August 20, 2010
NEW JERSEY MOTOR VEHICLE COMMISSION, RESPONDENT,
EKATERINA BURKHOUR, APPELLANT.
On appeal from a Final Decision of the New Jersey Motor Vehicle Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2010
Before Judges Payne and Fasciale.
Defendant, Ekaterina Burkhour, appeals from a final decision of the Chief Administrator of the New Jersey Motor Vehicle Commission suspending her drivers license for 180 days, pursuant to N.J.S.A. 39:5-30, for committing moving violations consisting of careless driving, N.J.S.A. 39:4-97, and failing to maintain a lane, N.J.S.A. 39:4-88b, in connection with a fatal accident. On appeal, Burkhour makes the following arguments:
POINT I THE SUPPLEMENT[AL] FINAL DECISION OF THE MOTOR VEHICLE COMMISSION SHOULD BE REVERSED, SINCE THE STATE'S FINDING THAT THE APPELLANT WAS GUILTY OF CARELESS DRIVING AND A FAILURE TO MAINTAIN LANE WAS AGAINST THE WEIGHT OF THE EVIDENCE.
A. In Reviewing The Decision Below, the Appellate Division Is Required to Reverse Agency Findings When the Agency Did Not Follow The Law, the Decision Was Arbitrary, Capricious, Or Unreasonable, Or the Decision Was Not Supported By Substantial Evidence.
B. Because of the Absence of a Shoulder Lane and the Sheer Four to Seven Inch Drop-Off Immediately Adjacent to the Fog Line, the Section of Route 479 at the Location of the Accident Constituted A Hazardous and Dangerous Condition.
C. The Record Does Not Support a Finding Of Careless Driving Under N.J.S.A. 39:4-97.
D. The Record Does Not Support A Finding of A Failure To Maintain Lane under N.J.S.A. 39:4-88(b).
E. Since the Appellant's Operation of Her Vehicle Did Not Constitute Careless Driving or a Violation of N.J.S.A. 39:4-88(b), the Suspension of Driving Privileges Issued Pursuant to N.J.S.A. 39:5-30 Should Be Vacated and Reversed.
POINT II PROPER APPLICATION OF CRESSE FACTORS, AS WELL AS THE MITIGATING AND AGGRAVATING FACTORS SET FORTH IN STATE V. MORAN COMPELS A CONCLUSION THAT THE SENTENCE IMPOSED BY THE STATE WAS EXCESSIVE.
The record discloses that during the morning of December 1, 2006, Burkhour was driving on Route 579 South with three companions to a business meeting in Pennsylvania when, on a curve, she drove in such a fashion that her right rear tire slid off the damp roadway at a point where there was a five- to six-inch drop-off between the paved and unpaved surfaces of the road. In trying to regain the roadway, Burkhour turned the vehicle's wheels sharply to the left and lost control of the car, which collided on the opposite side of the road with an oncoming vehicle. Burkhour was seriously injured, and her front seat passenger was killed. Burkhour was issued tickets for failure to maintain lane, N.J.S.A. 39:4-88(b), and careless driving, N.J.S.A. 39:4-97.
Thereafter, the Motor Vehicle Commission issued a Notice of Scheduled Suspension to Burkhour and advised her that her driving privileges were scheduled to be suspended for a period of twenty-three months pursuant to N.J.S.A. 39:5-30. The notice advised Burkhour of her right to a hearing, which Burkhour requested.
The hearing took place in the Office of Administrative Law on April 16, 2008. At that time, testimony was given by Lynne Butkewicz, a witness to the accident; by Burkhour; by Louis Vastola, a police officer who responded to the scene and investigated the accident; and Dr. Wayne Nolte, a civil and mechanical engineer who was qualified as an expert in the field of accident reconstruction and testified on Burkhour's behalf.
Butkewicz testified that she was driving one and one-half car lengths behind Burkhour, and that both drivers were obeying the posted speed limit of forty-five miles per hour. Butkewicz stated that she observed the right rear tire of Burkhour's Honda Civic cross the white fog line, slip off of the edge of the road and into a "crevice" at the road's edge, and then regain the road. However, at that point the vehicle "began to spin counter-clockwise, so that it was sliding sideways across the roadway, while still traveling in a southbound direction, but facing east." Then, according to Butkewicz, the vehicle "cross[ed] into the northbound lane," where a northbound car collided with the passenger side of Burkhour's vehicle.
Butkewicz stated that she did not observe any speeding or swerving by Burkhour prior to the accident.
