Drug and DWI Law NJ: Additional MVC suspension can be Ordered where dwi driver involved in fatal accident

STATE OF NEW JERSEY

MOTOR VEHICLE COMMISSION

CASE FILE NUMBER: DXXXXXXXXX04872

OAL DOCKET NUMBER: M.V.H. 06352-11

IN THE MATTER OF :

JOHN R. DINEEN : FINAL DECISION

The Motor Vehicle Commission (“Commission”) hereby determines the matter of
the proposed suspension of the New Jersey driving privilege of JOHN R. DINEEN,
respondent, for his involvement in a motor vehicle accident which resulted in the death
of a pedestrian, Germine G. Forrester. Pursuant to N.J.S.A. 39:5-30, the Commission
proposed a suspension of respondent‟s New Jersey driving privilege for a period of 87
months. Respondent has been administratively charged with the following violations

(based on police summonses): (1) N.J.S.A. 39:4-129 - Leaving the Scene of an

Accident; (2) N.J.S.A. 39:4-50 - Driving While Intoxicated; (3) N.J.S.A. 39:4-96 -

Reckless Driving; (4) N.J.S.A. 39:4-50.2 - Consent to Take Samples of Breath

(Refusal); (5) N.J.S.A. 39:4-98 - Speeding (Exceeding Limit by 10-14 m.p.h.); (6)

N.J.S.A. 39:3-66 - Maintenance of Lamps; and (7) N.J.S.A. 39:3-44 - Unsafe Vehicle.
Prior to this final agency determination, I have reviewed and considered the Initial Decision rendered by the Administrative Law Judge (“ALJ”), the letter of exceptions filed by counsel for respondent, and the reply to exceptions filed by Special Counsel. Based upon an independent de novo review of the entire record presented (including the transcripts of testimony provided¹ and the exhibits in evidence), I shall modify certain of

Copies of three transcripts were provided by respondent’s counsel for review in connection with his exceptions.

It is noted that these appear to be unofficial transcripts as they do not contain an oath of the transcriber/court
reporter. Since counsel for both parties have referred to these in making their arguments, they have been reviewed
for purposes of addressing the exceptions filed. They will be cited as 1T for the hearing date September 6, 2011; 2T

the ALJ‟s findings of fact and conclusions as specifically indicated below. To the extent that I have not specifically modified a finding or conclusion herein I have adopted those findings and conclusions of the ALJ and incorporate those by reference in this decision. Additionally, I shall modify the ALJ‟s recommended sanction to a thirty-nine (39) month suspension of respondent‟s driving privileges and explicitly confirm the statutory requirement that respondent successfully complete a driver re-examination as a condition of restoration as explained below.

This matter involves a “hit-and-run” motor vehicle accident, occurring in the early
morning hours of July 15, 2010, at approximately 12:44 a.m.², in the vicinity of the
intersection of Bevan Street and Route 139 in Jersey City, New Jersey, which resulted
in the death of a pedestrian. For purposes of this administrative record, it is
uncontroverted that the pedestrian, who was intoxicated based on the toxicology report
(Exhibit R-6), had been walking outside the crosswalk, in the roadway of Route 139,
and was walking against the traffic light (which was green for the vehicles traveling
westbound on Route 139), and thus is fairly characterized to have been improperly
crossing in violation of N.J.S.A. 39:4-32. The area in which the pedestrian was walking
was acknowledged to be dark and poorly lit. It also cannot be disputed on the record
developed for this administrative hearing that the black sport utility vehicle (SUV) which
fatally struck the pedestrian, did not remain at, nor return to the scene of the accident,

for October 17, 2011; and 3T for November 15, 2011. There was no transcript supplied for the January 6, 2012 hearing date.

There is indication in the documentary evidence, Exhibit P-2, the Jersey City Police Dept. Investigation Report,

prepared by Police Officer Luis R. Matias, that the time of the accident was “0037” (12:37 a.m.), but the initial New Jersey Police Crash Investigation Report, Exhibit P-1, also prepared by Officer Matias, indicates the time as “0044”, thus the 12:44 a.m. time is viewed as approximate.

and instead was seen leaving the scene continuing westbound on Route 139 and turning right northbound onto JFK Boulevard.

Respondent, John R. Dineen, was pulled over for a motor vehicle traffic stop in
River Vale Township at about 1:10 a.m. on July 15, 2010, subsequent to the Jersey City
fatal accident. The River Vale police officer, Sergeant Christopher Bulger, indicated that
he had stopped respondent for speeding and equipment violations (stating that he
observed respondent traveling over the speed limit at a high rate of speed toward him
on River Vale Road and also observed damage to the vehicle‟s front right side and a
headlight not operating). Respondent was driving a black Toyota Land Cruiser and
indicated in response to the officer‟s question about where he was coming from, after
first stating “I‟m actually coming from, uh, North Jersey”, that he was coming from
“Jersey City.” (Exhibit R-13). Based on officer observations and field testing (which
findings will be discussed below in connection with discussion of the particular motor
vehicle violations charged), respondent was ultimately placed under arrest for driving
while intoxicated and also issued traffic summonses by River Vale Township for
speeding (48 m.p.h. in a 35 m.p.h. zone), maintenance of lamps, unsafe vehicle, and
refusal to submit breath samples.

As part of this vehicle stop, because Sergeant Bulger had heard a police
transmission concerning a fatal hit and run accident that had recently occurred, with a
vehicle description of a possible black Land Cruiser or Toyota, contact was made with
the originating jurisdiction of that radio transmission--the Jersey City Police Department.
Considering that the vehicle description matched and that the officer observed heavy
“fresh” damage to the front passenger side and the headlight, including glass particles

from the light falling off the vehicle to the ground and extensive damage to the front right
side quarter panels which were pushed in, and that the driver reported that he was
coming from Jersey City, the vehicle was preserved and impounded as evidence for
purposes of investigation by the Jersey City Police Department. Jersey City sent
officers to the vehicle‟s location to document and collect evidence and ultimately issued
traffic summonses to respondent for leaving the scene of an accident and reckless
driving, and also filed criminal charges against respondent. Those criminal charges:
N.J.S.A. 2C:11-5 - Vehicular Homicide (Death by Auto); N.J.S.A. 2C:11-5.1 - Leaving
the Scene of an Accident Involving a Fatality Under Circumstances That Violate
N.J.S.A. 39:4-129; and N.J.S.A. 2C:12-1.2 - Endangering an Injured Victim, are still
pending in Hudson County Superior Court. All of the traffic summonses are also still
pending and have been consolidated for adjudication by the judge handling the criminal
proceedings.³ (Exhibit R-3).

I. Issue

In this administrative license suspension action initiated in accordance with
N.J.S.A. 39:5-30b(4), the issue is whether the Commission has met its burden to prove
that respondent has committed a violation of N.J.S.A. 39:4-129 (leaving the scene of an

³ These traffic tickets are required to be resolved in Superior Court by the judge at the same time as the death by auto charge and other related indictable offenses are resolved. See, State v. Dively, 92 N.J. 573 (1983). It is noted that the record that will be established in the criminal proceedings based on the evidence introduced by the prosecutor will necessarily be different than the administrative record created in this license suspension matter. In that consolidated Superior Court matter, the jury will determine if the criminal charges have been proven by the criminal standard of beyond a reasonable doubt. As to the traffic charges, which are quasi-criminal offenses, the judge will determine if those are proven beyond a reasonable doubt.

As for this administrative matter, pursuant to N.J.S.A. 39:5-30, “[a]ny determination resulting from any preliminary or plenary hearing held pursuant to subsection b., c., or e. of [N.J.S.A. 39:5-30] shall not be admissible at any criminal or quasi-criminal proceedings on the alleged violation or violations.” Thus, this provision indicates that the Legislature contemplates that an administrative license suspension action, such as this involving a fatal accident with charges of leaving the scene of an accident (subsection b(4)) or driving while intoxicated (subsection b(2)), may proceed before the criminal proceedings have been resolved.

accident), wherein the death of another has occurred. In this matter, it is also the case
that, alternatively, the Commission has charged that respondent committed the
violation, driving while intoxicated, N.J.S.A. 39:4-50, which falls under N.J.S.A. 39:5-
30b(2), as well as other Title 39 violations, which if proven and resulted in the death of
another, would provide additional grounds for proposed license suspension. It is not
necessary that there be more than one Title 39 violation proven to invoke the broad
authority conferred by N.J.S.A. 39:5-30 upon the Chief Administrator to suspend a
driver‟s New Jersey driving privileges. See Allen v. Strelecki, 50 N.J. 410 (1967) (noting
the Director‟s, now Chief Administrator‟s, “broad power” under this statute wherein the
license suspension was upheld in a fatal accident - leaving the scene case). Moreover,
the case law in the context of fatal accident license suspensions under N.J.S.A. 39:5-30
has held that the conduct of respondent need not have been the sole cause of the
accident that took place; that his actions were a contributing cause is sufficient. See

Cresse v. Parsekian, 81 N.J. Super. 536, 544 (App. Div. 1963), aff‟d, 43 N.J. 326 (1964)
(permitting, but not requiring, Cresse‟s 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).

