Opinion
DOCKET NO. A-0592-17T1
06-03-2019
KEITH C. HELD, Petitioner-Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent-Respondent.
Kevin G. Roe argued the cause for the appellant. Jennifer R. Jaremback, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Jennifer R. Jaremback, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Sabatino and Mitterhoff. On appeal from the New Jersey Motor Vehicle Commission. Kevin G. Roe argued the cause for the appellant. Jennifer R. Jaremback, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Jennifer R. Jaremback, on the brief). PER CURIAM
Keith Held appeals from a final decision of the New Jersey Motor Vehicle Commission ("MVC") suspending his driver's license for ten years after he pleaded guilty to driving while impaired by alcohol, in violation of Md. Code Ann., Transp. § 21-902(b)(1). The MVC treated this Maryland conviction as appellant's third offense for driving while intoxicated ("DWI") under N.J.S.A. 39:4-50(a)(3) pursuant to the Interstate Driver License Compact ("the Compact"), N.J.S.A. 39:5D-1 to -14. The Compact permits New Jersey to consider an out-of-state conviction for driving while intoxicated as if the conviction had occurred within its own jurisdiction as long as the out-of-state offense was "of a substantially similar nature" to an offense under New Jersey law. N.J.S.A. 39:5D-4(a)(2) and (c). This matter returns to us after we temporarily remanded the matter to the MVC "to supplement the record with evidence of the circumstances underlying appellant's Maryland offense . . . [that is] probative of whether appellant exhibited a level of impairment that is substantially similar to that required for a conviction under N.J.S.A 39:4-50(a)." Held v. New Jersey Motor Vehicle Commission, No. A-0592-17 (App Div. October 24, 2018) (slip op. at 9). Having reviewed the materials submitted on remand and MVC's supplemental final agency decision in light of the applicable legal principles, we affirm.
We presume the reader's familiarity with the facts of this matter from our previous opinion. In accordance with our instructions, the MVC obtained a number of records regarding appellant's Maryland arrest and conviction, including an incident/investigation report dated September 16, 2016 and a transcript of a February 15, 2017 plea hearing. On February 28, 2018, the MVC issued a supplemental final agency decision. Both parties submitted letter briefs addressing the supplemental decision.
Because appellant's plea constitutes the basis for his Maryland conviction, we focus on the facts contained in appellant's plea allocution. At the February 15, 2017 plea hearing, defendant pleaded guilty to one count of possession of cocaine, Md. Code Ann., Crim. Law § 601(a)(1), and one count of driving while impaired by alcohol, Md. Code Ann., Transp. § 21-902(b)(1). For the factual basis for the plea, the prosecutor read the following facts from the police report onto the record:
The State would show were the matter to go to trial, on September 16th of last year, 5:52 in the evening Lieutenant Schreier of the Worcester County Sheriff's Office was on patrol in the location of Coastal Highway and 56th Street, Ocean City, Worcester County, Maryland he observed a motorcycle that he ultimately determined was operated by the defendant before the Court today, Keith Collin Held, that appeared to ease into the west crosswalk driving along the length of the crosswalk. The operator of the motorcycle was driving
slowly as it turned north. Mr. Held then took a package of cigarettes from his pocket, attempted to remove a cigarette and appeared to be having significant difficulty. Lieutenant Schreier pulled up behind Mr. Held on the motorcycle; he was able to discern the strong odor of an alcoholic beverage emanating from Mr. Held's breath. Mr. Held put down the kickstand of the motorcycle and attempted to dismount. He was told several times to leave the kickstand up and stay on the motorcycle. Mr. Held appeared to be confused and had difficulty following Lieutenant Schreier's instructions. Ultimately Mr. Held was asked to alight from his vehicle to submit to a battery [of] field sobriety test including horizontal gaze and the nystagmus, recitation of a portion of the alphabet, counting backwards, one leg stand and a walk and turn test. Mr. Held was unable to satisfactorily complete these tests or do so according to the lieutenant's instructions. Mr. Held was placed under arrest. The search incident to his arrest revealed a yellow bag containing a white substance on his person which the lieutenant believed to be a Controlled Dangerous Substance; it was seized, submitted for testing, found to be 5.6 grams, more or less, of cocaine a controlled dangerous substance Schedule-2. Mr. Held was . . . after being taken under arrest he was advised of his BR-15 rights, he declined further alcohol concentration testing.
