DIVISION OF MOTOR VEHICLES, Petitioner,

v.

JEAN CIOFFI, Respondent.


95 N.J.A.R.2d (MVH) 57
Initial Decision: September 13, 1994
Final Agency Decision: October 27, 1994

INITIAL DECISION AND FINAL AGENCY DECISION


Division of Motor Vehicles, petitioner, appearing pursuant to N.J.A.C. 1:1-5.6(a)

Paul N. Mirabelli, Esq., on behalf of respondent

REBACK, ALJ:

This is an appeal by the licensee, Jean Cioffi, from a notice issued by the Division of Motor Vehicles, (Division) dated December 4, 1992, ordering that she appear for and satisfactorily complete a driver re-examination. The Division posits its order on its authority under N.J.S.A. 39:3-10, 39:5-30 and N.J.A.C. 13:20-12.2. Following the issuance of the notice to attend, the respondent, through counsel, requested a hearing and the matter was transmitted to the Office of Administrative Law as a contested case pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. The matter was heard at the Office of Administrative Law, Mercerville, New Jersey on August 18, 1994. At the conclusion of the hearing, counsel for the respondent requested the opportunity to submit legal argument. By fax letter submitted to my office on September 8, 1994, Mr. Mirabelli (the letter is dated August 31, 1994) advised that after consultation with his client he was directed to rest at that time. Accordingly, the record in the matter closed on the latter date, September 8, 1994.

I FIND:

The Division of Motor Vehicles is seeking to compel Cioffi to undergo a driver re-examination based exclusively upon a written document which was transmitted to the Office of Administrative Law, executed by a police officer and entered into evidence as exhibit P-1. The Division was not represented by either an attorney or nonlawyer representative at the hearing. In addition, the Division called no witnesses in this matter. It is noted that the burden of proof in respect to this proceeding rests exclusively upon the Division of Motor Vehicles: It must establish by a preponderance of credible evidence that the licensee should be compelled to undergo a driver re-examination.

Exhibit P-1 in evidence, Driver Improvement Bureau, Request for Driver Re-Examination and/or Medical Evaluation is a report apparently executed by a patrolmen for the West Long Branch Police Department, dated November 1, 1992. The relevant typed written portion of that report provides as follows:

On 1 Nov. 92, Cioffi was involved in a motor vehicle accident, in which she drove through a red traffic signal and hit another vehicle which had the right of way (green signal).

When Cioffi was questioned about this incident, she stated that she did not know what happened. She did not even know that she had just been involved in an accident. She appeared to be unaware of her surroundings. She appeared to have a lack of mental ability to safely operate a motor vehicle.

Cioffi testified at the proceeding, I found her to be an alert, articulate and responsive witness. She is approximately 85 years of age and has been licensed to operate an automobile for most of her adult life. It was her testimony, which was confirmed by the certified abstract of her driving history, (P-3) that throughout this extensive driving history she only received two points. On November 1, 1992, she received two points for failure to observe a traffic control device. Presumably this arose out of the incident which was chronicled by the West Long Branch Police Department in Exhibit P-1. It should be noted as well that on November 1, 1993, she received a two-point reduction credit. Thus clearly, a driving history of a women who is about 85 years old is exemplary and should serve as a model at least to most of the people of the State of New Jersey.

Cioffi's recollection of the incident was that she was involved in what appeared to be a “fender-bender,” a minor accident at an intersection. She was then asked to pull over to the side of the road. She acknowledged that she may have appeared confused to the police officer because she was somewhat frightened and she was unclear as to what it was she was being asked to do. Part of this confusion may indeed have resulted from her perception that this was a minor incident and not being involved in any other significant accidents (Cioffi recollects one other incident in which she was involved, a one-car incident several years ago) she was not sure as to the procedure.

Cioffi resides alone and had worked as a sales person for a large department store up until several years ago. She currently does volunteer work at a local hospital. She wears prescription eyeglasses and to the best of her recollection the last time she had her eyes examined was some two years ago.

Cioffi, through counsel, submitted two letters to support her position. One letter is from a physician (R-1), dated August 9, 1994. He notes that she has been under his care since 1990 and that she “operates a motor vehicle without difficulty,” He further notes that she has “no history of cerebrovascular disease or stroke and is mentally competent without any incapacitation.” [R-1]

In addition, Cioffi was evaluated by a psychotherapist, Dr. Sidney Becnel, Ph.D. His letter report, dated August 16, 1994, indicates that she is a “self-sufficient, resourceful and alert person, spry and active. I found nothing to indicate any deficiency or dysfunction which would prevent her from operating an automobile.” [R-2] He also concluded that her mental capacities are “fresh” and “sharp.” Dr. Becnel concludes that in his estimation “Cioffi seems healthy and safety conscious and I find no reason why she cannot continue to use her motor vehicle as she chooses.” Ibid.

