Jeremy Jamaine OSBORNE, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
No. 15-CT-880
District of Columbia Court of Appeals.
Argued October 21, 2016. Decided September 21, 2017.
169 A.3d 876
Finally, on this record we must impose the sanction of disbarment. In In re Addams, supra, this court “reaffirm[ed] that in virtually all cases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence“; this court also declared that it “shall regard a lesser sanction as appropriate only in extraordinary circumstances.” Id. at 191. Furthermore,
Accordingly, for the foregoing reasons, it is ORDERED that respondent Catherine E. Abbey is immediately disbarred from the practice of law in the District of Columbia. For purposes of reinstatement, the period of disbarment will run nunc pro tunc to November 14, 2016, the date on which she filed the affidavit required by
So ordered.
Janice Y. Sheppard, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.
Before Fisher and Thompson, Associate Judges, and Steadman, Senior Judge.
Fisher, Associate Judge:
Appellant Jeremy J. Osborne was convicted of operating a motor vehicle after his driver‘s license had been revoked (“OAR“). At his bench trial, Mr. Osborne presented evidence that he had not received notice informing him of the revocation before his arrest. Mr. Osborne contends that, under these circumstances, the District was obligated to show that it had sent him notice before he could be convicted of OAR. We clarify the legal standard
I. Factual and Procedural Background
On August 10, 2013, Metropolitan Police Officer Michael Acevedo pulled over Jeremy Osborne‘s vehicle because he had failed to signal a lane change. After checking the vehicle‘s registration and calling a dispatcher for confirmation, Officer Acevedo determined that Mr. Osborne‘s District of Columbia (“D.C.” or “District“) driver‘s license had been revoked. Officer Acevedo arrested Mr. Osborne for operating after revocation in violation of
At trial before Magistrate Judge Sullivan, Mr. Osborne claimed that he did not know that his license had been revoked until Officer Acevedo arrested him. The revocation was not a complete surprise, however. Mr. Osborne testified that in April 2013 he had been tried for—and subsequently convicted of—“a version of DUI in Virginia.” His attorney in that case “told [him] that the [Department of Motor Vehicles (“DMV“)] in Virginia might contact the D.C. DMV” to report the Virginia conviction. Not knowing exactly the consequences he faced in the District or when they might occur, Mr. Osborne called the D.C. DMV once in May 2013 to ask if there was “anything wrong with [his] D.C. license.” He testified that a DMV employee told him “no.”
In early June 2013 Mr. Osborne again inquired about the status of his license, this time after he was pulled over in the District for driving with one of his lights out. A police officer reportedly told him that “there was nothing wrong” and “just gave me my license back.” According to Mr. Osborne, he did not receive anything in the mail regarding the revocation of his license.
Mr. Osborne explained at trial that his mother, Aleah Osborne, would have a record of any communications that had arrived at their home from the D.C. DMV. Ms. Osborne testified that she called the D.C. DMV “just about every day” from the time of her son‘s trial in Virginia to the time of his arrest in the District on August 10, 2013. Each time, employees “told [her] that he didn‘t have a problem with his license.”1 She occasionally communicated the employees’ reassurances to her son.
The prosecutor “acknowledge[d] that the defendant made attempts to find out the status of his driving privileges,” calling such attempts “commendable.” She nonetheless maintained that “operating after revocation does not require knowledge that the defendant knew that his license had been revoked. It merely requires that he was in fact operating a motor vehicle[,] which the defendant does not deny[,] and that at the time his license had been revoked.” Officer Acevedo had established that Mr. Osborne was operating a vehicle on August 10, 2013, and appellant‘s driving record, which the District had entered into evidence, showed that his driving privileges had been revoked “as of” July 4, 2013.