As acknowledged by respondent‟s counsel in his submissions, the Commission
bears the burden of proving the charge by the less-exacting standard of a
preponderance of the competent and credible evidence. Atkinson v. Parsekian, 37 N.J.

143, 149 (1962). As far as my review of the ALJ‟s initial decision, it is “de novo . . .
based on the record” before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App.
Div. 1983). However, “[a]n agency head reviewing an ALJ‟s credibility findings relating

to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ‟s findings are arbitrary or not supported by the record.” S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ‟s credibility findings if he or she determines “from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.”)

Indeed, in matters concerning credibility, I am required to give due regard to the
person who had an opportunity to judge the credibility of the witnesses. Close v.

Kordulak Bros., 44 N.J. 589 (1965). “[T]rial courts' credibility findings . . . are often

influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." In re Taylor, 158 N.J. 644, 660 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999), in the context of an administrative hearing). Moreover, as explained in Locurto, supra, 157 N.J. at 473-474, credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear.

Although the ALJ did not explicitly state his credibility findings as to each of the
witness‟s testimony, it is clear from the record as a whole and his Initial Decision that
the ALJ found each of the four police officers who testified (the three Jersey City officers
and the one River Vale Township officer) to have credibly testified as to the accounts of
their respective actions and observations that made up the investigation and arrest
connected with this fatal accident. At the outset of his analysis, the ALJ explicitly stated
the criteria guiding his role as fact-finder in making credibility determinations, noting that

he was making a determination which required “an overall assessment of the witness‟s
story in light of its rationality, internal consistency and the manner in which it „hangs
together‟ with the other evidence.” Initial Decision at 8 (quoting Carbro v. United States,
314 F.2d 718, 749 (9^th3 Cir. 1963)). He furthermore acknowledged his ability to “reject

the testimony of a witness even though not contradicted when it is contrary to
circumstances given in evidence or contains inherent improbabilities or contradictions
which alone or in connection with other circumstances in evidence excite suspicion as
to its truth.” Initial Decision at 8-9 (quoting In re Perrone, 5 N.J. 514, 521-22 (1950)).
With this backdrop guiding him, the ALJ set out specific findings of fact which credit the
testimony of the officers Matias, Bulger, Valente and Broderick. Thus, in the absence of
evidence in the record as a whole which demonstrates that these credibility
determinations are unreasonable, arbitrary or capricious or are unsupported by
sufficient competent and credible evidence, I shall not disturb the findings of the ALJ
based on these credibility determinations.

I shall address the evidence in the record supporting the ALJ‟s findings as these relate to each of the particular administrative charges. As noted in the discussion above, since it is only necessary that the leaving the scene of an accident charge be proven and there have been a resultant death (which death in this case is not disputed) for the authority to suspend under N.J.S.A.39:5-30 to be properly invoked, I shall begin by examining that administrative charge.

II. Administrative Charges- Evidence Supporting Findings

a. Leaving the Scene of an Accident - N.J.S.A. 39:4-129

The motor vehicle statute, N.J.S.A. 39:4-129, in subsection II.(a), requires the
driver of any vehicle who is knowingly involved in an accident resulting in injury or death
to any person to immediately stop the vehicle at the scene of the accident (or as close
thereto as possible but shall then forthwith return) and in every event shall remain at the
scene until he has fulfilled the requirements of subsection (c). Subsection (c), in turn,
requires the driver to give his name and address and exhibit his driver‟s license and
registration certificate and to render any injured person reasonable assistance, including
the carrying of that person to a hospital or a physician for medical or surgical treatment,
if it is apparent that the treatment is necessary or is requested by the injured person.

New Jersey courts have been frequently required to interpret N.J.S.A. 39:4-129 in order to determine whether a particular defendant has complied with its requirements. The courts have consistently explained that “[t]he purpose of the hit-and-run statute is to prohibit an automobile driver involved in an accident from evading his responsibilities by escaping or departing before his identity is made known.” State v. Valeriani, 101 N.J. Super. 396, 399 (App. Div. 1968) (citing State v. Gill, 47 N.J. 441, 443 (1966); see also State v. Saulina, 177 N.J. Super. 264, 267 (App. Div. 1980). The provisions of the statute should be construed to “fairly permit the statutory objective . . . to be fulfilled.” State v. Gill, supra, 47 N.J. at 444.

Both the New Jersey Supreme Court and the Appellate Division have
“emphasized not only the obligation of the driver to remain at the scene, but also the
affirmative requirement of prompt self-identification.” State v. Fisher, 395 N.J. Super.

533, 542 (App. Div. 2007), certif. denied, 192 N.J. 593. This duty of prompt self-
identification assuredly applies “with equal or greater force to accidents involving injury

or death” (noting that the Gill, supra, case involved only property damage to an

unattended parked vehicle). Ibid.

If the accident resulted in injury or death to any person or property damage in the
amount of $250 or more, judges are permitted to draw a permissive inference, based on
the totality of the circumstances and their credibility determinations, to conclude that the
driver had knowledge that he was involved in an accident. N.J.S.A. 39:4-129(e); State

v. Walten, 241 N.J. Super. 529, 534-35 (App. Div. 1990) (“The conclusion that

„knowledge‟ exists is not mandated by proof of the underlying fact of injury [or death]. The trier of fact must be free to accept or reject the inference based upon the totality of the evidence, mindful always that the burden of proof never shifts from the State [here, the Commission]).”

Once a driver has knowledge, actual or presumed, that he or she has been
involved in an accident, it is incumbent on the driver to stop and make an investigation
to determine whether, in fact, there was damage or injury. Valeriani, supra. For
example, a motorist who feels a bump under the wheels and realizes that something
has been run over has the duty to stop immediately, regardless of whether the motorist
knew what was struck or the consequences. LoBiondi v. Allen, 132 N.J.L. 437 (Sup. Ct.
1945).

In this administrative case, the elements that the Commission was required to
prove, by a preponderance of the evidence, are: (1) respondent was operating a motor
vehicle; (2) respondent knowingly struck the pedestrian, resulting in the injury or death
of that person; and (3) respondent left the scene of the accident, or failed to provide his
license and vehicle registration to a police officer or witness. See N.J.S.A. 39:4-129(a),

(c). Based on a review of the record, I find, as did the ALJ, that the evidence clearly supports that the Commission met its burden of proof on these elements and that respondent violated the “hit and run” statute.

Here, any question about the third element identified above is easily resolved.
That the driver of the black SUV which fatally struck the pedestrian in this case left the
scene of the accident or failed to promptly identify himself to a witness or the police is
firmly established on this record by the testimony and statements of the eyewitnesses to
the accident and its immediate aftermath. All the witnesses at the scene of the accident
(Youssef Jaafar, Kenyon O‟Brien, and Angel Vargas), despite a minor discrepancy as to
whether the SUV driver had briefly stopped farther down the road, confirm that the
driver of the vehicle which struck the pedestrian did not remain at the scene and that the
driver did not return to the scene to provide the required assistance nor to present any
identification. While the witness, Jaafar, who was traveling in the lane behind the black
SUV that hit the pedestrian, testified that after the SUV hit the pedestrian he saw that
SUV pull over briefly down the road, his testimony also conclusively establishes that the
driver of that SUV did not remain at the scene, nor did he return at any time to provide
any assistance, nor to identify himself. See 3T, p. 8-9, 10-12, 23-25, 27, 29, 31-32.
O‟Brien‟s testimony that the vehicle left the scene supports the finding that the driver of
the SUV that struck the pedestrian did not remain at or return to the scene, as required.
See 1T, p. 18, 34.

