Tuesday, June 21, 2011

DUI Appeal - Ohio Says BMV Records Violate law

This is the second installment in a three-part DAD discussion of government records admissibility and/or confrontation clause issues. The case of State of Ohio v. Lee, 191 Ohio App.3d 219, 945 N.E.2d 595, 2010 -Ohio- 6276, was provided to DAD by NCDD member Jeff Meadows. Here, the defendant appealed his conviction based in part on the alleged erroneous admission of defendant's Bureau of Motor Vehicles (BMV) record (transcript) which was used to prove five prior OVI convictions. The appeals court agreed, and held that the records were not sufficiently 'certified' to allow them to be introduced under particular business records or public records exceptions. Since they were not so 'certified', the court held that their admission without live testimony to otherwise authenticate the documents violated the confrontation clause.
In Ohio, Evid.R. 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. Evid.R. 902 lists certain items that are self-authenticating so as to negate the need for any extrinsic evidence in support of the item's admissibility. An item that is not self-authenticating must be properly authenticated by other means.
The defendant on appeal argued that the transcript was neither properly certified nor sufficient to be self-authenticating because it was not authenticated by a live witness and did not contain a notarization, signature, or affidavit from an individual at the BMV. According to the court's recital of the evidence:

"The transcript in this case is accompanied by a cover page stating that “[t]his certifies that a search has been made of the files and records of the Ohio Registrar of Motor Vehicles; that the attached documents are true and accurate copies of the files or records of the Registrar; and that the Registrar's official seal has been affixed in accordance with the Ohio Revised Code (R.C.) 4501.34(A), which states in part: ‘[The Registrar] shall adopt a seal bearing the inscription: Motor Vehicle Registrar of Ohio. The seal shall be affixed to all writs and authenticated copies of records, when it has been so attached, such copies shall be received in evidence with the same effect as other public records. All courts shall take judicial notice of the seal.’ ” Further, the cover page contains an official seal, which was printed on the document."

In holding that the record was inadmissible, the court stated:

"However, no individual or employee of the Bureau of Motor Vehicles is identified on the document as certifying the record and there is no signature, notarization, or affidavit attesting to the record's authenticity. The cover page contains a notation indicating that the record may have been created “By: TVNSICKL.” Yet no further information is given to suggest the identity of this individual, the individual's position at the BMV, or the individual's knowledge of appellant's driving record. Absent such information and a signature attesting to the record's authenticity, the document does not qualify as a certified record under R.C. 2945.75(B). Moreover, R.C. 4501.34(A) allows for BMV records to be admitted into evidence, but it similarly requires that these records be “authenticated.” Without identification of an individual attesting to the record's authenticity or a signature providing for the records authenticity, no “authentication” exists. See Evid.R. 901. Like the state in McCallum, the prosecution in this case attempted to introduce appellant's BMV record through the testimony of the arresting officer, but, as in McCallum, the officer is not an individual capable of authenticating the record because he had no personal knowledge of the contents of the exhibit."

As far as the inadmissibility of the document under the other statutory provisions, the court stated:
Further, Evid.R. 902 allows certain types of evidence to be admitted as self-authenticating. The BMV record in this case does not qualify under any category of self-authenticating evidence. The applicable provisions of Evid.R. 902 under which a BMV record could arguably qualify provide as follows:

“(1) Domestic public documents under seal. A document bearing a seal purporting to be that of * * * any State * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

“(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. * * *

“(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio. * * *

“(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner **603 provided by law by a notary public or other officer authorized by law to take acknowledgments. * * *

“(10) Presumptions created by law. Any signature, document, or other matter declared by any law of a jurisdiction, state or federal, to be presumptively or prima facie genuine or authentic.”

The appeals court explained why the document did not qualify as a self-authenticating document as follows:

"Subsections (1) and (2) of Evid.R. 902 both require an accompanying signature. As described above, the BMV record in this case bears no signature. Subsection (4) states that the record must be accompanied by an acknowledgement from a “custodian or other person authorized to make the certification.” There is no indication on the BMV record that a custodian or authorized individual certified the record. The section also refers to subsections (1), (2), and (3), which require accompanying signatures. Subsections (8) and (10) refer to documents executed or declared by law to be authentic. In this case, the applicable Ohio law for authenticating BMV records is R.C. 4501.34(A). As previously discussed, the BMV record does not comply with R.C. 4501.34(A). Accordingly, the BMV record submitted in this case does not qualify as a self-authenticating document under Evid.R. 902."

Editor's Note: In a prior case mentioned in the opinion (McCallum) the cover page certification document contained a name but not a seal, whereas here the cover page contained a seal but not a name. Over the course of time it appears that both the Bureau of Motor Vehicles became lazy with the certifications, until they simply failed to strictly comply with the law. It would be prudent, in light of the above, to review your own Motor Vehicle documents to see if the same deficiencies exist.

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