Mr. Osborne‘s driving record also noted other details about the revocation of his license. It showed a “withdrawal end date” of December 31, 2013. It also displayed two reasons for revocation: (1) “more than or equal to 12 points” and (2) “driving while intoxicated, 1st offense.” One section
Judge Sullivan opined that the “nub” of this case was whether Mr. Osborne should have “driven knowing that he didn‘t really know the status of his driver‘s license.” He commented that “[a] driver‘s license isn‘t a right. It is a privilege ... you have to jump through the hoops to be able to do it.” Moreover, the repeated inquiries to the D.C. DMV about the status of Mr. Osborne‘s license indicated that “they felt it could be revoked[.]” Judge Sullivan concluded that “there was enough notice to get out from underneath this absolute liability prohibition.” He expressed sympathy that Mr. Osborne “got caught in ... the transfer,” but remarked that his Virginia lawyer had warned Mr. Osborne to “be careful.” Since “his conviction out in Virginia trigger[ed] this reciprocity business with the [D.C.] DMV,” Judge Sullivan rejected Mr. Osborne‘s due process defense and found him guilty of OAR, as the judge believed “the law ... require[d].”
Mr. Osborne filed a motion for review of the judgment. Quoting a footnote in Loftus v. District of Columbia, 51 A.3d 1285 (D.C. 2012), Mr. Osborne argued that although OAR is a strict liability offense, “where the defendant presents some evidence that he or she had no notice of suspension and had no idea that the permit had been suspended,” the District has an “obligation to at least present proof that the constitutionally requisite notice of suspension was properly sent.” Id. at 1289-90 n.10. After reviewing the record, Judge Johnson concluded that the trial judge had “reject[ed] the credibility of assertions by Defendant and Ms. Osborne that Defendant did not know there was a problem with his license in the District,” which placed Mr. Osborne‘s situation outside the realm of cases addressed in the Loftus footnote.2 Finding no reason to reverse Judge Sullivan‘s credibility determinations, Judge Johnson denied Mr. Osborne‘s motion.3
II. Legal Analysis
The
This case requires us to focus on whether, and if so when, the elements of OAR should be expanded to require proof that the District sent notice of revocation to a driver. We first address the District‘s contention that our case law establishing that OAR is a strict liability offense forecloses such an inquiry.
A. Santos and Loftus
In Santos v. District of Columbia, 940 A.2d 113 (D.C. 2007), this court held “that operating a motor vehicle without a permit in violation of
Five years later, in Loftus—and bound by Santos—we reviewed a conviction for violating the statute at issue here. That statute provides:
Any individual found guilty of operating a motor vehicle in the District during the period for which the individual‘s license is revoked or suspended, or for which his right to operate is suspended or revoked, shall, for each such offense, be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 1 year, or both.
Nevertheless, Ms. Loftus argued that the District should have had to prove “that she knew or had reason to know that her license was suspended before she was arrested.” Loftus, 51 A.3d at 1286. We observed that “the facts and reasoning of Santos [we]re not meaningfully distinguishable” on the question of whether the legislature intended to include a mens rea element. Id. at 1287, 1289. Thus, we concluded that operating after suspension (“OAS“) is also a strict liability offense. Id. at 1286. We added, however:
We here deal only with the issue whether, as an across-the-board matter, the government must in all cases prove notice or knowledge as an element of the offense of OAS. We do not address a situation where the defendant presents some evidence that he or she had no notice of suspension and had no idea that the permit had been suspended. In such a scenario, not present here, the government, similar to instances where self-defense is raised, may well have the obligation to at least present proof that the constitutionally requisite notice of suspension was properly sent.
Mr. Osborne argues that his is “the exact scenario envisioned by the court” in Loftus, as he provided evidence that he had no notice that his D.C. license had been revoked. He asks this court to adopt the language from Loftus as a holding and to reverse his conviction because the government supplied no evidence that he had been sent the requisite notice of revocation. For its part, the District contends that we cannot adopt the Loftus footnote
We disagree with the District‘s assertion that Santos and Loftus foreclose Mr. Osborne‘s argument. Those cases focused on one narrow question of statutory interpretation: whether knowledge and intent were elements of the offense. See Santos, 940 A.2d at 116-18; Loftus, 51 A.3d at 1288-90. As we understand it, Mr. Osborne‘s request is (perhaps subtly) different. He has not demanded proof that he actually knew his license had been revoked. Rather, following dictum in Loftus, he argues that in some circumstances the District should be required to demonstrate that it sent him notice of an important development—that his driving was no longer authorized by the District but would now be considered criminal conduct. Neither Santos nor Loftus rejected this argument.6 Indeed, Loftus plainly advised that the door to such a rule remained open.
