October 21, 2016
from the Superior Court of the District of Columbia
(CTF-14118-13) (Hon. Frederick Sullivan, Magistrate Judge)
(Hon. John Ramsey Johnson, Reviewing Judge)
A. Barrella for appellant.
Y. Sheppard, Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd
S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy
Solicitor General, were on the brief, for appellee.
Fisher and Thompson, Associate Judges, and Steadman, Senior
FISHER, ASSOCIATE JUDGE
Jeremy J. Osborne was convicted of operating a motor vehicle
after his driver's license had been revoked
("OAR"). At his bench trial, Mr. Osborne presented
evidence that he had not received notice informing him of the
revocation before his arrest. Mr. Osborne contends that,
under these circumstances, the District was obligated to show
that it had sent him notice before he could be convicted of
OAR. We clarify the legal standard that applies and remand
the case for a new trial.
Factual and Procedural Background
August 10, 2013, Metropolitan Police Officer Michael Acevedo
pulled over Jeremy Osborne's vehicle because he had
failed to signal a lane change. After checking the
vehicle's registration and calling a dispatcher for
confirmation, Officer Acevedo determined that Mr.
Osborne's District of Columbia ("D.C." or
"District") driver's license had been revoked.
Officer Acevedo arrested Mr. Osborne for operating after
revocation in violation of D.C. Code § 50-1403.01 (e)
trial before Magistrate Judge Sullivan, Mr. Osborne claimed
that he did not know that his license had been revoked until
Officer Acevedo arrested him. The revocation was not a
complete surprise, however. Mr. Osborne testified that in
April 2013 he had been tried for-and subsequently convicted
of-"a version of DUI in Virginia." His attorney in
that case "told [him] that the [Department of Motor
Vehicles ("DMV")] in Virginia might contact the
D.C. DMV" to report the Virginia conviction. Not knowing
exactly the consequences he faced in the District or when
they might occur, Mr. Osborne called the D.C. DMV once in May
2013 to ask if there was "anything wrong with [his] D.C.
license." He testified that a DMV employee told him
early June 2013 Mr. Osborne again inquired about the status
of his license, this time after he was pulled over in the
District for driving with one of his lights out. A police
officer reportedly told him that "there was nothing
wrong" and "just gave me my license back."
According to Mr. Osborne, he did not receive anything in the
mail regarding the revocation of his license.
Osborne explained at trial that his mother, Aleah Osborne,
would have a record of any communications that had arrived at
their home from the D.C. DMV. Ms. Osborne testified that she
called the D.C. DMV "just about every day" from the
time of her son's trial in Virginia to the time of his
arrest in the District on August 10, 2013. Each time,
employees "told [her] that he didn't have a problem
with his license." She occasionally communicated the
employees' reassurances to her son.
prosecutor "acknowledge[d] that the defendant made
attempts to find out the status of his driving privileges,
" calling such attempts "commendable." She
nonetheless maintained that "operating after revocation
does not require knowledge that the defendant knew that his
license had been revoked. It merely requires that he was in
fact operating a motor vehicle[, ] which the defendant does
not deny[, ] and that at the time his license had been
revoked." Officer Acevedo had established that Mr.
Osborne was operating a vehicle on August 10, 2013, and
appellant's driving record, which the District had
entered into evidence, showed that his driving privileges had
been revoked ―as of July 4, 2013.
Osborne's driving record also noted other details about
the revocation of his license. It showed a "withdrawal
end date" of December 31, 2013. It also displayed two
reasons for revocation: (1) "more than or equal to 12
points" and (2) "driving while intoxicated, 1st
offense." One section recorded a citation date of March
3, 2013, for Mr. Osborne's DUI offense in Virginia, and a
disposition date of May 23, 2013. Nothing on the record
established when the D.C. DMV received the record of
conviction; when the DMV made the decision to revoke Mr.
Osborne's license; or whether (and, if so, when) notice
of the revocation was sent to Mr. Osborne.
Sullivan opined that the "nub" of this case was
whether Mr. Osborne should have "driven knowing that he
didn't really know the status of his driver's
license." He commented that "[a] driver's
license isn't a right. It is a privilege . . . you have
to jump through the hoops to be able to do it."
Moreover, the repeated inquiries to the D.C. DMV about the
status of Mr. Osborne's license indicated that "they
felt it could be revoked[.]" Judge Sullivan concluded
that "there was enough notice to get out from underneath
this absolute liability prohibition." He expressed
sympathy that Mr. Osborne "got caught in . . . the
transfer, " but remarked that his Virginia lawyer had
warned Mr. Osborne to "be careful." Since "his
conviction out in Virginia trigger[ed] this reciprocity
business with the [D.C.] DMV, " Judge Sullivan rejected
Mr. Osborne's due process defense and found him guilty of
OAR, as the judge believed "the law . . .
Osborne filed a motion for review of the judgment. Quoting a
footnote in Loftus v. District of Columbia, 51 A.3d
1285 (D.C. 2012), Mr. Osborne argued that although OAR is a
strict liability offense, "where the defendant presents
some evidence that he or she had no notice of suspension and
had no idea that the permit had been suspended, " the
District has an "obligation to at least present proof
that the constitutionally requisite notice of suspension was
properly sent." Id. at 1289- 90 n.10. After
reviewing the record, Judge Johnson concluded that the trial
judge had "reject[ed] the credibility of assertions by
Defendant and Ms. Osborne that Defendant did not know there
was a problem with his license in the District, " which
placed Mr. Osborne's situation outside the realm of cases
addressed in the Loftus footnote.  Finding no reason
to reverse Judge Sullivan's credibility determinations,
Judge Johnson denied Mr. Osborne's motion.
Fifth Amendment provides that "[n]o person shall be . .
. deprived of life, liberty, or property, without due process
of law." U.S. Const. amend. V. It is well-settled that
"[s]uspension of issued [driver's] licenses . . .
involves state action that adjudicates important interests of
the licensees" and, thus, "licenses are not to be
taken away without . . . procedural due process."
Bell v. Burson, 402 U.S. 535, 539
(1971). Generally, "due process requires that
when a State seeks to terminate an interest . . . it must
afford 'notice and opportunity for hearing appropriate to
the nature of the case' before the termination becomes
effective." Id. at 542 (quoting Mullane v.
Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313
(1950)). "[N]otice is 'constitutionally sufficient
if it was reasonably calculated to reach the intended
recipient when sent.'" Kidd Int'l Home Care,
Inc. v. Prince, 917 A.2d 1083, 1086 (D.C. 2007) (quoting
Jones v. Flowers, 547 U.S. 220, 226 (2006)).
case requires us to focus on whether, and if so when, the
elements of OAR should be expanded to require proof that the
District sent notice of revocation to a driver. We first
address the District's contention that our case law
establishing that OAR is a strict liability offense
forecloses such an inquiry.
Santos and Loftus
Santos v. District of Columbia, 940 A.2d 113 (D.C.
2007), this court held "that operating a motor vehicle
without a permit in violation of D.C. Code §
50-1401.01(d) is a strict liability offense that does not
require scienter. To convict Santos of that offense,
therefore, the District did not have to prove that he knew
his Virginia driver's license had been suspended."
Id. at 118. That is, "knowledge and intent are
not elements of the offense." Id. at 114-15. We
recognized, moreover, that "requiring the government to
muster evidence proving the non-compliant motorist's
culpable mental state beyond a reasonable doubt would impair
the effectiveness of the criminal sanction for violating the
permit requirement." Id. at 117.
years later, in Loftus-and bound by
Santos-we reviewed a conviction for violating the