Opinion
Record No. 0570-93-4
Decided: May 17, 1994
FROM THE CIRCUIT COURT OF CLARKE COUNTY, James L. Berry, Judge
Affirmed.
David A. Downes for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Douglas H. Simpson (appellant) appeals from a bench trial judgment of the Circuit Court of Clarke County (trial court) that declared him to be an habitual offender pursuant to the provisions of Code Sec. 46.2-351. Appellant contends that the trial court erred when it considered two convictions that occurred in sister states, and that the Certificate of Information from the Department of Motor Vehicles (DMV), upon which the Commonwealth relied, was inadmissible because it was not properly authenticated as required by law. Finding no error, we affirm the judgment of the trial court.
We first address the issue of whether the DMV certificate was lawfully authenticated. On September 4, 1992, the Clarke County Commonwealth Attorney, pursuant to the provisions of Code Sec. 46.2-353, initiated habitual offender proceedings against appellant upon an Information alleging that, within the immediately preceding ten years, appellant had been convicted of offenses shown on an abstract attached to the Information. The abstract was purportedly prepared and certified in accordance with Code Sec. 46.2-352 that, in relevant part, provides:
§ 46.2-353. Information to be filed by attorney for Commonwealth. — The attorney for the Commonwealth, on receiving the transcripts or abstracts from the Commissioner provided for in § 46.2-352, shall forthwith file information against the person named therein in the court of record having jurisdiction of criminal offenses in the county, city, or town in which the person resides.
* * * * * * *
The Commissioner shall certify, from the Department's records, substantially in the manner provided for in Sec. 46.2-215, three transcripts or abstracts of those conviction documents which bring the person named therein within the definition of an habitual offender, as defined in Sec. 46.2-351, to the attorney for the Commonwealth of the political subdivision in which the person resides according to the records of the Department or the attorney for the Commonwealth of the City of Richmond if the person is not a resident of the Commonwealth. . . . The transcript or abstract may be admitted as evidence as provided in Sec. 46.2-215. The transcript or abstract shall be prima facie evidence that the person named therein was duly convicted, or held not innocent in the case of a juvenile, by the court wherein the conviction or holding was made, of each offense shown by the transcript or abstract. If the person denies any of the facts as stated therein, he shall have the burden of proving that the fact is untrue.
Code Sec. 46.2-215 authorizes a copy of a record maintained by the DMV "attested by the Commissioner or his designee" to be admitted as evidence in lieu of the original.
§ 46.2-215. Certification of certain records and admissibility in evidence. — Whenever any record, including records maintained by electronic media, by photographic processes, or paper, in the office of the Department is admissible in evidence, a copy, a machine-produced transcript, or a photograph of the record or paper attested by the Commissioner or his designee may be admitted as evidence in lieu of the original. In any case in which the records are transmitted by electronic means a machine imprint of the Commissioner's name purporting to authenticate the record shall be the equivalent of attestation or certification by the Commissioner.
Any copy, transcript, photograph, or any certification purporting to be sealed or sealed and signed by the Commissioner or his designee or imprinted with the Commissioner's name may be admitted as evidence without any proof of the seal or signature or of the official character of the person whose name is signed thereto. If an issue as to the evidence, a copy, a machine-produced transcript, or a photograph of the record or paper attested by the Commissioner or his designee may be admitted as evidence in lieu of the original. In any case in which the records are transmitted by electronic means a machine imprint of the Commissioner's name purporting to authenticate the record shall be the equivalent of attestation or certification by the Commissioner.
Any copy, transcript, photograph, or any certification purporting to be sealed or sealed and signed by the Commissioner or his designee or imprinted with the Commissioner's name may be admitted as evidence without any proof of the seal or signature or of the official character of the person whose name is signed thereto. If an issue as to the authenticity of any information transmitted by electronic means is raised, the court shall require that a record attested by the Commissioner or his designee be submitted for admission into evidence.
Here, the abstract attached to the Information was not attested by the Commissioner, nor did it contain a declaration by the Commissioner that any person had been designated by him to make such attestation. Instead, the abstract contained the following:
I, THE UNDERSIGNED, OF THE DRIVER LICENSING AND INFORMATION DIVISION OF THE DEPARTMENT OF MOTOR VEHICLES, COMMONWEALTH OF VIRGINIA, BEING DULY DESIGNATED BY THE COMMISSIONER FOR THE PURPOSE OF ATTESTING AND CERTIFYING PURSUANT TO THE PROVISIONS OF SECTION 46.2-215 OF THE CODE OF VIRGINIA (1950), AS AMENDED, DO HEREBY CERTIFY AS REQUIRED BY SECTION 46.2-352 OF THE CODE OF VIRGINIA (1950) THAT THE ATTACHED IS A COMPLETE COPY OF THE MOTOR VEHICLE RECORD OF DOUGLAS H. SIMPSON.
