IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOSHUA PAYNE
Appellant - Defendant Below,

ID No.: 1512010138

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v. )
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sTATE oF DELAWARE, )

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Appellee - Plaintiff BeloW.

Subrnitted: September 4, 2018
Decided: December 12, 2018

On Appellant ’s Appealfrom the
Evia'entiary Ruling of the Courz‘ of Common Pleas
DENIED

ORDER

This 12th day of December 2018, upon consideration of Appellant’s Appeal
from the Court of Common Pleas, it appears to the Court that:

l. This is an appeal from the Court of Common Pleas after a trial finding
of the Defendant’s guilt for driving While Suspended or Revoked. The evidence
showed that Mr. Payne Was observed driving in the City of Wilmington, Went
through a stop sign and Was pulled over by a Wilmington Police Ofl`lcer Who ran his
name through a computer, discovered his license Was suspended and gave him a

ticket.

2. Before reciting the facts here, it is probably worthwhile to consider the
offense of Driving While Suspended or Revoked. 21 Del. C. §2756 is the statutory
provision and states pretty simply that if one drives a motor vehicle on a public
roadway while one’s license is suspended or revoked is guilty of the offense. The
fines are steep and a second offense carries a mandatory jail sentence. T_here are, to
put it mildly, few defenses. Perhaps that is why the few that do exist (“I wasn’t
driving; l wasn’t revoked”) are the subject of arguments as inventive as counsel
presenting them. Alas, not all inventions are good inventionsl But we digress.

3. Defendant was represented by counsel in the Court of Common Pleas.
Counsel received the State’s discovery, took the matter to a suppression hearing, and
represented him until just a few days before trial. Then new counsel came into the
case and the matter proceeded to a bench trial with the State calling but one witness,
the arresting officer. There was no pretrial discovery issue raised to the Court. There
was no motion in limine to flesh out any pending evidentiary issues. What did
happen, follows.

4. The patrol officer testified to the stop of the Defendant.z\ That satisfied

the “driving” element. As to “while revoked or suspended,” the State sought to

 

1 The mind reels at possible examples: hydrogenated oils, leaded gasoline, subprime mortgages
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2 State v. Payne, No. 1512010138, at 8:1-14:22. (Del. Com. Pl. Feb. 7, 2012) (TRANSCRIPT).

2

introduce its certified copy of a Notice of Revocation, Affidavit of` Mailing the
Notice and the Defendant’s certified driving record.3 Defense counsel raised a full
throated evidentiary objection to admission of the records that, it turns out, was the
one and only substantive objection at trial. So detailed and prolonged was the
evidentiary argument that the Court took the matter under submission and invited
the parties to further brief the matter.4

5. The complaint that has survived for appeal is that the certified copy of
defendant’s driving record was not certified in accordance with the certification
provisions of the Notarial Acts statute, 29 Del. C. subchapter 43 and therefore should
not have been admitted against him.

6. The Motor Vehicle Code, 21 Del. C. §2736 spells out the admissibility
of motor vehicle records evidence in a driving case. The subsection dealing with
conviction records reads as follows:

(e) In any prosecution under this Code, a conviction record as

maintained in the Division of Motor Vehicles, which has been certified

by the Director of the Division of Motor Vehicles, may be admitted into

evidence and shall be competent evidence that the person named therein

was duly convicted of each offense enumerated therein and of the status

of that person’s driving license and/or privileges. It shall be

unnecessary for any employee or agent of the Department to personally

appear for the admission into evidence of such conviction record in any
proceeding under this Code.5 (emphasis added).

 

3 Id. at14;2-12.

4 State v. Payne, NO. 1512010138, at 55;19-56:18 (Del. com. P1. Feb. 7, 2012) (TR_ANSCRIPT).
5 21 Del. c. §2736(¢)-(@).

3

7. The defense does not argue that 1) the defendant’s license was not, in
fact, suspended, or 2) that Scott Vien is not, in fact, the Director of the Division of
Motor Vehicles,6 or 3) that the driving record that was admitted into evidence was
not defendant’s driving record. Rather, the only argument is that by the terms of the
Notarial Acts statute, the certified record failed to identify Scott Vien as the Director
of DMV - referring to him only as an “officer” -- and that the certification is not
dated, an apparent requirement of notarial acts.

8. The defendant invites us down the Rabbit Hole of various subsections
of the Notarial Acts subchapter. Before jumping, however, it is fair to question
whether the Notarial Acts Statute has anything whatever to do with the
“certification” of a motor vehicle driving record under the Motor Vehicle Code.
Defendant’s arguments here leave the Court thoroughly unconvinced that it does.

9. Defendant asserts that “Delaware law mandates that certification of a
copy of a conviction record - a notarial act under Delaware law - must be “evidenced
by a certificate” that “must include...the title of the office that the notarial officer

holds.””7 This is the nub of defendant’s argument and, if true, he wins. But is a

 

6 See Appendix to Appellant’s Opening Brief, EX. A, the last page of which is a ‘FMessage from
the Director” of DMV, signed by “Scott Vien, Director, Division of Motor Vehicles.” See also
D.R.E. Rule 201 (Court may take judicial notice of` facts not subject to reasonable dispute).

7 Appellant’s opening brief at 8-9.

certified copy of a conviction record a “notarial act under Delaware law?”
Defendant cites 29 Del C. §4321(13)(c) for this proposition But that subsection
merely identifies what a notary is authorized to do. It says notaries can certify and
attest things. It does not say that only notaries can certify and attest things. If it did,
this would be a different case. The statute certainly does not limit state officials in
certifying records held by the official’s own offices. In fact, notaries are specifically
prohibited from certifying records of public officials.8 Thus, neither the Motor
Vehicle Code nor the Notarial Acts Code support defendant’s argument

10. Similarly, defendant’s argument that the certified record must include
the specific title of the officer signing the certification lacks support in the Code.
Defendant cites us to 29 Del. C. §4327(a), and that provision does require that
notarized documents include the title of the notary. But the requirement assumes the
document to be subject to the notarial acts statute - that is -- authenticated by a
notary. This certified record is not authenticated by a notary and was never intended
to comply with the notarial acts statute. Nor, so far was we can see, is there any
requirement that it do so.

11. The State correctly points out that the requirements of authentication

under Article Nine of the Rules of Evidence are satisfied by the certification here.9

 

8 See 29 Del. C. §4322((1) (“Notaries public, however, shall not attest to copies 'of official or
public records, only of documents that cannot be certified by a public official.”)

9 See D.R.E. Rule 902.

So are the objections against hearsay.10 Nothing in the Code or the Rules of
Evidence give the Court any basis to find that the Court below was not acting well
within its discretion in admitting the evidence of defendant’s prior driving record
and duly convicting him on the basis of the evidence.

12. For the foregoing reasons, the Court upholds the evidentiary ruling

of the Court of Common Pleas and Appellant’s appeal is DENIED.

M

Judge Charles E. Butlef

IT IS SO ORDERED.

 

10 see D.R.E. Rule 803(8).

