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NJAC Fatal Accident Regulations Regs

Fatal Accident Regulations Regs

1:13-1.1 Applicability

(a) The rules of this chapter shall apply to hearings transmitted by the Motor Vehicle Commission (MVC) except fatal accident cases, which shall be conducted in accordance with N.J.S.A. 39:5-30(b) and (e) and N.J.A.C. 1:13-14.5.

(b) Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

1:13-14.5 Failure to appear

If, after appropriate notice, the licensee fails to appear at a preliminary fatal accident hearing scheduled pursuant to N.J.S.A. 39:5-30, the judge shall issue an order immediately suspending or continuing the suspension of the licensees driving privileges. Thereafter, the provisions of N.J.A.C. 1:1-14.4 shall apply.

.J.A.C. 1:1-10.4 (2016)

1:1-10.4 Time for discovery; relief from discovery; motions to compel

(a) The parties in any contested case shall commence immediately to exchange information voluntarily, to seek access as provided by law to public documents and to exhaust other informal means of obtaining discoverable material.

(b) Parties shall immediately serve discovery requests.

(c) No later than 15 days from receipt of a notice requesting discovery, the receiving party shall provide the requested information, material or access or offer a schedule for reasonable compliance with the notice; or, in the case of a notice requesting admissions, each matter therein shall be admitted unless within the 15 days the receiving party answers, admits or denies the request or objects to it pursuant to N.J.A.C. 1:1-10.4(d).

(d) A party who wishes to object to a discovery request or to compel discovery shall, prior to the filing of any motion regarding discovery, place a telephone conference call to the judge and to all other parties no later than 10 days of receipt of the discovery request or the response to a discovery request. If a party fails without good reason to place a timely telephone call, the judge may deny that partys objection or decline to compel the discovery.

(e) The parties shall complete all discovery no later than 10 days before the first scheduled evidentiary hearing or by such date ordered by the judge.

N.J.A.C. 1:1-10.5 (2016)

1:1-10.5 Sanctions

By motion of a party or on his or her own motion, a judge may impose sanctions pursuant to N.J.A.C. 1:1-14.14 and 14.15 for failure to comply with the requirements of this subchapter. Before imposing sanctions, the judge shall provide an opportunity to be heard.

N.J.A.C. 1:1-14.1 (2016)

1:1-14.1 Public hearings; records as public; sealing a record; media coverage

(a) All evidentiary hearings, proceedings on motions and other applications shall be conducted as public hearings unless otherwise provided by statute, rule or regulation, or on order of a judge for good cause shown. Prehearing conferences and informal discussions immediately preceding the hearing or during the hearing to facilitate the orderly and expeditious conduct of the case may, at the judges discretion, be conducted in public or in closed session and may or may not be recorded. Mediations and settlement conferences shall be held in closed session but may be recorded. All other proceedings in the presence of a judge shall be recorded verbatim either by a stenographic reporter or by sound recording devices. All discussions off the record, no matter how brief, except settlement discussions and mediations, shall be summarized generally for the record. The record of all hearings shall be open to public inspection, but the judge may, for good cause shown, order the sealing of the record or any part thereof.

(b) In considering whether to close a hearing and/or seal a record, the judge shall consider the requirements of due process of law, other constitutional and statutory standards and matters of public policy. The judge shall consider the need to protect against unwarranted disclosure of sensitive financial information or trade secrets, to protect parties or witnesses from undue embarrassment or deprivations of privacy, or to promote or protect other equally important rights or interests.

(c) When sealing a record, the judge must specify the consequences of such an order to all material in the case file including any evidence, the stenographic notes or audiotapes and the initial decision. The treatment of testimony or exhibits shall be on such terms as are appropriate to balance public and private rights or interests and to preserve the record for purposes of review. The judge shall also indicate what safeguards shall be imposed upon the preparation and disclosure of any transcript of the proceedings.

(d) All public hearings may be filmed, photographed and recorded, subject to reasonable restrictions established by the judge to avoid disruption of the hearing process. The number of cameras and lights in the hearing room at any one time may be limited. Technical crews and equipment may be prohibited from moving except during recesses and after the proceedings are concluded for the day. To protect the attorney/client privilege and the effective right to counsel, there shall be no recording of conferences between attorneys and their clients or between counsel and the judge at the bench.

