DIVISION OF MOTOR VEHICLES, Petitioner,
v.
LUELLA F. KINDIG, Respondent


96 N.J.A.R.2d 39 (1996)
Initial Decision: April 29, 1996
Final Agency Decision: June 11, 1996

INITIAL DECISION AND FINAL AGENCY DECISION


Division of Motor Vehicles, appearing pursuant to N.J.A.C. 1:1-5.6(a)
James P. Sloan, Esq., for respondent

SUKOVICH, ALJ:

NATURE OF THE CASE AND PROCEDURAL HISTORY


This matter concerns action by the Director of the Division of Motor Vehicles (Division) to require Luella F. Kindig (respondent) to submit to a driver reexamination. By notice dated July 14, 1994, the Division advised respondent that she was required to submit to a driver reexamination, consisting of an actual driving demonstration, a visual acuity check, and a motor vehicle law knowledge examination. The notice also stated that if respondent did not request a hearing and failed to appear for the reexamination, which was at that time scheduled for August 5, 1994, her driving privileges would be suspended indefinitely until she passed such reexamination and paid a restoration fee.

By letter dated July 28, 1994, respondent requested a hearing to contest the Division's action. The Division transmitted the matter to the Office of Administrative Law on January 11, 1995 for determination as a contested case pursuant to N.J.S. 52:14F-1 to -13. A hearing was conducted on March 15, 1996, on which date the record was closed.

FINDINGS OF FACT


Based upon a review of the entire record, including credibility assessments, I FIND the following to be facts.

Respondent, who is 87 years old, has lived in Newton, New Jersey (Newton) for 11 years, at the same residence, which is located on Hillside Terrace. Her residence is located at the top of a hill. There is a stop sign at the bottom of the street, at which site Hillside Terrace intersects with Mill Road, a main roadway in Newton. Respondent was previously employed for many years as a registered nurse, until the age of 77 years.

Respondent was involved in an accident on March 8, 1994. Her vehicle came into contact with another vehicle on Mill Street, after respondent had driven through the intersection. At the time, there was a large pile of snow which had been plowed near a corner of the intersection. Two mail boxes and a parked truck were also in proximity to the site. Respondent proceeded slowly into the intersection because part of her visibility was blocked because of the obstructions. Respondent was aware at the time that a stop sign was located at the intersection. She had never before gone through the stop sign, and it is her recollection that she stopped at the time in question.

Respondent was thrown from her vehicle upon impact and lay in the roadway unconscious for several minutes. She hit her head and suffered broken ribs as well as other injuries. Respondent regained consciousness while in the roadway, but based upon her experience as a nurse, believes that she was “in shock.” Respondent was subsequently taken to a hospital where she spoke with an officer employed with the Newton Police Department. Respondent articulated concerns regarding the well-being of her daughter, who suffers from an emotional illness. It is her recollection that she did not tell the officer that she had not seen a stop sign at the intersection in question prior to the accident.

The officer who responded to the accident, Patrolman Leo J. Beshada (Beshada), issued summonses for violations of N.J.S. 39:4-144 and 39:3-76.2(f). [FN1] The summonses referenced a court date of March 22, 1994.

By letter dated April 12, 1994, Michael B. Meltzer, Esq. (Meltzer), counsel who was representing respondent pertinent to the municipal court proceeding at that time, entered his appearance with the Newton Municipal Court. He also entered a guilty plea, on behalf of respondent, to the no-seat belt summons, and a not guilty plea to the failure-to-stop summons.

By letter dated May 17, 1994, Meltzer advised Kindig that the court case had been rescheduled to June 28, 1994. The proceeding had, in fact, been adjourned to that date. Sometime between May 17, 1994 and June 24, 1994, Meltzer advised Kindig that he would be unable to appear in court because he had been involved in an accident, advising her to plead guilty. Respondent paid the fines for the two summonses on June 24, 1994 and pled guilty.

Beshada executed and forwarded to the Division a Driver Reexamination and/or Medical Evaluation Request pertaining to respondent. The content of this document is as stated on Exhibit P-2. Beshada stated on the form that he had reason to believe that respondent should submit to reexamination and/or medical evaluation. The stated reasons, which referenced the accident in question, were that: The driver is a 85 yoa female who is not required to wear corrective len(s)es, but, claims there was no stop sign at an intersection. The stop sign has been in place for years. (Exhibit P-2, p. 2.)

Beshada did not check on the form any of the reexamination regulations specified therein, although the form requested that the referring individual do so.

Kindig was under the care of Dr. Ronald K. Harris (Harris), a surgeon, for injuries suffered by her in the accident which occurred on March 8, 1994. Harris issued a report on or about October 5, 1995, stating that his most recent reexamination of respondent was on August 30, 1994, at which time he found that she had completely recovered from the injuries and discharged her from his care.

Dr. David M. Inkeles (Inkeles), an opthamologist, issued a report dated November 16, 1994, in which he referenced an examination of respondent on November 11, 1994. Inkeles found respondent's visual acuity, uncorrected, to be 20/70 in the right eye and 20/50 in the left eye and that, with glasses, she saw 20/25 in the right eye and 20/30 in the left eye. He concluded that there was no reason that respondent could not continue to drive but that “it would be preferable if you wore your glasses when you do drive.” (Exhibit R-2).

A third physician, Dr. Kathleen A. Saradarian (Saradarian), a family practice doctor, issued a report on December 19, 1995, referencing an examination of respondent on December 12, 1995 “for the sole purpose of determining fitness to drive.” (Exhibit R-1). Saradarian, noting that respondent had been a patient in the physician's office since 1988, stated that respondent had “... remarkably few health problems over these last years ... for a woman of her age.” ( Ibid.) Based on a “comprehensive physical and neurological examination,” Saradarian found that respondent was in good physical condition and had no health problems affecting her level of consciousness. Saradarian found no neurological deficits and reported a perfect score on a “mini-mental status exam,” eliminating any possibility of even a mild form of dementia. ( Ibid.) Saradarian concluded that respondent had no contraindications to driving, that she had no handicaps impairing her ability to handle a motorized vehicle, and that respondent was fit to drive a car.

Respondent has been a licensed driver for 60 years. Her driving record as of January 6, 1995 is as stated in Exhibit P-1. Respondent has committed no moving violations, and the only accident she has been involved in is the one which occurred on March 8, 1994.

DISCUSSION


The Division is authorized to suspend a motorist's driving privileges for a violation of any provision of the motor vehicle statutes or for any other reasonable grounds. N.J.S. 39:5-30 (Supp. 1995)

No person shall drive a motor vehicle unless licensed to do so in accordance with motor vehicle statutes. No individual under 17 years of age shall be licensed in New Jersey until he/she has passed a satisfactory examination regarding his/her ability as an operator. Id. at § 3-10. The holder of a driver's license who is involved, within any six-month period, in two or more motor vehicle accidents resulting in death or personal injury or property damage exceeding $500 and has been assessed motor vehicle points for such accidents shall be required to submit to a reexamination and successful passage of an examination of his/her ability as an operator in a test given by the Division or by any licensed optometrist or opthamologist. N.J.S. 39:3-10(e).

In addition, the Division shall require every licensed driver to take and successfully pass a screening of his/her vision at least once every ten years as a condition for the renewal of a driver's license. Such screening may be certified by the Division or by any licensed optometrist or opthamologist, licensed dispenser, or any person licensed to practice medicine and surgery. If the screening demonstrates a need for corrective eyeglasses or any other corrective action, renewal of the applicant's license shall be conditioned upon compliance with such need. The Division may require a road test of any applicant to determine the adequacy of the applicant's adaptation to the required corrective action. N.J.S. 39:3-10(c).

