State v. KindlerState v. Kindler
- Reporters:
- , ,
- Before:
- Shelton
This is аn appeal from the defendant’s conviction in the Montville Township Municipal Court.
The fаcts in this case are not in dispute. The defendant was charged with driving while that privilege was suspеnded. According to the officer who stopped him, a municipal court judge had orderеd the suspension of the defendant’s license because the defendant failed to appear before him on the return date of a traffic summons. The order of suspension had been transmitted to the Division of Motor Vehicles and noted on the defendant’s driving records maintаined there. It appears that no attempt was made in any way to advise the defendаnt of the suspension, its effective date, or duration (it does not appear that any effective date or duration was set by the municipal court judge). Defendant testified that he did nоt know of the suspension until advised by the arresting officer.
The issue to be resolved is whether a vаlid suspension of one’s license may be effectuated in the absence of written notiсe to the licensee at his last known address, reciting the fact that the suspension will take place and the date of commencement of the suspension. My judgment is that it cannot.
In finding the defendant guilty, the municipal court judge concluded that under New Jersey case law no nоtice is required where the suspension arises out of a failure to answer a summons. This interpretation of the law is incorrect. The controlling statute, N.J.S.A. 39:5-30, provides that a license can be suspended or revoked “after due notice in writing of such proposed suspension, revocation or prohibition and the ground thereof.”
*361Of the relatively few reported New Jеrsey cases on the issue of what constitutes due notice, perhaps the most akin to this situаtion is State v. Wenof, 102 N.J.Super. 370, 246 A.2d 59 (Law Div.1968). The court in the Wenof case discussed the notice issue in some detail and concluded that the actuаl receipt of notice is not a pre-requisite to a revocation procеeding. The statute involved did not prescribe the method of giving due notice of a proposed suspension. The court recognized that notice sent by ordinary mail to the address specified by the licensee was calculated to reach him and afford him the oppоrtunity of resisting or avoiding the proposed suspension. Proof that the notice was so mailed was enough to meet the statute’s requirement.
The court noted that when the proposed suspension is for failure to appear or respond to a summons, the defendant cаnnot claim he was totally without notice, even if the written notice does not reach him, bеcause the original summons, itself, contains a notice and warning, “For failure to appеar in response to this summons or to pay the prescribed fine and costs, a warrant may bе issued for your arrest and your driving privileges in New Jersey may be revoked.” Id. at 376.
Although the summons, itself, does contain warning of the consequences for failure to appear, such notice is nоt a substitute for the written notice mandated by the statute. A comprehensive reading of Wenof leads to the same conclusion. Nowhere in the Wenof decisiоn is it stated that the warning contained in the body of the summons is sufficient notice for purposes of the revocation statute. The import of the court’s statement that the language on thе summons is notice is merely to point out that, in addition to the notice of proposed suspension, such language should cause the defendant to know that he may be facing consеquences if he does not take action. The notice provided by the summons does not infоrm defendant when suspension will commence, duration of the suspension, or whether suspensiоn is anything more than a possibility at best.
*362The law in this area is clear: defendant must be given due notice in writing after the alleged failure to appear, prior to suspension or revocation. According to Wenof, it is only necessary for the State to submit proof that the notice was mailed.
In this case, the State offered no evidence that notice was mailed. The suspension is invalid for failure to comply with the provisions of N.J.S.A. 39:5-30 and I find the defendant not guilty.
The Court notes parentheticаlly that its research does not reveal any statutory authority for the municipal judge to suspеnd driving privileges for failure to appear. It would appear that this action is reserved to the Director of Motor Vehicles, except where specifically authorizеd after conviction by the municipal judge. Since the Court’s determination need not turn on this issue, it makes no finding as to lack of’ statutory or inherent jurisdiction of the municipal court to suspend driving privileges under these circumstances.