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2 N.J.A.R. 34

Motor Vehicles, Division of v. Meara, Edward F. III
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Citation: 2 N.J.A.R. 34
Decision Date: 1979
Synopsis: This case concerns the proposed suspension of a driver's license based upon an alleged refusal to submit to a breath alcohol determination test as required by N.J.S.A. 39:4-50.2 et seq. At the licensee's request a hearing was held and the administrative law judge issued an initial decision finding that the licensee had not refused to submit to a breath test and thus dismissed the action. The judge based his finding upon the licensee's credibility and upon the fact that the breathalyzer operator did not appear to testify at the hearing, thus leaving the argument that the licensee had only feigned compliance and was actually refusing to breathe into the breathalyzer machine supported only by the hearsay testimony of the arresting officer. The Director of the Division of Motor Vehicles remanded the case 'for a continued hearing at which the breathalyzer operator will testify concerning the refusal issue.' The Director argued that it was the duty of the administrative law judge 'to call as witnesses persons who have knowledge regarding a particular fact,' and that 'it was incumbent upon the administrative law judge to continue the hearing so that the breathalyzer operator could be called to testify concerning the refusal issue.' Prior to the taking of testimony on remand, the licensee's attorney moved to dismiss the action on the ground that to proceed on remand would be a violation of due process of law and would result in the imposition of an impermissible double jeopardy upon the licensee. The administrative law judge reserved decision on the motion and heard the testimony of the breathalyzer operator as well as rebuttal testimony. In discussing the motion to dismiss, the administrative law judge concluded that the Director's remand was inconsistent with due process of law, that it improperly placed the licensee into a position of double jeopardy and that the final administrative decision in the matter should be made on the basis of evidence presented at the first heating only. The judge reasoned State of New Jersey 35 that the Director's remand misconstrued the function of an administrative law judge by making him an adjunct of the Division of Motor Vehicles, imposed upon him a prosecutorial role and did not allow him to fulfill the independent function envisioned by the statute creating the Office of Administrative Law, N.J.S.A. 52:14F- 11. The judge noted that when an agency (such as the Division of Motor Vehicles) possesses investigative, prosecutorial and adjudicative functions, it is particularly important that its powers be exercised fairly. Noting that the requirements of due process apply in civil and quasi-criminal matters, the judge reasoned that an attempt by any prosecuting authorities to 'supplement' or 'improve' a record by way of additional proofs not presented on the scheduled hearing date would be improper and was expressly prohibited by the New Jersey Uniform Administrative Procedure Rules (N.J.A.C. 1:1-16.5 (c)) where an agency is a party to a case. The judge noted that there had been no showing that the Division of Motor Vehicles, in the exercise of reasonable diligence, was unable to produce the breathalyzer operator at the original hearing. Thus, the administrative law judge concluded that the remand was improper. However, to avoid any further remands on the substantive issue, the administrative law judge went on to evaluate the evidence presented at both hearings. Based upon this evaluation, the judge found that, although both the licensee and the breathalyzer operator, who testified the licensee was feigning, were credible witnesses, the licensee's testimony that he was upset and did indeed blow into the machine, coupled with evidence that the machine registered at least one adequate breath sample, supported a conclusion that the licensee did not refuse to submit to a breath test. Accordingly, the action to suspend the licensee's driving privileges was dismissed. Division of Motor Vehicles,Unrepresented B. Dennis O'Connor,, Esq., for Respondent
Rule(s) Cited: 1:1-16.5(c) 
Statute(s) Cited: 39:4-50.2 et seq. 
Citation Tracker rejected, Div. of Motor Vehicles; reversed -App. Div., A-5061-79, 12/2/82 (unreported); reversed & rein.-93 N.J. 295 (1983) [Updated through 1991]