NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2013
On appeal from the New Jersey Motor Vehicle Commission.
Jeffrey B. Steinfeld, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Elaine C. Schwartz, Deputy Attorney General, on the brief).
Before Judges Axelrad and Fuentes.
Peter Wayne, a resident of the State of New Jersey, appeals from the final decision of the Director of the New Jersey Motor Vehicle Commission (MVC or Commission) suspending his driving privileges in this State for ninety days, based on his conviction in the State of New York of operating a motor vehicle while his ability was impaired by the consumption of alcohol, in violation of N.Y. Veh. Traf. & Law § 1192.1. We affirm.
The Commission's authority to suspend appellant's driving privileges is derived from New Jersey's participation in the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14 (Compact). In adopting the Compact, the Legislature recognized that, as a matter of public policy, "[t]he safety of [the] streets and highways [of every state] is materially affected by the degree of compliance with State laws and local ordinances relating to the operation of motor vehicles." N.J.S.A. 39:5D-1(a)(1). As an enforcement mechanism, the Compact imposes a reciprocal obligation on every signatory state to honor each other's laws governing the eligibility to operate a motor vehicle. N.J.S.A. 39:5D-1(b)(2).
Here, the MVC notified appellant on January 15, 2013, that it had scheduled the suspension of his driving privileges for a period of ninety days commencing on February 8, 2013, due to his "conviction" in a New York court on July 4, 2012, of the offense of "operating while impaired." The MVC notice gave appellant a choice to accept the suspension or request a hearing specifying "all disputed material facts and legal issues [he] or [his] attorney intend[ed] to raise at a hearing" and submit those legal arguments for consideration by the Commission. The Commission reserved the right to deny a hearing and rule on the legal arguments presented if it determined that there were no material facts in dispute and the matter could be resolved as a matter of law. If the Commission rejected appellant's arguments, the license suspension would commence on the date specified in the decision.
Appellant elected to challenge the suspension of his driver's license. Appellant claimed before the Commission, and continues to do so before this court, that his New York conviction was based exclusively on a BAC reading of 0.07%. Because New Jersey sanctions a per se violation of DWI only if a defendant's BAC reading is 0.08% or greater, N.J.S.A. 39:4-50(a), appellant argues that his conviction in New York under N.Y. Veh. Traf. & Law § 1192.1 cannot be "substantially similar in nature, " because it is based exclusively on evidence that would have been deemed insufficient to sustain a DWI conviction as a matter of law.
On February 7, 2013, the Commission issued an Order of Suspension without a hearing. The Commission first noted that a hearing was not required under N.J.A.C. 13:19-1.2(d) because appellant contended that his conviction for violating N.Y. Veh. Traf. & Law § 1192.1 was "based exclusively on a breath test reading of 0.07%." Thus, the Commission was required to decide only issues of law. In this light, the Commission rejected appellant's argument based on the disparity in the minimum BAC reading required to sustain a conviction between New Jersey and New York and concluded that, under N.J.S.A. 39:5D-4(a)(2) and N.J.A.C. 13:19-11.1(a), it was legally bound to give full force and effect to appellant's New York conviction.
The Commission acknowledged that the two statutes do not use precisely the same words to describe the prohibited conduct. Despite this difference in phraseology, however, the Commission found that the offenses are of a "substantially similar nature." N.J.S.A. 39:5D-4(c). Citing State v. Colley, 397 N.J.Super. 214 (App. Div. 2007), and New Jersey Division of Motor Vehicles v. Pepe, 379 N.J.Super. 411 (App. Div. 2005), the Commission emphasized that "our courts have consistently upheld suspensions imposed pursuant to the Driver License Compact [u]nder [s]ubstantially [s]imilar [c]ircumstances."
On appeal to this court, appellant argues that the New York offense of driving while impaired by the consumption of alcohol under N.Y. Veh. Traf. & Law § 1192.1 is not "substantially similar in nature" to DWI under N.J.S.A. 39:4-50(a), because the Compact requires that the out-of-state conviction be based on driving "while under the influence of intoxicating liquor . . . to a degree which renders the driver incapable of safely driving a motor vehicle." N.J.S.A. 39:5D-4(a)(2) (emphasis added). By contrast, the offense defined under N.Y. Veh. Traf. & Law § 1192.1 only requires driving "while impaired by the ...