NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2013
On appeal from the New Jersey Motor Vehicle Commission.
Breslin and Breslin, attorneys for appellant (Kevin C. Corriston, on the brief).
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 Yannotti and Ashrafi.
Kenneth Xheraj appeals from a final decision of the New Jersey Motor Vehicle Commission (the MVC) suspending his driving privileges because he was convicted in New York State of driving while his ability was impaired by alcohol. The conviction was his third DWI-type offense. We affirm.
Appellant is a resident of New Jersey and has a New Jersey driver's license. He was arrested in the Town of Thompson, New York, on May 20, 2012, and charged with four traffic offenses, including driving while intoxicated (DWI), in violation of N.Y. Veh. & Traf. Law § 1192(3), and driving while ability impaired (DWAI), in violation of N.Y. Veh. & Traf. Law § 1192(1).Appellant chose not to retain counsel to represent him for the New York charges. In July 2012, he appeared in the Town of Thompson Justice Court, and all four charges were disposed by means of appellant's guilty plea on the DWAI charge. The other three charges were dismissed. Our record does not reveal whether the resolution of the charges was a result of a negotiated plea agreement.
On August 10, 2012, the MVC issued a notice of proposed suspension of appellant's driving privileges. Through counsel, appellant filed opposition and requested a hearing before the MVC. The MVC issued a written decision on December 6, 2012, denying a hearing and ordering a ten-year suspension of appellant's driver's license to begin on January 6, 2013. Subsequently, the MVC denied a stay of the suspension. This appeal followed.
Appellant does not contest that a DWI offense in another jurisdiction requires that the MVC suspend the offender's driving privileges in New Jersey. New Jersey is a signatory of the Interstate Driver License Compact (IDLC), N.J.S.A. 39:5D-1 to -14, 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 contends that his DWAI conviction in New York was not for an offense "substantially similar" to DWI under N.J.S.A. 39:4-50. He argues that his 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 his driving privileges.
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. ...