Burkhour testified at the hearing, but she had no recollection of the events that had taken place. However, it was established that she was not under the influence of drugs or alcohol at the time that the accident occurred.
Officer Vastola, who responded to the accident scene, confirmed that the accident had occurred on a curve in the roadway, the road was wet, and that particular section of the road was narrow. He also confirmed that the road lacked a paved shoulder and stated that there was, approximately, a five- to six-inch drop-off between the paved and unpaved surface that extended for one-hundred feet. The officer testified that the fog line was approximately three inches in width, and that the paved surface ended after a further two inches. He stated that there was sufficient room on the unpaved shoulder for a car to stop safely. The officer testified that his investigation had disclosed tire tracks of seventy-five feet in length in the gravel shoulder. He also testified that he had spoken to the two back-seat passengers in Burkhour's vehicle, and neither remembered Burkhour being distracted by anything such as a cell phone, the car's climate controls or its radio at the time the accident occurred. He stated that he had cited Burkhour for careless driving because she had failed to maintain her vehicle in the roadway, and that he had cited her for failure to maintain her lane because of the fact that her car left the road and ultimately entered the northbound lane.
Dr. Nolte testified, at length, that he regarded the road to be in a dangerous condition as the result of the drop-off, its narrow configuration, and its lack of warning signs. However, he acknowledged that the road was sufficiently wide to accommodate Burkhour's car. He stated that, when Burkhour attempted to return her car to the road at a speed of forty-five miles per hour, the tires acted as a pivot, causing her to proceed across the highway, rather than resuming her lane. However, he acknowledged that Burkhour would have been able to re-enter the proper lane successfully if she had slowed her vehicle. He acknowledged alternatively, that she could have continued to drive partially in the unpaved shoulder.
At the conclusion of the hearing, the administrative law judge determined that the Motor Vehicle Commission had established that Burkhour had committed the offenses of careless driving and failure to maintain lane, and that her actions were the "sole" cause of the collision that resulted in the death of Burkhour's front seat passenger. As a consequence, the judge found that suspension of Burkhour's driving privilege was necessary. However, the judge found the proposed twenty-three month suspension was "unduly harsh under the circumstances as there was no alcohol or drugs nor purposeful conduct such as speeding or weaving that caused this accident." The judge concluded that "the rehabilitative purposes for license suspension would be realized by imposing the suspension of a period of 180 days (six months)."
Exceptions to the initial decision of the administrative law judge were filed by counsel on Burkhour's behalf. Counsel objected to the conclusion that Burkhour's "direct actions [were] the sole cause of the accident" noting that other witnesses testified to additional contributing factors including the damp road surface, the crumbled edge of the roadway, the lack of a shoulder, the five- to seven-inch drop off, and the lack of warning signs.
Objection was raised additionally to the determination that Burkhour was "inattentive" to the roadway. Counsel urged that evidence did not support that conclusion and, instead, indicated that "Burkhour was unfamiliar with the roadway and its unmarked dangerous conditions, not 'inattentive' to it."
Further, counsel argued that Burkhour did not drive carelessly, "that is 'without due caution and circumspection, in a manner likely to endanger a person or property."
Additionally, counsel argued that the evidence did not support a claim that Burkhour failed to keep right in violation of N.J.S.A. 39:4-82. However, a violation of that statute was not alleged.
As a final matter, counsel claimed that a six-month license suspension was unduly harsh and was unnecessary to fulfill the statute's goals. Counsel stressed in that context the severity of Burkhour's own injuries, the length of the period of her recovery, and her treatment for post-traumatic stress disorder. Additionally, counsel noted that the proposed loss of license would result in the loss to Burkhour's elderly parents of their sole means of transportation, as well as the loss to Burkhour of her job in sales and her sole means of support.
In a Supplemental Final Decision, the Chief Administrator of the Motor Vehicle Commission, Sharon Harrington, affirmed the recommendation of the administrative law judge, modifying only the judge's conclusion that Burkhour's actions were the "sole" cause of the accident. In that regard, Harrington determined that Burkhour "had at least some responsibility" in connection with her passenger's death, and that was sufficient. She stated: "the pertinent facts lead to the inescapable conclusion that this accident could have been avoided had respondent's vehicle not left the roadway." In this connection, Harrington noted that "Mr. Nolte conceded that the typical individual would realize that the vehicle had left the roadway and that this was an unsafe condition, and that the driver may need to slow down if attempting to re-enter the roadway, which is a choice respondent did not make."
