DOCKET NO. A-4657-10T3

  NEW JERSEY MOTOR VEHICLE COMMISSION,   Plaintiff-Respondent,   v.   LARISSA A. GETHARD,   Defendant-Appellant.   ________________________________ February 10, 2012     Submitted January 30, 2012 – Decided   Before Judges Sabatino and Ashrafi.   On appeal from a Final Decision of the New Jersey Motor Vehicle Commission.   Geldhauser, Shiffman & Rizzo, LLC, attorneys for appellant (John P. Shiffman, on the brief).   Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Elaine C. Schwartz, Deputy Attorney General, on the brief).   PER CURIAM   Appellant Larissa A. Gethard contests a final agency decision of the New Jersey Motor Vehicle Commission (“MVC”) suspending her driver’s license for ninety days because she had been convicted in the State of New York for operating a vehicle while her driving ability was impaired. Because the applicable statutes and published judicial opinions clearly support the MVC’s action as a matter of law, we affirm the suspension. The pertinent facts and procedural history are uncomplicated and substantially undisputed. On November 20, 2010, appellant was charged in New York State with driving while intoxicated, N.Y. Veh. & Traf. Law § 1192(3). On February 7, 2011, she was convicted1 of the lesser-included offense of driving while impaired, N.Y. Veh. & Traf. Law § 1192(1). The New York authorities notified the MVC of the conviction, as required by an interstate compact.N.J.S.A. 39:5D-3. On March 18, 2011, the MVC notified appellant that her New Jersey driver’s license would be suspended for ninety days starting on April 11, 2011, because she had been convicted in New York for operating a vehicle while impaired. The ninety-day suspension was the minimum length authorized by statute. N.J.S.A. 39:4-50(a). Various customary monetary charges were also imposed, which are not the subject of this appeal. The notice stated that appellant could request a hearing, but such a request had to specify all legal and factual issues that she wanted to raise, and she had to present all arguments on those issues. If she did not do so, the request would be denied. See N.J.A.C. 13:19-1.2(e). Appellant’s counsel requested a hearing, but he initially did not specify any issues and arguments and therefore his request was denied. The MVC then issued a superseding notice of suspension, dated May 3, 2011, setting a new date, May 31, 2011, for the suspension. Appellant’s attorney then requested reconsideration of the MVC’s denial of a hearing. This time, he asserted there was a material issue with regard to appellant’s offense in New York and whether her license should have been suspended. He asserted that “the New Jersey Legislature has specifically excluded the acts of this defendant” from violations that require suspension of her New Jersey license. The request for reconsideration was denied. The MVC denied appellant’s request to stay the suspension of her license pending this appeal. However, we granted such a stay of the suspension after the appeal was filed. The applicable reciprocity law is as follows. Pursuant to the interstate compact, as codified in New Jersey at N.J.S.A. 39:5D-3, a state is required, where a non-resident commits a motor vehicle offense, to report that offense to the driver’s home state. N.J.S.A. 39:5D-4 further provides:
(a) The licensing authority in the home State, for the purposes of suspension . . . of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home State . . . in the case of convictions for:   . . . .   (2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle[.]   Subsection (c) of N.J.S.A. 39:5D-4 further states that if the law of another state does not describe an offense in precisely the same words used in N.J.S.A.39:5D-4(a), i.e., “[d]riving a motor vehicle while under the influence of intoxicating liquor,” the description used in N.J.S.A. 39:5D-4(a) shall be construed to apply to “violations of a substantially similar nature.”
Appellant contends that her conviction in New York for a violation of that state’s driving-while-ability-impaired (“DWAI”) statute, N.Y. Veh. & Traf. Law§ 1192(1),2 is not “substantially similar” to our State’s statute prohibiting driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, specifically, N.J.S.A. 39:4-50 (“DWI”). We rejected that same legal contention in Div. of Motor Vehicles v. Lawrence, 194 N.J. Super. 1, 2-3 (App. Div. 1983), concluding that a New York DWAI conviction was “of a ‘substantially similar nature'” as a New Jersey DWI conviction. More recently, we reached the same conclusion, albeit in a slightly different procedural context involving the treatment of prior offenses for purposes of the repeat-offender provision in N.J.S.A. 39:4-50, in State v. Zeikel423 N.J. Super. 34, 44-49 (App. Div. 2011)3 (finding such substantial similarity, absent “clear and convincing proof” from the licensee, as required by N.J.S.A. 39:4-50(a)(3), that the New York DWAI offenses were based “exclusively” on a blood alcohol content (“BAC”) of less than 0.08%).4 Appellant argues that Zeikel and Lawrence do not control the result in this case, and that the applicable New Jersey and New York statutes are not, in fact, substantially similar. She suggests that a New York DWAI conviction should instead be treated in this State like a reckless driving offense under N.J.S.A. 39:4-96, and not as a DWI conviction under N.J.S.A. 39:4-50. We disagree, substantially for the reasons that have been expressed in Zeikel and Lawrence which are the controlling precedents.     The MVC’s final agency decision is affirmed. The stay of appellant’s driver’s license suspension is vacated, effective March 15, 2012, a peremptory date which shall not be extended absent relief obtained by appellant from the Supreme Court. _________________________
1 The record is unclear whether appellant pled guilty to the New York offense or instead was found guilty after a trial.  
2 Appellant asserted in her submission to the MVC that N.Y. Veh. & Traf. Law § 1192(1) “is based entirely upon a blood-alcohol content of .05-.07.” However, N.Y. Veh. & Traf. Law § 1195(2)b provides that evidence of a blood-alcohol content of more than .05 but less than .07 is relevant evidence, but is not given prima facie effect in determining whether a driver’s ability to operate a vehicle was impaired. Thus, a DWAI conviction in New York may not necessarily be solely based upon blood-alcohol content. See People v. McDonald811 N.Y.S.2d 492, 493 (App. Div. 2006) (affirming the defendant’s DWAI conviction based on, among other things, the officer’s observations of the defendant and the defendant’s admission to consuming alcohol even though the defendant did not submit to a blood-alcohol test). Additionally, N.Y. Veh. & Traf. Law § 1195(2)c states that evidence of a blood-alcohol content of more than .07 but less than .08 “shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.”  
3 At our invitation, counsel have furnished the court with supplemental briefs addressing the recent decision in Zeikel.  
4 It is unclear whether the terms of N.J.S.A. 39:4-50(a)(3) affording licensees the possibility of showing that a prior out-of-state conviction should not be treated as a prior offense for purpose of the enhanced penalties in N.J.S.A. 39:4-50 for repeat DWI offenders, can apply to reciprocal suspensions underN.J.S.A. 39:5D-4(a). Even if, for the sake of argument, those terms were imputed into N.J.S.A. 39:5D-4(a), appellant can obtain no benefit from them on this record. Like the appellant in Zeikel, appellant in this case also fails to provide clear and convincing proof that her February 2011 conviction in New York for DWAI was based upon a blood alcohol content reading of less than 0.08%. Although there is a suggestion in the record that appellant’s blood alcohol reading in New York may have been between 0.05% and 0.08%, there is no documentary proof supplied that “clearly and convincingly” shows that appellant’s level was below 0.08% and that her New York conviction was “exclusively” based upon such a below-0.08% reading and not based, for example, upon observations or other proof of impairment.