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Basch v. New Jersey Motor Vehicle Commission

Superior Court of New Jersey, Appellate Division

July 16, 2013

MAXINE L. BASCH, Appellant,
v.
NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 9, 2013

On appeal from the Motor Vehicle Commission.

Maxine L. Basch, appellant, pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Valentina M. DiPippo, Deputy Attorney General, on the brief).

Before Judges Ashrafi and St. John.

PER CURIAM

Maxine L. Basch appeals from a final decision of the New Jersey Motor Vehicle Commission (the MVC) ordering a ninety-day suspension of her driving privileges and imposing an insurance surcharge of $1000 because she was convicted in New York State of driving while her ability was impaired, in violation of N.Y. Veh. & Traf. Law § 1192(1). We reverse and remand for a hearing before the MVC to give appellant an opportunity to prove, pursuant to N.J.S.A. 39:4-50(a)(3), that her New York conviction was for an offense "based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%." In the absence of such proof, the suspension and surcharge may be re-imposed.

Appellant is a resident of New Jersey and has a New Jersey driver's license. She was arrested in Nyack, New York, on December 4, 2011, and charged with five traffic offenses: driving while intoxicated (DWI), in violation of N.Y. Veh. & Traf. Law § 1192(2); a second charge of DWI, in violation of N.Y. Veh. & Traf. Law § 1192(3); a turning violation; a stop sign violation; and a turn signal violation.[1] On February 28, 2012, all five charges were disposed with a conviction on a charge of driving while ability impaired (DWAI), in violation of N.Y. Veh. & Traf. Law § 1192(1). That charge was a modification of one of the DWI offenses originally charged. Appellant does not reveal, and our record on appeal does not establish definitively, whether the disposition of the charges was by means of a trial or a guilty plea, although it appears it was the latter.

On April 17, 2012, the MVC issued a notice of proposed suspension of appellant's driving privileges because she was convicted of an alcohol-related offense in New York. On April 27, 2012, the MVC issued a notice, pursuant to N.J.S.A. 17:29A-35(b)(2)(b), of a $1000 insurance surcharge because of the New York conviction. Through counsel, appellant opposed both notices and requested a hearing. By written decision dated June 22, 2012, the MVC denied the request for a hearing and ordered a ninety-day suspension of appellant's driving privileges beginning on July 18, 2012. The insurance surcharge was to be paid in installments.

Appellant filed an appeal to this court and moved to vacate the license suspension, which motion we denied on September 20, 2012. Appellant completed the suspension period, and her New Jersey driver's license was restored on October 16, 2012.

On appeal before us, appellant argues pro se:

UNDER N.J.S.A. 39:4-50(a)(3), A DWI CONVICTION IN ANOTHER JURISDICTION SHALL NOT BE CONSIDERED A PRIOR CONVICTION UNDER N.J.S.A. 39:4-50 IF BASED UPON A BLOOD ALCOHOL CONCENTRATION OF LESS THAN 0.08%.

Appellant does not contest that a DWI offense in another jurisdiction requires that the MVC suspend the offender's driving privileges in New Jersey and impose a surcharge. New Jersey is a signatory of the Interstate Driver License Compact (IDLC), N.J.S.A. 39:5D-1 to -14, which is an interstate agreement by which each participating state agrees to treat an out-of-state conviction for DWI (or driving under the influence (DUI)) as if the conviction had occurred within its own jurisdiction, as long as ...


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