Harrington rejected Burkhour's position that the evidence failed to support the conclusion that she was "inattentive." In this regard, she noted that "the lane of travel was clearly marked; there was sufficient width to accommodate respondent's vehicle; and that respondent overcorrected, thus causing her vehicle to travel into oncoming traffic." She likewise rejected the argument that the Commission had failed to prove that Burkhour had driven carelessly, noting that she could have avoided leaving the roadway but failed to do so and that she reentered the roadway in an unsafe fashion. Harrington observed: "The absence of testimony showing that respondent was distracted by obvious factors such as a cell phone or the radio does not necessarily result in the conclusion that respondent was not careless."
As a final matter, Harrington addressed the penalty. She stated:
The Legislature has vested the authority to impose a driver license sanction in a motor vehicle fatality case in the Commission.
N.J.S.A. 39:5-30. The exercise of that authority rests in the sound discretion of the Chief Administrator. The purpose of a license suspension by the Motor Vehicle Commission is not to punish the offending operator but rather to reform and rehabilitate him and to protect the public by removing him from the public roadways until such rehabilitation has been achieved. Cresse v. Parsekian, 81 N.J. Super. 536, 548-549 (App. Div. 1963), aff'd, 43 N.J. 326 (1964).
While I am sympathetic regarding the hardship that the respondent may suffer as a result of her New Jersey driving privilege being suspended, respondent must nevertheless appreciate the responsibility that she owes to the public under the motor vehicle laws. Motor vehicle license suspensions are primarily intended to protect the safety of the public by temporarily removing offenders from the highways of New Jersey. David v. Strelecki, 51 N.J. 563, 566[, cert. denied, 393 U.S. 933, 89 S.Ct. 291, 21 L.Ed. 2d 269 (1968)]; Cresse, supra, 43 N.J. at 328-29.
Moreover, respondent is reminded that the operation of a motor vehicle on New Jersey roads is a privilege, not a right. State v. Nunez, 139 N.J. Super. 28, 30 (Law Div. 1976); State v. Kabayama, 94 N.J. Super. 78, 82-83 (Law Div.), aff'd, 98 N.J. Super. 85 (App. Div. 1967), aff'd, 52 N.J. 507 (1968). Harrington then set forth the factors that we had found in Cresse to be relevant to the issues of whether a license suspension should be imposed and, if so, the length of that suspension. See Cresse, supra, 81 N.J. Super. at 549. Having considered Burkhour's case in light of those factors, Harrington affirmed the 180-day suspension recommended by the administrative law judge. This appeal followed.
On appeal, Burkhour essentially has raised the same issues that were presented to the Motor Vehicle Commission in counsel's exceptions to the decision of the administrative law judge. In viewing those arguments we are mindful of the fact that we have a very limited role in reviewing the decisions of an administrative agency and "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Matter of Musick, 143 N.J. 206, 216 (1996).
Although sometimes phrased in terms of a search for arbitrary or unreasonable action, the judicial role is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Ibid. (citing Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963).]
Having carefully reviewed the record in this matter in light of the standard that we have set forth, we affirm substantially on the basis of the supplemental decision of Chief Administrator Harrington.
We add only that the conduct of Burkhour need not have been the sole cause of the accident that took place. That it was a contributing cause was sufficient. See Cresse, supra, 81 N.J. Super. at 544 (permitting, but not requiring, Cresse's license to be suspended for failure to make observation as he crossed a road, despite the fact that the negligence of the oncoming driver was the chief cause of the accident).
We note Burkhour's reliance on our decision in State v. Moran, 408 N.J. Super. 412, 433 (App. Div. 2009) in connection with her argument that the license suspension that was imposed was excessive. In Moran, we advised resort to the Cresse factors as well as the aggravating and mitigating factors of the Code of Criminal Justice, N.J.S.A. 2C:44-1a and b, when considering license suspensions for willful violations of the motor vehicle laws pursuant to N.J.S.A. 39:5-31. On appeal from our decision, the Supreme Court defined the meaning of a "willful violation" under N.J.S.A. 39:5-31 and set standards to guide the discretion of judges imposing license suspensions under that statute. State v. Moran, 2010 N.J. Lexis 588, *24-25, *34-35 (2010). The Court reversed our decision insofar as it affirmed a forty-five day suspension imposed by the municipal judge and remanded the case for resentencing in light of the sentencing guidelines that the Court had set. Id. at *36. However, the Court's decision in Moran does not appear to have affected the applicability of Cresse to license suspensions pursuant to N.J.S.A. 39:5-30. Id. at *31-33. We thus do not see the need for a remand akin to that in Moran.
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