dissenting in part.
To dissent in this case is to pick a nit or two. In terms of how the Director of the Division of Motor Vehicles exercises the powers conferred on him by the legislature, however, they may be important nits, so pick them I shall.
I agree with the Court that “the Director has statutory authority to grant occupational driving privileges to New Jersey licensees whose licenses have been suspended in another state.” Ante at 353. Both N.J.S.A. 39:5D-4 and N.J.S.A. 39:5-30.11 contemplate that in this case the Director could impose either the penalty of New Jersey or that of Ohio.
*359But that is not the way the Director has read the legislation nor the way he has perceived his authority. The Court misstates the Director’s position when it says that “[t]he Director does not contend that he has no discretion under the statute [to impose the Ohio penalty of occupational driving privileges only].” That is exactly what the Director has contended all along — a position from which he retreated not one inch at oral argument before this Court. Point I of the Director’s brief in support of the Petition for Certification reads:
THE DIRECTOR OP THE DIVISION OP MOTOR VEHICLES HAS NO LEGAL DISCRETION OR AUTHORITY PURSUANT TO N.J.S.A. 39:5-30.1 TO GRANT OCCUPATIONAL DRIVING PRIVILEGES IN THE STATE OP NEW JERSEY.
In that regard the Director is wrong, as the Court’s conclusion today to the contrary — a conclusion in which I join — makes plain.
It is precisely that misapprehension by the Director of the broad scope of his authority that renders unsound the Court’s determination, ante at 356, that “the Director has not abused his discretion by uniformly imposing the penalties of New Jersey.” The problem is that the discretion that the Director sought to exercise was uninformed or, perhaps more precisely, misinformed, in the sense that he failed to recognize the outer *360limits of his authority. How can we approve a regulator’s exercise of discretion when he refuses to consider the full range of options available to him? Surely the Director cannot be said to have exercised his discretion validly in the establishment of a uniform policy when, blissfully unaware of (or obstinately refusing to recognize) his authority to issue a work license, he failed even to consider that available option.
Imaginative formulation or reformulation of the Director’s contention, see ante at 356, cannot obscure that plain fact, any more than can the Director’s attempted after-the-event justification found in the second point of his petition:
REGARDLESS OF WHETHER THE DIRECTOR HAS THE AUTHORITY TO ISSUE WORK LICENSES IN NEW JERSEY, HE HAS PROPERLY CHOSEN IN THE INSTANT CASE TO IMPOSE NEW JERSEY’S SUSPENSION PERIOD.
The contention under that point heading is that “[e]ven assuming, arguendo, that the Director has the properly granted statutory authority to issue a work license, he has chosen not to do so, but rather to suspend the appellant for that period mandated by N.J.S.A. 39:4-50.4a, New Jersey’s breath [sic] refusal statute.” (Emphasis added.) The majority calls that statement of the Director’s position an “alternative” argument, ante at 356 n.2. I would call it a mild form of dissembling. No matter; call it what you will, for it simply underscores the point: the Director insists that he chose not to do that which at the time he made the choice he verily believed he had no legal right to do. Can anyone seriously equate that kind of decision-making with sound and judicious exercise of discretion, achieved only after a thoughtful and deliberate consideration of all available choices?
The point at issue is strikingly similar to the one we thrashed out in an appeal that was argued only the day before this one was and decided but a few short weeks ago, Gerald v. Commissioner, N.J. Dep’t of Corrections, 102 N.J. 435 (1986). There we remanded the cause to the Commissioner of Corrections to afford him the opportunity to reconsider his decision to transfer *361the defendant from the Adult Diagnostic and Treatment Center to the state prison. We did so because we were persuaded that “the Commissioner may not have adequately perceived the standards that should have governed his discretion to transfer the respondent from ADTC to the state prison.” Accordingly, we held that “[t]he transfer issue in respondent’s case should therefore be reconsidered and redetermined in light of the appropriate legal guidelines.” Id. at 439. Here we need no persuasion that the Director “may not have adequately perceived” his authority — his argument admits it.
Moreover, I do not consider it a satisfactory answer that we “know” what the Director will do because he has already declared an across-the-board policy. We can take judicial notice of the fact that there is a different Director of the Division of Motor Vehicles now from the one who occupied that position at the time the policy under review was set. This one may see things differently. But even if that were not the case, I would remain confident that a principled, conscientious public servant would be willing to rethink a policy that was structured at a time when he was in the dark as to the full extent of his authority. I choose to believe that the Director would scrupulously review the bidding, not simply go through the motions. In a word I would let the Director direct, not do it for him.
I would therefore remand this case to the Director, without retaining jurisdiction, for reconsideration of his uniform policy of imposing New Jersey’s mandatory minimum suspension penalties in light of his authority to issue work licenses. Respondent’s ultimate fate will turn on how the Division’s policy is formulated and how the Director exercises his discretion.
There is a little problem with N.J.S.A. 39:5D-30.1, neither raised by the parties nor mentioned by the Court, that the legislature might wish to consider.
If I read the statute correctly, it says that whenever another state suspends or revokes a New Jersey resident's driving privilege, the Director may suspend or revoke that resident’s driving privilege in this state "for a period not less than that for which the reciprocity driving privilege was suspended or revoked in *359such other State nor more than the period for which the driving privilege would have been suspended or revoked had a conviction of a like offense occurred in this State." If Ohio's penalty for refusing a breathalyzer test were a mandatory nine months suspension and New Jersey’s were, as it is, a mandatory six months, then it would be impossible to comply with the demands of the statute, read literally — that is, the Director could not impose a suspension of "not less than that for which the reciprocity driving privilege was suspended or revoked” in Ohio (nine months) and at the same time abide by the statute’s command that he not exceed New Jersey’s six months.
I suppose that it is theoretically possible that no other state permits a period of suspension for any motor vehicle offense greater than that provided for under our own various motor vehicle statutes and that therefore this painfully extended footnote-detour leads only to a dead end. But I think it highly unlikely that there is no offense for which some state’s penalty provision is not greater than New Jersey’s. The legislature must agree with that speculation— else why the prohibition against exceeding New Jersey’s maximum penalty?