, 1984.

IN THE MATTER OF WILLIAM G. KOVALSKY


On appeal from the Division of Motor Vehicles.

King, Dreier and Bilder. The opinion of the court was delivered by King, J.A.D.

King

This case involves the right of the Director of Motor Vehicles to suspend a driver's license for failure to appear and defend a drunken driving charge in Georgia. The Director suspended appellant's license. We agree and affirm.

Here are the facts. Appellant was a resident and licensed driver of New Jersey and worked as a salesperson for a textile manufacturer in New York City. On November 11, 1982 at one a.m. he was arrested and received a summons in Macon, Georgia for driving while under the influence of alcohol. The summons stated that a breath test was administered and that the result was .14% blood alcohol by volume. He posted a $300 bond; a trial date of December 14, 1982 appeared on the summons.

Appellant failed to attend on the trial date. His bond was forfeited in the Macon Municipal Court on January 18, 1983. He testified that he did not appear because it was financially difficult to return to Georgia, because he did not think that he could miss work, and because "I didn't feel I was guilty."

A copy of the summons was forwarded to the New Jersey Division of Motor Vehicles (DMV) and the violation was placed on appellant's driving record, which disclosed that he previously had been convicted in New Jersey of driving while under the influence of alcohol in November 1979.

On April 25, 1983 the DMV sent appellant an order which suspended his driving privileges until he "appeared in court, satisfied the summons and served any license suspension imposed

by the court." The reason for this suspension was: "Failure to appear and satisfy summons in Municipal Court in Georgia. Bail/Bond forfeiture in Foreign State. Summons issued November 11, 1982 for driving while under the influence of intoxicating liquor." On May 25, 1983 the DMV issued a corrected schedule of suspension and, pursuant to N.J.S.A. 39:5-30, N.J.S.A. 39:5-30.1 and N.J.S.A. 39:3-10, suspended his driving privileges for two years as a second offender. The reason stated was: "Driving a motor vehicle while under the influence of intoxicating liquor in the State of Georgia. Foreign State conviction effective 1-18-83. New Jersey suspension effective 6-9-83 for two years from the date of driver's license is received." Appellant requested a hearing to contest this suspension.

An administrative hearing was held in September 1983. Appellant admitted that he had been in Macon, Georgia, that he had received the summons, and had posted a $300 bond. He testified that he did not believe that there was a court date on the summons, although his attorney contradicted this statement and the date appears clearly on the face of the summons. Appellant's primary contention at the hearing was that he was not guilty of the offense charged, driving under the influence of intoxicating liquor, and that he had never pled guilty nor been tried and found guilty. The only physical evidence before the Administrative Law Judge was a copy of the Georgia summons received from the DMV which set forth the forfeiture of the $300 bond.

In his opinion the Administrative Law Judge decided against suspension for two reasons. First, he found appellant was not on notice that his driving privileges "were going to be suspended and/or revoked in accordance with N.J.S.A. 39:5-30." Second, he found that there was "nothing in the record to support the State's view that [appellant] was adjudged guilty of driving while intoxicated in Georgia." He concluded that "the assertion of innocence, and the absence of documentary proof, must be believed."

The Director of the Division reversed the Administrative Law Judge's decision. He found that the Administrative Law Judge had essentially converted appellant's failure to appear in Georgia into a valid defense to an administrative suspension. He stated

However, contrary to the Administrative Law Judge, I do not accept respondent's non-appearance as sufficient reason to forego imposition of the proposed suspension. Respondent was fully aware of the serious nature of the drinking-driving charge which had been lodged against him in the State of Georgia, and had ample opportunity to contest the matter on the date of the scheduled hearing. The fact that he failed to do so does not form the basis of a viable defense at the instant administrative proceeding.

Consequently, pursuant to N.J.S.A. 39:5-30, N.J.S.A. 39:5-30.1 and N.J.S.A. 39:3-10, the Director suspended appellant's driving privileges for two years -- the mandatory suspension for a second drunk-driving offense -- and ordered him to attend and complete an alcohol education and rehabilitation program.

Under our statutory law, the testimony of the appellant and the uncontested admission of the summons as evidence of his forfeiture of bail, was sufficient, competent evidence upon which to suspend his driving privileges. N.J.S.A. 39:5-30, which governs suspension of driving licenses, provides in pertinent part

Every registration certificate and every license certificate to drive a motor vehicle may be suspended . . . for a violation of any provision of this Title or any other reasonable grounds. . . . [Emphasis added].

In Tichenor v. Magee, 4 N.J. Super. 467, 471 (App.Div.1949), we held that an out-of-state conviction for driving while under the influence of intoxicating liquor "is reasonably comprehended within the term 'other reasonable grounds' (R.S. 39:5-30) ...


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