B. What Process Is Due?
But Loftus‘s cursory suggestion that a rule of this sort might be appropriate does not settle the matter. Footnote 10 of Loftus contained no holding and, thus, has no binding effect. See Alfaro v. United States, 859 A.2d 149, 154 n.8 (D.C. 2004) (“Language in an opinion which ‘constitutes obiter dictum, entirely unnecessary for the decision of the case ... [has] no effect as indicating the law of the District.‘” (alterations in original) (quoting Albertie v. Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C. 1994))). Accordingly, we must independently consider the propriety of such a rule.
Mr. Osborne does not argue that the District‘s current processes for revoking a driver‘s license are constitutionally deficient. As best we can tell, he asks only that the District follow its own procedures, and we focus our attention accordingly. See Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 16 (D.C. 1987) (“If there is one doctrine more deeply rooted than any other, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” (alteration in original) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944))). We describe the
i. The Statutory and Regulatory Framework
District statutory law provides that:
Except where for any violation of this subchapter revocation of the operator‘s permit is mandatory or where suspension or revocation is mandatory for accumulated point totals pursuant to Chapter 3 of Title 18 of the District of Columbia Municipal Regulations, the Mayor or his designated agent may revoke or suspend an operator‘s permit for any cause which he or his agent may deem sufficient; provided, that in each case where a permit is revoked or suspended the reasons therefor shall be set out in the order of revocation or suspension; provided further, that such order shall take effect 10 (15, if the person is a nonresident) days after its issuance....
Chapter 3 of Title 18 of the District of Columbia Municipal Regulations requires the Director of the D.C. DMV to revoke a motorist‘s driver‘s license in certain circumstances. One section instructs the Director to “forthwith revoke the license of any person upon receiving a record of such person‘s conviction” of driving under the influence or another of several enumerated offenses.
If a driver‘s license has been revoked, regulations require that the licensee “immediately return the license to the [DMV].”
When the Director proposes to revoke or suspend a license under his or her discretionary authority, a motorist may petition for a hearing on the proposed action.
The District‘s regulatory scheme also includes a section entitled “Notice of Suspension or Revocation,”
The remaining three subsections appear to establish rules applicable to all suspensions and revocations. Section 307.4 states:
The notice shall take effect within ten (10) days ... unless that person files a written petition with the Director for a hearing in which the Director must prove sufficient grounds for the proposed action. ... The filing of such a demand does not operate as a stay of such order when the order has been issued revoking or suspending a permit ... for driving ... while under the influence of intoxicating liquor or any drug or any combination thereof. ... Each notice issued pursuant to this section shall inform the respondent of the effective date of the notice and the right to a hearing.
ii. Notice of Revocation Was Required.
The parties disagree about whether the District‘s regulatory scheme entitled Mr. Osborne to notice that his license would be revoked. Mr. Osborne contends that the regulations require notice even if revocation was based on conduct fairly determined in an out-of-state proceeding. He also argues that, in any event, the Due Process Clause mandates that the District
While the statutory and regulatory provisions are far from a model of clarity,8 Mr. Osborne has the better of the argument as to what these provisions by their own terms require; hence, we do not reach any argument based on constitutional due process. Under the District‘s own scheme, it was required to send notice to Mr. Osborne.9 The District‘s position to the contrary is premised on the idea that a motorist is obligated to refrain from driving once he is convicted in an out-of-state proceeding, when his license becomes subject to revocation. This simply is not so. The regulations clearly provide that the District‘s authority and obligation to revoke do not arise until it has received an official record of the out-of-state conviction. See
The notice provisions reinforce Mr. Osborne‘s argument. First and most significantly, § 307.2 unambiguously provides for notice when a license is revoked due to an accumulation of points. As this was one of the reasons Mr. Osborne‘s license was revoked, he was entitled to notice. Second, these sections plainly contemplate that the District will articulate in writing its reasons for revoking a driver‘s license, even when revocation is mandatory. See, e.g.,
Relying on this triggering event is not a mere formality. The periods of revocation described in § 307 must have beginning
The District‘s reading of these provisions also undercuts the requirement that a driver must “immediately” return a revoked license.
iii. A Hearing Was Not Required.
