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New Jersey Motor Vehicle Commission v. Burkhour

August 20, 2010

NEW JERSEY MOTOR VEHICLE COMMISSION, RESPONDENT,
v.
EKATERINA BURKHOUR, APPELLANT.



On appeal from a Final Decision of the New Jersey Motor Vehicle Commission.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

We affirm.

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 ...


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