Tuesday, January 8, 2013

Doughty v. Director of Revenue[1]

Opinion handed down January 8, 2013

Norman and David Doughty, father and son, were arrested simultaneously for driving while intoxicated and both subsequently refused to submit to a breathalyzer test.[2] As a result of their refusals, Norman and David were served with notices from the Director of Revenue which stated that their licenses would be revoked for one year. At trial, the Director’s sole evidence was an exhibit of her certified records, which were admitted pursuant to a state statute that provides certified copies of the records of the Director of Revenue are admissible in proceedings without identification testimony.[3]  The Doughtys’ claimed that statute was unconstitutional because it prevented them from confronting adverse witnesses, such as their arresting officers.[4] The Supreme Court of Missouri rejected this argument and held that the Doughtys’ were free to subpoena any adverse witnesses to appear at their separate trials because the statute did not expressly prevent them from doing so. [5]

I.  Facts & Holding

In the early morning of April 23, 2011, Norman and David Doughty were returning from a wedding.[6]  The two were subsequently arrested for driving while intoxicated during separate traffic stops.[7]  Norman and David both performed poorly on the field sobriety tests.  Preliminary breath tests indicated Norman’s blood-alcohol content to be 0.120% and David’s to be 0.179%, both more than the legal limit.[8]  After being transported to the police station, Norman agreed to take a breathalyzer test but then refused to provide sufficient breath to perform the test, and David completely refused to take a breathalyzer test.[9]  As a result, the arresting officers served Norman and David with notices from the director of revenue revoking their driving privileges for one year in accordance with section 577.041(1), RSMo. Sup. 2009.[10]

Each Doughty subsequently filed a petition for review with the Vernon County Circuit Court pursuant to section 302.11, challenging the director’s administrative revocation of his license for refusal to take a breathalyzer test.[11]  During their separate trials, the Director’s sole evidence was an exhibit of her certified records, which included the police report, the alcohol influence report, and the driving records.[12]  The exhibit was admitted under section 302.312, which provides that certified copies of the records of the Director of Revenue are admissible in court proceedings without identification or foundational testimony.[13]  In Norman’s trial, when the Director’s certified records were offered pursuant to section 302.312, counsel for the Director advised the court that the arresting officer was not present at trial but that the officer was sent a letter “inviting” him to be there.[14]  Norman’s counsel then objected that section 302.312 violated his client’s constitutional right to due process and prevented him from confronting and cross-examining the witnesses against him.[15]  However, the trial court admitted the Director’s exhibit.[16]

During David’s trial, his counsel made the same objection and claimed that the exhibit of the Director’s records violated his client’s constitutional right to due process.[17]  The trial court admitted the exhibit but granted David leave to file with the court legal authority to support his objection.[18]  In response to this ruling, counsel for the Director stated that the witnesses were equally available to the defendant and he could have subpoenaed the officer himself.[19]  David’s counsel had failed to subpoena the officer, but stated that his objection was not that the officer was unavailable; his objection was that the officer’s testimony would come in without cross-examination.[20] 

During each trial, both Norman and David testified against the Director’s claim and their testimony conflicted with the information contained in each arresting officers’ report.[21]  More specifically, each man testified that he requested permission to contact an attorney before submitting to the breathalyzer test.[22]  Norman also testified that a statement made by his arresting officer caused him to question whether the breathalyzer was functioning properly.[23]  However, neither officer’s report mentioned a request for an attorney, and the report of Norman’s arresting officer did not include questions by Norman regarding the functionality of the breathalyzer.[24] 

After trial, David and Norman filed a joint trial brief; however, on November 1, 2011, the trial court denied both petitions for review.[25]  On appeal, the Supreme Court of Missouri had exclusive jurisdiction because the Doughtys challenged the constitutional validity of section 302.312 under Mo. Const. art. V, sec. 3. 

In its opinion, the Supreme Court of Missouri determined that the coextensive due process protections of both the state and federal constitutions provided each Doughty with the right to confront and cross-examine the witnesses against him in the trial on his petition for review of the administrative revocation of his license.[26]  However, the Court ultimately concluded that the Doughtys’ constitutional rights were not violated by the admission of the director’s records without the requirement of testimony by the arresting officers that prepared the alcohol influence reports, the citation reports, and the narratives.[27]  The Court based its determination on previous Supreme Court of Missouri rulings involving similar circumstances, in which drivers who had their licenses revoked claimed their constitutional rights had been violated because the Director’s records had been admitted into evidence without testimony from arresting officers.[28]  In each of those cases, the Court held that the driver’s rights had not been violated because the driver had every opportunity to confront an adverse witness if the driver had subpoenaed the arresting officer.[29]  However, in each case, the driver failed to issue a subpoena.[30]

Although procedural differences existed between those cases and the case at issue, the Court applied reasoning that was consistent with those previous decisions.[31]  The Court held that contrary to the Doughtys’ claims, the provision of section 302.312 authorizing the admission of the Director’s records by the trial court did not deny their constitutional rights to confrontation and cross examination.[32]  Rather, the Doughtys’ had the right to subpoena witnesses to appear at the trials on their petitions for review.[33]  However, they declined to exercise those rights by failing to subpoena the officers as witnesses for their defense.[34]

II.  Legal Background

Under section 302.312, copies of all records filed with the Department of Revenue and all records certified by the appropriate custodian are admissible as evidence in Missouri courts.[35]  As a result, Department of Revenue records may be admitted into evidence without any foundational testimony from the person who originally created the record.[36]  The legislature’s intention in creating this special exception to the evidentiary rules was to eliminate the need for testimony to identify and authenticate the records and provide foundation as well as to eliminate best evidence and hearsay challenges.[37]  However, this exception has been subject to several state and federal constitutional challenges by drivers who had their licenses revoked under Missouri law.[38] 

According to the United States Supreme Court, a defendant in a proceeding is entitled to an effective opportunity to defend his position by confronting and cross-examining any adverse witnesses.[39]  In nearly every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.[40]  The protections of confrontation and cross-examination also apply in cases challenging administrative actions.[41]  Given this fundamental constitutional principle, the Supreme Court of Missouri has held that the due process protections of the United States and Missouri constitutions apply to the State’s suspension or revocation of a driver’s license.[42]  Therefore, drivers who have questioned the constitutionality of the records exception in 302.312 have claimed that their due process rights had been violated because department records were admitted into evidence without any testimony from the arresting officer.[43] 

For example, in Collins v. Director of Revenue, a driver challenged the suspension of her driver’s license for driving with a blood alcohol content in excess of the legal limit and claimed that her rights of confrontation and cross-examination were violated.[44]  In that case, the administrative hearing officer upheld the suspension of her license after taking judicial notice of the Department of Revenue case file and hearing no other testimony, and the circuit court affirmed the suspension.[45]   The driver claimed the admission of the records without the arresting officer’s testimony violated her right to confrontation and cross-examination.[46]  However, the Supreme Court of Missouri upheld the lower circuit court’s ruling and stated that the driver had the right to subpoena witnesses to appear at the administrative hearing, and if she had wanted the officer to appear, she should have subpoenaed him.[47]

Similarly, in Manzella, the court of appeals considered the claim that a driver’s right to confront and cross-examine witnesses was violated by the admission of the director’s records pursuant section 302.312.[48]  In that case, the court of appeals found that the driver’s claim was not preserved but, in dicta, stated that the claim had no merit because the driver “was free to subpoena and examine the officers himself.”[49]  Likewise, in Wei v. Director of Revenue, the court of appeals denied a driver’s claim that her rights to confront and cross-examine the witnesses against her were violated by a judgment entered solely on the Director’s records and without testimony by the arresting officer.[50]  The court of appeals stated that the driver’s claim lacked merit because the driver could have subpoenaed the arresting officer to testify at trial and cross-examine him but voluntarily chose not to do so.[51]

III.  Comment

The Missouri courts have consistently held that a driver who wishes to confront and cross-examine his arresting officer regarding a record filed with the Department of Revenue has every opportunity to subpoena that officer and request his appearance at trial.   The language in section 302.312 does not explicitly prevent a driver from subpoenaing an arresting officer if the driver wishes to cross-examine the officer about the validity of the record.[52]  The statute only provides an evidentiary exception that is intended to expedite trial proceedings in which records filed with the Department of Revenue will be admitted as exhibits.[53]  Therefore, section 302.312 did not expressly violate the Doughtys’ constitutional right of due process.

