442 N.E.2d 114 | Ohio Ct. App. | 1982
Lead Opinion
Gary Morrison appeals his conviction for driving while his license was suspended pursuant to R.C.
On June 5, 1981, police officers responded to a fight call at an address in Springfield Township. As they arrived a *365 woman pointed to a car pulling away from the curb. Officer Moneypenny followed the car and stopped it. He viewed Morrison switch seats with his female passenger. A computer check showed that Morrison's license had expired and he was cited accordingly.
On September 30, 1981, before the trial of all three cases began, the defendant moved to suppress any evidence obtained as a result of the June 1981 stop on grounds that the arresting officer lacked probable cause to make the stop. That motion was overruled. Trial began and the trial court found him guilty of driving under suspension on August 17, 1979 but dismissed the failure to control charge. He was also convicted of driving on an expired license on June 5, 1981.
Appellant challenges the propriety of his conviction for driving under suspension on grounds that the state failed to establish Morrison's culpability due to faulty attempts at notifying him of the original suspension. Morrison had been involved in an automobile collision in November 1978, with an Irvin Kester. As a result, Kester submitted an accident report to the Bureau of Motor Vehicles (BMV) claiming $1,433.70 in property damage to his car. On the basis of this report and the provisions of R.C.
"The registrar of motor vehicles, * * * upon determining the amount of security to be required of any person involved in such accident * * * shall give written notice to such person of the amount of security required to be deposited by him. Such notice shall inform the person of his right to a hearing if written request is made within thirty days of the mailing of the notice."
Morrison disputes the authenticity and admissibility of the state's proffer of BMV records which purport to show compliance with these notice requirements. The state was unable to controvert Morrison's evidence that he in fact did not receive the notice of the required security deposit. Despite the failure to receive actual notice, his suspension became effective April 14, 1979, in accordance with the terms of R.C.
"* * * upon failure of any person to request a hearing as provided for in section
The issues which we must decide are whether Morrison may attack the underlying suspension upon which his conviction is based and, if so, whether in fact the BMV effected sufficient notice in this case, by compliance with its statutory duties to send notice to the "last known address."
In order to decide whether to permit an attack upon the underlying suspension we must face the holding of this court inState v. McCall (June 21, 1978), Summit App. No. 8802, unreported, which involved an attack on the notice provided to McCall of his R.C.
"While the act of the state in making the suspension may be open to attack or question insofar as the method of doing it *366 was concerned, that type of attack is not permissible as a collateral issue evidencing a lack of guilt in the traffic case.
"* * * The order of suspension is presumed valid until set aside in a proper proceeding involving the parties to the suspension. That question is not one subject to test in a criminal case involving parties other than those in the original suspension order. * * *" Id. at 3.
At that time this court felt that it would be inappropriate to permit a collateral attack in a proceeding which gave the BMV no opportunity to defend the suspension. This would place the burden on the licensee to attack the suspension directly in a civil proceeding. While this is the more desirable approach, the rule becomes unwieldy when reviewed in the light of constitutional due process applied to criminal proceedings. Therefore, we have reviewed the principle and now conclude that McCall, supra, should be overruled to the limited extent that it prohibits a defendant from showing that the BMV did not comply with the notice provisions applicable to a BMV suspension order which is the basis of a subsequent driving under suspension charge. We are compelled to allow this limited exception because it is a criminal charge.
We emphasize that we do not extend this exception to an attack on the validity of the underlying suspension itself in a criminal case. This exception is limited to a determination whether the state agency has complied with its statutory duties regarding notice of suspension to the licensee involved. The agency's certified record if it shows a mailing would ordinarily make out a prima facie case. Then the licensee would have the burden of going forward with evidence that the notice requirements were not met. However, the burden of proof beyond a reasonable doubt remains at all times on the state to show it met its statutory duty as to notice requirements. Thus, the issue of "last known address" becomes a factual issue for the trier of fact.
We also hold that Morrison need not receive actual notice of the suspension. Townsend v. Dollison (1981),
We see no difference between a point suspension and a security deposit suspension (R.C.
It remains for us to determine what type of notice is in fact provided for in R.C.