N.J.A.C. 1:1-14.6 (2016)

1:1-14.6 Judges powers in presiding over prehearing activities, conducting hearings, developing records and rendering initial decisions

(a) The judge may schedule any form of hearing or proceeding and establish appropriate location areas and instruct the Clerk to issue all appropriate notices.

(b) When required in individual cases, the judge may supersede any notice issued by the Clerk by informing the parties and the Clerk of this action.

(c) Depending on the needs of the case, the judge may schedule additional hearing dates, declare scheduled hearing dates unnecessary, or schedule any number of in-person conferences or telephone conferences.

(d) When required in individual cases, the judge at any time of the proceeding may convert any form of proceeding into another, whether more or less formal or whether in-person or by telephone.

(e) The judge may bifurcate hearings whenever there are multiple parties, issues or claims, and the nature of the case is such that a hearing of all issues in one proceeding may be complex and confusing, or whenever a substantial saving of time would result from conducting separate hearings or whenever bifurcation might eliminate the need for further hearings.

(f) The judge may establish special accelerated or decelerated schedules to meet the special needs of the parties or the particular case.

(g) The judge may administer any oaths or affirmations required or may direct a certified court reporter to perform this function.

(h) The judge may render any ruling or order necessary to decide any matter presented to him or her which is within the jurisdiction of the transmitting agency or the agency conducting the hearing.

(i) The judge shall control the presentation of the evidence and the development of the record and shall determine admissibility of all evidence produced. The judge may permit narrative testimony whenever appropriate.

(j) The judge may utilize his or her sanction powers to ensure the proper conduct of the parties and their representatives appearing in the matter.

(k) The judge may limit the presentation of oral or documentary evidence, the submission of rebuttal evidence and the conduct of cross-examination.

(l) The judge may determine that the party with the burden of proof shall not begin the presentation of evidence and may require another party to proceed first.

(m) The judge may make such rulings as are necessary to prevent argumentative, repetitive or irrelevant questioning and to expedite the cross-examination to an extent consistent with disclosure of all relevant testimony and information.

(n) The judge may compel production of relevant materials, files, records and documents and may issue subpoenas to compel the appearance of any witness when he or she believes that the witness or produced materials may assist in a full and true disclosure of the facts.

(o) The judge may require any party at any time to clarify confusion or gaps in the proofs. The judge may question any witness to further develop the record.

(p) The judge may take such other actions as are necessary for the proper, expeditious and fair conduct of the hearing or other proceeding, development of the record and rendering of a decision.

N.J.A.C. 1:1-14.7 (2016)

1:1-14.7 Conduct of hearings

(a) The judge shall commence hearings by stating the case title and the docket number, asking the representatives or parties present to state their names for the record and describing briefly the matter in dispute. The judge shall also, unless all parties are represented by counsel or otherwise familiar with the procedures, state the procedural rules for the hearing. The judge may also permit any stipulations, settlement agreements or consent orders entered into by any of the parties prior to the hearing to be entered into the record at this time.

(b) The party with the burden of proof may make an opening statement. All other parties may make statements in a sequence determined by the judge.

(c) After opening statements, the party with the burden of proof shall begin the presentation of evidence unless the judge has determined otherwise. The other parties may present their evidence in a sequence determined by the judge.

(d) Cross-examination of witnesses shall be conducted in a sequence and in a manner determined by the judge to expedite the hearing while ensuring a fair hearing.

(e) When all parties and witnesses have been heard, opportunity shall be offered to present oral final argument, in a sequence determined by the judge.

(f) Unless permitted or requested by the judge, there shall be no proposed findings of fact, conclusions of law, briefs, forms of order or other dispositions permitted after the final argument. Whenever possible, proposed findings or other submissions should be offered at the hearing in lieu of or in conjunction with the final argument.

1. When proposed findings or other submissions are permitted or requested by the judge, the parties shall conform to a schedule that may not exceed 30 days after the last day of testimony or the final argument or as otherwise directed by the judge.

2. When the judge permits proposed findings or other submissions to be prepared with the aid of a transcript, the transcript must be ordered immediately. The submission time frame shall commence upon receipt of the transcript.

3. Any proposed findings of fact submitted by a party shall not be considered unless they are based on facts proved in the hearing.

