Opinion
Case No. 08-1220M.
September 24, 2008
MEMORANDUM OPINION AND ORDER OF COURT
Defendant, Phillip O. Medwinter, is charged with operating a motor vehicle while his license to drive was suspended in violation of MD. CODE ANN., TRANSP. II § 16-303(c) and failure to restrain a child in a safety seat in violation of MD. CODE ANN., TRANSP. II § 22-412.2, both incorporated by 36 C.F.R. § 4.2. He is also charged with speeding in violation of 36 C.F.R. § 4.21. The alleged violations occurred on February 29, 2008 on the Baltimore Washington Parkway which is located within the special maritime and territorial jurisdiction of the United States. Trial was held on July 21, 2008.
A. Driving While Suspended
A certified copy of Defendant's motor vehicle driving record was admitted into evidence at trial. Gov. Ex. 2. The record indicates that suspension letters were mailed to Defendant in March, 2006 and November, 2006. The first letter was mailed as a result of Defendant's failure to attend a driver improvement program, while the second suspension letter was the result of Defendant's failure to appear in court. The letters were mailed to Defendant at the address on his provisional license (Gov. Ex. 3) and on record with the MVA. Defendant testified that although this was his legal address and other members of his family lived there, he did not receive either of the letters nor did any member of his family inform him of these letters. He further testified that he had no knowledge on February 29, 2008, the date of the incident, that his driving privileges had been suspended. He testified that he was in the army and stationed in Georgia from October 2006 to March 2007, and in Washington from March 2007 to February 2008. He indicated that during his time in Washington, he was stopped for speeding, but was not informed that his license was suspended. He further testified that in February, 2008, he was also stopped for speeding in Virginia but was again not informed that his license was suspended. Defendant admitted that his license had previously been suspended in 2005 but that the suspension was withdrawn after Defendant paid his fines.
It is Defendant's position that to be convicted of driving while suspended, the Government must prove not only that he was, in fact, suspended, but also that he had knowledge of the suspension. The Government argues that Defendant knew his license was suspended or that he was wilfully blind to the fact; and therefore, he is guilty of driving on a suspended license under § 16-303(c).
The Maryland Court of Appeals has held that mens rea is required for the offense of driving with a suspended license under MD. CODE ANN., TRANSP. II § 16-303(c). State v. McCallum, 321 Md. 451, 455-57 (Md. 1991); see also United States v. Haynesworth, 743 F.Supp. 388, 391-92 (D. Md. 1990) (requiring mens rea for driving with a revoked license); United States v. Davis, 261 F.Supp.2d 343, 350 (D. Md. 2003) (same). In Haynesworth, this Court held that a strong showing of constructive notice may be sufficient to satisfy the mens rea element of the crime. Haynesworth, 743 F.Supp at 392. The issue is whether the facts of the instant case are sufficient to support a finding that Defendant possessed the requisite state of mind.
The Court cannot find beyond a reasonable doubt that Defendant possessed actual knowledge ( i.e. "an actual awareness or an actual belief that a fact exists, McCallum, 321 Md. at 458) that his license had been suspended. While his driving record indicates that suspension letters had been mailed, Defendant testified that he was not at his residence at the times the letters were mailed. He testified that he was on active duty in the military in Washington and Georgia. He further testified that while his family was at the residence where the letters were sent, they did not inform him of the letters. The Court finds Defendant's testimony credible and accordingly, cannot find that Defendant had actual knowledge that his license had been suspended by virtue of the letters.
There is no evidence in the record indicating whether Defendant was at his residence in February and March, 2006 when the MVA mailed him a letter to attend a driver improvement program and the corresponding suspension letter based on his failure to attend that program. Nonetheless, Defendant testified he did not receive the letters. The Court need not expand further into this issue because, as discussed below, the Court still finds that Defendant possessed the requisite state of mind to sustain a finding of guilty of driving with a suspended license.
