KRISTA L. HALEY VS. NEW JERSEY MOTOR VEHICLE COMMISSION (NEW JERSEY MOTOR VEHICLE COMMISSION)

K
                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3284-19

KRISTA L. HALEY,

          Petitioner-Appellant,

v.

NEW JERSEY MOTOR
VEHICLE COMMISSION,

     Respondent-Respondent.
_________________________

                   Submitted February 10, 2021 – Decided March 5, 2021

                   Before Judges Rose and Firko.

                   On appeal from the New Jersey Motor Vehicle
                   Commission.

                   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).

PER CURIAM
      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
                  Constitution.

                  A.    The Ten[-]Year Driving Suspension,
                        Without an Opportunity to Apply for Either
                        Reinstatement or an ODL, Has No Rational
                        Basis.

                        1.    The Valid Public Policy Concerns
                              Within N.J.S.A. 39:4-50 Are Not At
                              Issue.

                        2.    New Jersey is an Outlier Nationwide.


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                                       2
                          3.    In the Alternative, [Haley]'s
                                Suspension Should be Limited to
                                Eight Years.
                                (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
                    Discrimination (NJLAD).
                    (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:

                                                           DRIVER'S
      DATE OF                  DATE OF
                                           MUNICIPALITY    LICENSE
     CONVICTION                ARREST
                                                         SUSPENSION
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




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                                          3
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

1
  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.


                                                                        A-3284-19
                                       4
            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

equal protection."

      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."


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                                         6
      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

Motor Vehicles, 

337 N.J. Super. 52

, 56 (App. Div. 2001). We add only the

following comments.

      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;


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                                        7
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

, 325

(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.

Osborn, 

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




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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

policeman."

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


2
   The DMV was abolished in 2003 upon establishment of the MVC. See
N.J.S.A. 39:2A-4.
3
   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
transportation.
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                                        9
implicated, or the matter concerns an issue of great public interest. See Zaman

v. Felton, 

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

, 582

(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.

   Affirmed.




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