We are also compelled to determine for notice puposes, what shall constitute a licensee's "last known address." The Supreme Court has addressed this question in a case involving a notification requirement in an Ohio Bureau of Employment Services case. Holmes v. Union Gospel Press (1980),
"* * * The requirement of R.C.
This language was cited approvingly in Townsend v. Dollison,supra. Since we have applied a notice requirement here similar to that at issue in Townsend, we find the court's statement inHolmes, supra, regarding "last known address," equally apt in the present case. We deduce from Townsend v. Dollison, supra, that notice sent to the address appearing on a licensee's most recent license application or a new address which the licensee specifically supplies1 to the BMW is the "most current address" and complies with a statutory requirement that notice be sent to a licensee's "last known address."
Although it is not spelled out in Townsend, we do not believe that the BMW is required to look beyond the license application or specific information supplied by a licensee to the BMW records in order to discover a licensee's "last known address."
Appellant also argues that the state failed to establish a mensrea for the driving under suspension charge. In other words, Morrison contends that unless he knew or should have known of the suspension in August 1979, he could not be convicted of driving under suspension. We disagree with his contention that the state must establish a defendant's culpability in a driving under suspension case. A driving under suspension case requires only that the person drive an automobile on a public highway while his license is suspended under a provision of the Ohio Revised Code. Therefore, a charge of driving under suspension is akin to a strict liability statute and requires no culpable mental state on the part of the defendant.2
Having answered certain threshold questions, regarding a collateral attack on the notice provisions related to a suspension that is the basis for a subsequent criminal charge, we summarize and outline the procedural process for presenting the issue as follows. To establish a prima facie case for a driving under suspension charge the state must show that the defendant in fact drove an automobile upon a highway after the effective date of an order entered by a state agency suspending his license; and that notice of that order had been sent to the licensee's "last known address." This showing would suffice for either a point suspension case under R.C.
If the state meets its burden to present a prima facie case that the defendant drove under suspension, then, under the limited exception announced in this case, the defendant may proffer evidence to rebut the presumption of compliance by the BMW with the statutorily devised notice provisions. This attack might come in the form of subpoenaing BMW records which show that the bureau had an address more current than the one to which notice was sent. In the alternative a defendant could testify that he did not in fact receive notice and that the address used by the BMW was not an address he supplied.
In the case of Morrison which involves a R.C.
Morrison challenges the admission into evidence of a BMW packet because the documents were allegedly improperly certified as official records. He also claims that the packet was inadmissible since the state failed to establish a proper chain of custody.
A chain of custody is inapplicable to the introduction of records from the BMW. The purpose being a requirement that the state establish a chain of evidence is to ensure the identity of an object which is easily substituted, tampered with or altered. For a discussion of chain of custody see State v. Conley (1971),
The procedure for authenticating official records for purposes of admitting them into evidence is specified in Civ. R. 44(A). Crim. R. 27 provides that Civ. R. 44 applies to criminal cases. Civ. R. 44(A) provides in part:
"* * * An official record, or an entry therein, kept within a state * * * when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. * * *"
We find that the certification stapled to the front of the BMW packet which contained the bureau's records on Morrison complies with Civ. R. 44 for purposes of admission into evidence as an official record. We admit that a more formal *369
compilation of the bureau records would be preferred over a set of loose papers stapled together. However, such informality does not affect the admissibility of the packet. Having been properly authenticated the trial court committed no error by admitting the BMW packet as evidence of Morrison's suspension. See State v.Smith (1977),
Morrison challenges his conviction for driving on an expired license claiming that the police lacked reasonable grounds for stopping him June 5, 1981, and, therefore, his motion to suppress should have been granted. We cannot agree.
Brown v. Texas (1979),
Judgment affirmed in part and reversed in part and causeremanded.
QUILLIN, J., concurs in part.
BELL, J., concurs in judgment only.
Concurrence Opinion
I concur in the opinion except that portion which requires the prosecution to prove mailing of the notice of the suspension as part of its prima facie case. I believe that a suspension order must be accorded the presumption of regularity until shown to the contrary.
I agree that Townsend v. Dollison (1981),