The Maryland Court of Special Appeals has held, however, that actual knowledge is not necessary. In Rice v. State, 136 Md.App. 593 (Md.Ct.Spec.App. 2001), the court, relying on Judge Chasanow's concurring opinion in McCallum, held that "deliberate ignorance" or "willful blindness" may suffice to support a conviction of driving with a suspended license. Id. at 601. The court held that these standards are met when a person "believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth." Id. citing McCallum, 321 Md. at 458. "Deliberate ignorance requires a conscious purpose to avoid enlightenment; a showing of mere negligence or mistake is not sufficient." Id.
In McCallum, Judge Chasanow described facts that would be sufficient to support a finding of deliberate ignorance: (1) a defendant's failure to pay fines and appear in court support a finding that a defendant knew it is probable his or her license would be suspended; (2) failure to apprise the MVA of one's current address or failing to contact it upon learning that his or her mail had been destroyed; and (3) deliberately avoiding contact with the MVA. McCallum, 321 Md. at 461. In Rice, the court held that there was ample evidence of knowledge on the defendant's part sufficient to support a finding that the defendant was guilty of driving with a suspended license even though the suspension letter was returned by the postal authority and the defendant claimed he had no knowledge that he was suspended. There, the defendant's license had been suspended in the past and he was not a novice in matters pertaining to the MVA. The current suspension was caused when he was assessed eight points upon being convicted of driving under the influence. The court found that once he was convicted of driving under the influence and had eight points assessed against him, he had reason to believe that the MVA would take action to suspend his driving privilege.
In Haynesworth, the defendant was charged with driving while revoked in violation of MD. CODE ANN., TRANSP. II § 16-303(d). The defendant's driving privileges were revoked as a consequence of his conviction for driving on a suspended license. Notice of the revocation was mailed to the defendant, but he claimed it was mailed to the wrong address and he never received it. The defendant, therefore, claimed at trial that he did not have the requisite actual knowledge of the revocation of his license to be convicted under § 16-303(d). The case was tried before a magistrate judge who found the defendant guilty. The defendant appealed. Chief District Judge Harvey affirmed the conviction on appeal. Judge Harvey found that the defendant could not escape the inevitable administrative sanction of revocation by asserting that he never received actual notice of the revocation after having been convicted of driving while suspended. Significantly, Judge Harvey stated "[e]ven if the notice of revocation was mailed to the wrong address, defendant's knowingly driving in Maryland without a valid license is sufficient grounds for his conviction." Haynesworth, 743 F.Supp at 393. In essence, Judge Harvey concluded that even though the defendant might not have had actual knowledge of the revocation, his conviction for driving while suspended was sufficient to make him aware that the MVA would take steps to revoke his license, and that awareness was sufficient to prove the necessary mens rea.
The Court finds that Defendant possessed the requisite mens rea to be convicted of driving while suspended. While this case arguably presents a closer question than that presented in both Rice and Haynesworth, the Court still finds beyond a reasonable doubt that Defendant did have reason to believe that the MVA would take action to suspend his license.
First, as Judge Chasanow indicated in McCallum, a defendant's failure to pay fines and appear in court support a finding that a defendant knew it was probable his or her license would be suspended. McCallum, 321 Md. at 321. Clearly, Defendant should have known it was probable that his license would have been suspended based on his failure to appear in court in November, 2006 after receiving a citation.
Moreover, Defendant's driving record indicates that on January 19, 2005, a suspension letter was mailed based on Defendant's failure to pay a fine in district court for a citation he received. His license was actually suspended approximately three weeks later on February 9, 2005. Subsequently, Defendant again failed to appear in court for another citation he received and as a result, another suspension letter was mailed to him and his license was again suspended on July 8, 2005. However, on February 8, 2006, Defendant paid the fine associated with the first citation and the suspension was withdrawn. Similarly, the suspension was withdrawn for the second citation and he was assessed one point on his driving record for that citation. Thus, like the defendant in Rice, this defendant was not a novice in matters pertaining to the MVA. The record shows that he had previously been suspended and took the steps to have those suspensions withdrawn.