Additionally, the statements of Angel Vargas, as an eyewitness to the accident
who was driving in the adjacent lane behind the black SUV, also reinforce that the driver
of the black SUV that struck the pedestrian continued on westbound Route 139 without

returning to render assistance or identify himself at the scene. (See Exhibit P-1, the

statement Vargas provided to Police Officer Matias the day of the accident after
returning to the scene; Exhibit P-16, the statement provided by Vargas in the hours
immediately following the accident to Police Officer John Curtis, witnessed by Police
Officer Joseph King; as well as Exhibit R-7, the interview statements provided by
Vargas to respondent‟s investigator a few months after the accident). Vargas pointedly
explained in his statements that he, at first, had even attempted to chase the black SUV
that hit the pedestrian, but that the SUV proceeded on Route 139 and then turned right
on Kennedy Boulevard where he then determined he would not be able to catch up to it,
and then returned to the scene to help the victim. Indeed, Vargas‟s statements, which
are admissible in this administrative record under the “residuum rule”, N.J.A.C. 1:1-15.5,
serve as corroboration of the legally competent testimony of Jaafar, in that both
witnesses confirm that the driver involved in the accident did not remain at the scene to
provide aid or identification nor did the driver return to the scene. Officer Matias‟s
testimony and report reflecting his recording of the three witnesses‟ statements that
same day, just following the accident, also provide confirmation that no witness saw the
driver of the SUV stay at the scene and meet the obligations required under the “hit and
run” statute. See Exhibit P-1; 1T, p. 42-45; 3T, p. 39-44, 50-54. Unquestionably, the
third element for the leaving-the-scene charge is established.

Respondent‟s contentions in defending against the leaving-the-scene charge are
aimed primarily at the first two elements identified above: respondent contends that it is
not proven that his vehicle is the one that struck the pedestrian in this fatal accident and
that even if it was the vehicle he was operating when stopped by the River Vale police,

then it is not proven that he was the driver, and finally, he contends that it is not shown
on this record that he was knowingly involved in that accident. In issuing his findings of
fact and conclusions as to the leaving-the-scene charge, the ALJ assessed the merits of
these contentions and rejected them based on the totality of the evidence presented.
Most specifically, the ALJ‟s findings as to this charge are based on the testimony of the
four police officers who testified as to the physical evidence and most crucially to the
voluntary statements made by respondent himself while in custody and being
transported back to Jersey City to be further processed. As noted above, the ALJ found
each of these officers‟ testimony credible. Based on a careful review of the evidence in
this record, I do not find that these credibility determinations are unreasonable or
unsupported, and thus I will not disturb the ALJ‟s findings (based on these credibility
determinations) that respondent Dineen was the driver of the black SUV which fatally
struck the pedestrian, Forrester, in Jersey City and fled the scene of the accident in
violation of N.J.S.A. 39:4-129.

First, there is ample competent and credible evidence to support that the black Toyota Land Cruiser SUV that respondent was driving when stopped by Sergeant Bulger in River Vale Township was the vehicle that fatally struck the pedestrian, Forrester. Likewise, there is also ample competent and credible evidence to support that respondent, Dineen, was the driver of that vehicle during that fatal accident. The primary evidence establishing both the identity of the vehicle and the identity of the driver who struck Forrester are respondent‟s own statements made in the presence of the police officers involved in the investigation and arrest process.

Initially, there is respondent‟s statement made while at Hackensack Medical
Center, after being read his Miranda rights, and then being advised by Officer Broderick
as to the charges that were being lodged against him, to which Dineen remarked,
“Holey shit I killed that guy???” [sic] This is directly quoted as such in Officer

Broderick‟s report, prepared that same day, (Exhibit P-10) and Officer Broderick testified
to specifically hearing respondent make this very statement. See 3T, p. 106-108, 130-
133. Next is the statement respondent made while being transported from the hospital
to the Jersey City Police Department, while in the police car with officers Valente and
Broderick, who both heard respondent state “I can‟t believe that I killed that guy, I can‟t
believe I hit him.” See, 3T, p. 82, 110, 127-128. Officer Broderick testified that he put
into his report the exact statement that respondent made while in the car. See 3T,
p.110. Officer Broderick also testified that he had read respondent his rights again and
advised respondent to remain silent and that he would have to put any statements in his
report; Officer Valente also confirmed this. See, 3T, p. 82, 89-90, 110.

Additionally, Officer Matias recounted in his testimony that respondent made yet
another voluntary statement while back at the North District Precinct in Jersey City,
stating “Officer, please get me something to throw up in, I‟m going to be sick about the
guy I just hit.” See 3T, p. 45, 67; Exhibit P-2. After refreshing their recollections by
reviewing the Supplementary Investigation report, Exhibit P-2, completed by Officer
Matias, Officers Valente and Broderick, who were in the room or doorway adjacent to
the holding cell that respondent was in when he uttered that statement, both testified to
having heard the statement concerning respondent‟s feeling he was going to throw up
because he was sick about the guy he hit. See 3T, p. 100, 111. Taken in total, there is

no escaping the reasonable inference that respondent acknowledged that he was driving the vehicle in Jersey City that hit and killed the pedestrian, Forrester. It is noted that respondent did not testify and presented no witnesses to attempt to establish that he had not been driving the vehicle in Jersey City prior to being stopped in River Vale; indeed, his statements in River Vale indicate otherwise.

This primary evidence coming from respondent‟s own statements is also
bolstered by substantial supporting evidence in the record. Much of this comes in the
form of the officers‟ credible testimony concerning their observations of the physical
evidence. Sergeant Bulger testified to specific damage to the front right side of the
black Toyota Land Cruiser that he observed respondent driving just prior to pulling
respondent over. Sergeant Bulger testified that after stopping respondent for speeding
and an inoperable headlight, he inspected the vehicle and saw “fresh” damage to the
front passenger side as if it had been involved in a motor vehicle crash and observed
glass fall off the vehicle. See 2T, p. 5; Exhibit P-4. He described the damage as
“heavy”, “severe”, “extensive” to the front right side, which included the quarter panels
being pushed in and lights hanging off. He explained that he characterized it as “fresh”
damage based on his training and experience because “most vehicles with that type of
damage wouldn‟t really be operated, they‟d be fixed . . . the vehicle would be unsafe to
drive at that point . . . there were particles that were falling off onto, at the scene, would
be consistent with something that may have just occurred.” See 2T, p. 8. The other
officers confirmed seeing the damage on respondent‟s vehicle as well. See Exhibit P-9
(“heavy damage to right front headlight assembly including broken and missing glass,
right front fender and damage and a deep depression in the right side of hood . . . right

front parking light had pushed through the right front wheel well and right front fender”); Exhibit P-12; and 3T, p. 104.

Officer Matias also testified to observing glass at the Jersey City fatal accident
scene. See 3T, p. 57-58; Exhibit P-2. The eyewitnesses‟ Jaafar and Vargas confirmed
that glass had “shattered” and had been “flying everywhere” in the air upon the impact
of the black SUV and the pedestrian. See Exhibit P-16; Exhibit R-7, p. 4, 8; Exhibit R-
9, p. 10. The police investigative reports concerning the collection of evidence, which
reports were accepted into the record, also corroborate that the investigating officers
“recovered several pieces of glass and parts of front end lights from [the] suspect
vehicle involved in vehicular homicide within 5 to 10 feet from the victim” at the Route
139 and Bevan Street fatal accident scene. Exhibit P-14. The specific markings on
these evidential items are noted in the report, including a piece that had “TOYOTA
3 KOILO 60-64 JAPAN” on it. Ibid. The investigative reports also confirm that
eyewitness, Vargas, was shown the vehicle that respondent Dineen had been driving
after it had been transported by the police from River Vale to Jersey City the day of the
accident, and that Vargas identified it as the vehicle he had seen strike the pedestrian
and which he then had attempted to pursue. See Exhibits P-8 and P-11. All of this
testimony and the reports that were admitted into the record pursuant to the “residuum
rule”, N.J.A.C. 1:1-15.5, concerning the physical damage to the Dineen vehicle as well
as its correlation to the accounts from the fatal accident scene, cumulatively corroborate
the ultimate finding of fact that John Dineen was the driver of the black Toyota SUV
which fatally struck the pedestrian in Jersey City. The respondent‟s own statements
noted above are the legally competent evidence that is supported by this corroborative

evidence. The Commission has satisfied its burden in proving by a preponderance of
the evidence that respondent operated the vehicle that struck and killed the pedestrian,
Forrester, and that respondent did not return to or render assistance at the scene.

Respondent‟s contention that he was not “knowingly” involved in an accident is
also refuted by substantial competent and credible evidence in the record. As a starting
point, the statute, N.J.S.A. 39:4-129(e), instructs that a permissive inference arises that
a driver involved in an accident resulting in injury or death to another person (here, it is
undisputed that there was a resultant death) “has knowledge that he was involved in
such accident.” It is, however, recognized that a finding of knowledge is not mandated
in such cases, but that the totality of the evidence must be examined to determine if the
Commission has met its burden of proof on this issue. See State v. Walten, 241 N.J.

