On appeal from the Final Decision of the Division of Motor Vehicles.
Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.
Appellant Richard Granziel appeals from an order of the Division of Motor Vehicles (DMV) suspending his driver's license because of his epileptic disorder but permitting his application for relicensing after a year period during which he is seizure-free. Although we affirm on the basis of the factual and procedural complex here, we are nevertheless constrained to comment on what we perceive to be flaws in the regulatory scheme.
The significant facts, as well as the issues they pose, are best explained in the context of the relevant statutes and regulations. N.J.S.A. 39:3-10 authorizes the DMV Director to refuse, in his discretion, to grant a driver's license
to a person who is, in his estimation, not a proper person to be granted such a license, but no defect of the applicant shall debar him from receiving a license unless it can be shown by tests approved by the Director of the Division of Motor Vehicles that the defect incapacitates him from safely operating a motor vehicle.
Epileptic disorders are specifically addressed by N.J.S.A. 39:3-10.4 to 39:3-10.8, inclusive. The scheme requires prompt reporting to the Director by physicians of the fact of their treatment of persons of licensing age "for recurrent convulsive seizures or for recurrent periods of unconsciousness or for impairment or loss of motor coordination due to conditions such as, but not limited to, epilepsy in any of its forms, when such conditions persist or recur despite medical treatments. . . ." N.J.S.A. 39:3-10.4. Such persons themselves are also required to report the existence of that medical condition both on their initial applications for licensure and on renewal applications. N.J.S.A. 39:3-10.5. At the heart of the statutory scheme is N.J.S.A. 39:3-10.6, which directs DMV, in consultation with the State Commissioner, to "establish a procedure for evaluation and screening of cases so reported." The stated purpose for such a procedure is to assure "that no person is unwarrantedly denied the privilege of operating a motor vehicle because of reports submitted under the provisions of the act."
In response to the statutory mandate, DMV promulgated N.J.A.C. 13:19-5.1 to -5.10. N.J.A.C. 13:19-5.1 requires a person suffering from an epileptic disorder to establish, as a condition of issuance, renewal or retention of license, that "he has been free from recurrent convulsive seizures . . . for a period of one year with or without medication and that he is physically qualified to operate a motor vehicle." It is clear, however, that the one-year requirement is not absolute. Thus, N.J.A.C. 13:19-5.4 requires the DMV Director to appoint, in consultation with the New Jersey Medical Society, a three-member Neurological Disorder Committee "to advise him as to issuing licenses to persons suffering from recurrent convulsive seizures. . . ." And N.J.A.C. 13:19-5.7 authorizes the Director to license a person who has not been seizure-free "if the members of the Committee so recommend. . . ." It is, of course, also clear that a person aggrieved by the Director's action is entitled to a contested-case hearing conducted by the Office of Administrative Law (OAL). N.J.A.C. 13:19-1.1 to -1.13.
Appellant, now 34 years old, was diagnosed as suffering from grand mal epilepsy when he was 16. His illness is attributed to a traumatic head injury he suffered when he was 12 and a reinjury four years later. He has, in fact, been a licensed driver of this state since the age of 19. He has never been involved in an accident attributable to his disorder, although he has, through the years, experienced periodic grand mal seizures, that is, a complete loss of consciousness lasting several minutes. The seizures occur, typically, several times a year despite the fact that he takes Dilantin, an anti-seizure medication, daily. The precipitating event resulting in the suspension of his license was a seizure he suffered in September 1987 while in his office when employed by the City of Plainfield as a sanitarian-trainee. The incident was apparently reported to DMV, and appellant's physician, Dr. Robert E. Green, the neurologist who has treated him since the inception of his illness, submitted the required reports. The Director sent these
reports, together with appellant's own explanatory statement, to the three physicians constituting the Neurological Disorder Committee, and each recommended against a waiver of the presumptive one-year suspension period. The Director thereupon entered an order of suspension, effective December 25, 1987, "because reasonable grounds exist to cause this Division to believe that you are not physically qualified to operate a motor vehicle with safety based upon information of record which indicates that you are subject to convulsive seizures and the unfavorable recommendation of the Division's Medical Advisory Panel." The order advised appellant of his right to a "formal hearing," which he then requested and received.
Appellant and his physician, Dr. Green, were the sole witnesses. The medical evidence was consistent with the observation of the Supreme Court in Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 368 (1988), that "[e]pileptics are not all alike. * * * The nature, timing, and frequency of seizures vary from one epileptic to another. * * * Accordingly, epileptics must be viewed not as fungible members of a class, but as individuals." We also understand that while the symptomatological pattern of the disorder varies widely from person to person, nevertheless an individual's own symptomatological pattern ordinarily does not. The relatively consistent characteristics of appellant's disorder include a pre-seizure aura. An aura consists of a series of physical sensations, not themselves debilitating or incapacitating, which presage a loss of consciousness. Some grand mal epileptics have an aura which forewarns of an impending loss of consciousness, and others do not. The lapse of time, moreover, between the aura and the seizure also varies among those persons who do experience auras. We do, however, understand that as a matter of medical probability and predictability, when ...