Court of Appeals finds mailing certificate testimonial in nature; state clerks must testify in open court on notice element in DWSL cases
A recent Michigan Court of Appeals decision could create a logistical nightmare for prosecutors seeking convictions in driving-with-suspended-license (DWSL) cases while bolstering a defensive argument that an accused charged under the DWSL statute, MCL 257.904, had not been adequately notified of his/her license suspension or revocation prior to the date of the offense.
The basis of the Courts decision in People v. Nunley hinged upon its interpretation of the Confrontation Clause found in the Sixth Amendment of the U.S. Constitution, which provides that œin all criminal prosecutions, the accused shall enjoy the rightto be confronted with all witnesses against him MCL 257.904 requires, among other things, proof that the accused had been given notice, in accordance with MCL 257.212, that his/her license had been suspended or revoked prior to the time of the offense. In almost all cases, notice of suspension or revocation is provided by mail from the Secretary of State to the driver and is accompanied by a certificate of mailing œnaming the person to whom notice was given and specifying the time, place and manner of giving notice.MCL 257.212. (Personal delivery of the notice of suspension or revocation is also permitted under the statute though certification is still required). In all cases prior to Nunley, the submission into evidence of the certificate of mailing the notice of suspension or revocation was permissible as proof that the suspended or revoked driver had been made aware of the loss of driving privileges prior to the time of the DWSL offense.
In Nunley, however, the Court concluded that since proof of notice prior to the commission of the DWSL offense is an element of the crime under MCL 257.904, the admission into evidence of a certificate of mailing as proof of that element violates the defendants right to confront the testimony being offered against him, in this case that of the Secretary of State clerk who issued the certificate of mailing. The Court based its opinion on a U.S. Supreme Court case, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which refused to admit a lab analysts report as evidence on the grounds that the results of the report were being offered to prove a fact in question at trial without permitting the defendant the opportunity to cross-examine the reports author. Because the certificate of mailing in a DWSL case is being offered to prove or establish some fact at trial, the Court characterized the certificate as testimonial in nature thereby preventing its admission under the public record exception to the hearsay rule. œIndeed,the Court said, œthe certificate of mailing is the only evidence of proof of notice and is solely created for that singular purpose.
The decision will likely be appealed to the Michigan Supreme Court, but in the interim the Courts ruling has given defense attorneys a valuable bargaining in the litigation process. To defend against challenges to the notice element of MCL 257.904, prosecutors are now faced with the expense and inconvenience of transporting a Secretary of State clerk from Lansing to their courtrooms to testify that he/she did in fact send the notice of suspension or revocation out as indicated in the certification of mailing. This burden, in light of the significant number of DWSL convictions garnered annually in this state, could have a dramatic effect on the approach county prosecutors take in bringing these cases to trial, a result defense attorneys can smile upon.
*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime