Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
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Monday, May 9, 2016

MVC Can Suspend If Fatal Accident; Burkhour

MVC can suspend if fatal accident BURKHOUR

MVC can suspend if fatal accident BURKHOUR
COMMISSION, Respondent,


DOCKET NO. A-2979-08T2


August 20, 2010

Submitted May 12, 2010 - Decided

Before Judges Payne and Fasciale.

On appeal from a Final Decision of the New
Jersey Motor Vehicle Commission.

Doris J. Newman, attorney for appellant
(Ms. Newman of counsel; Jeffrey Zajac,
on the brief).

Paula T. Dow, Attorney General, attorney
for respondent (Lewis A. Scheindlin,
Assistant Attorney General, of counsel;
Elaine C. Schwartz, Deputy Attorney General,
on the brief).


Defendant, Ekaterina Burkhour, appeals from a final decision of the Chief Administrator of the New Jersey Motor Vehicle Commission suspending her drivers license for 180 days, pursuant to N.J.S.A. 39:5-30, for committing moving violations consisting of careless driving, N.J.S.A. 39:4-97, and failing to maintain a lane, N.J.S.A. 39:4-88b, in connection with a fatal accident. On appeal, Burkhour makes the following arguments:


A. In Reviewing The Decision Below, the Appellate Division Is Required to Reverse Agency Findings When the Agency Did Not Follow The Law, the Decision Was Arbitrary, Capricious, Or Unreasonable, Or the Decision Was Not Supported By Substantial Evidence.

B. Because of the Absence of a Shoulder Lane and the Sheer Four to Seven Inch Drop-Off Immediately Adjacent to the Fog Line, the Section of Route 479 at the Location of the Accident Constituted A Hazardous and Dangerous Condition.

C. The Record Does Not Support a Finding Of Careless Driving Under N.J.S.A. 39:4-97.

D. The Record Does Not Support A Finding of A Failure To Maintain Lane under N.J.S.A. 39:4-88(b).

E. Since the Appellants Operation of Her Vehicle Did Not Constitute Careless Driving or a Violation of N.J.S.A. 39:4-88(b), the Suspension of Driving Privileges Issued Pursuant to N.J.S.A. 39:5-30 Should Be Vacated and Reversed.



