People v. Nunley: Driving on a Suspended License Cases
The Michigan Supreme Court in People v. Nunley discusses an evidentiary issue for cases involving driving on a suspended license. The Court decided that the introduction at trial of the certificate of mailing showing a notice of license suspension or revocation does not require a Department of State employee to testify.
Driving on a Suspended License Law
For the offense of driving on a suspended license, it must be shown that the Secretary of State gave notice of the suspension or revocation by first-class mail addressed to the defendant at the defendant’s last known address at least 5 days before the date of the alleged offense
The Facts of the Case
Nunley’s driver’s license had been revoked for 2 OWI-related convictions within 7 years. Nunley was pulled over in a traffic stop and charged with DWLS, second-offense. The Department of State mailed Nunley an “Order of Action” telling him his license was revoked. The DOS kept a copy of the certificate of mailing without sending the certificate to Nunley.
Before Nunley’s trial, the prosecution made a motion to admit the certificate of mailing as proof that Nunley received the Order of Action. The certificate did not contain an actual signature of the employee listed as the person who mailed it. The prosecution’s goal was to admit the certificate of mailing without having the employee show up for trial.
The defense objected on the grounds that simply producing the certificate without the employee who mailed it would violate the Sixth Amendment Confrontation Clause.
The Order of Action Notice
The Department of State employee eventually testified regarding the notices sent out for suspended and revoked licenses. Courts notify the Secretary of State when a licensing action is taken. That in turn gets uploaded to a central system which then generates a notice to the person effected. The notice is then mailed along with a certificate of mailing. The SOS keeps a copy of the notice and certificate of mailing as well as sends the person the notice and certificate of mailing.
When a mandatory suspension or revocation is involved the process is a little different. The certificate of mailing is generated separately from the notice. Then, the notice is sent to the person effected but the certificate of mailing is not. The certificate of mailing is printed once a week. The certificate of mailing for the suspension/revocation cases are printed once on an eleventh page of a long list of drivers who are getting suspended or revoked.
What is the Confrontation Clause of the Sixth Amendment?
The Confrontation Clause provides that “an accused shall enjoy the right…to be confronted with the witnesses against him…”
The Clause applies to statements that are used as substantive evidence, particularly “testimonial” evidence. Testimonial evidence is a solemn declaration or affirmation of made for the purpose of establishing or proving some fact.
In This Case
The prosecution’s goal was to admit at trial the certificate of mailing without witness testimony in order to prove the truth of the matter asserted. That is, the Order of Action was mailed. Therefore this would be hearsay.
The question for the Court then is whether the certificate of mailing is “testimonial.” In other words, were the certificates non-testimonial hearsay.
The Court’s Decision
The Michigan Supreme Court did not believe the certificates of mailing were testimonial. First, the Court distinguished the certificates from other testimonial statements such as affidavits, depositions, prior testimony, and confessions.
The Court believed that based on the manner the certificates were created, the certificates were generated for non-testimonial business and administrative purposes, in order to memorialize a date of mailing. The certificates, the Court said, were simply routine cataloging of an unambiguous fact – that something was mailed.
Also, the Court said that because the certificates were generated before any crime was committed or any prosecution could be contemplated, an objective person would not believe the certificates would later be used in a trial.
To be convicted of of driving on a suspended license, the prosecution must prove beyond a reasonable doubt that
- That a person operated a vehicle,
- On a public highway or place open to the public,
- That the person’s license was suspended, and
- That the Secretary of State gave notice of the suspension or revocation by first-class mail addressed to the defendant at the defendant’s last known address at least 5 days before the date of the alleged offense
Get in Touch
Sam Bernstein is a Criminal Defense Attorney in Ann Arbor and Ypsilanti.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.