NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 APPELLATE DIVISION DOCKET NO. A-3587-19
CHRISTOPHER DIGIOIA,
Petitioner-Appellant,
v.
NEW JERSEY MOTOR VEHICLE COMMISSION,
Respondent-Respondent. __________________________
Submitted March 16, 2021 – Decided March 30, 2021
Before Judges Haas and Natali.
On appeal from the New Jersey Motor Vehicle Commission.
Bio & Laracca, PC, attorneys for appellant (Sebastian M. Bio, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer R. Jaremback, Deputy Attorney General, on the brief).
PER CURIAM Appellant Christopher DiGioia appeals from a final determination of the
New Jersey Motor Vehicle Commission (Commission) that denied his request
for an administrative hearing and upheld the two-year suspension of his driving
privileges. We affirm.
On March 2, 2017, appellant was convicted in New Jersey of driving under
the influence of alcohol contrary to N.J.S.A. 39:4-50. He was similarly
convicted on October 9, 2019 in New York, which the New York authorities
characterized as a first-time offense. New York notified New Jersey of
appellant's conviction consistent with the Interstate Driver License Compact,
N.J.S.A. 39:5D-1 to -14 (Compact).
The Commission issued a scheduled suspension notice to appellant
indicating its intention to suspend his driving privileges for two years under
N.J.S.A. 39:5D-4, N.J.S.A. 39:5-30, and N.J.A.C. 13:19-11.1. Appellant
requested a hearing to challenge the proposed suspension, and relying on State
v. Davis, 95 N.J. Super. 19 (Law Div. 1967), contended that N.J.S.A. 39:4-50
does not expressly permit the Commission to consider an out-of-state conviction
as a predicate act for enhanced penalties. He also argued that it was improper
to consider his New York conviction as a second offense when determining the
A-3587-19 2 extent of his suspension, as New York convicted him as a first-time offender,
which New Jersey was obligated to recognize under the Compact.
The Commission rejected appellant's arguments, and, in a May 4, 2020,
Final Agency Decision issued an Order of Suspension. In that decision, the
Commission's Chief Administrator first denied appellant's request for a hearing
as there were no disputed facts regarding his New York conviction. Instead, the
Chief Administrator explained that appellant sought only consideration of the
specific "mitigating circumstance[]" that the Commission consider him a first-
time offender consistent with New York's characterization of his offense. The
Chief Administrator disagreed and explained that under the Compact, N.J.S.A.
39:5D-4, and N.J.A.C. 13:19-11.1, out of state convictions are considered as if
the offenses occurred in New Jersey and accordingly suspended appellant's
driving privileges for two years. This appeal followed.
Appellant raises the following single point for our review, which
incorporates and reprises the same arguments he raised before the Commission:
THE [COMMISSION'S] CONCLUSION THAT [APPELLANT'S] LICENSE MUST BE SUSPENDED FOR 730 DAYS IS UNREASONABLE AND NOT LEGALLY GROUNDED IN LIGHT OF ALL THE EVIDENCE UPON WHICH IT IS FOUNDED.
A-3587-19 3 We have carefully considered appellant's contentions and conclude that
they are clearly without merit. R. 2:11-3(e)(2). We provide the following
comments to amplify our decision.
Our scope of review of an agency decision is limited. In re Taylor, 158
N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an
administrative agency's determinations or findings unless there is a clear
showing that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was not supported by
substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008);
Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We also must determine
"whether in applying 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." In re Hermann, 192 N.J. 19, 28 (2007) (quoting Mazza
v. Bd. of Trs., 143 N.J. 22, 25 (1995)).
The Compact provides for cooperation among states in reporting driving
offenses and disciplining licensees. The underlying policy of the Compact, "is
to encourage the reciprocal recognition of motor vehicle violations that occurred
in other jurisdictions, thereby increasing the probability that safety on highways
A-3587-19 4 would improve overall." State v. Colley, 397 N.J. Super. 214, 219 (App. Div.
