August 5, 2011




DOCKET NO. A-0135-10T2


Argued April 12, 2011 – Decided May 10, 2011

Before Judges Yannotti and Skillman.

On appeal from the New Jersey Motor Vehicle Commission.

Joshua Altman argued the cause for appellant (Benedict & Altman, attorneys; Mr. Altman, of counsel and on the brief).

Elaine C. Schwartz, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schwartz, on the brief).


Jorge Galeano (Galeano) appeals from a final determination of the Chief Administrator of the New Jersey Motor Vehicle Commission (Commission), suspending his driving privileges for 210 days due to an alcohol-related offense committed in the State of Florida. We reverse.

The relevant facts are undisputed. On December 8, 2003, the County Court for Dade County, Florida, entered an order finding Galeano guilty of driving under the influence of alcohol or drugs (DUI), in violation of Fla. Stat. § 316.193, following the entry of a nolo contendere plea.

The court ordered the suspension of Galeano's driver's license for a period of six months. Galeano was also placed on probation for six months, and required that he attend a substance abuse program. The court imposed a fine in the amount of $1254.75, including court costs, monetary surcharges and community service fines.

Thereafter, Galeano successfully completed a program in DUI education, which addressed substance abuse and driving. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated.

The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003. By letter dated August 3, 2010, Galeano requested a hearing to contest the proposed suspension. The Commission responded with a letter dated August 16, 2010, denying the request for a hearing and stating that the suspension would take effect on September 10, 2010.

Galeano's counsel wrote another letter to the Commission dated August 31, 2010, in which he reiterated Galeano's request for an evidentiary hearing. Counsel stated that a license suspension relating back to a 2003 DUI offense in Florida would create an undue hardship because it would affect Galeano's ability to work and support his family. Counsel also stated that the length of time that had passed since the DUI conviction "create[d] a Due Process violation."

By letter dated September 1, 2010, the Commission advised counsel that Galeano was not entitled to an evidentiary hearing, and the order of suspension previously issued was the agency's final decision in the matter. This appeal followed. We granted Galeano's motion for a stay of the suspension pending disposition of the appeal.

On appeal, Galeano contends that the Commission erred by suspending his New Jersey driving privileges based on a 2003 out-of-state DUI conviction. Galeano asserts that suspension of his license under these circumstances violates his right to fundamental fairness and due process.

Here, the Commission suspended Galeano's license pursuant to the Interstate Driver License Compact, N.J.S.A. 39:5D-1 to -14 (Compact), to which New Jersey and Florida are parties. The Compact provides, among other things, that "[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee." N.J.S.A. 39:5D-3.

The Compact further provides that, for purposes of imposing a suspension, revocation or limitation of the license to operate a motor vehicle, the licensing authority of the home State "shall give the same effect to the conduct reported" as the authority "would if such conduct had occurred in the home State[.]" N.J.S.A. 39:5D-4(a). The Compact states that the agency "shall apply" the home State's penalties for certain convictions, including convictions for DUI. N.J.S.A. 39:5D-4(a)(2).

We note that the record before us does not clearly establish the date upon which the Commission received notice of Galeano's Florida conviction. According to the Commission, the original notice was date-stamped, and the date on the original notice is "partially illegible." The Commission maintains that it received the notice of the Florida DUI conviction in July 2010, although the copy of the notice in the Commission's appendix does not have a readable date stamp. Moreover, the Commission never moved before us to supplement the record with a certification of an individual with personal knowledge attesting to the date upon which it received the notice.

In any event, we will assume for purposes of our decision that the Division did, in fact, receive the notice at some point in July 2010, and issued a notice to Galeano that it intended to suspend his license within several days of that date. We conclude that Galeano's New Jersey license may not be suspended after such a lengthy delay.