Through his attorney, appellant accepted these facts as true for purposes of the plea. After hearing arguments on sentencing, the court sentenced appellant to sixty days in the county jail and applicable fines.
When presenting mitigating factors for sentencing, appellant's attorney noted:
As far as the facts related to the alcohol related driving offense, Your Honor, he indicates to me he was with a group of other bikers, he was driving making a left hand turn on 56th Street and then realized that one of his friends was not there so he decided . . . he drove kind of across the highway on a portion of the crosswalk, there were no other pedestrians in the crosswalk, then he pulled over to the bus lane to wait for some of the other bikes that were trailing in behind. So there wasn't any type of accident. He was in control of his bike and as Your Honor knows it would require a fairly heightened level of dexterity to operate a large motorcycle. But in any event he accepts full responsibility for his actions.
In its supplemental final agency decision, the MVC found that appellant "admitted to sufficient and specific evidence of conduct that would be sufficient under New Jersey law to support a conviction under the DWI statute." In addition, as in its initial agency decision, the MVC found that Maryland statutory offense of driving while impaired, Md. Code Ann., Crim. Law § 902(b)(2), is substantially similar to the New Jersey statutory offense of driving while intoxicated, N.J.S.A. 39:4-50(a). The MVC concluded that either of these grounds was sufficient to suspend appellant's driving privileges pursuant to the Compact.
On appeal, appellant argues that his Maryland conviction is not substantially similar to a New Jersey conviction because Md. Code Ann., Transp. § 21-902(b)(1) allows for a conviction with a lower level of impairment than required under New Jersey law. He contends that the Maryland plea allocution does not establish a level of impairment that was substantially similar to that required for a conviction under N.J.S.A. 39:4-50(a).
In general, we give deference to an agency's expertise and will uphold a final agency decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Hermann, 192 N.J. 19, 27-28 (2007). Nonetheless, our review of the legal issue of whether the Maryland and New Jersey offenses are substantially similar is de novo. See State v. Zeikel, 423 N.J. Super. 34, 40-41 (App. Div. 2011); New Jersey Div. of Motor Vehicles v. Ripley, 364 N.J. Super. 343, 346 (App. Div. 2003).
As we explained in Ripley, there are two means to determinate that an out-of-state conviction is substantially similar to a conviction for DWI under N.J.S.A. 39:4-50(a) for purposes of a license suspension under the Compact.
The suspension of a New Jersey driver's license is appropriate where an alcohol-related driving incident occurred in another state under two circumstances: (1) if the conduct in that state constitutes driving under the influence under New Jersey law, see N.J.S.A. 39:5D-4(a); and (2) if the offense the defendant was convicted of in that state is of a substantially similar nature to
driving under the influence under New Jersey law, see N.J.S.A. 39:5D-4(c).
[Ripley, 364 N.J. Super. at 347.]
Based on the facts contained in the plea allocution, we find that the MVC correctly concluded that appellant's conduct would be sufficient to support a conviction under N.J.S.A. 39:4-50(a). Under New Jersey law, an observational DWI offense requires proof that a defendant "operate[d] a motor vehicle while under the influence of intoxicating liquor." N.J.S.A. 39:4-50(a); see State v. Cryan, 363 N.J. Super. 442, 455 (App. Div. 2003). "The phrase 'under the influence' means a substantial deterioration or diminution of the mental faculties or physical capabilities of a person." Cryan, 363 N.J. Super. at 455 (quoting State v. Tamburro, 68 N.J. 414, 420-21(1975)). "In a case involving intoxicating liquor, 'under the influence' means a condition which so affects the judgment or control of a motor vehicle operator 'as to make it improper for him to drive on the highway.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 165 (1964)).
