On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 07-108.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sapp-Peterson.
This appeal calls into question the continued viability and constitutionality of N.J.S.A. 39:5-31, which provides:
The director or any magistrate before whom any hearing under this subtitle is had may revoke the license of any person to drive a motor vehicle, when such person shall have been guilty of such willful violation of any of the provisions of this subtitle as shall, in the discretion of the magistrate, justify such revocation.
In State v. Morgan, 393 N.J. Super. 411, 422-24 (App. Div. 2007), we declined to address the issue because the suspension that had been imposed by the municipal judge was vacated by the Law Division judge, thus rendering the issue moot. We stated that, "at some point, if a suspension is imposed and not vacated, the issue will be presented in the appropriate context of a true case and controversy requiring this court's determination." Id. at 424. This is such a case. Defendant was found guilty in municipal court of reckless driving, N.J.S.A. 39:4-96. In addition to a fine and costs, the municipal judge imposed a forty-five day driver's license suspension pursuant to N.J.S.A. 39:5-31. Upon de novo review, see R. 3:23-8, defendant challenged her reckless driving conviction and also challenged the constitutionality of N.J.S.A. 39:5-31. The Law Division judge found no constitutional infirmity and again found defendant guilty of reckless driving. He imposed the same sentence that had been imposed by the trial court.
On appeal, defendant argues that the evidence was insufficient to find her guilty of reckless driving. She further argues that, if her conviction is sustained, the portion of her sentence imposing a forty-five day driver's license suspension should be vacated. She urges that N.J.S.A. 39:5-31 is antiquated and should be given no effect, and that it should be declared unconstitutional because it is vague, overbroad, provides insufficient notice to the public, and is capable of widely disparate application in that it gives judges unbridled discretion. We reject defendant's arguments and affirm.
At about 2:00 a.m. on August 3, 2007, defendant was driving north on Highway 34 in Aberdeen. She approached the intersection of Highway 34 and Lloyd Road, which is controlled by a traffic signal, which was red for Highway 34. A tractor trailer was stopped at the red light in the northbound lane, as was another vehicle behind it. Defendant approached at a high rate of speed and entered the left turn only lane in order to pass the two stopped vehicles. The light turned green for Highway 34 as defendant entered and went through the intersection, at which time she cut back into the travel lane and proceeded straight on Highway 34.
Aberdeen police officer Roger Peter was parked in a gas station at the intersection and witnessed the incident. He described it in his testimony substantially as we have. Further, he explained that, "[h]ad the light not turned green, it didn't appear that she would have been able to stop, prior to entering the intersection." He added: "I don't believe she had any care for you know traffic coming either direction, you know. Or if the vehicle behind the tractor trailer was trying to go into that left turn lane there would have been an accident." The municipal judge and the Law Division judge found Peter's testimony credible.
Defendant did not dispute Peter's testimony. Indeed, she testified: "The reason why I went in front of that tractor trailer is because I wanted to get into that lane, I was in the other lane. That's why I went in front of it." She did not contend that she was planning to turn left and then changed her mind. She tacitly admitted that she used the left turn lane to pass the other vehicles at the intersection.
A person is guilty of reckless driving "who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-96. The offense does not require actual harm to persons or property, an accident, or a close call, but is complete upon operation of the vehicle in the manner prohibited by the statute. State v. Shoopman, 11 N.J. 333, 335 (1953).
After giving due, but not controlling, deference to the credibility finding of the municipal judge, the Law Division judge made independent findings of fact based on the municipal court record. See State v. Johnson, 42 N.J. 146, 157 (1964). The judge found that she was operating her vehicle at too fast a rate of speed for those conditions, in the sense that the officer indicated if she hadn't swerved around those vehicles she would not have been able to stop at that particular location.
She was passing in the left hand turn lane, that's not an appropriate place to make a passing, and then cut back in the lane. A left hand turn lane is not a lane for passing vehicles, especially under these circumstances. If the light had not changed she would not have been able to stop according to the police officer. And I think that created a potentially dangerous situation. This was at an intersection, obviously when there's a left hand turn lane.
So therefore I'm satisfied that she is guilty of reckless driving in this particular case based upon the ...