Super. 529, 534-35 (App. Div. 1990). Again, the most telling of this evidence is
respondent‟s own statements. Respondent having stated “holy shit I can‟t believe I
killed that guy?” leads to the strong and reasonable inference that he was aware that he
had hit something with his vehicle and that what he hit was a person - “that guy”. His
further statements that “I can‟t believe that I killed that guy, I can‟t believe I hit him” and
“Officer, please get me something to throw up in, I‟m going to be sick about the guy I
just hit” certainly do not lessen the strength of this inference. I find that it is the more
reasonable and logical inference from these statements that respondent was
acknowledging having been in an accident in which he just did not know the severity of
the outcome. While respondent‟s counsel attempts to argue that these statements are
more reflective of only shock and surprise at hearing the death by auto charges, I find
that the more persuasive inference is that respondent was aware that his vehicle had

made significant impact with something, which, at the very least, he thought may very well have been a person. He did not stay at or return to the scene, so he did not know for sure the extent of the accident.

The totality of the evidence in the record bears out this finding. There can be no
mistake on this record that the impact with the pedestrian was noteworthy and
noticeable. Eyewitness Jaafar testified that he heard the sound of the impact when
traveling behind the black SUV, describing it as “like a loud . . . like he hit a wall . . . like
the car hit a wall or hit a tree or something . . . it was a loud sound.” 3T, p. 6. In his

testimony, Jaafar described further that he realized there had been a “human being”
that had been “flung” such that he “actually thought that there was a limb falling out of a
tree”, which gives some indication the height to which the person had been “flung” by
the force of the impact. 3T, p. 7. Jaafar testified that the human being was about to fall
down on the top of his car hood, before he stopped. Ibid. This is confirmed in Jaafar‟s
statement to respondent‟s investigator, when he stated that he “realized that the truck
had hit the person and the person was falling down, because the guy flew pretty high in
the air” and indicated that the person had flown “higher than the truck.” Exhibit R-9, p.

3. Similarly, eyewitness Vargas, described in his statement to the police that “the SUV
just hit him and sent him flying and glass from the SUV was flying all over.” Exhibit P-
16, p.2. Vargas again confirmed the nature of the impact in his statement to
respondent‟s investigator, stating, “I saw the guy [pedestrian] somehow flip outside the
vehicle and started flying right next to the vehicle . . . like three feet in the air” and later
describing that the pedestrian had flown “more than 10 about 25 feet” away from where
the impact had occurred and that he saw “glass flying everywhere” from the passenger

side headlight and saw “the debris from the vehicle going in the air and the guy flying . .
. because everything was in front of me.” Exhibit R-7, p. 3-4, 6, 8. In light of the
forcefulness that must have attended such a collision, I am persuaded that the driver
must be found to have been aware that he was in an accident, which required that he
stop and determine what he hit, even if he could claim to have not seen the pedestrian
prior to impact. Based on these consistent descriptions of the nature of the impact of
the vehicle with the pedestrian in conjunction with the statements made by respondent
as noted above, I find that the Commission has met its burden to establish by a
preponderance of the evidence that respondent knowingly was involved in an accident
resulting in the death of the pedestrian, Forrester, and thus was required to fulfill the
obligations indicated in N.J.S.A. 39:4-129(c). Additionally, I find that respondent‟s

statement to Sergeant Bulger when pulled over in River Vale, as captured on the police car camera‟s video recording (Exhibit R-13), in response to the officer‟s question as to whether he was in an accident tonight, that “No, uh uh no, no accident”, is a self-serving statement that does not hold up under scrutiny as a credible reflection of respondent‟s “knowledge” of the accident. This is especially so in light of the overwhelming evidence described above as to the nature of the impact and, most significantly, is belied by the voluntary statements he later made in the presence of the officers which indicate that he was aware that he was in an accident.

In sum, I agree with the ALJ‟s findings and conclusions on the leaving-the-scene
charge, and also independently determine based on the evidence in this administrative
record, that the Commission has met its burden to show that respondent committed a
violation of N.J.S.A. 39:4-129 which resulted in the death of another. Having found this,

respondent‟s New Jersey driving privileges are consequently subject to suspension under N.J.S.A.39:5-30.

b. Driving While Intoxicated -- N.J.S.A. 39:4-50

I turn next to the “alternative” charge under N.J.S.A. 39:4-50 which is implicated
in this administrative matter, which if found in the context of a fatal accident also
subjects the driver to suspension under N.J.S.A. 39:5-30b(2). As noted in section I.
above, however, an administrative finding of a violation of N.J.S.A. 39:4-50 is not
necessary for a suspension to be authorized in this matter since there is already
established the finding pursuant to N.J.S.A. 39:5-30b(4), leaving the scene of an

accident wherein the death of another has occurred. Thus, the evidence supporting this administrative charge will be analyzed under the preponderance of the evidence standard with the primary objective being to discern whether the alcohol involvement provides reason to consider it an aggravating factor for purposes of assessing the appropriate remedial suspension period to be imposed.

N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle under the influence
of intoxicating liquor. “The language „under the influence‟ . . . means a substantial

deterioration or diminution of the mental faculties or physical capabilities of a person .” State v. Tamburro, 68 N.J. 414, 420-21 (1975). With regards to alcohol, it means “[the] motor vehicle operator [is] . . . so affected in judgment or control as to make it improper for him to drive on the highways.” Johnson, supra, 42 N.J. at 165. It does not mean that the State must demonstrate that defendant was “‟drunk‟ in the sense of being sodden with alcohol.” State v. Nemish, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989).

To prove a defendant‟s intoxication, it has been held that the State [here, the
Commission] is entitled to rely on observational evidence such as a defendant‟s driving,
“demeanor and physical evidence,” as well as “proofs as to the cause of intoxication -
i.e., the smell of alcohol, an admission of the consumption of alcohol, or a lay opinion of

alcohol intoxication.” State v. Bealor, 187 N.J. 574, 588-89 (2006). Physical

manifestations of intoxication have been held to include slurred speech, smell of alcohol
on defendant‟s breath, fumbling for credentials, staggering or swaying when standing or
walking, and belligerent behavior. See State v. Ravotto, 169 N.J. 227, 242 (noting that
proof of blood alcohol levels are not required to convict drunk drivers); State v.

Hammond, 118 N.J. 306, 308 (1990). Even without field sobriety tests or breathalyzer
tests, “observational evidence” can be sufficient to prove “a defendant guilty beyond a
reasonable doubt of DWI.” State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.
1995), aff‟d, 293 N.J. Super. 535 (App. Div. 1996); see also State v. Nemesh, 228 N.J.

Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). An arresting
officer‟s field observations of a defendant‟s appearance, behavior, breath and speech
may sustain a defendant‟s DWI conviction. See State v. Kent, 391 N.J. Super. 352,
383-84 (App. Div. 2007).

In his Initial Decision, the ALJ found that respondent had committed a violation of
N.J.S.A. 39:4-50, by having driven a vehicle while intoxicated. Initial Decision at 6, 9.
The ALJ based his findings and conclusion on the testimony of the arresting officer,
Sergeant Bulger, which testimony, based on a review of the ALJ‟s findings describing
the officer‟s observations and field sobriety testing of respondent, the ALJ found entirely
credible. Initial Decision at 6-8. After an independent review of all the evidence in the

record on this violation, I also find that the observations of respondent‟s physical condition and his performance on the field sobriety tests amply provide the grounds for a DWI finding in this administrative matter.

The facts that I find, as are relevant to this administrative charge, based on the
credible testimony of Sergeant Bulger, and review of the dashboard camera‟s audio and
video recording (provided as a DVD copy and marked as Exhibit R-13) are as follows.
3 On July 15, 2010, Sergeant Bulger stopped respondent, who was driving a black Toyota

Land Cruiser SUV, after having observed respondent traveling at a high rate of speed
(48 m.p.h. in a 35 m.p.h., according to radar reading) and with a non-functioning
headlight and other damage to the front of the SUV. During this traffic stop, Sergeant
Bulger inspected the exterior of respondent‟s vehicle and noted extensive “fresh”

damage to the front passenger side, including glass particles that fell off to the ground and a pushed in front quarter panel. Sergeant Bulger had heard in a police transmission just prior to this traffic stop that a fatal “hit and run” had occurred in the area of Route 1 & 9 involving a black SUV possible Land Cruiser or Toyota and suspected, because of the nature of the damage he observed and the matching description of the vehicle, as well as the respondent‟s admission that he was coming from Jersey City, that this was the vehicle involved in the fatal accident.