We affirm.
The record discloses that during the morning of December 1, 2006, Burkhour was driving on Route 579 South with three companions to a business meeting in Pennsylvania when, on a curve, she drove in such a fashion that her right rear tire slid off the damp roadway at a point where there was a five- to six-inch drop-off between the paved and unpaved surfaces of the road. In trying to regain the roadway, Burkhour turned the vehicles wheels sharply to the left and lost control of the car, which collided on the opposite side of the road with an oncoming vehicle. Burkhour was seriously injured, and her front seat passenger was killed. Burkhour was issued tickets for failure to maintain lane, N.J.S.A. 39:4-88(b), and careless driving, N.J.S.A. 39:4-97.
Thereafter, the Motor Vehicle Commission issued a Notice of Scheduled Suspension to Burkhour and advised her that her driving privileges were scheduled to be suspended for a period of twenty-three months pursuant to N.J.S.A. 39:5-30. The notice advised Burkhour of her right to a hearing, which Burkhour requested.
The hearing took place in the Office of Administrative Law on April 16, 2008. At that time, testimony was given by Lynne Butkewicz, a witness to the accident; by Burkhour; by Louis Vastola, a police officer who responded to the scene and investigated the accident; and Dr. Wayne Nolte, a civil and mechanical engineer who was qualified as an expert in the field of accident reconstruction and testified on Burkhours behalf.
Butkewicz testified that she was driving one and one-half car lengths behind Burkhour, and that both drivers were obeying the posted speed limit of forty-five miles per hour. Butkewicz stated that she observed the right rear tire of Burkhours Honda Civic cross the white fog line, slip off of the edge of the road and into a "crevice" at the roads edge, and then regain the road. However, at that point the vehicle "began to spin counter-clockwise, so that it was sliding sideways across the roadway, while still traveling in a southbound direction, but facing east." Then, according to Butkewicz, the vehicle "cross[ed] into the northbound lane," where a northbound car collided with the passenger side of Burkhours vehicle.Butkewicz stated that she did not observe any speeding or swerving by Burkhour prior to the accident.
Burkhour testified at the hearing, but she had no recollection of the events that had taken place.However, it was established that she was not under the influence of drugs or alcohol at the time that the accident occurred.
Officer Vastola, who responded to the accident scene, confirmed that the accident had occurred on a curve in the roadway, the road was wet, and that particular section of the road was narrow. He also confirmed that the road lacked a paved shoulder and stated that there was, approximately, a five- to six-inch drop-off between the paved and unpaved surface that extended for one-hundred feet. The officer testified that the fog line was approximately three inches in width, and that the paved surface ended after a further two inches. He stated that there was sufficient room on the unpaved shoulder for a car to stop safely. The officer testified that his investigation had disclosed tire tracks of seventy-five feet in length in the gravel shoulder. He also testified that he had spoken to the two back-seat passengers in Burkhours vehicle, and neither remembered Burkhour being distracted by anything such as a cell phone, the cars climate controls or its radio at the time the accident occurred. He stated that he had cited Burkhour for careless driving because she had failed to maintain her vehicle in the roadway, and that he had cited her for failure to maintain her lane because of the fact that her car left the road and ultimately entered the northbound lane.
Dr. Nolte testified, at length, that he regarded the road to be in a dangerous condition as the result of the drop-off, its narrow configuration, and its lack of warning signs. However, he acknowledged that the road was sufficiently wide to accommodate Burkhours car. He stated that, when Burkhour attempted to return her car to the road at a speed of forty-five miles per hour, the tires acted as a pivot, causing her to proceed across the highway, rather than resuming her lane. However, he acknowledged that Burkhour would have been able to reenter the proper lane successfully if she had slowed her vehicle. He acknowledged alternatively, that she could have continued to drive partially in the unpaved shoulder.
At the conclusion of the hearing, the administrative law judge determined that the Motor Vehicle Commission had established that Burkhour had committed the offenses of careless driving and failure to maintain lane, and that her actions were the "sole" cause of the collision that resulted in the death of Burkhours front seat passenger. As a consequence, the judge found that suspension of Burkhours driving privilege was necessary. However, the judge found the proposed twenty-three month suspension was "unduly harsh under the circumstances as there was no alcohol or drugs nor purposeful conduct such as speeding or weaving that caused this accident." The judge concluded that "the rehabilitative purposes for license suspension would be realized by imposing the suspension of a period of 180 days (six months)."
Exceptions to the initial decision of the administrative law judge were filed by counsel on Burkhours behalf.Counsel objected to the conclusion that Burkhours "direct actions [were] the sole cause of the accident" noting that other witnesses testified to additional contributing factors including the damp road surface, the crumbled edge of the roadway, the lack of a shoulder, the five- to seven-inch drop off, and the lack of warning signs.
Objection was raised additionally to the determination that Burkhour was "inattentive" to the roadway.Counsel urged that evidence did not support that conclusion and, instead, indicated that "Burkhour was unfamiliar with the roadway and its unmarked dangerous conditions, not inattentive to it."
Further, counsel argued that Burkhour did not drive carelessly, "that is without due caution and circumspection, in a manner likely to endanger a person or property." Additionally, counsel argued that the evidence did not support a claim that Burkhour failed to keep right in violation of N.J.S.A. 39:4-82.However, a violation of that statute was not alleged.
As a final matter, counsel claimed that a six-month license suspension was unduly harsh and was unnecessary to fulfill the statutes goals. Counsel stressed in that context the severity of Burkhours own injuries, the length of the period of her recovery, and her treatment for post-traumatic stress disorder.Additionally, counsel noted that the proposed loss of license would result in the loss to Burkhours elderly parents of their sole means of transportation, as well as the loss to Burkhour of her job in sales and her sole means of support.
In a Supplemental Final Decision, the Chief Administrator of the Motor Vehicle Commission, Sharon Harrington, affirmed the recommendation of the administrative law judge, modifying only the judges conclusion that Burkhours actions were the "sole" cause of the accident. In that regard, Harrington determined that Burkhour "had at least some responsibility" in connection with her passengers death, and that was sufficient. She stated:"the pertinent facts lead to the inescapable conclusion that this accident could have been avoided had respondents vehicle not left the roadway." In this connection, Harrington noted that "Mr. Nolte conceded that the typical individual would realize that the vehicle had left the roadway and that this was an unsafe condition, and that the driver may need to slow down if attempting to re-enter the roadway, which is a choice respondent did not make."
Harrington rejected Burkhours position that the evidence failed to support the conclusion that she was "inattentive." In this regard, she noted that "the lane of travel was clearly marked; there was sufficient width to accommodate respondents vehicle; and that respondent overcorrected, thus causing her vehicle to travel into oncoming traffic." She likewise rejected the argument that the Commission had failed to prove that Burkhour had driven carelessly, noting that she could have avoided leaving the roadway but failed to do so and that she reentered the roadway in an unsafe fashion. Harrington observed: "The absence of testimony showing that respondent was distracted by obvious factors such as a cell phone or the radio does not necessarily result in the conclusion that respondent was not careless."
As a final matter, Harrington addressed the penalty.She stated:
The Legislature has vested the authority to impose a driver license sanction in a motor vehicle fatality case in the Commission. N.J.S.A. 39:5-30. The exercise of that authority rests in the sound discretion of the Chief Administrator. The purpose of a license suspension by the Motor Vehicle Commission is not to punish the offending operator but rather to reform and rehabilitate him and to protect the public by removing him from the public roadways until such rehabilitation has been achieved. Cresse v. Parsekian, 81 N.J. Super. 536, 548-549 (App. Div. 1963), affd, 43N.J. 326 (1964).

