On certification to the Superior Court, Appellate Division.
For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern and Garibaldi. For remandment -- Justices Clifford and Stein. The opinion of the Court was delivered by Garibaldi, J. Clifford, J., dissenting in part.
This appeal presents two questions. First, whether N.J.S.A. 39:5-30.1 confers upon the Director of the Division of Motor Vehicles (Director) the authority to grant occupational driving privileges to a New Jersey licensee when another state has suspended his reciprocity driving privileges but granted him occupational driving privileges. And second, if it does, whether the Director, pursuant to a policy of uniformly imposing the same mandatory minimum suspension penalties that would be applied under New Jersey law for similar offenses, may deny a request for occupational driving privileges without considering each case on its merits.
On October 14, 1982, respondent, Joseph Egan, a New Jersey licensee operating a passenger vehicle in Ohio, was charged with drunk driving and refusing to submit to a breath chemical test under that state's implied consent statute, Ohio Rev.Code
Ann., § 4511.19.1. On November 18, 1982, the State of Ohio notified respondent of its intention to suspend his reciprocity driving privileges for six months. On Egan's petition, the Clermont County Court of the State of Ohio held a hearing on May 26, 1983. He did not attend that hearing but was represented by counsel. The court suspended respondent's reciprocity driving privileges for six months, but granted him occupational driving privileges under Ohio Rev.Code Ann. § 4511.19.1(G)(5) on the ground that an unconditional suspension would seriously affect his ability to continue in his employment.
Meanwhile, on March 8, 1983, the New Jersey Division of Motor Vehicles (DMV) sent Egan a Scheduled Suspension Notice based on his refusal to submit to a breath chemical test in Ohio. After respondent requested a hearing, the matter was transferred to the Office of Administrative Law as a contested case. The Administrative Law Judge (ALJ) issued an Initial Decision ordering that respondent's driving privileges be suspended for six months and that they not be restored until he successfully completed a program of alcohol rehabilitation or education satisfactory to the DMV. In rejecting Egan's request for occupational driving privileges, the ALJ made two observations: one, that the Ohio statute, unlike New Jersey's implied consent act, explicitly provides for suspensions with occupational driving privileges, and two, that "[a]lthough respondent is no doubt dependent upon the ability to drive for his current employment, the record is devoid of evidence concerning whether or not it is likely he would be fired if his driving privileges are suspended, or the details of his financial status."
Then respondent filed a certification with the Director in support of his exceptions to the Initial Decision of the ALJ. He averred that he is a member of the International Brotherhood of Electrical Workers Union Local 1211 and is currently employed as a semi-truck driver for Columbia Broadcasting Systems Sports Division (CBS Sports). He certified that he is unqualified to act as an electrical worker, and that he was informed by his shop steward that it would be extremely
unlikely, if not impossible, for him to continue with his employment in the event that his driving privileges were suspended, since the only other jobs available through his union were in the capacity of an electrical worker. He received similar advice from the operations manager for CBS Sports.
The Director, in a Memorandum Decision affirming the ALJ's Initial Decision, rejected Egan's entreaty for occupational driving privileges, stating that
the policy of the Division of Motor Vehicles is to impose the same penalty as if the offense had taken place in New Jersey. The purpose is to provide uniformity and equity in the imposition of suspensions of New Jersey licensees for drinking-driving convictions in all states, without regard to the penalties of the state where the alcohol-related offense occurred. Pursuant to the applicable New Jersey statute which was in effect at the time of respondent's arrest, i.e., N.J.S.A. 39:4-50.4a, respondent would be subject to a mandatory license suspension of six (6) months for a first offense.
The Appellate Division first affirmed the Director's six-month suspension of Egan's driving privileges and requirement that he attend an alcohol education or rehabilitation program, but then reversed as to Egan's request for occupational driving privileges similar to those given him by Ohio, remanding the matter to the Director for reconsideration in light of the potential that he may lose his job. The court did not retain jurisdiction.
We granted certification, 102 N.J. 363 (1985), and now affirm the first part of the judgment of the Appellate ...