Pursuant to the statutory and regulatory authority of the Division of Motor Vehicles, notably N.J.A.C. 13:20-12.2, the Director of the Division of Motor Vehicles may require an individual who operates a motor vehicle to be re-examined to determine his ability to operate a motor vehicle safely. Re-examination may be required of a variety of individuals. In the particular case at bar, the provision which is relevant is that re-examination may be required of “persons having mental or physical disorders which may effect their ability to safely operate a motor vehicle.” In the current matter, the Division of Motor Vehicles has relied exclusively, absent legal representation and absent any witnesses, on exhibit P-1 in evidence, the written report executed by the Officer with the Long Branch Police Department. While I am fully cognizant that pursuant to N.J.A.C. 1:1-15.5, hearsay evidence may be admissible in the trial of contested cases and I have deemed P-1 to be so admissible, I am also cognizant that as a matter of law, specifically subdivision B of N.J.A.C. 1:1-15.1, even if evidence which is hearsay is deemed to be admissible, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness. The latter requirement, known as the “residuum” rule cannot as a matter of law be satisfied if the sole and exclusive basis under which the Division seeks to prove Cioffi to be mentally or physically unfit to safely operate a motor vehicle is what is deemed to be inadmissible hearsay.

I am cognizant that because of the fiscal constraints imposed upon most, if not all State agencies, a heavy financial burden is placed upon the Division of Motor Vehicles, given the high number of contested cases generated by the agency, to have at its disposal either legal representation (or in the alternative nonlawyer representation which is also permissible pursuant to N.J.A.C. 1:1-5.4(a)(2) and/or the capacity to defray the cost of witnesses. Those practical considerations on occasion have to be weighed against the rights to fundamental fairness and due process possessed by a motor vehicle licensee, particularly when the licensee is being asked to submit to a re-examination. The licensee should be given the opportunity to cross-examine the witness or witnesses who allege, as does the police officer who executed P-1, that she appeared to “have a lack of mental ability to safely operate a motor vehicle.” In the current matter, Cioffi is being denied that opportunity. Moreover, she has rebutted that hearsay with medical documentation of her own, one by her physician, the other by a psychotherapist. In addition, her demeanor and responsiveness at the hearing would also go to contradict the opinion of the West Long Branch Police officer.

I emphasize that by this opinion, I am not concluding that Cioffi is fully capable, both mentally and physically of operating a motor vehicle such that she need not undergo a re-examination. What I am articulating however, is that the Division by merely submitting P-1 in evidence has been unable, as a matter of law, to establish that proposition. I am very reluctant under those circumstances to dismiss an appeal such as the current one since I cannot assess the risks--if any--that may present themselves should Cioffi not be required to undergo a re-examination. I am also frustrated that because of the lack of either a proper witness and/or legal representation the Division has not provided me with an adequate evidential record to arrive at an appropriate conclusion.

I am fully cognizant of, and agree with, the compelling need to protect the public from a driver who for a variety of reasons may pose dangers to themselves and to others. See In re Kallen, 92 N.J. 14 (1983). The Division must vigorously pursue that objective. In my view, failing to at least have as part of this proceeding the appropriate witnesses available to support the Division's assertion that Cioffi may present a danger such that she would be compelled to undergo re-examination does not further the Division's mandate as articulated in re Kallen and in many other decisions. I fully understand and sympathize with the Division in respect to its generalized policy which results from the fiscal restraints imposed upon it, which may, on occasion, require it to dispense with live witnesses and/or legal representation. That is indeed the reason why the OAL has promulgated rules which permit, under prescribed circumstances, a case to be presented purely “on the papers.” See N.J.A.C. 1:1-5.6. This rule, the rules permitting agencies to proceed dispensing with legal counsel, as well as the policy of the Division of Motor Vehicles must be applied in such a fashion that the contested case heard by the administrative law judge can proceed appropriately without undue prejudice or confusion, consistent with fundamental fairness in the outcome both for the Division, the licensee, and the public at large.

In the current matter in my view, it is clear that absent at the least, an appropriate lay or expert witness to establish Coiffi's reported mental or physical disorder which may effect her ability to safely operate a motor vehicle such that she must be compelled to submit to a re-examination, the Division cannot meet its burden by resting solely and exclusively on P-1 in evidence.

Accordingly, and based upon the foregoing, the determination by the Division compelling the licensee to undergo a driver re-examination being and is hereby DISMISSED.

I hereby FILE my initial decision with the DIRECTOR OF THE DIVISION OF MOTOR VEHICLES for consideration. This recommended decision may be adopted, modified or rejected by the DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, who by law is authorized to make a final decision in this matter. If the Director of the Division of Motor Vehicles does not adopt, modify or reject this decision within forty-five (45) days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10.

Within thirteen (13) days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, 225 East State Street, CN 160, Trenton, New Jersey 08666-0160, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties.

FINAL AGENCY DECISION

The initial decision in MVH 716-94 was adopted as final pursuant to N.J.S.A. 56:12-37(b), on October 27, 1994. 95 N.J.A.R.2d (MVH) 57

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