Opinion
DOCKET NO. A-2395-12T4
08-15-2014
MARC E. HOLLOWAY, Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent.
Marc E. Holloway, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Rothstadt. On appeal from the New Jersey Motor Vehicle Commission. Marc E. Holloway, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief). PER CURIAM
Marc E. Holloway appeals the New Jersey Motor Vehicle Commission's (MVC) January 17, 2013 final "Order of Suspension" suspending his driving privileges for 240 days effective January 13, 2013. He argues that the MVC improperly assessed him points for a violation that he alleges carried no points; that he did not receive notice to attend a hearing scheduled by the Office of Administrative Law (OAL); and that a suspension would impose an undue hardship on him and his family. We have considered his contentions in light of the record, and we affirm.
The MVC issued a stay the suspension pending the outcome of this appeal.
On October 7, 2011, a police officer issued Holloway a summons for driving in the wrong direction on the highway. N.J.S.A. 39:4-85.1. He later failed to appear in municipal court in response to the summons, but was represented by counsel at the hearing. In a subsequent letter to Holloway, counsel said, "The Prosecutor agreed to amend [the] charge to Unsafe Driving, [N.J.S.A. 39:4-97.2] without motor vehicle points, and a fine to be determined based on whether [Holloway had] previously used this plea." The court agreed to allow Holloway to plead by affidavit, and counsel attached a form affidavit to his letter for Holloway to sign. The form affidavit stated:
39:4-97.2 — Driving/operating a motor vehicle in an unsafe manner.
The new law makes it unlawful for any person to drive a motor vehicle in an unsafe manner likely to endanger a person or property.
First Offense: a fine of not less than $50.00 or more than $150.00. No motor vehicle points are assessed.
Second Offense: a fine of not less than $100.00 or more than $250.00. No motor vehicle points are assessed.
Third and subsequent offenses: a fine of not less than $200.00 or more than $500.00. 4 motor vehicle points shall be assessed.
. . . .
The law provides that an offense committed under its provisions which occurs more than five (5) years after the prior offense would not be considered a subsequent offense within the meaning of subsection (d) of section (1) of the substitute for the purpose of assessing motor vehicle points.
Emphasis added.
Holloway signed the form affidavit, indicating he "underst[ood] that a record of this offense will be sent to the Motor Vehicle Commission and that if [he has] had prior convictions of [N.J.S.A.] 39:4-97.2, [he would] be sentenced as a subsequent offender."
On January 6, 2012 the MVC sent to Holloway, at his address of record, a "Scheduled Suspension Notice" advising Holloway that his license would be suspended for 240 days due to excessive point accumulation. He then requested a hearing on the matter, arguing that "[t]he 4 points that were assessed to [his] driving record are invalid." The matter was then referred to the Office of Administrative Law (OAL) for a hearing.
On August 23, 2012, MVC sent Holloway copies of discovery that it intended to rely on at the hearing, including Holloway's certified driver's abstract detailing his offense record. His record disclosed that he accumulated at least thirty-nine points from 1987 to 2011. Significantly, he received four points in 2009 and in 2007 for unsafe driving violations.
In addition, the abstract disclosed an extensive history of violations, including twenty-four license suspensions in his twenty-five year driving history. Fifteen of Holloway's suspensions were due to his failure to appear in court.
MVC's materials were sent via regular mail to Holloway's address of record. On August 28, 2012, the OAL sent Holloway a Notice of Filing and Hearing (Notice) to the same address, advising him that a hearing was scheduled for September 20, 2012. The Notice also advised Holloway that if he failed to appear, his suspension would be imposed.
Holloway did not appear at the hearing. On January 17, 2013, MVC sent Holloway an Order of Suspension advising that he abandoned the OAL hearing and that his license would be suspended for 240 days on January 31, 2013. The Order was sent to Holloway's address of record.
The OAL's referral of the matter back to the MVC, and the MVC's issuing of an Order of Suspension, were both in accordance with N.J.A.C. 1:1-14.4 and 1-3.3(b).
Holloway now appeals the Order of Suspension, arguing that (1) the attribution of four points to his record was in error, because his amended charge of unsafe driving should not have carried any points; (2) he did not receive notice of the OAL hearing; and (3) the imposition of a suspension will cause great hardship to his family. We find his contentions to be without merit.
He specifically argues that suspension of his license would cause undue hardship, because he is the owner and operator of a towing company with ten employees. He also says he is caretaker to his children and the mother of his children, who suffers from congestive heart failure and relies on him to take her to doctors appointments and to pick up her medication.
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We will uphold an administrative 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 Herrmann, 192 N.J. 19, 27-28 (2007). "An agency's determination must be reversed if 'it is plainly unreasonable.'" Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 420 (2009) (quoting T.H. v. Div. of Dev. Disabilities, 189 N.J. 478, 490 (2007)). When reviewing an agency decision, we must determine whether the agency followed the law, whether substantial evidence in the record supports the decision, and "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Herrmann, supra, 192 N.J. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)) (internal quotation marks omitted). We give "substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.
We are satisfied from our review of the record that the MVC's suspension of Holloway's license was amply supported by his accumulation of excessive motor vehicle points and his driving record. The New Jersey motor vehicle point system has long been a part of the State's regulatory system of drivers. See No Illegal Points, Citizens for Drivers Rights, Inc. v. Florio, 264 N.J. Super. 318, 323-28 (App. Div.), certif. denied, 134 N.J. 479 (1993) (setting forth the history of this regulatory system). The point system, authorized by statute and set forth in the administrative regulations, assesses a particular number of points to specific motor vehicle infractions. N.J.S.A. 39:5-30.5; N.J.A.C. 13:19-10.1. In addition, a driver who accumulates an excessive amount of points may have his license suspended. N.J.S.A. 39:5-30. The regulations set forth a schedule indicating the period of suspension that will be imposed, absent good cause, when a particular number of points has been accumulated in a given time period. N.J.A.C. 13:19-10.2(a).
The periods of suspension imposed upon Holloway fall within the parameters of N.J.A.C. 13:19-10.2(a). Specifically, absent good cause, the regulations provide for a license suspension of at least 180 days for a driver who has accumulated more than thirty-five points in a period greater than two years. N.J.A.C. 13:19-10.2(a)(12). Furthermore, in evaluating the Commission's disposition, we also consider Holloway's egregious driving record over two decades, consisting of multiple driving violations and multiple suspensions of his license. Since the 240 day suspension falls within the parameters of the governing statute and regulations and in light of Holloway's unfortunate driving history, we find no abuse of discretion here. While we recognize the burden that the loss of driving privileges imposes upon Holloway and those who rely upon him for transportation, the operation of a motor vehicle is a privilege and not a right. State v. Kabayama, 94 N.J. Super. 78, 82-83 (Cty. Ct.), aff'd, 98 N.J. Super. 85 (App. Div. 1967), aff'd o.b., 52 N.J. 507 (1968). In addition, Holloway's persistent failure to abide by the traffic laws imposes a risk upon those who traverse our roads.
We are not persuaded by Holloway's claim that the four points assessed for his last unsafe driving violation were not consistent with the law or his expectation when he pled guilty. Holloway knew when he signed the affidavit pleading guilty that he would be assessed four points for his conviction based on his earlier offenses. The form affidavit he signed correctly stated that no points shall be assessed for first and second violations for operating a motor vehicle in an unsafe manner, N.J.S.A. 39:4-97.2(a)-(c), but that four penalty points shall be assessed for third or subsequent violations, when the violation occurs within five years of the most recent offense. N.J.S.A. 39:4-97.2(a), (d); N.J.A.C. 13:19-10.1(36). By signing the affidavit, Holloway indicated that he understood he could be convicted as a repeat offender if MVC found he had prior violations of N.J.S.A. 39:4-97.2. Holloway's driver's abstract disclosed that he was previously convicted of unsafe driving on January 12, 2009, and on January 30, 2007 and, therefore, he should have known that as a third-time offender the points would be assessed.
Also, while Holloway claims he did not receive the OAL notice scheduling the hearing, there is no dispute that he received all other notices sent by the MVC and OAL to the same address. Nor does he claim that his address changed. We presume "that mail properly addressed, stamped, and posted was received by the party to whom it was addressed," SSI Medical Servs. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614, 621 (1996) (citing Bruce v. James P. MacLean Firm, 238 N.J. Super. 501, 505 (Law Div.), aff'd o.b., 238 N.J. Super. 408 (App. Div.1989); Tower Mgmt. Corp. v. Podesta, 226 N.J. Super. 300, 304 n.3 (App. Div. 1988); Cwiklinski v. Burton, 217 N.J. Super. 506, 509-10 (App. Div. 1987)), and Holloway has not presented any evidence to overcome that presumption. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION