This is a big deal. In order to convict someone of driving after suspension of their license, the Commonwealth has to prove that the person received notice of the suspension. Until today, the government has been proving notice by offering into evidence a piece of paper, certifying that the attached notices had been mailed. Courts have been admitting them as a business record. Not any more.
The Supreme Judicial Court of Massachusetts ruled today in Commonwealth v. Parenteau (not Mark Parenteau, for those of us old enough to remember the heydays of WBCN) that a certification that a notice of suspension of a driver’s license was mailed to the driver is testimonial, and not simply a business record, and therefore not admissible against the driver in court absent a live witness to be cross-examined.
This means that someone from the registry has to testify that a particular notice was mailed to the address it shows, or at least that the practice of the registry is to mail out the notices to the addresses of record. Because it is going to be nigh-on impossible for the Registry to provide people to testify that they saw a particular notice go into the mail, this means that for a while the Commonwealth is not going to be able to prove these cases.
The Court did tell the Registry how to fix the situation, though:
We agree with the Commonwealth that the actual notice of the defendant’s license revocation, . . . constitutes a business record of the registry, created and kept in the ordinary course of its affairs. However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry.
So the registry will have to start creating contemporaneous records of mailing of the notices, and those will become business records, I guess. Of course, the only reason to keep those contemporaneous records is for future litigation, so they aren’t really business records, in my opinion, but that is a case for another day.
For now, it looks like people with charges of Operating After Suspension will be going to trial.
N.B.: Defendants charged with Operating After Suspension for OUI might run into a different problem. The dockets of their OUI cases, and if they plead, the green plea sheets, will in most cases indicate a license suspension and its duration. I expect that courts will allow that type of evidence to satisfy the notice element in those cases.
The interesting twist, though, is those cases in which, for example, a defendant who has two prior OUI convictions is convicted of OUI Second Offense, because the Commonwealth wasn’t able to prove both of his priors. His docket and green sheet will most likely show a two year loss of license, even thought the Registry will impose an eight year suspension, because its suspensions are determined by the number of priors in the Registry records, not necessarily the Courts’ sentence.
If that person is arrested three years after his conviction on OUI 2nd and is charged with driving while suspended for OUI, it may be impossible to convict him as the only evidence of notice of the Registry’s eight year suspension is their certification that it was sent, which is now inadmissible.
As with other criminal offenses, the notice element of OAS may be proven by circumstantial evidence in some cases, I suppose, but this ruling throws a big wrench in the prosecution of these cases, at least until the Registry institutes a fix.