2007).
When the Commission receives a report of a licensee's conviction for
"[d]riving a motor vehicle while under the influence of intoxicating liquor or a
narcotic drug," the statute mandates the agency "shall give the same effect to the
conduct reported, . . . as it would if such conduct had occurred in the home
State," and contemplates the agency may impose either the penalty of New
Jersey or the penalty required by the state of conviction. N.J.S.A. 39:5D-4(a)(2);
see also N.J. Div. of Motor Vehicles v. Egan, 103 N.J. 350, 355-56 (1986) (under
both N.J.S.A. 39:5-30.1 and N.J.S.A. 39:5D-4, the Commission may impose
either the penalty of New Jersey or that of the state where the offense occurred).
First, we agree with the Commission that appellant presented no disputed
issues of material fact requiring a hearing. N.J.A.C. 13:19-1.2(d). Moreover,
he provided no legal basis to set aside the Commission's decision to impose a
suspension of his driving privileges, authorized by N.J.S.A. 39:5D-4 and
N.J.S.A. 39:4-50, and supported by the undisputed evidence in the record.
Failure to do so obviated the need for an evidentiary hearing. N.J.A.C. 13:19-
1.2(e); Frank v. Ivy Club, 120 N.J. 73, 98 (1990).
A-3587-19 5 Second, the Commission's decision to impose a two-year suspension as a
result of appellant's multiple convictions for driving under the influence of
alcohol was neither arbitrary nor capricious. Indeed, it is undisputed that
appellant's conduct in New York in operating a motor vehicle while impaired is
a similar offense under New Jersey's driving under the influence statute,
N.J.S.A. 39:4-50(a), just as it was in New York. See also N.J.A.C. 13:19-
11.1(a). In such circumstances, defendant's suspension is explicitly authorized
by N.J.S.A. 39:5D-4(a)(2) which provides that a conviction for operating a
motor vehicle while under the influence of alcohol is to be given the same effect
as "if such conduct had occurred in the home state". See also N.J. Div. of Motor
Vehicles v. Pepe, 379 N.J. Super. 411, 419 (App. Div. 2005) (A New Jersey
licensed driver who drives while impaired in a Compact party state violates the
sovereignty of New Jersey). Thus, appellant's mandatory suspension was fully
supported by applicable law and enforces and effectuates strong public policy
set forth by the Legislature.
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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 APPELLATE DIVISION DOCKET NO. A-3587-19
CHRISTOPHER DIGIOIA,
Petitioner-Appellant,
v.
NEW JERSEY MOTOR VEHICLE COMMISSION,
Respondent-Respondent. __________________________
Submitted March 16, 2021 – Decided March 30, 2021
Before Judges Haas and Natali.
On appeal from the New Jersey Motor Vehicle Commission.
Bio & Laracca, PC, attorneys for appellant (Sebastian M. Bio, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer R. Jaremback, Deputy Attorney General, on the brief).
PER CURIAM Appellant Christopher DiGioia appeals from a final determination of the
New Jersey Motor Vehicle Commission (Commission) that denied his request
for an administrative hearing and upheld the two-year suspension of his driving
privileges. We affirm.
On March 2, 2017, appellant was convicted in New Jersey of driving under
the influence of alcohol contrary to N.J.S.A. 39:4-50. He was similarly
convicted on October 9, 2019 in New York, which the New York authorities
characterized as a first-time offense. New York notified New Jersey of
appellant's conviction consistent with the Interstate Driver License Compact,
N.J.S.A. 39:5D-1 to -14 (Compact).