4. Any reference in briefs or other such submissions to initial and final decisions shall include sufficient information to enable the judge to locate the initial decision. This shall include either the Office of Administrative Law docket number, or a reference to New Jersey Administrative Reports or another published and indexed compilation or to the Rutgers Camden Law School website at http://lawlibrary.rutgers.edu/oal. A copy of any cited decision shall be supplied if it is not located in any published compilation or on the foregoing website.

(g) A telephone hearing is begun by the judge placing a conference call on a designated date and time to the parties in the case. In all other respects, the procedures applicable to hearings shall apply.

N.J.A.C. 1:1-14.9 (2016)

1:1-14.9 Orders; preparation of orders

(a) Any resolution which does not completely conclude the case shall be by order. Orders may be rendered in writing or orally on the record by the judge.

(b) Unless such review is precluded by law, all judges orders are reviewable by an agency head in accordance with N.J.A.C. 1:1-14.10 or when rendering a final decision under N.J.A.C. 1:1-18.6.

(c) Orders may be prepared by a party at the direction of a judge. When prepared by a party, the order shall be filed with the judge and served on all parties who may within five days after service object to the form of the order by writing to the judge with a copy to all parties. Upon objection to the form of the order, the judge, without oral argument or any further proceedings, may settle the form of the order either by preparing a new order or by modifying the proposed order. After signing the order, the judge shall cause the order to be served upon the parties.

EVIDENCE RULES

Go to the New Jersey Administrative Code Archive Directory

N.J.A.C. 1:1-15.1 (2016)

1:1-15.1 General rules

(a) Only evidence which is admitted by the judge and included in the record shall be considered.

(b) Evidence rulings shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth.

(c) Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein. A judge may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either:

1. Necessitate undue consumption of time; or

2. Create substantial danger of undue prejudice or confusion.

(d) If the judge finds at the hearing that there is no bona fide dispute between the parties as to any unstipulated material fact, such fact may be proved by any relevant evidence, and exclusionary rules shall not apply, except for (c) above or a valid claim of privilege.

(e) When the rules in this subchapter state that the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is subject to a condition, and the fulfillment of the condition is in issue, the judge shall hold a preliminary inquiry to determine the issue. The judge shall indicate which party has the burden of producing evidence and the burden of proof on such issue as implied by the rule under which the question arises. No evidence may be excluded in determining such issue except pursuant to the judges discretion under (c) above or a valid claim of privilege. This provision shall not be construed to restrict or limit the right of a party to introduce evidence subsequently which is relevant to weight or credibility.

N.J.A.C. 1:1-15.2 (2016)

1:1-15.2 Official notice

(a) Official notice may be taken of judicially noticeable facts as explained in N.J.R.E. 201 of the New Jersey Rules of Evidence.

(b) Official notice may be taken of generally recognized technical or scientific facts within the specialized knowledge of the agency or the judge.

(c) Parties must be notified of any material of which the judge intends to take official notice, including preliminary reports, staff memoranda or other noticeable data. The judge shall disclose the basis for taking official notice and give the parties a reasonable opportunity to contest the material so noticed.

N.J.A.C. 1:1-15.3 (2016)

1:1-15.3 Presumptions

No evidence offered to rebut a presumption may be excluded except pursuant to the judges discretion under N.J.A.C. 1:1-15.1(c) or a valid claim of privilege.

N.J.A.C. 1:1-15.4 (2016)

1:1-15.4 Privileges

The rules of privilege recognized by law or contained in the following New Jersey Rules of Evidence shall apply in contested cases to the extent permitted by the context and similarity of circumstances: N.J.R.E. 502 (Definition of Incrimination); N.J.R.E. 503 (Self-incrimination); N.J.R.E. 504 (Lawyer-Client Privilege); N.J.S.A. 45:14B-28 (Psychologists Privilege); N.J.S.A. 2A:84-22.1 et seq. (Patient and Physician Privilege); N.J.S.A. 2A:84A-22.8 and N.J.S.A. 2A:84A-22.9 (Information and Data of Utilization Review Committees of Hospitals and Extended Care Facilities); N.J.S.A. 2A:84A-22.13 et seq. (Victim Counselor Privilege); N.J.R.E. 508 (Newspersons Privilege); N.J.R.E. 509 (Marital Privilege-Confidential Communications); N.J.S.A. 45:8B-29 (Marriage Counselor Privilege); N.J.R.E. 511 (Cleric-Penitent Privilege); N.J.R.E. 512 and 610 (Religious Belief); N.J.R.E. 513 (Political Vote); N.J.R.E. 514 (Trade Secret); N.J.R.E. 515 (Official Information); N.J.R.E. 516 (Identity of Informer); N.J.R.E. 530 (Waiver of Privilege by Contract or Previous Disclosure; Limitations); N.J.R.E. 531 (Admissibility of Disclosure Wrongfully Compelled); N.J.R.E. 532 (Reference to Exercise of Privileges); and N.J.R.E. 533 (Effect of Error in Overruling Claim of Privilege).