An observational DWI offense does not require evidence of a defendant's blood alcohol content and may be established by an "arresting officer's independent observations of [a defendant's] apparent intoxication." State v. Kent, 391 N.J. Super. 352, 383 (App. Div. 2007) (affirming a DWI conviction where the defendant caused a single car accident and the officer observed that the defendant's eyes were watery and bloodshot and that the defendant stumbled and slurred his words); see also Cryan, 363 N.J. Super. at 455-56 (affirming a DWI conviction based on the officer's observation of the defendant's bloodshot eyes, hostility, inability to follow directions, and strong odor of alcohol); State v. Oliveri, 336 N.J. Super. 244, 251-52 (affirming a DWI conviction based on the officer's observations of the defendant's watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant's admission to drinking alcohol earlier in the day).
In this case, the conduct and evidence that appellant admitted in his plea allocution would be sufficient to sustain an observational DWI in New Jersey. Appellant admitted that the officer observed him struggle to remove a cigarette from a pack, dismount from his motorcycle, follow the officer's directions, and perform a number of field sobriety tests. Appellant also admitted that the officer smelled a strong odor of alcohol emanating from his breath. This evidence would be sufficient to establish that appellant was impaired to a degree so "as to make it improper for him to drive on the highway." Cryan, 363 N.J. Super. at 455 (quoting Johnson, 42 N.J. at 165). Therefore, because the conduct for which appellant was convicted in Maryland would constitute DWI under N.J.S.A. 39:4-50(a), the MVC appropriately considered the offenses to be substantially similar under the Compact and imposed the ten-year license suspension required by N.J.S.A. 39:4-50(a)(3). See Ripley, 364 N.J. Super. at 347.
Because our conclusion is based on appellant's conduct, we do not reach the second circumstance described in Ripley or address whether Maryland's statutory offense of driving while impaired by alcohol is substantially similar to the New Jersey statutory offense of driving while intoxicated.
Appellant also argues that the MVC improperly denied his request for an evidentiary hearing. He maintains that he alerted the MVC to disputed factual and legal issues regarding the equivalency of the Maryland statute and the time between his convictions for purposes of the step-down provision in N.J.S.A. 39:4-50(a)(3). We reject appellant's arguments. As for the legal issue of whether appellant's Maryland conviction was substantially similar to a New Jersey conviction, the MVC appropriately relied on appellant's plea allocution and case law interpreting the respective statutes in reaching its decision. As for the step-down provision, appellant has presented no specific facts or argument as to how the MVC misapplied the step-down provision.
In his post-remand letter brief, appellant objects to the inclusion of police reports in the MVC's appendix and supplemental decision. Although we instructed the MVC to obtain such records on remand, we do not rely on these records in concluding that the MVC properly determined that the conduct underlying appellant's Maryland offense, as delineated at the plea hearing, was sufficient for a conviction under N.J.S.A. 39:5-50(a).
As noted in our previous opinion, appellant had three previous New Jersey convictions for DWI, but his third New Jersey conviction was treated as a second offense pursuant to the step-down provision. Held, No. A-0592-17 (App Div. October 24, 2018) (slip op. at 2-3).
Because appellant has not presented any material factual disputes that required resolution at an evidentiary hearing, the MVC's decision to render a determination without an evidentiary hearing was not arbitrary, capricious, or unreasonable. See Frank v. Ivy Club, 120 N.J. 73, 98 (1990) ("An agency must grant a plenary hearing only if material disputed adjudicative facts exist."); N.J.A.C. 13:19-1.2(e) ("When a hearing request fails to set forth any disputed material fact and fails to set forth any legal issue or any argument on an issue, the request for a hearing shall be denied."); N.J.A.C. 13:19-1.2(g) (permitting the MVC to render a determination based on the written record "[w]hen there are no disputed material facts and when a request for a hearing sets forth legal issues and presents arguments on those issues[.]").
To the extent we have not specifically addressed any of appellant's arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION