Evidence: DMV records usage by the prosecution.

May 7, 2012

PRIOR CRIMINAL RECORD AT A CRIMINAL TRIAL

Here Attorney DUI Los Angeles discusses problems that Los Angeles Drunk Driving Attorneys often face at trials.  A Los Angeles DUI prior or any other prior DUI is often proven by the District Attorney or Los Angeles City Attorney using a certified DMV paper record showing your previous conviction.  A DMV printout with a driving record can be used by the DA’s office to show not only your previous convictions but also the service of suspensions, i.e., that the person knew of the suspension.  A prior is a serious aggravating factor and sometimes a separate charge in DUI prosecutions.  For Driving on a Suspended License prosecution, which is found in California Vehicle Code sections 14601 et. al., proving service of the suspension is part of the prosecution.

However, rules of evidence prohibit using hearsay evidence.  Hearsay evidence is a statement made outside of court to prove the truth of that statement.  Thus, a printout that the prosecutor uses to prove your prior conviction is hearsay because it is a statement made outside of court (at the DMV) to prove the truth of the statement (that you have a conviction).  How does the prosecutor then able to use this DMV or Court hearsay printout against you?

HEARSAY EVIDENCE IN CALIFORNIA

To answer this question we have to refer to a rule against hearsay and the hearsay exceptions, which allow the introduction of all kinds of hearsay evidence for the truth because they are considered trustworthy.

In California, the hearsay rules are found in Evidence Code 1200.

(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.

Hearsay statements are not allowed to be used in court because they are considered not reliable.  A classic hearsay statement would be a witness testifying about what another, non-testifying person, told the witness.  This is not allowed in court because there is no way to verify the truth of that other statement.  So to guard against the non-testifying person’s statements being a lie, hearsay is prohibited.  There are, however, exceptions to this rule because some statements, even when said by a non-testifying witness, are reliable (or used for another purpose.  The exception to the Hearsay Rule is found in Evidence Code Chapter 2 Articles 1 to 17 with each Article for each exception to the Hearsay Rule.  Here is the list:

  1. Confessions and Admissions are exceptions to hearsay because such statements and admissions are considered to be reliable since most persons would not admit to something bad unless it is true.  This exception is commonly used by prosecutors to have police officers testify about a confession made to a crime.  For example, during a Los Angeles DUI trial, a police officer can testify that a defendant admitted to driving the vehicle and his testimony about this will be admitted in evidence.  This commonly happens when Los Angeles DUI Police investigation starts after an accident where the police did not observe driving.
  2. Statements against self-interest are similar to Confessions but unlike a confession to crime, a person can say a statement that is not incriminating but nevertheless hurtful.
  3. Statements of a witness who testified in a prior trial differently.  Thus, in a retrial, if a witness is not available, this witness’s testimony is still admissible despite being hearsay if someone states that the witness testified differently.
  4. Spontaneous, contemporaneous or dying declarations are admissible despite being hearsay.  Thus, for example, if a witness testifies about the events as they are happening to a 911 dispatcher, the 911 dispatcher can testify as to what happened despite this being hearsay because the person is not in court.
  5. Statements regarding mental or physical state are admissible despite being hearsay.  Thus, for example, police can testify about what someone said outside of court, even when that person is not there, to prove that the person who said it was surprised.
  6. Statements regarding wills and Claims against estates are admissible
  7. Business record exception.  This exception to the hearsay rule is used to introduce commonly used business records
  8. Official Record Exception to the hearsay rule.

OFFICIAL DUTY HEARSAY EXCEPTION

So, during a Los Angeles DUI trial, can the record of conviction or a DMV printout be used despite being hearsay because they fall within an exception to the hearsay rule under above #8?  Los Angeles DUI Attorney believes that it depends on the qualify of evidence.  This exception to the hearsay rule is codified in California Evidence Code 1280 and prior to the recent changes in the law, Criminal Defense Attorneys In Los Angeles and DUI Attorneys in Los Angeles had a hard time preventing the introduction of this evidence at trial.  In People v. Tenner, a California Supreme Court Case from 1993, the court permitted the introduction of prison records to prove prison priors.  There, the prosecutor used Defendant’s prison priors to increase his punishment.  The introduction of the prior record was allowed as an exception to the hearsay rule as an official duty regularly performed under California Evidence Code Section 1280 (combined with Evidence Code 664 which presumes that official duty was properly performed).  Thus, a prior DUI conviction or DMV records showing “service” or DUI prior would be used by the Los Angeles County DA’s office under the same principles as People v. Tenner to introduce a record of the conviction to increase punishment for a DUI or to prove that defendant knew his driver’s license was suspended.

But recently the Supreme Court of the United States decided similar cases of Melendez-Diaz (557 US 305) and Bullcomming v. New Mexico (131 S Ct. 2705) interpreting Crawford (541 US 36). The Supreme Court’s analyzed whether the documents introduced at trial are testimonial in nature.  If the documents are testimonials, then they would violate the confrontational clause of the U.S. Constitution and cannot be introduced in evidence. These recent decisions by the United States Supreme Court permitted the defense to make arguments that California Evidence Code 664 cannot be used to introduce documentary evidence in a criminal trial without live testimony.  DUI Attorneys in Los Angeles have new ammunition to defend Los Angeles DUI clients.

California Courts did not address the issue of documentary evidence but, a Court in a sister jurisdiction held that the ADMISSION OF CERTIFIED DOCUMENTS FROM STATE AGENCIES MAY VIOLATE THE SIX AMENDMENT CONFRONTATION clause of the US Constitution. When prosecutors offer certified documents from the DMV or other government agencies to prove such things as that the defendant’s driver’s license was revoked or suspended, Los Angeles DUI Attorney can use, as persuasive authority, the opinion of the Washington Supreme.  There, the Washington Supreme Court opined that a certified document from the official custodian of records showing that the defendant’s driver’s license had been revoked or suspended is testimonial in nature and therefore violated the hearsay rule as explained in Crawford and Melendez-Diaz (State v. Jasper; 2012 WL 862196; 2012 Wash. LEXIS 235, 271 P3d 876; 3/15/12; Wash. Supremes).

Thus, if you have a prior DUI conviction or if you are accused of driving on a suspended license in Los Angeles, you can win a Los Angeles DUI trial by not agreeing that the record of your prior DUI conviction can be used to prove your prior DUI.

For case-specific analysis of your Los Angeles Criminal Case or Los Angeles DUI case, please call or text Los Angeles DUI Attorney and Los Angeles Criminal Attorney directly at 323-464-6424.

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