The "undersigned" was G. B. Doak, Driver Licensing and Information Division of the Department of Motor Vehicles of the Commonwealth of Virginia. Appellant contends that the abstract should not be considered proof of his guilt of the number of violations required to be declared an habitual offender because the designee cannot be the person to certify his designation. We find no such limitation in the Code.
In relevant part, Code Sec. 46.2-215 provides that "any copy . . . or any certification purporting to be . . . sealed and signed by the Commissioner or his designee . . . may be admitted as evidence without any proof . . . of the official character of the person whose name is signed thereto." Code Sec. 46.2-215 (emphasis added). Doak certified that he had been designated by the Commissioner and that the DMV files contained the following record of appellant's convictions:
REPORT OF CONVICTION RECEIVED FROM THE GENERAL DISTRICT CT OF LOUDOUN, STATING THAT THE INDIVIDUAL IN THE ATTACHED DRIVER RECORD, WAS CONVICTED IN THAT COURT ON 01/20/81 OF "DRIVING UNDER REVOCATION/SUSPENSION".
REPORT OF CONVICTION RECEIVED FROM THE STATE OF NORTH CAROLINA, STATING THAT THE INDIVIDUAL IN THE ATTACHED DRIVER RECORD, WAS CONVICTED IN THAT STATE ON 07/12/88 OF "DRIVING WHILE INTOX, 1ST".
REPORT OF CONVICTION RECEIVED FROM THE STATE OF MARYLAND, STATING THAT THE INDIVIDUAL IN THE ATTACHED DRIVER RECORD, WAS CONVICTED IN THAT STATE ON 06/14/91 OF "DRIVING UNDER REVOCATION OR SUSPENSION".
REPORT OF CONVICTION RECEIVED FROM THE STATE OF MARYLAND, STATING THAT THE INDIVIDUAL IN THE ATTACHED DRIVER RECORD, WAS CONVICTED IN THAT STATE ON 07/11/90 OF "DRIVING WHILE INTOX, 1ST".
WHICH ARE ON RECORD IN THIS OFFICE.
IT IS FURTHER CERTIFIED THAT THE PRECEDING CONVICTIONS REPRESENT ONLY THAT PART OF THE MOTOR VEHICLE RECORD OF DOUGLAS H. SIMPSON, WHICH BRINGS HIM WITHIN THE DEFINITION OF AN "HABITUAL OFFENDER" AS DEFINED IN SECTION 46.2-351 OF THE CODE OF VIRGINIA.
We hold that the certificate of appellant's record was prepared in accord with Code Sec. 46.2-215 and was properly admitted as evidence in support of the show cause order.
Appellant further argues that, even if the abstract of his record was properly admitted, two of the purported convictions do not prove or constitute violations sufficient to support an habitual offender declaration. Appellant first argues that, notwithstanding the presumption of correctness that the abstract permits, he rebutted the presumption by showing that the North Carolina records do not indicate that he was convicted of driving while intoxicated in that state on July 12, 1988 and, therefore, the trial court erred when it considered that record as a predicate offense. The sole evidence presented by appellant in support of that argument is a document which appears to disclose that he was charged with driving while intoxicated, that a magistrate had found probable cause for appellant's warrantless arrest on that charge, and that his bond had been forfeited. The space left for a judge's signature is blank. Code Sec. 46.2-352 provides that the abstract is "prima facie" evidence that appellant was convicted of driving while intoxicated in North Carolina on July 12, 1988. Code Sec. 46.2-352 also places the burden on appellant to prove the DMV record to be "untrue." We hold that appellant failed to prove that he had not been convicted as shown by the abstract. Thus, we cannot say that the judgment of the trial court was plainly wrong or without evidence to support it. See Code Sec. 8.01-680.
Code Sec. 46.2-351, in relevant part, declares that an habitual offender is a person whose record, as maintained by the DMV, shows that he has accumulated, within ten years, three offenses of the nature shown by the abstract filed in the proceeding from which his appeal emanates. Appellant does not challenge the Loudoun County District Court conviction or the Maryland conviction for driving while intoxicated. Evidence of those convictions, when considered with the North Carolina conviction, is sufficient to support the judgment of the trial court.
Appellant further contends that the trial court erred when it considered the Maryland conviction shown by the abstract for driving under revocation/suspension. The trial court's order does not show that it relied on that conviction to declare appellant an habitual offender. As discussed above, the record is sufficient without that conviction to support the judgment. Therefore, we need not consider that argument in affirming the judgment of the trial court.
For the reasons stated, we affirm the judgment of the trial court.
Affirmed.