While I am sympathetic regarding the hardship that the respondent may suffer as a result of her New Jersey driving privilege being suspended, respondent must nevertheless appreciate the responsibility that she owes to the public under the motor vehicle laws.Motor vehicle license suspensions are primarily intended to protect the safety of the public by temporarily removing offenders from the highways of New Jersey. David v. Strelecki, 51 N.J. 563, 566[, cert. denied, 393 U.S. 933, 89 S. Ct. 291, 21 L. Ed. 2d 269 (1968)]; Cresse, supra, 43 N.J. at 328-29. Moreover, respondent is reminded that the operation of a motor vehicle on New Jersey roads is a privilege, not a right.State v. Nunez, 139 N.J. Super. 28, 30 (Law Div. 1976);State v. Kabayama, 94 N.J. Super. 78, 82-83 (Law Div.), affd, 98 N.J. Super. 85 (App. Div. 1967), affd, 52 N.J. 507 (1968).

Harrington then set forth the factors that we had found in Cresse to be relevant to the issues of whether a license suspension should be imposed and, if so, the length of that suspension. See Cresse, supra, 81 N.J. Super. at 549. Having considered Burkhours case in light of those factors, Harrington affirmed the 180-day suspension recommended by the administrative law judge. This appeal followed.
On appeal, Burkhour essentially has raised the same issues that were presented to the Motor Vehicle Commission in counsels exceptions to the decision of the administrative law judge. In viewing those arguments we are mindful of the fact that we have a very limited role in reviewing the decisions of an administrative agency and "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Matter of Musick, 143 N.J. 206, 216 (1996).
Although sometimes phrased in terms of a search for arbitrary or unreasonable action, the judicial role is generally restricted to three inquiries: (1) whether the agencys action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (citing Campbell v. Dept. of Civil Serv., 39 N.J.556, 562 (1963).]

Having carefully reviewed the record in this matter in light of the standard that we have set forth, we affirm substantially on the basis of the supplemental decision of Chief Administrator Harrington.
We add only that the conduct of Burkhour need not have been the sole cause of the accident that took place. That it was a contributing cause was sufficient.See Cresse, supra, 81 N.J. Super. at 544 (permitting, but not requiring, Cresses license to be suspended for failure to make observation as he crossed a road, despite the fact that the negligence of the oncoming driver was the chief cause of the accident).
We note Burkhours reliance on our decision in State v. Moran, 408 N.J. Super. 412, 433 (App. Div. 2009) in connection with her argument that the license suspension that was imposed was excessive. In Moran, we advised resort to the Cresse factors as well as the aggravating and mitigating factors of the Code of Criminal Justice, N.J.S.A. 2C:44-1a and b, when considering license suspensions for willful violations of the motor vehicle laws pursuant to N.J.S.A. 39:5-31.On appeal from our decision, the Supreme Court defined the meaning of a "willful violation" underN.J.S.A. 39:5-31 and set standards to guide the discretion of judges imposing license suspensions under that statute. State v. Moran, 2010 N.J. Lexis588, *24-25, *34-35 (2010). The Court reversed our decision insofar as it affirmed a forty-five day suspension imposed by the municipal judge and remanded the case for resentencing in light of the sentencing guidelines that the Court had set. Id. at *36. However, the Courts decision in Moran does not appear to have affected the applicability of Cresse to license suspensions pursuant to N.J.S.A. 39:5-30. *31-33. We thus do not see the need for a remand akin to that in Moran.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2 years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;

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