Opinion
No. 34833-1-II.
October 16, 2007.
Appeal from a judgment of the Superior Court for Clallam County, No. 05-1-00476-1, Kenneth D. Williams, J., entered April 21, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Sine Tveit appeals her jury conviction for first degree driving while license suspended (DWLS). She argues that the trial court erred in denying her motion to suppress the certified copy of her driving record as hearsay and violated her constitutional right of confrontation. We affirm.
FACTS
There are no factual disputes in this appeal.
Tveit filed a motion in limine, arguing that the certified copy of her driving record (CCDR) was inadmissible hearsay and violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. In denying Tveit's motion, the trial court found the language that DOL used in the CCDR was "inartful," but ruled the CCDR admissible under the business record and public record exceptions to the hearsay rule. Report of Proceedings (RP) (Jan. 9, 2006) at 17.
The trial court commented that DOL "[c]ould have said there's no record that the driving privilege was reinstated." Report of Proceedings (RP) (Jan. 9, 2006) at 17.
The CCDR comprises four pages, including an order revoking Tveit's driver's license, dated June 9, 2003, the first page of which states:
After a diligent search of the computer files, the official record indicates on September 4, 2005, the following statements apply to the status of the above named person: Had not reinstated his/her driving privilege. Was suspended/revoked in the first degree. Subject was not eligible to reinstate his/her driving privilege on the above date of arrest. Had not been issued a valid Washington license.
State's Exhibit 2. This exhibit also includes a copy of the mail certificate used to send the revocation letter to Tveit.
The jury found Tveit guilty of first degree DWLS. She appeals.
ANALYSIS] I. CCDR's Admissibility as a Public Record
Tveit argues that the trial court erroneously admitted her CCDR, which, she contends, is inadmissible hearsay. We disagree.
We review evidence rulings for abuse of discretion. State v. Chapman, 98 Wn. App. 888, 890, 991 P.2d 126 (2000). A trial court abuses its discretion when it exercises discretion without tenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We find no such abuse of discretion here.
Generally, hearsay is inadmissible unless it comes within an exception established by statute or common law. State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007). RCW 5.44.040 provides one exception to the hearsay rule for
[c]opies of all records and documents on record or on file in the offices of the various departments of the United States and of this state . . . when duly certified by the respective officers having by law custody thereof, under their respective seals where such officers have official seals. . . .
A public record certified in this manner is self-authenticated. ER 902(d); State v. Monson, 113 Wn.2d 833, 836-37, 784 P.2d 485 (1989); Chapman, 98 Wn. App. at 891.
Additionally, to be admissible in Washington, a public record must (1) contain facts, rather than conclusions that involve judgment, discretion, or expression of opinion; (2) relate to facts that are of a public nature; (3) be retained for public benefit; and (4) be authorized by statute. State v. Monson, 113 Wn.2d at 839 (citing Steel v. Johnson, 9 Wn.2d 347, 358, 115 P.2d 145 (1941)).
Tveit argues that the CCDR offers "conclusory opinions based on [a DOL employee's] perception of Tveit's driving record, i.e., that Tveit's driving privilege `[h]ad not [been] reinstated' and `[w]as suspended/revoked.'" Br. of App. at 10 (citing State's Exhibit 2). This argument fails. That Tveit's driving privilege was suspended or revoked is a fact, not an opinion requiring discretion to determine. See, for example, Kirkpatrick, in which our Supreme Court recently held CCDRs are documents that include "only verifiable facts, adduced by a government official in the regular course of his or her duties according to a standardized procedure." 160 Wn.2d at 887.
Upholding the admission of a CCDR, the Kirkpatrick Court (1) noted, "Washington courts have long recognized the inherent reliability and admissibility of driving records from DOL"; (2) reaffirmed its previous ruling that a CCDR is "a classic example of a public record kept pursuant to statute, for the benefit of the public and available for public inspection"; and (3) found "no legal or logical basis for treating a document certifying the absence of a driver's record differently than [other DOL public records]." Kirkpatrick, 160 Wn.2d at 886 (emphasis added). This Kirkpatrick holding applies to the portion of the CCDR here that states Tveit "[h]ad not been issued a valid Washington license." State's Ex. 2.
Kirkpatrick, 160 Wn.2d at 886; State v. Kronich, 160 Wn.2d 893, 903, 161 P.3d 982 (2007).
Kirkpatrick, 160 Wn.2d at 888 (quoting Chapman, 98 Wn. App. at 891 (citing State v. Monson, 53 Wn. App. 854, 858, 771 P.2d 359, aff'd, 113 Wn.2d 833 (1989))).
Accordingly, we affirm the trial court's admission of the CCDR as a public record exception to the hearsay rule.
II. Public Records and the Confrontation Clause.
Tveit also argues that the trial court's admission of her CCDR violated her constitutional right to confrontation under the Sixth Amendment. We review an alleged violation of the Confrontation Clause de novo. Kirkpatrick, 160 Wn.2d at 881. Tveit's constitutional argument fails.
The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against her. U.S. Const. amend. VI. Generally, prior out-of-court statements are not admissible if they are testimonial, unless the witness is unavailable at trial and the accused had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 66, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Although the United States Supreme Court did not fully define what evidence is "testimonial," it did make clear that business records are not testimonial. Crawford, 541 U.S. at 56, 76
"The United States Supreme Court has not directly addressed the testimonial versus nontestimonial nature of public, as opposed to business, records." Kirkpatrick, 160 Wn.2d at 882. Nonetheless, the Washington Supreme Court recently held in Kirkpatrick that admission of DOL certification describing the status of a person's driving privilege is not testimonial evidence. 160 Wn.2d at 882, 889; see also State v. Kronich, 160 Wn.2d 893, 902, 161 P.3d 982 (2007). The Kirkpatrick Court reasoned that a CCDR is nontestimonial because (1) it contains only verifiable facts, (2) it does not contain an accusatory statement, and (3) cross-examination of DOL employees "would not further the underlying purpose of the Confrontation Clause." Kirkpatrick, 160 Wn.2d at 889; Kronich, 160 Wn.2d at 903-05.
Following Kirkpatrick and Kronich, we hold that admission of Tveit's CCDR, an acknowledged public record, did not violate her right to confrontation.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and VAN DEREN, A.C.J., concur.