Sergeant Bulger testified that during the stop he had immediately detected the
odor of alcohol which was emanating from the vehicle. 2T, p. 5-6, 45; Exhibit P-4. He

noted that respondent was “cooperating” with the officer‟s request to exhibit the motor
vehicle paperwork and was generally “cooperative”. 2T, p. 7, 13, 45. He reported that

he had observed “slurring” of respondent‟s speech, that he smelled alcohol from

respondent‟s breath upon respondent‟s speaking, and that respondent‟s eyes were
“bloodshot”. 2T, p. 13, 46, 49, 83. He also noted that there was a passenger in the
front seat, who he indicated had been drinking as well. He testified that he had advised
them of their Miranda warnings. 2T, p. 7, 50-51. Based on Sergeant Bulger‟s

suspicions of respondent‟s having driven while intoxicated, respondent was removed
from the vehicle to perform field sobriety tests. 2T, p. 9. He noted that respondent did

not have problems exiting his vehicle. 2T, p. 49.

Sergeant Bulger testified that he administered the field sobriety tests: the “walk-
and-turn” (or “heel-toe” test), the “one-legged-stand” test, the “Romberg balance” test
(or tilt-head-back test), and the Horizontal Gaze Nystagmus test (HGN) (or eye-follow
test).⁴ He gave specific instructions to respondent on the tests‟ requirements and
demonstrated to respondent proper performance of each of the tests. 2T, p. 9-14;

Exhibit P-4; Exhibit R-13. When asked, respondent stated he did not suffer from any injuries impeding his performance. Exhibit R-13. Sergeant Bulger testified that respondent failed each of the tests. 2T, p. 10-12.

As to the “walk and turn” test, Sergeant Bulger testified that respondent started
the test before being instructed to begin (after having been told “don‟t do anything else
until I tell you to”) and had to be put back into the starting position. 2T, p. 10; Exhibit P-

4; Exhibit R-13. Sergeant Bulger testified that respondent missed touching his heel to
toe three times, on steps one and three on the way out, and on step 2 on the return
portion. 2T, p. 11, 58. Sergeant Bulger additionally noted on this test that respondent

⁴ Sergeant Bulger described respondent’s performance on the HGN test, but this will not be relied upon to make a determination on this administrative charge. Furthermore, it is specifically noted that the reliability of the HGN test is in doubt. See State v. Doriguzzi, 334 N.J. Super. 530, 536-38 (App. Div. 2000) (explaining the HGN test is not generally accepted by the scientific community).

had difficulty and improperly performed the turn as instructed (and as had been visually
demonstrated to him, with “short, choppy steps”); respondent lost balance while

incorrectly performing the turn. 2T, p. 11, 56-59; Exhibit P-4; Exhibit R-13. Sergeant

Bulger testified that, based on these observations during the test, these clues indicated
that respondent had failed this test. 2T, p. 11. Sergeant Bulger noted that he put his

observations into the “Drinking and Driving Report” that he had completed that day. 2T,

p. 9; Exhibit P-4. A review of the dashboard camera‟s recording, Exhibit R-13,
sufficiently supports and confirms the officer‟s observations, except to the extent that it
cannot be discerned due to the limitations of the view and quality of the recording
whether the heel and toe are separated as he takes steps. It is noted that the recording
clearly shows that respondent started the test too soon and then had to be repositioned
to begin again, he also falls off balance with his left arm coming up from his side
significantly to regain balance on his first step, he does not perform the turn correctly
according to the instructions and there is a loss of balance while making the turn.

As to the “one-legged-stand” test, Sergeant Bulger‟s observations were that respondent leaned and used his arms to assist in keeping his balance and also had to be instructed to raise his foot to the proper height, again not following instructions properly. 2T, p. 11, 60; Exhibit P-4. Sergeant Bulger testified that respondent was considered to have failed this test as well, based on these observations noted in his report. Ibid. Review of the camera recording confirms that respondent had to be instructed to raise his foot to the proper height and also confirms that respondent was leaning left while his right arm raised from his side significantly to help with balance at an early point in the test. Exhibit R-13.

As to the Romberg balance test, Sergeant Bulger testified that respondent also
failed this test based on performance. 2T, p. 11-12, 61-62; Exhibit P-4. According to

Sergeant Bulger‟s testimony, respondent again failed to follow directions and say the word “stop” as respondent had been specifically instructed to do when he finished the test. Sergeant Bulger also explained that respondent had incorrectly estimated what was actually a period of forty-one seconds to be the thirty seconds that he was instructed to estimate, noting that this indicates impairment of his “internal clock”. Ibid. Review of the camera recording confirms both of these observations by Sergeant Bulger. Exhibit R-13. Review of the camera recording also confirms that, upon questioning by Sergeant Bulger, respondent admitted having “about three glasses of wine.” Ibid. Based on the totality of the circumstances and respondent‟s performance on the field sobriety tests, Sergeant Bulger made the determination to place respondent under arrest for DWI. 2T, p. 14; Exhibit P-4.

Sergeant Bulger further testified that throughout the testing there was an odor of
alcohol coming from respondent‟s breath, that respondent swayed while walking and
while standing in place. 2T, p. 13. Also the Jersey City officers, Valente and Broderick,
who later encountered respondent, after he had been arrested for DWI, during transport
in the police car back to Jersey City and while at the hospital confirmed that they also
detected alcohol emanating from respondent. 3T, p. 79, 108. The administrative record
in this matter also provides corroborating information concerning respondent‟s alcohol
consumption. A sworn statement (transcript of audio recording) by Stephanie M.
Curran, provided to the Hudson County Prosecutor‟s office in connection with the
related criminal matter, was admitted in the record as Exhibit P-20. Curran was a

server who had worked a private party (wine and food presentation for clients) at
Michael Anthony‟s restaurant in Jersey City which had been arranged by respondent⁵

and took place the evening (July 14, 2010) leading into the day of the fatal accident.
Her sworn statement indicates that she observed during that evening that respondent
had four two-ounce servings of wine which were brought out in courses and paired with
a small amount of food as well as a full glass of red wine; she also observed him order
one round of drinks for his group of four individuals at the bar section of the restaurant
at the end of the evening, but did not know if anyone had bought him a round of drinks,
since after she finished working she did not pay attention to him. She also indicated
that in talking to him at the end of the evening he “seemed like someone who had a few
drinks but he wasn‟t intoxicated” in her opinion. Exhibit P-19, p. 13.

Based on the totality of the evidence, including the police officers‟ observations of respondent‟s physical condition, the field sobriety tests, along with respondent‟s admission that he had been drinking, I find that the burden of proof has been met to establish by a preponderance of the evidence that respondent was in violation of N.J.S.A. 39:4-50. There is sufficient credible evidence to establish that respondent was driving while intoxicated.

In my judgment, this is not negated, nor is the arresting officer‟s credibility
impugned, by pointing to the references on the camera recording where that officer
made some references to the respondent being intoxicated/hammered and to “lock[ing]
him up” prior to the field sobriety tests having been performed. Sergeant Bulger‟s
answers in his testimony that indicate he had not ultimately determined to arrest

⁵ Respondent had also been a co-worker of Curran’s at Michael Anthony’s restaurant at that time, but was not working for the restaurant that night.

respondent until the field tests were performed and there were sufficient observations to indicate respondent‟s failure of those tests are a reasonable explanation of his actions during that traffic stop. As Sergeant Bulger credibly testified, “based on the totality of the circumstances, the operation of the vehicle, the field uh sobriety testing, um the potential that the vehicle had been involved in an accident, the totality of the circumstances, the subject was placed under arrest for DWI.” 2T, p. 15.

I find unpersuasive respondent‟s contentions that Sergeant Bulger must have
formed an unchangeable determination to arrest respondent for DWI prior to the field
tests. Respondent‟s arguments also fail to show that the ALJ‟s credibility determination
concerning Sergeant Bulger‟s testimony was fundamentally flawed. Respondent‟s
inadequate performance of each of the field tests is sufficiently depicted on the camera
recording and does not support respondent‟s hypothesis that Sergeant Bulger
improperly made up an after-the-fact justification as to why respondent had failed these
tests. To put it simply, while the evidence cannot be stated to be overwhelming, taken
cumulatively, it is more than sufficient to support the finding of a DWI violation here.

It is further noted, as more fully explained in subsection II.(d) below concerning the “refusal” to provide breath samples finding, that respondent‟s refusal to submit to a breathalyzer/Alcotest test may be used as evidence against respondent on the charge of driving while intoxicated. See State v. Stever, 107 N.J. 543 (1987), cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987). The refusal to provide breath samples by respondent thus provides additional evidence to support the DWI finding here - the refusal allows for the fact-finder to make the reasonable inference that respondent was driving while intoxicated.

c. Reckless Driving -- N.J.S.A. 39:4-96

I do not conclude based on this administrative record that there has been established an independent basis for finding that respondent committed reckless driving. I find that the reckless driving charge must be considered merged with the driving while intoxicated charge, N.J.S.A. 39:4-50. Accordingly, I will modify the ALJ‟s finding as to this charge.

d. Refusal to Provide Samples of Breath /Consent to Take Samples of
Breath -- N.J.S.A. 39:4-50.2 (N.J.S.A. 39:4-50.4a)

Under the implied consent statute, N.J.S.A. 39:4-50.2a, each motorist using the public roads in the State is deemed to have given consent to undergo a chemical test to determine blood alcohol levels at the request of a police officer who has reasonable grounds to believe that a motorist has been operating a motor vehicle while under the influence of alcohol. State v. Mulcahy, 107 N.J. 467 (1987). A motorist who fails to submit to a breath test when requested to do so will be charged with refusal under N.J.S.A. 39:4-50.4a; a conviction of which will trigger a mandatory suspension of the motorist‟s driving privileges by the court.

There are four elements that must be proven under N.J.S.A. 39:4-50.4a(a) to sustain the refusal violation:⁶

(1) the arresting officer had probable cause to believe
that [respondent] had been driving or was in actual physical
control of a motor vehicle while under the influence of
alcohol or drugs; (2) [respondent] was arrested for driving
while intoxicated; (3) the officer requested [respondent] to

⁶ It is noted that in the separate quasi-criminal matter concerning whether the traffic charges have been proven, the
refusal charge will be assessed under the beyond a reasonable doubt standard. See State v. Cummings, 184 N.J. 84,

95 (2005). Here, in this administrative proceeding, the administrative charge of refusal will be evaluated based on the preponderance of the evidence standard.

submit to a chemical breath test and informed [respondent]
of the consequences of refusing to do so; and (4)

[respondent] thereafter refused to submit to the test.

[State v. Marquez, 202 N.J. 485, 503 (2010).]

The first two elements have been established on this administrative record as discussed in the prior “Driving While Intoxicated” section, thus the discussion in this section will focus on the evidence concerning whether the Commission has met its burden as to elements three and four above.

In his Initial Decision, the ALJ found that respondent had committed a violation of
the refusal statute. Initial Decision at 9-10. The ALJ based his findings and conclusion
on the testimony of the arresting officer, Sergeant Bulger, which testimony, based on a
review of the ALJ‟s findings describing the reading of the DWI Refusal Rights Form and
respondent‟s subsequent refusal, the ALJ found entirely credible. Initial Decision at 5,

7. After an independent review of all the evidence in the record on this violation, I also find that the officer‟s testimony concerning the entirety of the reading of the “New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e)”, as well as the additional statement contained therein, and respondent‟s responses thereto, amply provides the grounds for a “refusal” finding, pursuant to N.J.S.A. 39:4-50.4a, in this administrative matter.

The facts that I find, as are relevant to this administrative charge, based on the
credible testimony of Sergeant Bulger, and review of the documentary evidence
(Exhibits P-4, P-5)⁷, are as follows. After respondent was placed under arrest for DWI,
Sergeant Bulger transported him to the River Vale Police Department and placed him in

⁷ Note, Exhibits R-11 “DMV Statement to Defendant” and R-12 “River Vale Alcotest - Failure Report” are the same documents as contained in Exhibit P-5).

a holding cell. 2T, p. 16-17. A visual observation of respondent was maintained for 20
minutes to ensure that there was nothing that would disrupt the breath test, such as
putting anything in his mouth, his getting sick, or the like. 2T, p. 17. Sergeant Bulger

testified that respondent was “advised of his DWI refusal rights form” and identified
Exhibit P-5, the “New Jersey Motor Vehicle Commission Standard Statement for

Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e)” (“Standard Statement”) as the form
used. 2T, p. 19. Upon the reading of the standard statement, respondent agreed to
submit samples of his breath, stating “Absolutely”, which Sergeant Bulger marked down
on the form as respondent‟s answer at “End Time, 0157 hrs.” (1:57 a.m.); the reading of
the standard statement is noted as having begun at “0154 hrs.” (1:54 a.m.). 2T, p. 17,

19; Exhibits P-4, P-5.

At that point, Sergeant Bulger went over to River Vale‟s Alcotest machine and
entered data, but he received a “control failure” and the indication that the “test aborted

- control test failed”, which is confirmed on the “Alcohol Influence Report Form, Alcotest
7110 MKIII-C, River Vale Police” printout (Exhibit P-5, second page). 2T, p. 17, Exhibit

P-4. After this, Sergeant Bulger spoke with respondent about the control test failure
and told him they would need to transport him to another agency (Hillsdale Police
Department) in order to take the breath test. 2T, p. 18. According to Sergeant Bulger‟s

testimony, respondent then became “a little uncooperative” and said he would not go to
the other agency. 2T, p. 18. Sergeant Bulger indicated that he recorded the specific

quote that respondent said in response, which he testified was that respondent “wasn‟t

going anywhere, and because the machine didn‟t work[,] it wasn‟t his problem.”⁸2T, p.

18; Exhibit P-4.

Because he received this contrary response from respondent, Sergeant Bulger
read to respondent the entire second portion (the “Additional Statement”) of the

Standard Statement form. 2T, p. 20, Exhibit P-5. By doing so, respondent was

informed, in pertinent part and in explicit terms, that “[y]our prior response, silence, or
lack of response is unacceptable. If you do not agree unconditionally to provide breath
samples now you will be issued a separate summons charging you with refusing ”

Ibid. This was also then followed with the specific question “[o]nce again I ask you, will
you submit to giving samples of your breath?” Ibid. Sergeant Bulger testified that
respondent‟s response was that he would not go to Hillsdale Police Department. 2T, p.

20. This response was recorded on the Standard Statement form, in the “Additional
Statement” section, with the time noted as “0220 hrs.” (2:20 a.m.). Exhibit P-5.
Subsequent to this response regarding the breath test, respondent was transported to the hospital (Hackensack Medical Center North), where Sergeant Bulger requested respondent to voluntarily submit a blood sample test. 2T, p. 23. Sergeant

Bulger read respondent the Consent to Draw Blood form, but respondent refused to
submit a blood sample. 2T, p. 24; Exhibit P-4. Respondent did voluntarily submit a

urine specimen⁹ at the hospital, which was secured into evidence for testing. Ibid.

On this record, based on these established facts, it is clear that both elements

three and four as required for a refusal violation have been sufficiently proven by a

⁸ Sergeant Bulger testified that his recording of this quote from respondent as he “wasn’t going anywhere” as the response to the statement about going to Hillsdale Police Department was incorrectly recorded on this part of his report as “was going anywhere”; which he explained was a “typo.” 2T, p. 74; Exhibit P-4.

⁹ Neither party has submitted into this administrative record the results of the testing of respondent’s urine specimen.

preponderance of the evidence.¹⁰ There can be no doubt that Sergeant Bulger
requested that respondent submit to a chemical breath test and informed respondent of
the consequences of refusing to do so. Furthermore, the respondent Dineen‟s
responses outlined above cannot fairly be characterized as anything but a refusal to
submit to the breath test. Respondent‟s initial consent to perform the test was
effectively withdrawn by respondent‟s words and uncooperative actions after the River
Vale machine did not function properly.¹¹ Respondent was not entitled to withdraw his
consent and thereby refuse to provide breath samples using a different machine at
another location. Respondent‟s response to being told that a different machine at a
different police station would need to be used -- that he would not go -- cannot meet the
statutory requirement that a driver must give an unconditional consent to providing the
breath samples. The reading of the full “Additional Statement” to respondent put him on
explicit actual notice that his response was unacceptable and that he would have to
unambiguously state that he would give breath samples or else be charged with refusal
under the statute and be faced with all the stated consequences. When faced with
hearing this final question, respondent did not provide unequivocal consent; just the
opposite, he refused.

While it is noted that respondent voluntarily provided a urine specimen for
testing, the results of which were not introduced into this record, this cannot substitute
nor be viewed as in any way a “cure” for the provision of breath samples as specifically

¹⁰ Even if the standard to be applied here were “beyond a reasonable doubt”, I would find that the evidence supports the finding of each of the refusal elements beyond a reasonable doubt.

¹¹ Even if a defendant verbally assents to the giving of the breath sample, his subsequent defiant attitude and conduct during the test can constitute refusal. State v. Geller, 348 N.J. Super. 359 (Law Div. 2001). Additionally, an initial refusal cannot be “cured” by a subsequent statement by a defendant that he will submit to a breath test. State v. Corrado, 184 N.J. Super. 561 (App. Div. 1982).

required by the implied consent statute.¹² Accordingly, I conclude that the respondent committed a violation of the refusal statute, N.J.S.A. 39:4-50.4a.

e. Speeding -- N.J.S.A. 39:4-98

There are separate incidences of speeding that are alleged on this administrative
record: at the Jersey City accident scene (both before the impact with the pedestrian
and after, when the black SUV continued on Route 139 and turned north onto JFK
Boulevard); and at the River Vale Township location prior to the traffic stop. First, I find
that there is insufficient evidence on this record to sustain a finding of speeding at the
Jersey City accident scene, either before the impact with the pedestrian or after the
vehicle leaves the scene of the accident. While there are certainly indications in some
of the opinion testimony that the black SUV had been proceeding at a high rate of
speed prior to the fatal accident and also some statements that indicate opinions that
the vehicle appeared to pick up speed in leaving the scene, there is much uncertainty in
the accounts provided as to that vehicle‟s speed. Given the lack of definitive testimony,
I conclude that speeding has not been established at the Jersey City scene.

