July 16, 2013
MAXINE L. BASCH, Appellant,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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. 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 the out-of-state conviction was "of a substantially similar nature" as the home state's law. N.J.S.A. 39:5D-4(a)(2), (c).
Appellant argues that her DWAI conviction in New York was not for an offense "substantially similar" to DWI under N.J.S.A. 39:4-50. More specifically, she argues that her New York offense involved a blood alcohol concentration (BAC) of .07% or lower, and so, it does not qualify under New Jersey law as a DWI offense authorizing suspension of her driving privileges or an insurance surcharge.
In State v. Zeikel, 423 N.J.Super. 34, 48-49 (App. Div. 2011), we held that a violation of DWAI under N.Y. Veh. & Traf. Law § 1192(1) is "substantially similar" to a DWI violation in New Jersey. We applied prior precedent under the IDLC to support our holding. Zeikel, supra, 423 N.J.Super. at 45 (citing Div. of Motor Veh. v. Lawrence, 194 N.J.Super. 1 (App. Div. 1983)).
At the same time, we recognized in Zeikel that N.J.S.A. 39:4-50(a)(3) establishes an affirmative defense by which a New Jersey driver convicted in another jurisdiction may establish that the offense was not "substantially similar" to DWI. Zeikel, supra, 423 N.J.Super. at 41-42. The statute provides:
A conviction of a violation of a law of a substantially similar nature in another jurisdiction . . . shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.
We described in Zeikel, supra, 423 N.J.Super. at 47-48, the multi-part structure of the New York statute, N.Y. Veh. & Traf. Law § 1192 — separate subsections for a per se DWI offense based on a BAC of .08% or more (subsection 2), a DWI offense without a BAC reading but based on observational evidence (subsection 3), and a DWAI offense (subsection 1). See also People v. Brown, 424 N.E.2d 549, 550 (N.Y. 1981) (reviewing the three relevant subsections of the New York statute). We held that a DWAI offense under subsection 1 is substantially similar to New Jersey's unified DWI statute, N.J.S.A. 39:4-50, see State v. Kashi, 180 N.J. 45, 48 (2004), which applies to all three types of offenses covered by the New York statute. We also held that the "substantially similar" requirement can be disproven by clear and convincing evidence that the offense in the other jurisdiction was exclusively based on a BAC of less than .08%. Zeikel, supra, 423 N.J.Super. at 48-49.
Appellant contends that she proved her conviction was based on a BAC of less than 0.08%. Appellant's proof was a Certificate of Disposition executed by the Court Clerk of the Nyack Justice Court. The certificate listed the five traffic offenses with which appellant was originally charged and indicated that conviction was only on a modified DWAI charge in violation of "VTL 1192-01, " which citation we understand to be a reference to N.Y. Veh. & Traf. Law § 1192(1). More significant, a notation in the clerk's certificate states: "NYS VTL 1192-1 indicates BAC of .07% or lower." Appellant urges that the certificate and the quoted notation prove she was convicted of an offense based on BAC of less than .08%.
While that assertion is true as far as stated, the affirmative defense provided by N.J.S.A. 39:4-50(a)(3) requires "clear and convincing evidence" that the New York conviction "was based exclusively" on a BAC of less than .08%. In our view, a plea bargain by which a defendant agrees to plead guilty to a lesser-included offense of DWI is not a conviction "based exclusively" on a BAC of less than .08%. It may be that the prosecution lacked evidence that appellant's offenses involved a BAC of .08% or more. Or it may be that evidence of a BAC level of .08% or more was available, but the prosecution in New York offered a favorable plea bargain to avoid a trial. Such plea bargains are not permitted in New Jersey for DWI cases. See Pressler & Verniero, Current N.J. Court Rules, Appx. to Part VII, Guideline 4 (2013) ("No plea agreements whatsoever will be allowed in drunken driving . . . offenses."). We do not know on this record whether they are permitted in New York.
Appellant may be able to present evidence from the New York prosecution to show that she in fact did not have a BAC of .08% or more. Because the MVC denied her request for a hearing, appellant was not given a full opportunity to present such evidence.
We reverse and remand to the MVC to give appellant a hearing, or otherwise an adequate opportunity, to present clear and convincing evidence that the New York charges did not support a conviction for an offense involving .08% or more BAC. In the absence of such evidence, the MVC did not err in imposing the license suspension or the surcharge. However, if appellant can present clear and convincing proof that she did not have a BAC of .08% or more when she operated her vehicle in New York, the MVC must rescind the suspension and the surcharge.
Reversed and remanded to the MVC for a hearing or other proceedings consistent with this decision. We do not retain jurisdiction.