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, "the law infers that the contract will be performed within a reasonable time." In re Estate of Yates, 368 N.J. Super. 226, 236 (App. Div. 2004). "What constitutes a 'reasonable time' is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention." Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to "[p]romote compliance" with laws governing the operation of motor vehicles. N.J.S.A. 39:5D-1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D-1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings "affect drivers in a serious way" because they "often threaten[]" a driver's ability "to earn a livelihood[.]" In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings "must meet those incidents of fairness" that underlie the constitutional right to due process. Ibid.

In Arndt, a driver refused to take a breath chemical test after he had been arrested on suspicion of driving under the influence of intoxicating liquor. Id. at 434. On September 2, 1971, the arresting officer notified the Director of the Division of Motor Vehicles (Director) that the driver had refused to take the breath test. Ibid. Acting pursuant to N.J.S.A. 39:3-50.4, the Director issued a notice of proposed suspension on April 27, 1973, almost twenty months after the arrest. Ibid. Following a hearing in the matter, the Director issued a final order of suspension on April 18, 1974. Ibid.

In Arndt, the Court noted that N.J.S.A. 39:4-50.4 requires the Director to suspend a license within ten days after receiving notice from the arresting officer of a driver's refusal to take the breath test. Id. at 435. The Court observed that the statute indicated that the Director must act "within a reasonable time" after receiving notice of a refusal. Id. at 436. The Court held that, because the Director failed to institute suspension proceedings within a reasonable time, the suspension could not stand. Id. at 437.

Although this case involves a suspension imposed pursuant to the Compact rather than N.J.S.A. 39:4-50.4, the principles set forth in Arndt apply. In Arndt, the statute upon which the Director acted required that the license suspension proceedings be commenced within a reasonable time after the report of an arrest. The Compact requires a member State to report convictions in a reasonable time, and contemplates that the home State will act within a reasonable time thereafter. Arndt involved a twenty-month delay; this case involves a delay of almost seven years. If the driver's right to due process and fundamental fairness was violated by the delay in Arndt, surely that also is the case here.

Our decision in Boyd v. Division of Motor Vehicles, 307 N.J. Super. 356 (App. Div.), certif. denied, 154 N.J. 608 (1998), does not compel a different result. There, the Division of Motor Vehicles (Division) suspended a driver's New Jersey license for six months pursuant to the Compact because he had been convicted in New York on December 8, 1993, of driving while intoxicated in that state. Id. at 357-58. The driver's New York driving privileges were revoked for a year. Id. at 358. On March 28, 1996, the Division notified the driver that his New Jersey license would be suspended. Ibid. After conducting a conference in the matter, the Division issued a final order of suspension on July 8, 1996. Id. at 359.

In Boyd, the driver argued that, because of the "inordinate delay" between the beginning of the New York suspension and his receipt of notice of the proposed New Jersey suspension, he lost the opportunity to consent to the New Jersey suspension and have both suspensions run concurrently. Id. at 359. We stated that the suspension could not be set aside because the Division acted promptly when it received notice of the New York suspension and the Division "cannot control the actions of, or delays by, its New York counterparts." Ibid. We noted that the Compact did not establish time limits for the taking of "reciprocal act[s] of suspension[.]" Ibid.

We observed that "it would certainly be desirable [for the Division] to take whatever action can be taken to minimize such delays in the future[.]" Ibid. We added, however, that we did not think "it is reasonable, or even permissible, for us to visit the sins of another state (if there were sins) on the New Jersey Division of Motor Vehicles and thus frustrate the legislative policy embodied in the Interstate Compact." Ibid.

In our view, this case is substantially different from Boyd. The delay in Boyd was about two years and three months. Id. at 347-59. The delay in this case is substantially longer. Furthermore, we do not believe that reversal of the Commission's decision to impose a license suspension in this case after such a lengthy delay would frustrate the legislative policies embodied in the Compact. As we have explained, the Compact anticipates that party States will report convictions within a reasonable time and home States will take appropriate action within a reasonable time thereafter. That did not occur here. Moreover, the lengthy delay between the Florida conviction and the commencement of license suspension proceedings in this State here violates Galeano's right to fundamental fairness and due process, regardless of whether Florida or New Jersey caused the delay.


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