Before Judges Petrella and Newman.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Division of Motor Vehicles.
This appeal involves the interpretation of N.J.S.A. 39:3- 33.5 and its implementing regulation, N.J.A.C. 13:20-34.4, with respect to denial of applications for personalized license plates by a person who has been convicted of a violation of N.J.S.A. 39:4-50. Mitchell Levine's application for personalized license plates was denied by the Division of Motor Vehicles (DMV) in the Department of Transportation solely by reason of his refusal to submit to a breathalyzer test as required by N.J.S.A. 39:4-50.2 and 50.4a. On appeal, Levine argues that his failure to submit to a breathalyzer test is not an offense for which his request for personalized license plates should be denied under N.J.S.A. 39:3-33.5.
According to the record before us, Levine was not convicted of driving under the influence of either alcohol or any other substance. However, in connection with a traffic stop, Levine was issued a summons for refusal to submit to a breathalyzer test and we are advised that he was convicted of that offense. The record is sparse as to the facts and the dates, but the argument is made solely as a matter of interpretation of the statutes.
The record does disclose this much, Levine applied in 1998 for personalized license plates reading: "MITCHL-2" and "MITCHL- 4." This request was denied by the DMV in a form letter which had the box checked for a violation for driving under the influence and had typed in "Refusal to submit to chemical test."
Levine contested this denial and ultimately, through his attorney, received a letter from the Director of the DMV dated December 6, 1999, which said:
You question the Division of Motor Vehicles' decision to deny personalized plates to Mitchell E. Levine. The basis for this denial is the long standing policy of this state, which is that individuals who are convicted of breath test refusal (N.J.S.A. 39:4-50.2) should be denied personalized plates as if they had been convicted of N.J.S.A. 39:4-50. The Division reads N.J.S.A. 39:3-33.5(a) broadly to include N.J.S.A. 39:4-50.2*fn1 and relies on the case of Victor A. Bergwall, Jr. (173 N.J. Super. 431 and 85 N.J. 382) [reversing on dissenting opinion] in support of its argument.
The Division, therefore, stands by its initial decision to deny Mitchell E. Levine personalized plates. This is the final agency decision in this matter.
N.J.S.A. 39:3-33.5*fn2 (enacted by L. 1959, c. 56, §3) provides in pertinent part:
No special identifying mark may be issued to any applicant who:
(a) has been convicted of a violation of either section 39:4-50, or section 39:4-96 of this Title; or
(b) has been convicted of a misdemeanor in violation of section 2A:113-9 of Title 2A, Administration of Civil and Criminal Justice [repealed; see, ...