N.J.A.C. 1:1-15.5 (2016)

1:1-15.5 Hearsay evidence; residuum rule

(a) Subject to the judges discretion to exclude evidence under N.J.A.C. 1:1-15.1(c) or a valid claim of privilege, hearsay evidence shall be admissible in the trial of contested cases. Hearsay evidence which is admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.

(b) Notwithstanding the admissibility of hearsay evidence, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness.

N.J.A.C. 1:1-15.6 (2016)

1:1-15.6 Authentication and content of writings

Any writing offered into evidence which has been disclosed to each other party at least 10 days prior to the hearing shall be presumed authentic. At the hearing any party may raise questions of authenticity. Where a genuine question of authenticity is raised the judge may require some authentication of the questioned document. For these purposes the judge may accept a submission of proof, in the form of an affidavit, certified document or other similar proof, no later than 10 days after the date of the hearing.

.J.A.C. 1:1-15.7 (2016)

1:1-15.7 Exhibits

(a) The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a brief description of the exhibit stated by the offering party or the judge, and the marking directed by the judge. The verbatim record shall also include a record of the exhibits retained by the judge at the end of the proceedings and of the disposition then made of the other exhibits.

(b) Parties shall provide each party to the case with a copy of any exhibit offered into evidence. Large exhibits that cannot be placed within the judges file may be either photographed, attached to the file, or described in the record and committed to the safekeeping of a party. All other admitted exhibits shall be retained in the judges file until certified to the agency head pursuant to N.J.A.C. 1:1-18.1.

(c) The standard marking for exhibits shall be:

1. P = petitioner;

2. R = respondent;

3. A = appellant;

4. J = joint;

5. C = judge;

6. I = intervenor; or

7. Such other additional markings required for clarity as the judge may direct.

N.J.A.C. 1:1-15.8 (2016)

1:1-15.8 Witnesses; requirements for testifying; testifying by telephone

(a) Except as otherwise provided by this subchapter, by statute or by rule establishing a privilege:

1. Every person is qualified to be a witness; and

2. No person has a privilege to refuse to be a witness; and

3. No person is disqualified to testify to any matter; and

4. No person has a privilege to refuse to disclose any matter or to produce any object or writing; and

5. No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing but the judge presiding at the hearing in a contested case may not testify as a witness.

(b) A person is disqualified to be a witness if the judge finds the proposed witness is incapable of expression concerning the matter so as to be understood by the judge directly or through interpretation by one who can understand the witness, or the proposed witness is manifestly incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of these rules relating to witnesses.

(c) As a prerequisite for the testimony of a witness there must be evidence that the witness has personal knowledge of the matter, or has special experience, training or education, if such is required. Such evidence may be provided by the testimony of the witness. In exceptional circumstances, the judge may receive the testimony of a witness conditionally, subject to evidence of knowledge, experience, training or education being later supplied in the course of the proceedings. Personal knowledge may be obtained through hearsay.

(d) A witness may not testify without taking an oath or affirming to tell the truth under the penalty provided by law. No witness may be barred from testifying because of religion or lack of it.

(e) Testimony of a witness may be presented by telephone or by video conference call, as prescribed by the Director, if, before the hearing begins, the judge finds there is good cause for permitting the witness to testify by telephone or video conference. In determining whether good cause exists, the judge shall consider:

1. Whether all parties consent to the taking of testimony by telephone;

2. Whether credibility is an issue;

3. The significance of the witness testimony;

4. The reason for the request to take testimony by telephone; and

5. Any other relevant factor.

(f) Testimony of a witness may be given in narrative fashion rather than by question and answer format if the judge permits.

