NC Court of Appeals Holds that DMV Records Are Non-Testimonial

In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis.

The case was State v. Clark, decided on July 7, 2015. In Clark, the defendant was charged with driving while license revoked. At trial the State introduced, over the defendant’s objection, several DMV records to prove that the defendant’s license was revoked and that he knew that to be the case. Specifically, the State introduced a copy of the defendant’s driving record certified by the DMV Commissioner; two orders indefinitely suspending his drivers’ license; and a document attached to the suspension orders and signed by a DMV employee and the DMV Commissioner. In the last document, the DMV employee certified that the suspension orders were mailed to the defendant on the dates as stated in the orders, and the DMV Commissioner certified that the orders were accurate copies of the records on file with DMV. The defendant was convicted and he appealed, arguing that because neither the DMV Commissioner nor the DMV employee testified at trial, introduction of those records violated his confrontation rights under Crawford.

Noting that the North Carolina appellate courts “have recognized that certain records kept by State agencies are admissible in criminal prosecutions where the record was not created in contemplation of being used in a criminal trial,” the court acknowledged that the issue before it was one of first impression. Surveying cases decided in other jurisdictions, the court noted that records created and maintained by state driving license agencies as part of their regular administration and in compliance with governing law have been held to be non-testimonial but that records created for the purpose of proving a fact in a criminal trial have been held to be testimonial. Turning to the records at issue, held:

[N]one of these records were create[d] … for the sole purpose of providing evidence against a defendant. Instead, the records were created by DMV during the routine administration of its affairs and in compliance with its statutory obligations to maintain records of drivers’ license revocations and to provide notice to motorists whose driving privileges have been revoked.

(quotation and citation omitted). Therefore, the court held, the documents were non-testimonial and not covered by the Crawford rule.

Given the number of motor vehicle cases prosecuted in our state courts, I’m surprised that it took this long for the issue to get before the court. Folks should be careful however not to treat Clark as a blanket ruling at all DMV records are non-testimonial. I think the opinion—and U.S. Supreme Court case law—is clear that a document created for the primary purpose of establishing a past fact relevant to a criminal prosecution would be testimonial. See, e.g., Ohio v. Clark, 576 U.S. __, 135 S. Ct. 2173 (2015) (reaffirming the validity of the Davis primary purpose test). For a discussion of other business records that have been evaluated under the new Crawford test, see my judge’s benchbook chapter, A Guide to Crawford and the Confrontation Clause, here.