Therefore, for the reasons stated above, the Court finds Defendant guilty beyond a reasonable doubt of operating a motor vehicle while his license to drive was suspended in violation of MD. CODE ANN., TRANSP. II § 16-303(c).
Defendant also argues that he should have been charged under MD. CODE ANN., TRANSP. II § 16-303(h) because his license was suspended for failure to appear in district court and; therefore, he should not have been charged under not the more general suspension provision of MD. CODE ANN., TRANSP. II § 16-303(c). While the Court agrees with this proposition, see United States v. Simmons, No. 03-4339M (D. Md. June 18, 2004), Jones v. State, 257 Md. 141 (1999), Defendant ignores the fact that Defendant's license was also suspended for failure to attend a driver improvement program; and therefore, he was appropriately charged pursuant to MD. CODE ANN., TRANSP. II § 16-303(c). Simply because the "most recent" suspension was based on a failure to appear in district court, that does not negate the fact that at the time of the incident, Defendant's license was also suspended for failure to attend the driver improvement program. There is nothing in the record demonstrating that that suspension was ever withdrawn.
B. Child Safety Seat
Defendant also argues that he should be acquitted of failure to restrain a child in a safety seat in violation of MD. CODE ANN., TRANSP. II § 22-412.2 because the only testimony admitted at trial was Officer Connor's opinion that the child who was not in a safety seat was two years old and weighed thirty pounds. Defendant argues that this testimony was inadmissible because it lacked foundation. The Court disagrees and finds that the officer's opinion as to the weight and age of the child was properly admitted as lay opinion testimony under Fed.R.Evid. 701. See United States v. Perkins, 470 F.3d 150 (4th Cir. 2006) ([the police officer's] observations were `common enough and require[d] such a limited amount of expertise . . . that they can, indeed, be deemed lay witness opinion[s].' . . . Because their testimony was framed in terms of their eyewitness observations and particularized experience as police officers, we have no trouble finding that their opinions were admissible under Rule 701.") (citation omitted); United States v. Yazzi, 976 F.2d 1252, 1256 (9th Cir. 1992) ("age is a matter on which everyone has an opinion. Knowingly or unknowingly, we all form opinions about people's ages every day. It is therefore particularly appropriate for a lay witness to express an opinion on the subject."). The Court finds the testimony credible and sufficient to form a basis upon which to find Defendant guilty under MD. CODE ANN., TRANSP. II § 22-412.2.
That section provides that a child who is under four years of age or weighs forty pounds or less must be transported in a safety seat. MD. CODE ANN., TRANSP. II § 22-412.2(d-1).
C. Speeding
Finally, Defendant argues that the officer's testimony regarding the pace of Defendant's vehicle should not have been admitted into evidence because it violated Fed.R.Evid. 702; and that absent this testimony, there is insufficient evidence upon which to find Defendant guilty of speeding. The Court disagrees and does not find that the testimony is inadmissible based on Fed.R.Evid. 702 as interpreted by Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and its progeny. Officer Connor testified that the speedometer of the patrol car was accurately calibrated, see Gov. Ex. 1, and was functioning on the date in question. He further testified that he paced Defendant's vehicle for approximately one and one half of a mile at a speed of 70 miles per hour. See Randolph v. Collectramatic, Inc., 590 F.2d 844, 848 (10th Cir. 1979) (noting that "persons of reasonable intelligence and ordinary experience are uniformly permitted to express opinions as to matters such as the speed of an automobile under their observation"; United States v. Carlock, 806 F.2d 535, 552 (5th Cir. 1986) (recognizing that a "common illustration" of an admissible opinion under Rule 701 is an "expression of opinion by a lay observer of a car's speed").
Officer Connor also testified that he visually estimated the speed of Defendant's vehicle at approximately 70 miles per hour.
The Court finds Defendant guilty beyond a reasonable doubt of driving with a suspended license under MD. CODE ANN., TRANSP. II § 16-303(c), failure to restrain a child in a safety seat in violation of MD. CODE ANN., TRANSP. II § 22-412.2 and speeding in violation of 36 C.F.R. § 4.12.
Chambers will contact counsel to set a time for sentencing.