However, I will sustain the speeding charge at the River Vale location based on
the credible testimony of Sergeant Bulger. The officer, who is a fourteen year veteran
of the police force experienced in such matters, testified to observing respondent driving
his black SUV toward him on River Vale Road at a high rate of speed, which he
confirmed with his police car‟s radar unit as being 48 m.p.h. in a 35 m.p.h. zone. 2T, p.

¹² It is also noted that respondent’s declining to provide a blood sample does not subject him to a refusal charge under N.J.S.A. 39:4-50.2, as that statute only requires the submission of breath samples for purposes of administering a breath-based blood alcohol test. SeeState v. Ravotto, 169 N.J. 227 (2001). However, in certain contexts, a defendant’s refusal to consent to the blood test is properly considered by the trial court as evidence of a consciousness of guilt. That is, that defendant believed himself to be intoxicated and that an analysis of his blood would have confirmed this. See State v. Cryan, Jr., 363 N.J. Super. 442 (App. Div. 2003).

3, 5, 28-31; Exhibit R-1. Contrary to respondent‟s argument, in my judgment, a review of the camera recording does not contradict the officer‟s observations as to the vehicle‟s speed and inoperable headlight; there is only an extremely short snippet of time captured on the recording in which respondent‟s vehicle is still approaching the police car; the video does not show what the officer had observed on the stretch of road in the distance as the vehicle was approaching from farther away. Exhibit R-13; 2T, p. 30. I find, based on the officer‟s testimony concerning his observations and the radar measurement of the approaching vehicle‟s speed, that this speeding charge is established by a preponderance of the evidence.

f. Maintenance of Lamps -- N.J.S.A. 39:3-66; Unsafe Vehicle N.J.S.A.

39:3-44

These two charges are based upon the inoperable headlight and damaged nature of respondent‟s vehicle, which damage and non-functioning status of the headlight is detailed at length in the “Leaving the Scene of an Accident” section (a) above. As such, I find that the evidence - the testimony of Sergeant Bulger and the reports of the Jersey City police officers - cited therein is thoroughly supportive of the “Maintenance of Lamps” and “Unsafe Vehicle” charges. Sergeant Bulger testified to his personal observation of the severe damage to the front right side of the vehicle, that the right headlight was not working, and specifically that “it would be unsafe to drive . . . the way it was.” 2T, p. 8. Consequently, I find, as did the ALJ, that these two violations have been proven by a preponderance of the credible evidence.

III. Exceptions

In his letter of exceptions, filed pursuant to N.J.A.C. 1:1-18.4, respondent‟s

counsel enumerates eleven “specific” exceptions, in addition to stating that these are “some of the numerous exceptions taken with regard to the [ALJ‟s] findings” and encloses his “Proposed Findings of Fact and Argument” as well as his “Power Point Presentation, Summation and Conclusion”. The main body of this Final Decision above has dealt with the majority of these arguments and proposed findings and to the extent that they have not been specifically addressed, they are found to be without merit. I will now turn to the eleven listed exceptions.

As his first exception, respondent states that “[n]o one who testified ever

identified John R. Dineen at the courtroom as being the driver of the vehicle involved.” As detailed at length in the “Leaving the Scene of an Accident” subsection II.(a) above, the preponderance of the competent and credible evidence supports the finding that respondent Dineen, who was driving the black Toyota Land Cruiser stopped by Sergeant Bulger, was the driver of the black SUV that hit and killed the pedestrian, Forrester, in Jersey City. In this administrative proceeding, it is not required that there be an “in-court” identification.

As his second exception, respondent states that “[n]o one at the scene (Angel
Vargas or Youseff Jafaar) ever identified John Dineen as being the driver.” Again, that
respondent Dineen was the driver of the vehicle involved in the fatal accident was
established by the totality of the evidence which is detailed in subsection II.(a) above;
this evidence is more than sufficient to meet the burden of proof in this administrative
case. Contrary to respondent‟s contention, the statements of Jafaar and Vargas have

been taken into account in rendering this decision, and when taken cumulatively with all the other evidence, most significantly of which are respondent‟s own voluntary statements made while in police custody (as detailed in subsection II. (a)) indicating his awareness of having been in the accident, are supportive of the finding that respondent was the driver of the black SUV that hit the pedestrian.

As his third exception, respondent asserts that the victim, Mr. Forrester, was not
“crossing the street.” This finding has been modified as clarified on page 2 of this
decision, to state that, for purposes of this administrative record, “the pedestrian . . . had
been walking outside the crosswalk, in the roadway of Route 139, and was walking
against the traffic light (which was green for the vehicles traveling westbound on Route
139), and thus is fairly characterized to have been improperly crossing in violation of
N.J.S.A. 39:4-32” and in an area that was acknowledged to be “dark and poorly lit.”

As his fourth exception, respondent points to the discrepancy in the accounts of
what the black SUV did right after striking the pedestrian, noting that Vargas in his
statement did not indicate that the SUV pulled over for a short time. As noted in
subsection II.(a) above, I find this to be a minor and immaterial discrepancy as the
material fact that is conclusively established by all the witnesses (Jafaar, Vargas, and
O‟Brien) is that the SUV that struck the pedestrian did not stay at, nor return to, the
scene nor provide the identification or assistance required by the statute. It is noted that
one possible reason for this minor discrepancy is that Vargas indicated that he too had
been driving a black Toyota Land Cruiser SUV in the adjacent lane behind the vehicle
that struck the pedestrian. Exhibit P-16, p. 2. Vargas also indicated in his statements
that he had stopped briefly in his SUV before then attempting to follow the offending

vehicle, which he saw drive off and turn north on JFK Boulevard. Exhibit P-16, p. 2;
Exhibit R-7, p. 1, 5. Thus, it is possible that Jafaar‟s account describing the dark SUV
as having stopped briefly may have mistakenly been a reference to the witness
Vargas‟s SUV, since Jafaar candidly acknowledges his main concern at the time was
the victim after having just seen this human being that had been hit and “flung” in the air
coming down to the ground in front of his car. T3, p. 8 (“saw the gentleman pulled over
into the Lukoil and I wasn‟t really concerned with . . . the gentleman‟s car . . . I was
concerned more with the person on the ground”); Exhibit R-9, p. 3, 6. Nonetheless,
because that SUV - whichever one Jafaar had seen - did not remain at the scene and
provide the identification and aid statutorily required, it is not material that there is this
minor discrepancy.

As his fifth exception, respondent states that “[n]o witnesses at the scene that
observed the black SUV suggested it was being operated recklessly or the driver was
intoxicated.” The ALJ‟s finding concerning reckless driving was modified in subsection
II.(c) of this decision. As stated in that subsection, since it was not found that there has
been established on this administrative record an independent basis for finding that
respondent committed reckless driving, this charge is considered merged with the
driving while intoxicated charge. Additionally, while it is acknowledged that the
witnesses at the Jersey City scene do not provide any evidence of DWI, as detailed at
length in subsection II.(b) above, the DWI charge is proven by the totality of the
evidence offered by Sergeant Bulger and the other officers‟ testimony, as well as the
condition of the vehicle having been in a “fresh” accident, and the inference to be drawn
from the fact of respondent‟s refusal as detailed in subsection II.(d). Moreover, the

respondent has offered no evidence to refute that he was driving the vehicle during the accident in Jersey City; his voluntary statements, and all the corroborating evidence, indicate that he was.

As his sixth exception, respondent states that “[t]he SPEN transmission was
never produced and the questions as to information it actually contained were never
addressed by the court below.” For the reasons detailed in subsection II.(a), the
preponderance of the competent and credible evidence supports the ultimate finding
that respondent drove the vehicle that hit the pedestrian in Jersey City and left the
scene of the accident. Sergeant Bulger credibly testified to having heard the police
transmission concerning a fatal “hit and run” accident in the area of Route 1 & 9, with a
vehicle description matching the respondent‟s, which he had observed having heavy
damage to its front passenger side. It is not necessary to introduce the actual SPEN
transmission in the light of this testimony and all the corroborating evidence in the
record.

