NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3284-19
KRISTA L. HALEY,
NEW JERSEY MOTOR
Submitted February 10, 2021 – Decided March 5, 2021
Before Judges Rose and Firko.
On appeal from the New Jersey Motor Vehicle
John Rue & Associates, LLC, attorneys for appellant
(Saran Q. Edwards and John Rue, on the briefs).
Gurbir S. Grewal, attorney for respondent (Melissa H.
Raksa, Assistant Attorney General, of counsel; Jennifer
R. Jaremback, Deputy Attorney General, on the brief).
Krista L. Haley appeals from a March 11, 2020 final decision of the Motor
Vehicle Commission (MVC), denying her petition to modify the mandatory ten-
year suspension of her driver's license. Haley's license was suspended following
her third and fourth convictions for driving while intoxicated (DWI) under
N.J.S.A. 39:4-50 as then enacted. Contending a driver's license was necessary
for her employment as an attorney with a Sussex County law firm, Haley sought
an occupational driver's license (ODL) from the MVC. Haley did not request a
hearing before the MVC.
On appeal, Haley raises the following points for our consideration:
I. [The MVC] Has The Authority To Grant
Occupational Driver's Licenses, and Has Done
So in the Past.
II. The Draconian Punishment Violates [Haley]'s
Right to Equal Protection Pursuant to the
[Fourteen]th Amendment Of The United States
A. The Ten[-]Year Driving Suspension,
Without an Opportunity to Apply for Either
Reinstatement or an ODL, Has No Rational
1. The Valid Public Policy Concerns
Within N.J.S.A. 39:4-50 Are Not At
2. New Jersey is an Outlier Nationwide.
3. In the Alternative, [Haley]'s
Suspension Should be Limited to
(Not raised below)
III. Failure to Consider [Haley]'s Disabilities is a
Violation of the Americans with Disabilities Act
(ADA) and the New Jersey Law Against
(Not raised below)
For the first time in her reply brief, Haley alternatively seeks a remand fo r the
MVC "to determine whether the facts of this case warrant issuance of a limited
driver's license to Haley and, if so, the appropriate limitations." Unpersuaded
by any of Haley's contentions, we affirm.
The facts are undisputed. Haley was convicted of DWI between 2010 and
2015 following separate incidents in four municipalities, as follows:
DATE OF DATE OF
1. April 26, 2010 October 25, 2009 Bernardsville Seven months
2. May 2, 2011 April 4, 2009 Morristown Two years
3. September 18, 2015 November 8, 2014 Denville Ten years
4. December 22, 2015 August 29, 2014 Upper Saddle River Ten years
Notably, the Upper Saddle River Municipal Court ran Haley's ten-year license
suspension and 180-day jail term concurrently with those same penalties
imposed by the Denville Municipal Court. 1 Haley's driving privileges are
scheduled for reinstatement on December 19, 2025.
In her February 18, 2020 counseled petition to the MVC, Haley stated she
suffered from major depressive disorder (MDD) and alcoholism during all four
DWI violations. Haley claimed: those offenses "occurred as a direct result of
a[n] MDD episode"; she commenced treatment for both conditions following
her convictions in 2015; and she was sober for more than four years. Haley
expressed "an essential need . . . to operate a motor vehicle" for employment
purposes. In that regard, Haley asserted:
Because her employer [law firm] relocated,
[Haley] moved to Sparta Township, Sussex County in
October 2018. There are no New Jersey Transit
Locations in Sussex County.
Since moving to Sparta, and as a direct
consequence of the lack of available public
transportation and her inability to drive, [Haley] has
been unable to take any pro bono domestic violence
cases. Because her employer, John Rue & Associates,
LLC, practices in the area of education law, [Haley] has
According to the driver history abstract included in the MVC's appendix,
Haley was involved in motor vehicle accidents during the October 25, 2009 and
August 29, 2014 incidents.
been able to do some pro bono work in this area; but
this too has been severely curtailed since she moved.
Citing New Jersey Division of Motor Vehicles v. Egan,
103 N.J. 350
(1986), and Fosgate v. Strelecki,
103 N.J. Super. 435
(App. Div. 1968), Haley
argued the MVC "ha[d] discretion to grant [her] request" for an ODL.
Substantively, Haley contended the change in mandatory penalties under
N.J.S.A. 39:4-50 following her convictions supported her request for an ODL
with conditions. Haley claimed she was willing to: pay for the installation of
an ignition interlock device on her car; "submit to periodic testing to prove her
ongoing sobriety"; and "provide ongoing confirmation of her continuing
participation in a twelve[-]step program and psychiatric treatment." Haley also
argued the mandatory license suspension violated "her right to due process and
In its cogent written decision, the MVC squarely addressed the issues
raised in Haley's petition. Recognizing "[t]he State of New Jersey does not issue
occupational driver's licenses," the MVC initially determined it lacked statutory
authority to grant Haley's request. Next, the MVC distinguished the decisions
in Fosgate and Egan from the facts of the present matter. For example, the MVC
noted, unlike Haley's four DWI offenses, the DWI violation in Egan was a first
offense and occurred in Ohio, which authorizes the issuance of ODLs. See 103
A-3284-19 5 N.J. at 355-56
; see also N.J.S.A. 39:5D-4(a) ("apply[ing] the penalties . . . of the
State in which the violation occurred" for purposes of license suspension).
Addressing Haley's overall driving record, the MVC "note[d] she
previously allowed her vehicle to become uninsured and has, in the past,
operated her vehicle while her license was suspended." Finally, the MVC
concluded the amendments to the DWI statute "did not provide for any
retroactive application." This appeal followed.