N.J.A.C. 1:1-15.9 (2016)

1:1-15.9 Expert and other opinion testimony

(a) If a witness is not testifying as an expert, testimony of that witness in the form of opinions or inferences is limited to such opinions or inferences as the judge finds:

1. May be rationally based on the perception of the witness; and

2. Are helpful to a clear understanding of the witness testimony or to the fact in issue.

(b) If a witness is testifying as an expert, testimony of that witness in the form of opinions or inferences is admissible if such testimony will assist the judge to understand the evidence or determine a fact in issue and the judge finds the opinions or inferences are:

1. Based on facts and data perceived by or made known to the witness at or before the hearing; and

2. Within the scope of the special knowledge, skill, experience or training possessed by the witness.

(c) Testimony in the form of opinion or inferences which is otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the judge.

(d) A witness may be required, before testifying in terms of opinions or inference, to be first examined concerning the data upon which the opinion or inference is based.

(e) Questions calling for the opinion of an expert witness need not be hypothetical in form unless, in the discretion of the judge, such form is required.

(f) If facts and data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, those facts and data upon which an expert witness bases opinion testimony need not be admissible in evidence.

N.J.A.C. 1:1-15.10 (2016)

1:1-15.10 Offers of settlement inadmissible

Offers of settlement, proposals of adjustment and proposed stipulations shall not constitute an admission and shall not be admissible.

N.J.A.C. 1:1-15.11 (2016)

1:1-15.11 Stipulations

The parties may by stipulation agree upon the facts or any portion thereof involved in any controversy. Such a stipulation shall be regarded as evidence and shall preclude the parties from thereafter challenging the facts agreed upon.

N.J.A.C. 1:1-15.12 (2016)

1:1-15.12 Prior transcribed testimony

(a) If there was a previous hearing in the same or a related matter which was electronically or stenographically recorded, a party may, unless the judge determines that it is necessary to evaluate credibility, offer the transcript of a witness in lieu of producing the witness at the hearing provided that the witness testimony was taken under oath, all parties were present at the proceeding and were afforded a full opportunity to cross-examine the witness.

(b) A party who intends to offer a witness transcribed testimony at the hearing must give all other parties and the judge at least 10 days notice prior to the commencement of the hearing of that intention and provide each with a copy of the transcript being offered.

(c) Opposing parties may subpoena the witness to appear personally. Any party may produce additional witnesses and other relevant evidence at the hearing.

(d) Provided the requirements in (a) above are satisfied, the entire controversy may be presented solely upon such transcribed testimony if all parties agree and the judge approves.

(e) Prior transcribed testimony that would be admissible as an exception to the hearsay rule under Evidence Rule 63(3) is not subject to the requirements of this section.

N.J.A.C. 1:13-1.1 (2016)

1:13-1.1 Applicability

(a) The rules of this chapter shall apply to hearings transmitted by the Motor Vehicle Commission (MVC) except fatal accident cases, which shall be conducted in accordance with N.J.S.A. 39:5-30(b) and (e) and N.J.A.C. 1:13-14.5.

(b) Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

NJSA 39:5-30

b.Whenever a matter is presented to the director involving an alleged violation of

(1)R.S.39:4-98, where an excess of 20 miles per hour over the authorized speed limit is alleged, and which has resulted in the death of another;

(2)R.S.39:4-50, and which has resulted in the death of another;

(3)R.S.39:4-96, and which has resulted in the death of another; or

(4)R.S.39:4-129, wherein the death of another has occurred, and the director has not determined to immediately issue a preliminary suspension pursuant to subsection e. of this section, the director shall issue a notice of proposed final suspension or revocation of any license certificate or any nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the individual charged or temporary order prohibiting the individual from obtaining any license to operate any motor vehicle or motorized bicycle in this State.

In the notice, the director shall provide the individual charged with an opportunity for a plenary hearing to contest the proposed final suspension, revocation or other final agency action. Unless the division receives, no later than the 10th day from the date the notice was mailed, a written request for hearing, the proposed final agency action shall take effect on the date specified in the notice.

Upon receipt of a timely request for a plenary hearing, a preliminary hearing shall be held by an administrative law judge within 15 days of the receipt of the request. The preliminary hearing shall be for the purpose of determining whether, pending a plenary hearing on the proposed final agency action, a preliminary suspension shall be immediately issued by the judge. Adjournment of such hearing upon motion by the individual charged shall be given only for good cause shown.

