Howe v. StreleckiHowe v. Strelecki
This is an appeal in lieu of prerogative writs pursuant to
On January 9, 1966 a police officer charged Howe with driving his automobile at 60 miles per hour in a 50-mile zone in Piscataway Township, in violation of
Howe contends that he told the judge of the municipal court that he had not driven at more than 55 miles per hour and that he was pleading guilty to exceeding the speed limit but not to driving at 60 miles per hour. However, the municipal court reported to the Director of the Division of Motor Vehicles that Howe had been convicted of driving at 60 miles per hour in a 50-mile zone.
On February 4, 1966 the Director notified Howe of the suspension of his driving privileges for 30 days, and demanded that he surrender his license to the Division. On February 8, 1966 Howe mailed in his license with a letter in which he set forth his contention as above mentioned and
On February 20, 1966, while his license was suspended, Howe drove his automobile, was apprehended, and was charged with driving while his license was suspended, in violation of
The officer testified that Howe had driven at 60 miles per hour in a 50-mile zone, but could not recall the distance clocked and admitted that the speedometer of the police car had not been calibrated since August 18, 1965. Howe testified that he was not going above 55 miles per hour “and that the officer agreed with that speed at the time of issuance of the summons.” The judge found him guilty of speeding at 58 miles per hour. The court reimposed the original fine and costs, “and no further penalty as to revocation was imposed, since counsel represented that the 30-day revocation period imposed by the Division had already been served.” These facts were certified to the Division by the judge of the municipal court by letter dated March 16, 1966.
On March 16, 1966 Howe‘s attorney wrote to the Division asserting that the order of suspension dated February 4,
Howe instituted an action in lieu of prerogative writs in the Law Division of the Superior Court to compel the Director to expunge the record of the suspension. The Law Division judge noted that the action was for the review of a final decision of a state agency and that
Howe‘s position is that the suspension became retroactively invalid because his conviction was modified after the term of the suspension had expired. He cites Fredericks v. McGee, 14 N.J. Misc. 538, 186 A. 444 (Sup. Ct. 1936). In that case defendant had been convicted of operating a motor vehicle while under the influence of intoxicating liquor. Since he had previously been convicted of the same offense, this conviction rendered him a second offender and his driver‘s license was revoked under a mandatory statutory provision. He was granted a new trial in the recorder‘s court and acquitted. The Commissioner of Motor Vehicles refused to restore his license. The former Supreme Court held that the penalty of revocation fell with the conviction and defendant was entitled to restoration of his license in the absence of revocation by the Commissioner on notice and hearing.
The present case is distinguishable. In this case Howe‘s license was restored before the judgment on which it was based was revised. The sole question is whether the factual record of the suspension should be erased. The Division has already noted the revised judgment of conviction on
It is true that the record may have effects in the future, and if the suspension of Howe‘s license had been illegal or invalid he would have a right to have that shown. If the suspension was not illegal, the record may not be erased.
Under
On the other hand, where the statute provides a mandatory suspension, as for instance under
The Director has adopted such regulations. The regulation here applicable provides:
(a) is convicted of operating said vehicle at a speed of sixty miles an hour or greater upon any street or highway on which the speed limit is fifty miles an hour or less;
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2. A first revocation pursuant to section one above of these regulations shall be for a period of thirty days and a second revocation pursuant to section one above of these regulations shall be for a period of sixty days.”
Under this regulation the suspension is mandatory upon conviction of the described offense. Where there is a motion for new trial or an appeal from the conviction the license suspension should be withheld or suspended pending final adjudication. The Division indicates that that is the course followed when it is notified of the pendency of such motion or appeal. But where no such proceedings are pending in the trial court or in an appellate court, the conviction in the municipal court is a final judgment and the regulation applies.
At the time of the suspension of the license Howe stood convicted of driving at 60 miles per hour in a 50-mile zone. That judgment remained in full force throughout the period of suspension and was not under review in the trial court or in any appellate court. The Director was required by the regulation to suspend and keep the license suspended. She had the right to rely upon the judgment record. Her act was legal and valid. The subsequent alteration of the municipal court conviction did not render the suspension retroactively invalid.
It should be noted that the action of the municipal court 56 days after the conviction, vacating its judgment of conviction, permitting appellant to withdraw his guilty plea, and granting him a new trial was of very doubtful validity. The motion was made under
A motion for leave to withdraw a guilty plea after sentence may not be granted where, as here, there is no proof or determination of “manifest injustice,” a term closely akin to “fundamental unfairness” and possibly confined to a deprivation of due process.
The judge of the municipal court found at the second hearing that “the defendant was not aware that he had pleaded guilty to a specific speed of 60 miles per hour,” and granted him a new trial on this ground.
The action of the Director of the Division of Motor Vehicles is affirmed.