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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DWI Appeal - NJ Court Bars Suspension as Untimely

In Galeano v. new Jersey, Not Reported in A.3d, 2011 WL 2301104 (N.J.Super.A.D.), the New Jersey licensed defendant was arrested and convicted of DUI in Fliorida in 2003. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated. In July 2010, the New Jersey Motor Vehicle Commission received a report of conviction from Florida pursuant to the Interstate Driver License Compact. The Compact provides, among other things, that “[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee.” The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003.

On appeal, the Court reversed the suspension, finding that it was untimely:

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, “the law infers that the contract will be performed within a reasonable time.” In re Estate of Yates, 368 N.J.Super. 226, 236 (App.Div.2004). “What constitutes a ‘reasonable time’ is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention.” Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to “[p]romote compliance” with laws governing the operation of motor vehicles. N.J.S.A. 39:5D–1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D–1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings “affect drivers in a serious way” because they “often threaten [ ]” a driver's ability “to earn a livelihood[.]” In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings “must meet those incidents of fairness” that underlie the constitutional right to due process. Ibid.

Editor's Note: Many states, in an effort to obtain outstanding fines and monies uncollected on drunk driving cases and bond forfeitures, are uploading DUI/DWI convictions on cases going back to the 1970's (Illinois is one example)The doctrine of laches is sometimes available to fight against these late notices. However, the above case would not be a good laches case, since New Jersey itself acted promptly. If anything the laches would only apply to the reporting party, and such litigation is difficult and many states have statutorily immunized themselves from laches defenses.


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DUI Arrest - Florida Allows Challenges To Unlawful Arrest Suspensions

In Florida Department of Highway Safety v. Hernandez, --- So.3d ----, 2011 WL 2224791 (Fla.), the Supreme Court of Florida was asked to decide the following two questions:
Can the DHSMV suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

The court answered these questions as follows:

"We agree with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304, 305–08 (Fla. 5th DCA 2008), review denied, 984 So.2d 519 (Fla.2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. We further agree that the driver whose license is suspended should be able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer, who is reviewing the legality of the suspension. We thus answer the first certified question in the negative and the second certified question in the affirmative, approve Hernandez, approve of the reasoning in Pelham, and quash McLaughlin."

The Florida Court reasoned as follows:
"Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006),FN4 commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's “implied consent law”).FN5 The statute provides that any person driving within Florida is deemed to have consented to testing to determine “the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” § 316.1932(1)(a) 1.a., Fla. Stat. (emphasis added). The statute further provides that the test “ must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So.2d at 306, “It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.”

The DSMHV had argued that, under an additional statute delineating the issues that could be raised at the DMV hearing, the legislature had specifically deleted the issue of the legality of the arrest (by amendment). "In the prior version of the statute, the hearing officer's scope of review included consideration of the additional issue of “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch.2006–290, § 45, Laws of Fla. Because the Legislature deleted this statutory language and made other deletions in the amended statute, the DHSMV contends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process." The court held as follows:

"Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Petitioner urges, because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest."

Finally, the Supreme Court held that the defendant must have the right to challenge the legality of the arrest, and that the hearing officer has the obligation to review the legality of the arrest, stating:
"Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable—and unconstitutional—result."


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DUI Appeal of the Day (DAD) - Missing CDL Language Requires Rescission of Suspension

In Dereus v. Iowa DOT, Slip Copy, 2011 WL 649233 (Table) (Iowa App.), NCDD member Robert Rehkemper successfully argued that the failure to give the complete implied consent advisory precluded revocation of his client's ordinary driver's license, as well as precluding disqualification of his CDL.
In the case sub judice, the defendant was driving his personal vehicle, but he also held a CDL. Like many other states, Iowa has followed the federal mandate imposing a disqualification of a defendant's CDL privileges for an implied consent suspension, even if the person was operating a non-CDL vehicle at the time. Unfortunately in this case, the officer failed to read the warning language containing that information. On appeal, the court held that the failure to read the language not only required reversal of the CDL disqualification, but that it also required reversal of the suspension of the defendant's personal driving privileges. The statute in question stated that the driver shall be warned (of the CDL consequences):

If the duty imposed is “essential to the main objective of the whole statute, the provision is mandatory, and failure to perform the duty will invalidate subsequent proceedings under the statute.” Downing, 415 N.W.2d at 628. Thus, the appeals court upheld the reversal of all related suspensions and disqualifications.

(Editors note: Iowa has also held that the failure to read the mandatory warnings results in the inadmissibility of a test result in the criminal proceeding...)


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