DUI Law - Michigan Says Certificate of Mailing Inadmissible Confrontation Clause Violation

This case comes to DAD thanks to the watchful eyes of incoming Michigan State Delegate Mike Nichols. In People V. Nunley, --- N.W.2d ----, 2011 WL 4861858 (Mich.App.) the State appealed the circuit court's order denying the prosecution's motion in limine to admit the Secretary of State's certificate of mailing on the ground that it violated defendant's right to confront witnesses against him.

According to the pertinent facts, a police officer cited defendant for driving while license suspended, (DWLS). The prosecutor obtained defendant's “certified driving record, signed and sealed by the Secretary of State” from the Secretary of State's Office. Included as part of defendant's driving record is a “Certificate of Mailing of Orders and Rest Lics .” The certificate provides in the relevant provisions:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 [handwritten] OFFICER OR EMPLOYEE F. BUETER

 On July 27, 2010, the district court held a hearing on the prosecutor's motion in limine. The district court held that by its nature, a “certificate” requires a signature and that because, “I don't find any other reason why this document would be used except in litigation,” the Confrontation Clause in the sixth amendment of the federal Constitution requires that, in order for the certificate to be admitted in defendant's trial, the person who prepared the certificate must appear and be subject to cross-examination. In sum, the district court denied the prosecution's motion in limine finding that a signature was required on the certificate in order for it to be effective as a basis for a DWLS charge, and, that admission of the certificate without testimony of its author would violate defendant's Sixth Amendment Confrontational Clause rights.


On appeal, the prosecutor argued that the certificate of mailing at issue is analogous to a docketing statement or a clerk's certification authenticating an official record and is therefore non-testimonial and admissible. In support of his argument, the prosecutor relied on the following passage in Melendez–Diaz:

"The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk's authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” [ Melendez–Diaz, 129 S.Ct at 2538–2539 (citations omitted).]

The Michigan appellate court wrote in response:


"The prosecutor asserts that the situation in the present case is identical, arguing that Secretary of State records are similar to a clerk's certification. The prosecutor has missed a crucial distinction. If the document at issue was merely a copy of defendant's driving record sent along with the “Certificate of Mailing,” and “F. Beuter” was merely certifying the authenticity of that record, the prosecutor would have an excellent point. But, the copy of the record is not at issue and Beuter was not certifying its authenticity. Beuter was certifying that the notice of suspension had been sent, the very fact that must be proved to convict defendant of DWLS. The critical distinction is that the author of the certificate of mailing, here F. Bueter, is providing more than mere authentication of documents, he is actually attesting to a required element of the charge. Unlike a docketing statement or clerk's certification, the certificate of mailing will be used against defendant to prove an element of DWLS–2nd offense and is necessary for establishing an essential fact at trial.


The prosecutor also argued that the certificate of mailing is admissible because the Secretary of State's records are not prepared “solely” for trial. It cited to state law requiring that notices of suspensions be sent to the driver and that records of the same be maintained. in rejecting this position, the court replied:

"Careful review of MCL 257.204a reveals that it does not require creation of the certificate or maintenance of the certificates in the Secretary of State's records. Although MCL 257.204a(1)(h) requires the maintenance of “notices,” it does not require records to be kept of the certificates verifying the fact that a notice has been sent. Our review of the record in this case shows that the certificate of mailing does not appear in defendant's certified driving record. The Secretary of State created the certificate of mailing independent of MCL 257.204a.


Additionally, the court wrote:


"A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant." (emphasis in original)"

In sum, the court stated:


"It is important to keep in mind just what the prosecutor wants to have admitted and what the lower courts refused to admit. It was not defendant's driving record. Nor was it the notice of suspension. It was the certificate of mailing that the notice of suspension was in fact mailed to defendant. The key factor in this case is that the certificate of mailing is proof of notice by virtue of the plain language of MCL 257.212, which will indisputably be used to establish an element of the offense charged."

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OUIL Appeal - Michigan Destroys Blood and Violates Due Process is Claimed

This case comes to DAD through the watchful eyes of Michigan lawyer Michael Nichols (my what a busy boy Mike!). In People v. Reid, --- N.W.2d ----, 2011 WL 1775888 (Mich.App.), the defendant challenged his DUI conviction alleging that he was denied his right to an independent analysis of his blood sample due to the destruction the blood 6 months post arrest. The defendant wasn't charged with OWI until 21 months following his arrest. He also argued that his due process rights to a speedy trial were violated by the delay in charging him, when as a result of a 60 day retention policy, a video of his arrest was destroyed well prior to the charges being filed.
On appeal, the court acknowledged that his arrest occurred 21 months following his blood draw, and that his blood was destroyed while the charges were still pending. The court found that the destruction was not improper, since the defendant had 6 months following the arrest to still ask for a preservation of the sample. "We conclude that defendant had more than an ample opportunity to have his blood sample independently tested and, therefore, the trial court did not abuse its discretion in denying defendant's motion to suppress the test results."
As far as the speedy trial violation was concerned, the court apparently employed a Barker v. Wingo SCOTUS analysis (i.e. length of delay, reasons for delay, assertion of rights by defendant, and prejudice resulting from delay). Again the court found no violation, even though the tape was destroyed 19 months prior to the charges being filed (so that defendant never had a chance to seek preservation):
"Defendant also argues that the prosecutor gained a tactical advantage in the delay in bringing charges because the prosecutor knew that the Michigan State Police would have long since destroyed the videotape of the traffic stop, thus depriving defendant of potentially exculpatory evidence from the videotape. But this argument also fails. First, defendant merely speculates that this is the reason for the delay. Indeed, defendant is unable to establish that a videotape ever even existed. The arresting officer, Trooper Bommarito, testified that he could not recall whether the police car that he was driving that evening had a video camera. Based upon the fact that there was a blank space under “video” on his police report, he concluded that there “might not have been a video” because the normal practice is to write the car number in that spot if the car is equipped with video. He further testified that, even if a video had existed, it would have been taped over after 60 days. A second officer, Trooper Rowe, who arrived at the scene at approximately the time defendant's vehicle was stopped, did have a car with video. But that video was presumably turned in and taped over under the 60–day rotation policy.

But defendant does not show that the prosecution deliberately waited to bring charges so that the tapes would be lost. Indeed, the prosecutor did not merely wait two months to bring charges, but almost two years. Not only is it mere speculation that the videotape would have been helpful to defendant and further speculation that the prosecutor waited to bring charges until any such tape was reused under the 60–day rotation policy, that speculation falls apart in light of the fact that the prosecutor then waited an additional 18 months or so to bring charges. It would seem that if the prosecutor's motivation in delaying the charges was to wait for any videotape to be reused, the charges would have been brought much sooner than was the case.

For the above reasons, we conclude that defendant has not shown a due process violation arising from the delay in charging him."


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