It is well-known that a defendant has the constitutional right to confront any adverse witnesses against him and a subpoena provides a defendant with the procedural mechanism to do so.  In the present case, if the Doughtys disagreed with the statements and information contained in their respective police reports, they were more than capable of calling on the arresting officers to testify at trial, section 302.312 did not prevent them from doing so.  However, the Doughtys failed to utilize this legal right and instead opted to argue against the constitutionality of section 302.312.  Based on well-established Missouri precedent, their arguments lacked merit, and the Missouri Supreme Court made the correct decision in rejecting their argument and affirming the suspension of their licenses.  

- Haden Crumpton

[1]  No. SC92260 (Mo. Jan. 8, 2013) (en banc), available at http://www.courts.mo.gov/file.jsp?id=59101.  The West reporter citation is Doughty v. Dir. of Revenue, 387 S.W.3d 383 (Mo. Jan. 8, 2013) (en banc). 
[2]  Id. slip op. at 2. 
[3]  Id. at 3.
[4]  Id.
[5]  Id. at 9.
[6]  Id. at 2.
[7]  Id.
[8]  Id. 
[9]  Id.
[10]  Id.
[11]  Id.
[12]  Id. at 2-3. 
[13]  Id. at 3. 
[14]  Id.
[15]  Id.
[16]  Id.
[17]  Id.
[18]  Id.
[19]  Id. at 3-4. 
[20] Id. at 4. 
[21]  Id. 
[22] Id.
[23]  Id.
[24]  Id.
[25]  Id.
[26]  Id. at 6. 
[27]  Id. at 7.
[28]  Id.; see also Collins v. Director of Revenue, 691 S.W.2d 246, 249 (Mo. banc 1985);  Wei v. Director of Revenue, 335 S.W.3d 558, 566 (Mo. App. 2011);  Manzella v. Director of Revenue, 363 S..3d 393, 395 (Mo. App. 2012). 
[29]  See id. 
[30]  See id.
[31]  See Doughty, No. SC92260, slip op. at 8. 
[32]  Id. at 9. 
[33]  Id.
[34]  Id.
[35]  Id.
[36]  Id.
[37]  See Manzella v. Director of Revenue, 363 S.W.3d 393, 395 (Mo. App. 2012). 
[38]  See Manzella, 363 S.W.3d at 395; see also Collins v. Director of Revenue, 61 S.W.2d 246, 249 (Mo. banc. 1985). 
[39]  Goldber v. Kelly, 397 U.S. 254, 255 (1970).
[40]  Id. at 269. 
[41]  Id.
[42]  Dabin v. Director of Revenue, 9 S.W.3d 610, 615 (Mo. banc 2000). 
[43]  See Manzella v. Director of Revenue, 363 S.W.3d 393, 395 (Mo. App. 2012); see also Collins v. Director of Revenue, 691 S.W.2d 246, 249 (Mo. banc 1985);  Wei v. Director of Revenue, 335 S.W.3d 558, 566 (Mo. App. 2011). 
[44]  691 S.W.2d 246, 249 (Mo. banc. 1985). 
[45]  Id.
[46]  Id. at 254. 
[47]  Id. at 255.
[48]  See Manzella, 363 S.W.3d at 396. 
[49]  Id.
[50]  335 S.W.3d 558, at 446 (Mo. App. 2011). 
[51]  Id.
[52]  See RSMo. §302.312 (2010).
[53]  See RSMo. §302.312 (2010).