At the preliminary hearing, the parties shall proceed on the papers submitted to the judge, including the summons, the police reports and the charged individuals prior driving record submitted by the division, and any brief affidavits permitted by the judge from persons who shall be witnesses at the plenary hearing, and the parties may present oral argument. Based on the papers, on any oral argument, on the individuals prior driving record, and on the circumstances of the alleged violation presented in the papers, the judge shall determine whether the individual was properly charged with a violation of the law and a death occurred; and, if so, whether in the interest of public safety, a preliminary suspension shall be immediately ordered pending the plenary hearing on the proposed suspension or revocation. The administrative law judge shall transmit his findings to the director.

A plenary hearing shall be held no later than the 45th day following the preliminary hearing. Adjournment of the hearing shall be given only for good cause shown. If the hearing is otherwise postponed or delayed solely at the instance of the individual charged, the administrative law judge shall immediately issue a preliminary suspension of any license certificate or any nonresident reciprocity privilege held by the individual charged, or if any such preliminary suspension or order is in effect, he shall continue such suspension or order. Such preliminary suspension or temporary order shall remain in effect pending a final agency decision on the matter. If the hearing is otherwise postponed or delayed at the instance of anyone other than the individual charged, the judge shall immediately issue an order restoring the individuals license certificate or any nonresident reciprocity privilege pending final agency decision in the matter. The period of any preliminary suspension imposed under this section shall be deducted from any suspension imposed by the final agency decision in the matter.

c. Whenever any other matter is presented to the director involving an alleged violation of this title, wherein the death of another occurred and for which he determines immediate action is warranted, he may proceed in the manner prescribed in subsection b. above.

d. Whenever a fatal accident occurs in this State, an investigation of the incident, whether performed by the State Police or by local police, shall be completed and forwarded to the director within 72 hours of the time of the accident.

N.J.A.C. 1:13-14.3 (2016)

1:13-14.3 Agency case

In excessive points and persistent violator cases, MVCs case will be based on the licensees driving record, a prehearing conference report, relevant notices and orders of suspension, certified proof of relevant mailings to the licensee, and any other documentary evidence or legal briefs necessary.

N.J.A.C. 1:13-14.5 (2016)

1:13-14.5 Failure to appear

If, after appropriate notice, the licensee fails to appear at a preliminary fatal accident hearing scheduled pursuant to N.J.S.A. 39:5-30, the judge shall issue an order immediately suspending or continuing the suspension of the licensees driving privileges. Thereafter, the provisions of N.J.A.C. 1:1-14.4 shall apply.

Proposed Readoption with Amendments: N.J.A.C.

ADMINISTRATIVE LAW

(a)

OFFICE OF ADMINISTRATIVE LAW

Special Hearing Rules
Motor Vehicle Commission Cases

1:13

Proposed Repeals: N.J.A.C. 1:13-14.1 and 14.2

Authorized By: Laura Sanders, Acting Director, Office of Administrative Law.

Authority: N.J.S.A. 52:14F-5(e), (f), and (g).
Calendar Reference: See Summary below for explanation of

exception to calendar requirement. Proposal Number: PRN 2015-001.

Submit comments by March 6, 2015, to:

Sandra DeSarno Hlatky, Assistant Director Office of Administrative Law Quakerbridge Plaza, Bldg. 9
P.O. Box 049

Quakerbridge Road
Trenton, New Jersey 08625
E-mail address: NJRfilings@oal.state.nj.us

The agency proposal follows:

Summary

Pursuant to N.J.S.A. 52:14B-5.1.c, the special rules for matters transmitted to the Office of Administrative Law (OAL) by the Motor Vehicle Commission (Commission) will expire on November 20, 2014. In accordance with N.J.S.A. 52:14B-5.1.c(2), submission of this proposal to the Office of Administrative Law extends that expiration date 180 days to May 19, 2015. The Office of Administrative Law (OAL) in consultation with the Commission has reviewed these rules and has found them to be necessary, reasonable, and proper for the purpose for which they were originally promulgated. The last amendments to the rules were effective in 2007. Therefore, the Office of Administrative Law proposes to readopt these rules. There are proposed amendments and repeals to the rules which are discussed below.

The OAL proposes to repeal the rules regarding proceeding on the papers because the process was cumbersome in the implementation and confusing to litigants. Additionally, the process deprived litigants of the opportunity to settle their disputes with the Commission at the time of hearing. The OAL proposes to eliminate provisions regarding surcharges cases because the Commission has ceased to transmit cases concerning surcharges associated with motor vehicle violations. Therefore, the rules should no longer address this type of case. The proposed amendments

and repeals reflect the elimination of these practices. Additionally, other amendments are technical to avoid references to language previously repealed or proposed for deletion.