In her first point on appeal, Haley acknowledges the New Jersey motor
vehicle statutes do not provide for the issuance of ODLs. Notwithstanding the
mandatory license suspension under N.J.S.A. 39:4-50(a)(3), Haley nonetheless
contends the MVC is authorized to issue an ODL. In that context, Haley
attempts to distinguish the mandatory terms of a license suspension under the
DWI motor vehicle statute from mandatory penalties under the criminal code.
In point II (A)(1) and (2), Haley maintains the ten-year suspension of her
driver's license "is a denial of fundamental due process and equal protection
guaranteed by the federal and state constitutions." To support he r argument,
Haley argues her driver's license "is a necessity" because her ability to work "is
severely restricted and at times, prevented" due to "the lack of public
transportation within a reasonable distance from her residence."
We have considered these contentions in view of the record and applicable
legal principles, and conclude they are without sufficient merit to warrant
extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). Pursuant to our
"limited" standard of review, Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14
, 27 (2011), we affirm substantially for the reasons expressed in the
MVC's decision, R. 2:11-3(e)(1)(D). In doing so, we determine the MVC's
decision was not arbitrary, capricious, or unreasonable. Wnuck v. N.J. Div. of
337 N.J. Super. 52
, 56 (App. Div. 2001). We add only the
In 2015, at the time of Haley's sentencing on her third and fourth DWIs,
N.J.S.A. 39:4-50(a)(3) (2014) mandated a term of imprisonment of "not less
than 180 days," with certain qualifications, for third and subsequent convictions
of DWI. The statute further provided such persons "shall thereafter forfeit
[their] right to operate a motor vehicle over the highways of this State for [ten]
years." In addition, the subsection of the statute required the installation of an
ignition interlock device.
Four years later in 2019, the Legislature amended N.J.S.A. 39:4-50.
Relevant here, the mandatory forfeiture of a driver's license was reduced from
ten to eight years for third and subsequent violations. See L. 2019, c. 248;
N.J.S.A. 39:4-50(a)(3). But the duration of the mandatory installation of an
ignition interlock device after license restoration was increased. N.J.S.A. 39:4-
50.17. Chapter 248, L. 2019 became effective on December 1, 2019 and
contains a "sunset provision" that will expire on January 1, 2024.
Although Haley correctly notes a DWI violation is not a criminal
conviction, the driver's license suspension is nonetheless mandatory unde r
N.J.S.A. 39:5-40. See Aponte-Correa v. Allstate Ins. Co.,
162 N.J. 318
(2000) (stating "[u]nder the 'plain meaning' rule of statutory construction, the
word 'may' ordinarily is permissive and the word 'shall' generally is
mandatory"); see also State v. Anicama,
455 N.J. Super. 365
, 368 (App. Div.
2018) (holding "a third or subsequent DWI offender is ineligible for periodic
service of the mandatory 180-day sentence" required by N.J.S.A. 39:4-50(a)(3)).
Because the function of governmental agencies "is to enforce the law," State v.
32 N.J. 117
, 126 (1960), the MVC correctly concluded it was
unauthorized by statute to issue Haley an ODL.
Nor are we persuaded that our decision in Fosgate requires a different
result. More than fifty years ago, we modified an order of license suspension
imposed by the Division of Motor Vehicles (DMV) following an administrative
hearing.2 103 N.J. Super. at 437
. In Fosgate, a truck driver was involved in a
fatal motor vehicle accident.
Id. at 436.
The DMV determined Fosgate "failed
to use 'due caution and circumspection' . . . ."
Ibid. Apparently, Fosgate thereafter
became a police officer for "a relatively small municipality," whose
police force "ha[d] no foot patrolmen."
Id. at 436.
We recognized "the public interest ought not to suffer by punitive action
against Fosgate[,]" when "[h]e would be adequately punished by enforcing the
suspension against his driving for personal business or pleasure, but without a
prohibiting of his driving police vehicles in the performance of his duties as a
Id. at 437.
Importantly, unlike the present matter, the DMV's
suspension of Fosgate's driving privileges was discretionary. 3
Finally, the issues Haley now raises in points II(A)(3) and III were not
raised before the MVC. Ordinarily, we will not consider an issue never
explicitly advanced as a claim before the agency, unless jurisdiction is
The DMV was abolished in 2003 upon establishment of the MVC. See
Moreover, in view of the ongoing COVID-19 pandemic, court appearances
and legal work have been conducted virtually since about the time of the MVC's
March 11, 2020 decision in this matter. Although we understand Haley's license
is suspended until December 19, 2025, Haley has not countered the MVC's
suggestion that she may avail herself of other options, such as ride share
implicated, or the matter concerns an issue of great public interest. See Zaman
219 N.J. 199
, 226-27 (2014); Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229
, 234 (1973); Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R.
2:6-2 (2021). Neither exception is present here. Instead, the public interest
militates against granting Haley an ODL. See State v. Frye,
217 N.J. 566
(2014) (recognizing "New Jersey's strong public policy against drunk driving").
Accordingly, we will not consider Haley's belated contentions on this appeal.
Nor will we consider Haley's newly-minted request for a hearing before
the MVC. An issue that is not addressed in a party's initial merits brief is deemed
waived. See Drinker Biddle & Reath LLP v. N.J. Dept. of Law & Pub. Safety,
421 N.J. Super. 489
, 496 n.5 (App. Div. 2011). Indeed, it is improper for a party
to use a reply brief to raise an issue for the first time or enlarge the main
argument. See L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J.
Super. 60, 87 (App. Div. 2014). There is no serious dispute the belated
administrative hearing Haley sought was unwarranted here, where the
uncontroverted facts were sufficiently considered by the MVC.