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).