Specifically, N.J.A.C. 1:13-14.1 is proposed for repeal. This section allows hearings to proceed on the papers. In repealing this section, other changes to related sections are necessary. Therefore, N.J.A.C. 1:13-14.2 is also proposed for repeal since it describes, for cases specifically heard on the papers, the necessary contents and how to submit the required Certification. Also proposed for deletion is N.J.A.C. 1:13-14.5(a), which states that, in cases proceeding on the papers, a licensee will have failed to appear if the required Certification is not submitted.

Additionally, all language referring to surcharge cases in N.J.A.C. 1:13-10.1 and 14.3 is proposed for deletion since these cases are no longer transmitted to the OAL. Specifically, the last sentence of N.J.A.C. 1:13-10.1(a) and all of N.J.A.C. 1:13-14.3(b) are proposed for deletion.

The technical change proposed in N.J.A.C. 1:13-1.1 corrects the reference to N.J.A.C. 1:13-14.4(b) to N.J.A.C. 1:13-14.5, which addresses the conduct of fatal accident cases. The referenced N.J.A.C. 1:13-14.4 was recodified as N.J.A.C. 1:13-14.5 in 2002. In N.J.A.C. 1:13- 4.1(d), the reference to subsections (b) and (c) of N.J.A.C. 1:13-14.3(b) and (c) are proposed for deletion, since N.J.A.C. 1:13-14.3(b) is proposed for deletion in this proposal and subsection (c) was previously deleted. The deletion of (b) and (c) will alter the reference to be to the entire N.J.A.C. 1:13-14.3.

The summary of the subchapters proposed for readoption follows:

Subchapter 1 sets forth the applicability of these rules. The proposed amendment is a technical correction to eliminate a reference to a previously repealed section and reference the correct section that addresses the conduct of fatal accident cases.

Subchapter 4 outlines the process of the agency settlement conference and determines at what point the Commission may transmit the matter to the OAL. Additionally, it states what information should be gathered at the settlement conference. The proposed amendment updates a rule cross- reference.

Subchapter 10 sets forth that the documents available in discovery are limited to the Commission records. The Commission will provide certain documents in excessive points and violator cases. The Commission will provide a copy of the records to the licensee and the licensee may make any discovery request as part of the hearing request or at a pretransmission conference conducted by the Commission. The proposed amendment deletes references to surcharge cases in this subchapter since they are no longer transmitted to the OAL.

Subchapter 14 sets forth the documents that will be used by the Commission in excessive points and persistent violator cases. It states that the judge shall issue an immediate suspension or continued suspension of the licensees driving privileges where the licensee has failed to appear after he or she was provided with appropriate notice at a preliminary fatal accident hearing. The proposed amendment deletes all references to proceedings on the papers and surcharge matters in this

NEW JERSEY REGISTER, MONDAY, JANUARY 5, 2015 (CITE 47 N.J.R. 7)

ADMINISTRATIVE LAW

PROPOSALS

section since the Commission no longer requests or transmits these types of matters to the OAL.

As the Office of Administrative Law has provided a 60-day comment period in this notice of proposal, this notice is excepted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The rules proposed for readoption with amendments and repeals permit the fair and efficient hearing process for resolution of issues arising at the Motor Vehicle Commission. Eliminating extraneous information that is no longer relevant to the actual practice of Motor Vehicle hearings better informs the public and the legal community about the conduct of these cases at the OAL. The proposed amendments and repeals will accurately reflect the current practices of Motor Vehicle cases transmitted and occurring at the OAL.

Economic Impact

The rules proposed for readoption with amendments are not anticipated to have any substantial economic impact. These rules are designed to provide for efficient and effective hearings on contested Motor Vehicle matters before the OAL and, therefore, do not have a significant economic impact. Eliminating certain aspects of the chapter that no longer apply to the process of transmitting cases to the OAL will not create an adverse economic impact. In fact, with the proposed amendments, the practices that occur in motor vehicle cases at the OAL will be made clear to the public and the legal community and this could save employee time taken to address extraneous inquiries regarding proceedings on the papers and surcharge cases.