The Commission issued a scheduled suspension notice to appellant
indicating its intention to suspend his driving privileges for two years under
N.J.S.A. 39:5D-4, N.J.S.A. 39:5-30, and N.J.A.C. 13:19-11.1. Appellant
requested a hearing to challenge the proposed suspension, and relying on State
v. Davis, 95 N.J. Super. 19 (Law Div. 1967), contended that N.J.S.A. 39:4-50
does not expressly permit the Commission to consider an out-of-state conviction
as a predicate act for enhanced penalties. He also argued that it was improper
to consider his New York conviction as a second offense when determining the
A-3587-19 2 extent of his suspension, as New York convicted him as a first-time offender,
which New Jersey was obligated to recognize under the Compact.
The Commission rejected appellant's arguments, and, in a May 4, 2020,
Final Agency Decision issued an Order of Suspension. In that decision, the
Commission's Chief Administrator first denied appellant's request for a hearing
as there were no disputed facts regarding his New York conviction. Instead, the
Chief Administrator explained that appellant sought only consideration of the
specific "mitigating circumstance[]" that the Commission consider him a first-
time offender consistent with New York's characterization of his offense. The
Chief Administrator disagreed and explained that under the Compact, N.J.S.A.
39:5D-4, and N.J.A.C. 13:19-11.1, out of state convictions are considered as if
the offenses occurred in New Jersey and accordingly suspended appellant's
driving privileges for two years. This appeal followed.
Appellant raises the following single point for our review, which
incorporates and reprises the same arguments he raised before the Commission:
THE [COMMISSION'S] CONCLUSION THAT [APPELLANT'S] LICENSE MUST BE SUSPENDED FOR 730 DAYS IS UNREASONABLE AND NOT LEGALLY GROUNDED IN LIGHT OF ALL THE EVIDENCE UPON WHICH IT IS FOUNDED.
A-3587-19 3 We have carefully considered appellant's contentions and conclude that
they are clearly without merit. R. 2:11-3(e)(2). We provide the following
comments to amplify our decision.
Our scope of review of an agency decision is limited. In re Taylor, 158
N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an
administrative agency's determinations or findings unless there is a clear
showing that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was not supported by
substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008);
Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We also must determine
"whether in applying 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." In re Hermann, 192 N.J. 19, 28 (2007) (quoting Mazza
v. Bd. of Trs., 143 N.J. 22, 25 (1995)).
The Compact provides for cooperation among states in reporting driving
offenses and disciplining licensees. The underlying policy of the Compact, "is
to encourage the reciprocal recognition of motor vehicle violations that occurred
in other jurisdictions, thereby increasing the probability that safety on highways
A-3587-19 4 would improve overall." State v. Colley, 397 N.J. Super. 214, 219 (App. Div.
2007).
When the Commission receives a report of a licensee's conviction for
"[d]riving a motor vehicle while under the influence of intoxicating liquor or a
narcotic drug," the statute mandates the agency "shall give the same effect to the
conduct reported, . . . as it would if such conduct had occurred in the home
State," and contemplates the agency may impose either the penalty of New
Jersey or the penalty required by the state of conviction. N.J.S.A. 39:5D-4(a)(2);
see also N.J. Div. of Motor Vehicles v. Egan, 103 N.J. 350, 355-56 (1986) (under
both N.J.S.A. 39:5-30.1 and N.J.S.A. 39:5D-4, the Commission may impose
either the penalty of New Jersey or that of the state where the offense occurred).
First, we agree with the Commission that appellant presented no disputed
issues of material fact requiring a hearing. N.J.A.C. 13:19-1.2(d). Moreover,
he provided no legal basis to set aside the Commission's decision to impose a
suspension of his driving privileges, authorized by N.J.S.A. 39:5D-4 and
N.J.S.A. 39:4-50, and supported by the undisputed evidence in the record.
Failure to do so obviated the need for an evidentiary hearing. N.J.A.C. 13:19-
1.2(e); Frank v. Ivy Club, 120 N.J. 73, 98 (1990).
