There are many times when the Washington State Department of Licensing (DOL) will be called by the State to assist in the prosecution of your case, particularly for crimes like driving with a suspended license or operating a motor vehicle without an ignition interlock device. On the surface, these cases seem like slam dunks for the State. Here are four rules to remember when fighting back.
#1 – The Department of Licensing is Incompetent and has a Massive Job to do.
During my last trial, two separate DOL custodians swore under penalty of perjury that they both “diligently investigated” the state of my client’s license and they both determined that on March 2, 2018, there was a restriction in his file that required him to only operate motor vehicles with ignition interlock devices. The problem was, my client was accused of driving on March 26, 2018.
By their own admission, DOL updates more than 528,000 driving records every week. By their own admission, DOL makes errors in its management of these records. The Law Office has been unable to determine what DOL’s error rate is, but given the volume they are managing, even if they got the record right 99% of the time, that would still result in roughly 274,456 mistakes in their driving records every single year. (more people than who live in Tacoma, University Place, Gig Harbor, Fircrest, Ruston and Fife COMBINED).
#2 – The DOL just updated its Records System
This created a serious Chain of Custody & Reliability issue
DOL launched a brand new records system on September 4, 2018 called DRIVES R2. DRIVES represents the second of a three phase multiyear upgrade of DOL’s operating systems. The People of Washington paid more than $60 million dollars to develop and implement it and, as of the date of this posting, DOL is still in the process of testing and perfecting it. It is not expected to be completed until 2019. See 2018 Supplemental Budget Decision Package, page 78 DOL told the Washington State Legislature the new system was necessary to “eliminate driver record errors caused when legacy systems react inconsistently.” See 2018 Supplemental Budget Decision Package, page 73 DOL went on to say that “eliminating errors will improve accuracy of records used by DOL, courts and law enforcement for regulating licenses.” Id.
As the custodian in my last trial confirmed, the records in DRIVES are largely derived and dependent on data from the old processing systems, of which there were apparently multiple (5 or 6 according to the State’s DOL Custodian). The scale of records that DOL manages is almost unfathomable. It is why so much money and time is being spent on upgrading its processing system.
And yet, at my last trial, the DOL could not really speak to how the records from one system were transferred to another, who did it, and what steps were taken to ensure against misfiling and/or unintended alteration of the record. He also stated that he was not able to access the old data system or its records to audit the new one to determine whether the records had come through in their entirety or were otherwise altered.
On Cross, the custodian was asked the following:
Q: Is it fair to say that all of the data in my client’s driving record that appears in the new operating system – which is still in the monitoring phase according to you – is derived from the old system – which your office abandoned to eliminate errors?
Because DRIVES was introduced to the public as serving the purpose of “provid[ing] more accurate records to law enforcement.” That same spirit of wanting to provide more accurate records to law enforcement begs the question as to why defendants and juries should be denied the safeguards of a chain of custody to ensure against misfiling or inaccurate alteration.
#3 – The Sixth Amendment’s Confrontation Clause forces the State to produce live testimony subject to cross examination
The Sixth Amendment Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witness against him.” The understood intent of the framers of the Confrontation Clause was to bar the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004) (emphasis added).
The teaching of Melendez-Diaz, is that certifications declaring the existence or nonexistence of public records are in fact testimonial statements, which may not be introduced into evidence absent confrontation. State v. Jasper, 271 P. 3d 876 – Wash: Supreme Court 2012
Under the Court’s analysis in Melendez-Diaz, certified copies of driving records (CCDR) are testimonial affidavits, and the DOL official is a “witness” for purposes of the Sixth Amendment. Therefore, the CCDR is inadmissible without corresponding testimony from the DOL official who performed the diligent search, interpreted what was found, and opined as to its effect. State v. Jasper, 271 P. 3d 876 – Wash: Supreme Court 2012
It remains to be seen whether the records themselves are testimonial. but given that DOL’s representatives always identify themselves as existing to assist law enforcement and the courts, it’s hard to imagine what else they could be?
#4 – Foundational Requirements for admitting evidence represent a mine field for the DOL
Evidence Rule 602 declares that “a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” While the DOL custodian can testify as to what is in the driving record, it is unlikely they will be able to say that the record is in fact accurate so long as DRIVES R2 remains in a testing phase. Nevertheless, the State is likely to ask them to do so. OBJECT!!
It is fundamental that evidence must be authenticated before it is admitted. See ER 901(a). Authentication requires that the proponent produce proof “sufficient to support a finding that the matter in question is what its proponent claims.” State v. Bashaw, 234 P. 3d 195 – Wash: Supreme Court 2010 The party offering the evidence must make a prima facie showing consisting of proof that is sufficient “to permit a reasonable juror to find in favor of authenticity or identification.” Id.
Bashaw concerned the admission of evidence taken from a speed measuring device, but the evidentiary principals it espoused apply to any “process or system used to produce a result.” ER 901(b)(9) Considering that we’re talking about a “records processing system” here – ER 901(b)(9) applies.
The rules of evidence, analogous case law, and common sense all dictate that before the State introduces evidence that will result in a mandatory penalty enhancement, the State must show that the evidence it relies upon is accurate. Simply put, results of a mechanical device are not relevant, and therefore are inadmissible, until the party offering the results makes a prima facie showing that the device was functioning properly and produced accurate results. This is consistent with the rationale underlying the requirement of authentication.
State v. Bashaw, 234 P. 3d 195 – Wash: Supreme Court 2010 at 200.
Under ER 602, a statement is admissible if “evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” State v. Smith, 941 P. 2d 725 – Wash: Court of Appeals, 1st Div. 1997
In My last trial, the DOL custodian testified that he knew my client’s license was restricted because he ran a records search through DRIVES. There was no other source of information he consulted. He confirmed that DRIVES had only been in use since September 4, 2018, (roughly 5 weeks before my trial) and is still being monitored to work out the “kinks.” He testified that he had been trained how to use DRIVES through a two-month training program. He acknowledged that the training program’s length could be interpreted as an indication that the use of this operating system is fairly complex. He testified that DOL’s self-reported claim that the Department updates more than 528,000 driving records every week “sounded accurate.” He testified that multiple people in multiple agencies contribute to the input of the data. He did not say whether all such persons contributing to the record had been trained in its use or at all.
When asked on cross if the DRIVES system had since been audited by an internal or external agency to determine that it was working; the Custodian denied knowledge. When asked if he had reviewed any of DOL’s quality assurance reports that had been generated in the month since the launch to determine whether or not errors in the record were persisting; the Custodian denied knowledge. When asked if he had ever ran my client’s driving record before this incident, he denied having done so. When asked if he had independently corroborated the records in the DRIVES system by researching the court’s judgment and sentences behind the data in the record to independently authenticate the results of the new system; he denied having done so. When asked “is it fair to say that the accuracy of the records is contingent on the reliability of the system that maintains and updates them” the Custodian answered in the affirmative. In short, on cross, the custodian testified that he had no personal knowledge or information to suggest that the processing system that generated the results of his testimony was producing accurate results.
We Know How To Fight the Department of Licensing
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