As his seventh and eighth exceptions, respondent contends that the “court below
completely ignored the actual video (R-13)” concerning the traffic stop in River Vale.
Respondent contends that the video contradicts Sergeant Bulger‟s testimony
concerning speed and conditions, and also contends that Sergeant Bulger‟s statement
on the video that he was going to “lock up” Dineen after giving him the field test was
ignored. Respondent also maintains that the “video itself belies this failure of the field
test as it does not show the circumstances described by [Sergeant] Bulger.” These
contentions have been addressed already in subsections II.(e) and II.(f) concerning the
speeding and unsafe vehicle, and in subsection II.(b) concerning the DWI aspect of the

traffic stop. The DVD (Exhibit R-13) containing the video has been reviewed and I find
respondent‟s contentions to be without merit. I do not find that the ALJ‟s credibility
determination concerning Sergeant Bulger‟s testimony is flawed. Sergeant Bulger
provided clear, logical and reasonable testimony about his observations and actions
during this traffic stop which involved the heightened concerns of a driver that had
potentially just been involved in a fatal accident, indicated by the heavy fresh damage to
his vehicle, as well as the indication of alcohol involvement as the odor of alcohol was
detected immediately. I will defer to the ALJ on his credibility determination as he was
in a position to observe Sergeant Bulger‟s demeanor in his live testimony.

As his ninth exception, respondent states that “John Dineen did not refuse the
breathalyzer test, and in fact, executed a document indicating that he would take the
same; however, the machine at River Vale was malfunctioning.” The respondent further
contends that the factor of the malfunctioning machine was “completely ignored by the
judge below and not addressed.” The elements concerning the refusal charge were
fully analyzed in subsection II.(d) and thus it is unnecessary to repeat that analysis here.
Review of that analysis will confirm that the factor of the malfunctioning machine is
specifically addressed.

As his tenth exception, respondent asserts that the “[t]he statement at Jersey
City Precinct was not noted in the reports of any other individuals who were supposedly
present at that location.” The testimony of Officers Matias, Valente and Broderick
concerning the statement made by respondent while in the holding cell at the Jersey
City Precinct - “Officer, please get me something to throw up in, I‟m going to be sick
about the guy I just hit” - was credited by the ALJ, who observed these witnesses testify

and found them credible. This is detailed in subsection II.(a) above. That the statement is quoted in Officer Matias‟s report, as the officer who was called over by respondent, and not repeated in the other officers‟ reports, which officers also heard the statement, is not a reason to discredit these officers‟ testimony.

As his twelfth and final exception, respondent states that “[t]he DNA does not
establish the conclusions of fact that the court below set forth. The court also ignored
and failed to address the [respondent‟s] objection to this evidence, the chain of custody
questions and the conclusion asserted, and made no reference whatsoever to the
validity of these alleged findings.” The DNA Test Results/Reports are listed as Exhibit
P-22 in the ALJ‟s Initial Decision. Initial Decision at 15. That the DNA report was
admitted into this administrative record even without expert testimony to explain its
contents is not error. The DNA report may be properly admitted as hearsay evidence
under the “residuum rule”, N.J.A.C. 1:1-15.5, as it tends to corroborate the other legally
competent and credible evidence in the record which establishes the ultimate finding of
fact that the black SUV driven by respondent that night in River Vale is the one that
struck the pedestrian, Forrester. As detailed at length in subsection II.(a), the legally
competent evidence that provides the main support for this ultimate finding is
respondent‟s own voluntary statements that indicated his awareness and involvement in
the Jersey City accident. Nevertheless, even though properly admitted as hearsay
evidence, I do not accord any weight to the DNA report in making my findings of fact as
to the “leaving the scene of an accident” charge, as is indicated in subsection II.(a)
above. The totality of the evidence presented in that subsection is more than sufficient,

even without reference to the DNA report, to support the finding that respondent violated the leaving the scene of the accident statute.

Having concluded that respondent committed the violation “leaving the scene of
an accident”, under N.J.S.A. 39:4-129, which accident resulted in the death of another, I
further conclude that respondent is subject to suspension of his driving privileges
pursuant to the authority of N.J.S.A. 39:5-30. In assessing the appropriate remedial
sanction to impose, I will also consider as factors that the violations of DWI, refusal,
speeding (after the accident), maintenance of lamps, and unsafe vehicle were also
proven by a preponderance of the evidence in this administrative proceeding.

IV. Remedial Sanction

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 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, 81 N.J. Super. 536, 548-
549 (App. Div. 1963), aff‟d, 43 N.J. 326 (1964).

Pursuant to Cresse, supra, the Chief Administrator (formerly the Director) must make each decision on a case-by-case basis, taking into consideration those factors enumerated by the Appellate Division in Cresse:

The Director must weigh each case individually, to determine
whether a suspension is required at all for the purposes above
mentioned, and, if so, for how long. Among other things, he
should consider the facts which constitute the particular
violation; whether the motorist was willful or reckless, or merely
negligent, and, if merely negligent, how negligent; how long the

motorist has been driving; whether this is his first offense;
whether he has been involved in any accidents; his age and
physical condition; whether there were any aggravating
circumstances, such as drinking, or, on the other hand, whether
there were extenuating circumstances. Upon these and all the
other facts and circumstances, he should determine whether it
reasonably appears, as a matter of prophylaxis and not of
punishment, that the motorist should be kept off the highway,
and, if so, for how long.

[Cresse, supra, 81 N.J. Super. at 549].

Accordingly, I hereby determine as mitigating factors: (1) that the pedestrian was

walking in the roadway, outside of a crosswalk and against the traffic light, in violation of
N.J.S.A. 39:4-32, and thus, for purposes of this administrative proceeding, is considered
the primary contributing factor to the accident itself; and (2) respondent‟s driving history
prior to the fatal accident is “clean”, with no accidents or violations from 2003 when he
first received his license to 2010 when this fatal accident happened at the age of 23; he
does have one violation in the month following the accident, for operating a vehicle
while using a hand-held cell phone. On the whole, however, these mitigating factors are
significantly outweighed by the aggravating factors present in this case: (1) respondent

was knowingly involved in a motor vehicle accident resulting in serious bodily injury or
possible death and despite knowing the serious impact his vehicle made with the
pedestrian, he failed to remain at or return to the scene to determine if any assistance
could be provided to help the person that he hit; moreover he failed to provide any
identification to the police or witnesses, and in fact intentionally left the scene of the
accident; (2) having consumed a significant amount of alcohol, he was found to have
driven while intoxicated and continued to drive in this state and with a vehicle in an
unsafe condition in leaving the scene; (3) his refusal to provide breath samples (after

the first machine did not operate) also evidences his attempts to escape responsibility
for his actions; (4) his speeding after leaving the scene of an accident, while operating a
vehicle with an inoperable headlight, also reflects further disregard for the safety of
others.

It is clear from the plain language of the “hit and run” statute that leaving the
scene is a very serious offense, and on that basis alone, respondent‟s driving privileges
are subject to suspension. Every driver has a duty to stop immediately if involved in an
accident. The driver who leaves an injured person on the roadway and fails to identify
himself to the police and other parties is a danger to the public. Here, respondent
compounded the seriousness of his initial action of leaving the scene by further violating
motor vehicle laws placing others in further danger. The egregiousness of his actions is
underscored by his subsequent refusal to provide breath samples (and a blood sample)
which breath samples are required by law of all drivers suspected of driving while
intoxicated. It cannot be questioned that respondent‟s driving-related behavior is in
need of serious reform. The facts that constitute the particular violations here are
unconscionable.

These factors, considered together, require a substantial period of suspension. I find that a thirty-nine (39) month suspension period is both reasonable and warranted in the present case when public safety is balanced against respondent‟s need to maintain his driving privilege. The Commission notes that respondent‟s proposed suspension is intended to be rehabilitative rather than punitive in nature.

Additionally, as a condition of restoration, respondent shall submit to a
Commission Driver Re-examination pursuant to N.J.S.A. 39:5-30f and N.J.A.C. 13:20-

12.

V. Order

It is, therefore, on this 14^thday of January, 2013, ORDERED that the New Jersey driving privilege of JOHN R. DINEEN be suspended for a period of thirty-nine months (1170 days) and it is further

ORDERED that JOHN R. DINEEN submit to a Commission Driver Re-
examination pursuant to N.J.S.A. 39:5-30(f) and N.J.A.C. 13:20-12.
NOTE: The effective date of suspension shall be set forth in an Order of Suspension which the Commission will send to respondent under separate cover.

Raymond P. Martinez

Chairman and Chief Administrator

cc: John R. Schwartz, Esq.

Conrad M. O‟Lear, Esq.

Drug and DWI Law NJ

Tuesday, July 04, 2017

Additional MVC suspension can be Ordered where dwi driver involved in fatal accident

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