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1 N.J.A.R. 7

Motor Vehicles, Division of v. Canova, Eugene W
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Citation: 1 N.J.A.R. 7
Decision Date: 1980
Synopsis: The Division of Motor Vehicles alleged that Canova violated N.J.S.A. 39:4-50.2 and 50.4 by refusing to take a breathalyzer test, and that since this refusal occurred after a previous conviction for driving while impaired by alcohol, a one year suspension of Canova's driving privileges was required by N.J.S.A. 39:4-50.4(b) rather than the usual 90 day penalty. The administrative law judge found that the evidence supported a conclusion that reasonable grounds existed to believe Canova had been driving on a public highway while under the influence of intoxicating liquor and that he had been arrested and refused to take the breath test. Nevertheless, the judge ruled that a suspension of Canova's license for one year would be an erroneous application of the law. The Division (in its capacity as a party to the proceeding) argued that In Re Rickerson, a January 17, 1980 unreported decision of the Appellate Division, supported the contention that N.J.S.A. 39:4-50.4 required a one y6ar license suspension where there is a first refusal of a breath test after a prior conviction under the drunk driving law. The administrative law judge observed that In Re Bergwall, 173 N.J. Super. 431 (App. Div. 1980) decided after revocation only in the case of a second test refusal and not in the case of a first refusal following a previous drunk driving conviction. In discussing the conflict between the two cases, the judge noted that he must preliminarily decide whether any decision of an administrative law judge contrary to an agency party's position would be an exercise in futility since the agency head renders the final decision in contested case adjudications. The judge stated that for him to be bound automatically by an agency party's argument would frustrate the legislative intent in creating the Office of Administrative Law and would return the conduct of contested cases to their pre~OAL status; thus the judge would be required to determine which of the Appellate Division decisions control. The judge set forth the following five factors to be considered in determining the law of the State in the event of conflicting Appellate Division decisions: 1) quantity of support, 2) the number of judges on the panel, 3) chronology of decisions, 4) extent of analysis, and 5) publication status. In applying these five tests, the administrative law judge concluded that In Re Bergwall squarely construed N.J.S.A. 39:4-50.4 and represents the current Appellate Division position on this issue, binding both the judge and the Division of Motor Vehicles. Therefore, the judge ruled that N.J.S.A. 39:5-50.4 imposes a one year license suspension only for second test refusals and not for a first refusal following a previous drunk-driving conviction. The judge noted that although Canova's refusal occurred after the Bergwall decision, Bergwall controls since an administrative law judge must apply the law as it exists at the time of decision. Accordingly, the judge concluded that Canova had violated N.J.S.A. 39:4-50.4 and ordered a license suspension of 90 days. Division of Motor Vehicles, Unrepresented Eugene W. Canova, Pro Se