Federal Standards Statement

A Federal standards analysis is not required because the contested case hearing procedures, of which the rules proposed for readoption and the proposed amendments and repeals are a part, are promulgated in implementation of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 and 52:14F-1 et seq., and are not subject to any Federal standards or requirements.

Jobs Impact

The rules proposed for readoption and the proposed amendments and repeals will not generate or cause the loss of any jobs.

Agriculture Industry Impact

The rules proposed for readoption and the proposed amendments and repeals will not impact on the agriculture industry.

Regulatory Flexibility Statement

The rules proposed for readoption and the proposed amendments and repeals impose no reporting or recordkeeping requirements. There are no greater or lesser requirements provided for small businesses, as defined by the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., since these rules only apply to cases against individual licensees of motor vehicles.

Housing Affordability Impact Analysis

The rules proposed for readoption with amendments and repeals will have no impact on housing affordability, as the rules concern contested case hearings arising before the Motor Vehicle Commission.

Smart Growth Development Impact Analysis

The rules proposed for readoption with amendments and repeals will have no impact on housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan, as the rules concern contested case hearings arising before the Motor Vehicle Commission.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 1:13.

Full text of the proposed amendments and repeals follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

1:13-1.1 Applicability
(a) The rules of this chapter shall apply to hearings transmitted by the

Motor Vehicle Commission (MVC) except fatal accident cases, which shall be conducted in accordance with N.J.S.A. 39:5-30(b) and (e) and N.J.A.C. 1:13-[14.4(b)]14.5.

(b) (No change.)

1:13-4.1 Agency conference; failure to reach settlement
(a)-(c) (No change.)
(d) If settlement is not reached, MVC shall transmit the case to the

Office of Administrative Law, including the documents set forth in N.J.A.C. 1:13-14.3[(b) and (c)].

1:13-10.1 Discovery in excessive points[,] and persistent violator [and surcharge] cases

(a)Discovery in excessive points[,] and persistent violator [and surcharge] cases shall be limited to the records of MVC with respect to the case. The records shall include a certified copy of the licensees driving record abstract, relevant notices and orders of suspension, and certified proof of relevant mailings to the licensee. [In surcharge cases, when the licensee is contesting the validity of and conviction or administrative suspension entered on the surcharge bill, the records shall also include any documentary evidence in the possession of MVC which supports the contested entry.]

(b)-(c) (No change.)

[1:13-14.1 Proceeding on the papers
MVC excessive points, persistent violator and surcharge cases may be

conducted as proceedings on the papers, in accordance with N.J.A.C. 1:1- 14.8.

1:13-14.2 Certification
(a) The licensee shall return a completed certification to the Clerk

pursuant to N.J.A.C. 1:1-14.8.
(b) In excessive points and persistent violator cases, the licensee shall

indicate in the certification whether he or she disputes the facts recorded on the licensees driving abstract issued by MVC or disputes the severity of the sanction proposed by MVC, or both, or wants to raise any other relative issues.

(c) In surcharge cases, the licensee shall explain in the certification why the surcharge is not required or is inaccurately calculated.]

1:13-14.1 and 14.2 (Reserved)

1:13-14.3 Agency case
[(a)] In excessive points and persistent violator cases, MVCs case will

be based on the licensees driving record, a prehearing conference report, relevant notices and orders of suspension, certified proof of relevant mailings to the licensee, and any other documentary evidence or legal briefs necessary.

[(b) In surcharge cases, MVCs case will be based on the documents in (a) above, and shall also include the surcharge bill and, if the licensee is contesting the validity of any conviction or administrative suspension entered on the surcharge bill, documentary evidence in the possession of MVC which supports the contested entry.]

1:13-14.5 Failure to appear
[(a) If the licensee fails to submit the certification required by N.J.A.C.

1:13-14.2, the provisions of N.J.A.C. 1:1-14.4 shall apply.]
[(b)] If, after appropriate notice, the licensee fails to appear at a preliminary fatal accident hearing scheduled pursuant to N.J.S.A. 39:5- 30, the judge shall issue an order immediately suspending or continuing the suspension of the licensees driving privileges. Thereafter, the

provisions of N.J.A.C. 1:1-14.4 shall apply.

__________

(CITE 47 N.J.R. 8) NEW JERSEY REGISTER, MONDAY, JANUARY 5, 2015


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