A-3587-19 5 Second, the Commission's decision to impose a two-year suspension as a
result of appellant's multiple convictions for driving under the influence of
alcohol was neither arbitrary nor capricious. Indeed, it is undisputed that
appellant's conduct in New York in operating a motor vehicle while impaired is
a similar offense under New Jersey's driving under the influence statute,
N.J.S.A. 39:4-50(a), just as it was in New York. See also N.J.A.C. 13:19-
11.1(a). In such circumstances, defendant's suspension is explicitly authorized
by N.J.S.A. 39:5D-4(a)(2) which provides that a conviction for operating a
motor vehicle while under the influence of alcohol is to be given the same effect
as "if such conduct had occurred in the home state". See also N.J. Div. of Motor
Vehicles v. Pepe, 379 N.J. Super. 411, 419 (App. Div. 2005) (A New Jersey
licensed driver who drives while impaired in a Compact party state violates the
sovereignty of New Jersey). Thus, appellant's mandatory suspension was fully
supported by applicable law and enforces and effectuates strong public policy
set forth by the Legislature.
We reject appellant's reliance on Davis. There, defendant was convicted
of violating N.J.S.A 39:4-50 in New Jersey and was convicted of a similar
offense in Pennsylvania four years earlier. Davis, 95 N.J. Super. at 20.
Defendant argued that as he had no previous offenses in New Jersey he should
A-3587-19 6 be considered a first-time offender. Ibid. The court agreed and reasoned that
N.J.S.A. 39:4-50 did not expressly state that a "previous violation may be one
committed outside this State, or that a subsequent violation in this State may be
predicated on a prior conviction in another jurisdiction." Id. at 23 (quotations
omitted). The court therefore held that a "conviction under the laws of another
State can have no effect by way of penalty beyond the limits of the State in
which the judgment is rendered." Id. at 23-24 (citations omitted).
The reasoning of the Davis court was rejected in State v. Regan, 209 N.J.
Super. 596 (App. Div. 1986). In Regan, defendant maintained his prior New
York conviction for driving under the influence should not be considered as a
predicate offense for purposes of treating him as a third-time offender as he had
only one conviction for the same offense in New Jersey. 209 N.J. Super. at 598-
99.
The court rejected defendant's arguments and stated that defendant's out
of state conviction was properly considered a prior offense for both criminal
sentencing and administrative penalties. Id. at 604. The court held that the
Commission clearly had the authority to suspend defendant's driving privileges
in light of his New York conviction and it would be "illogical to consider
defendant as a subsequent offender for administrative purposes only." Ibid.; see
A-3587-19 7 also State v. Luzhak, 445 N.J. Super. 241, 244 (App. Div. 2016) ("enhanced
penalties pursuant to N.J.S.A. 39:4-50 or N.J.S.A. 39:3-40 may be triggered by
a DWI conviction from another state."); State v. Cromwell, 194 N.J. Super. 519,
522-23 (App. Div. 1984) (expressly rejecting Davis and concluding that
"defendant was subjected to the mandatory license suspension of N.J.S.A. 39:4-
50 following his New York drunk driving conviction").
Additionally, in 1997, the Legislature amended N.J.S.A. 39:4-50(a)(3) to
provide that a conviction of a similar driving under the influence charge in
another jurisdiction is considered a prior conviction, even with respect to those
states who do not participate in the Compact. N.J.S.A. 39:4-50(a)(3) provides:
A conviction of a violation of law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the [Compact] . . . shall constitute a prior conviction . . . unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.
Finally, we reject appellant's claim that because New York considered him
a first-time offender, New Jersey was bound to accept that characterization when
assessing his license suspension. The Compact simply requires that New Jersey
consider appellant's New York conviction as if the offense occurred in New
Jersey, which the Commission indisputably did. Nothing in the language of the
A-3587-19 8 Compact required the Commission to ignore defendant's 2017 New Jersey
conviction.
In sum, the Commission appropriately considered defendant's New York
driving conviction and its resulting imposition of a two-year driving suspension
was not an abuse of discretion.
Affirmed.
A-3587-19 9