Mr. Osborne also argues, for the first time on appeal, that he was entitled to a hearing before his license could be revoked. We disagree. District regulations unmistakably reject this argument. See
C. When Is Proof of Notice Required?
Having established that Mr. Osborne was entitled to notice, we next consider whether and in what circumstances the District should be required to verify that it provided this notice.
While none of our prior decisions has squarely addressed the question confronting us here, a few have presumed in dictum that the District and other jurisdictions comply with the requirements of due process before revoking licenses. In Santos, we “perceive[d] no serious risk that strict liability for driving without a permit [would] encompass ‘entirely innocent conduct‘” because “a driver‘s license cannot be suspended or revoked without due process, including both fair notice of a traffic violation charge and the potential penalties, and the right to a hearing.” Id. at 117. And in Loftus, we remarked that “the District of Columbia has a well-defined system for providing notice and a hearing before licenses are suspended.” 51 A.3d at 1289. Moreover, we have discussed at length the regulations which provide such process.
We have no doubt that in the mine run of cases, these presumptions reflect reality. Usually, there will be no need to prove that notice was sent. But where a defendant claims that he or she did not receive notice of revocation and the evidence fairly raises the issue, we would be remiss to presume away rational doubts about whether the District actually satisfied its regulatory obligation to give notice. In these situations, the District controls the means for transforming conduct that once was innocent into a criminal violation; it also controls information about when that prohibition is set to begin. We should not demand that licensed motorists stop driving before they receive the notice they are due. And we have no qualms about requiring more from the District in the way of proof at trial under these circumstances.
This holding is intentionally limited, however. We are not retreating from our earlier conclusion that prosecution for OAR or OAS may not be used as a vehicle to collaterally attack the revocation of a license. See Abbott v. District of Columbia, 154 A.2d 362, 362-63 (D.C. 1959) (“[A]ppellant ... sought to make a collateral attack on the order of the [DMV], and this cannot be done.“). A driver who has received notice that his license has been revoked or suspended may not continue driving until arrested and then defend by claiming that the order of revocation was invalid. See id. As we explained in Abbott, that driver must challenge the revocation through administrative channels. Id. at 363 (“If he felt there was some invalidity in the proceeding he should have taken the steps provided by law to correct it. He had no right to continue to operate a vehicle until apprehended and then make a belated attack upon the revocation order.“); accord, Foster v. District of Columbia, 497 A.2d 100, 103 (D.C. 1985) (“Because of appellant‘s failure to pursue his administrative remedies, the hearing examiner‘s decision sustaining his suspension must be considered conclusive. Appellant may not now mount a collateral attack on that decision.” (citation omitted)).
We therefore hold that, when a defendant claims that he or she did not receive notice of revocation and the evidence fairly raises the issue,10 the District bears the burden of proving beyond a reasonable doubt that sufficient notice of revocation was given.11 The District may discharge this obligation by, for example, introducing proof of service of a notice or order sent in compliance with § 307. Cf. Foster, 497 A.2d at 102 (“We need not decide whether notice of a suspension is a necessary ele
III. Conclusion
This court grants retroactive application to “new rule[s] for the conduct of criminal prosecutions” in all cases pending on direct review. Boone v. United States, 769 A.2d 811, 824 (D.C. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)). Accordingly, we vacate appellant‘s conviction and remand this case for a new trial.12 If he so chooses, Mr. Osborne can present his lack-of-notice defense for the trial court to evaluate under the clarified legal standard.
It is so ordered.