Regulations promulgated by the Division provide that the Division may require individuals who operate motor vehicles on State highways to be reexamined to determine their ability to operate motor vehicles safely. Reexamination may be required of persons in certain specified categories. These are individuals having mental or physical disorders affecting their ability to safely operate a motor vehicle, persons involved in a traffic accident resulting in a fatality where a violation of any of the provisions of N.J.S. 39:4-1 et seq. is demonstrated, persons who have accumulated 12 or more points, and persons convicted of violating any of the provisions of N.J.S. 39:4-1 et seq. where it appears that the offense was “... of such a careless, reckless or indifferent nature as to require reexamination.” N.J.A.C. 13:20-12.2. The pertinent regulations also provide that the Division may require a vision examination of individuals involved in one traffic accident who has not had a vision check by Division personnel within the ten-year period immediately preceding the date of the accident. Id. at § 12.3.

I am persuaded that the Division does not have authority to require respondent to submit to a reexamination. The Division has not demonstrated by a preponderance of the credible evidence that respondent suffers from a mental or physical disorder affecting her ability to safely operate a motor vehicle. The circumstances of the accident which occurred on March 8, 1994 do not demonstrate the existence of such a disorder. The stop sign in question was at least partially obstructed from visibility by a snow plow, a parked vehicle and mail boxes. In addition, I found respondent's testimony that she was aware of the stop sign and did stop to be extremely credible. Even if respondent informed the investigating officer that there was no stop sign, a fact not demonstrated by the Division, in my judgment, such would not be determinative. Respondent spoke with the officer soon after suffering injuries in an accident which resulted in her being thrown from the vehicle and soon after she had been unconscious for several minutes. Such a situation, in addition to her concerns regarding her daughter, may have contributed to misunderstandings in communications. However, the circumstances of the communications between respondent and the officer do not establish a mental or physical disorder affecting respondent's ability to drive. In addition, the medical reports introduced into evidence by respondent also support a conclusion that she does not suffer from a mental or physical disorder impacting on her ability to operate a motor vehicle.

Respondent has not been involved in a traffic accident resulting in a fatality or property damage exceeding $500, accumulated 12 or more points, or other situations in which a reexamination may be required. For the reasons discussed hereinabove, I am also persuaded that the Division has not demonstrated by a preponderance of the credible evidence that respondent committed a violation of motor vehicle statutes indicating a careless, reckless or indifferent nature. In addition, respondent has been a licensed driver of long standing and exhibits an extremely good driving record. The mere fact that she was involved in an accident, as well as her age, a factor alluded to in Beshada's request for reexamination, are not sufficient grounds to require a reexamination.

The Division has also not demonstrated that respondent has not been subject to a vision test within the ten-year period prior to the date of the accident in question. I am therefore persuaded that the Division does not have the authority to require respondent to submit to a vision examination. In any event, respondent was recently examined by an opthamalogist, who found no contraindications to her ability to drive.

CONCLUSION AND ORDERS


I CONCLUDE and ORDER that respondent should not be required to submit to a driver reexamination as proposed by the Division in its notice of July 14, 1994. It is hereby ORDERED that the Division's notice be 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. 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.

FN1. N.J.S. 39:3-76.2(f) provides, in pertinent part, that every driver of a passenger automobile operated on a street or highway of this State shall wear a properly adjusted and fastened safety seat belt system as defined in federal law. N.J.S. 39:3-76.2(f)(a). N.J.S. 39:4-144 prohibits a driver of a vehicle from entering upon or crossing an intersection street marked with a stop sign unless he/she at first brings the vehicle to a complete stop at a point within five feet of the nearest crosswalk or stop light marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right of way to all traffic on such street which is sufficiently close to constituting a median hazard.

FINAL AGENCY DECISION


The initial decision in MVH 372-95 was adopted as final pursuant to N.J.S. 52:14B-10(b), on June 11, 1996.

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