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Osborne v. District of Columbia

Court of Appeals of Columbia District

September 21, 2017

Jeremy Jamaine Osborne, Appellant,
v.
District of Columbia, Appellee.

          Argued October 21, 2016

         Appeal from the Superior Court of the District of Columbia (CTF-14118-13) (Hon. Frederick Sullivan, Magistrate Judge) (Hon. John Ramsey Johnson, Reviewing Judge)

          Nigel A. Barrella for appellant.

          Janice 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.

          Before Fisher and Thompson, Associate Judges, and Steadman, Senior Judge.

          FISHER, ASSOCIATE JUDGE

         Appellant Jeremy J. Osborne was convicted of operating a motor vehicle after his driver's license had been revoked ("OAR").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.

         I. Factual and Procedural Background

         On 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 Osborne's District of Columbia ("D.C." or "District") driver's license had been revoked.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) (2012 Repl).

         At 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 Osborne claimed that he did not know that his license had been revoked until Officer Acevedo arrested him.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 "no."

         In 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.

         Mr. 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."[1] She occasionally communicated the employees' reassurances to her son.

         The 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.

         Mr. 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.

         Judge 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 . . . require[d]."

         Mr. 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. [2] Finding no reason to reverse Judge Sullivan's credibility determinations, Judge Johnson denied Mr. Osborne's motion.[3]

         II. Legal Analysis

         The 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).[4] 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)).

         This 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.

         A. Santos and Loftus

         In 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.

         Five years later, in Loftus-and bound by Santos-we reviewed a conviction for violating the ...


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