Supreme Judicial Court (June 10, 2011)

The admission in evidence of a registry of motor vehicles certificate attesting to the fact that a defendant had been mailed a notification of the suspension of his driver's license pursuant to G.L. c. 90, §22(d), in the absence of testimony from a registry witness, violates a defendant's right to confrontation under the Sixth Amendment.

After pleading guilty to an operating under the influence (OUI) offense, a judge informed the defendant that his license would be suspended for two years. After reviewing the defendant's driving history, the registrar determined that the defendant's license should be revoked for a 10 year period based on the new conviction. The registrar mailed a notice of suspension letter to the defendant who was temporarily living with his parents at the time. The defendant maintained that he did not receive the notification. The defendant was mailed his license back after a two year period (although it is unclear from the record who actually mailed the license). The defendant was subsequently charged with operating a motor vehicle with a suspended license for a conviction of OUI under G.L. c. 90, §23.

A conviction under G.L. c. 90, §23, requires the Commonwealth to prove that the defendant was notified of the suspension. Notification can be established by proving the registrar mailed the notice of suspension to the defendant's last known address.

G.L. c. 90, §22(d) reads:
(d) Notice to any person whose license or registration certificate or right to operate is suspended or revoked under this section or notice to any person of intention to revoke or suspend his license or registration certificate under this section shall be in writing, shall be mailed by the registrar or any person authorized by him to the last address as appearing on the registrar's records or to his last and usual place of abode and a certificate of the registrar that such notice has been mailed in accordance with this section shall be deemed prima facie evidence and shall be admissible in any court of the commonwealth as to the facts contained therein.

In this case, the Commonwealth introduced in evidence a certificate from the registry with a stamped attestation of the registrar stating: "I hereby certify that the annexed instrument(s) are true copy(s) of the driving history and notice(s) of suspension(s)/revocation(s) that were mailed on the date(s) appearing on the notice to the last address on file as appearing in the registrar's records in accordance with the provisions of G.L. c. 90, § 22." The attached notice of license suspension was dated and gave the address to which it was mailed. The notice stated that the defendant's license was being suspended for ten years pursuant to his guilty plea on a charge of OUI.

The defendant was convicted of operating a motor vehicle after suspension for OUI. He appealed, arguing that the admission of the registry certificate, which was created solely to prove the element of notification at trial, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment.

The SJC agreed with the defendant, ruling that the registry certificate, like a certificate of drug analysis, is "testimonial." It is a solemn declaration made by the registrar for the purpose of establishing the fact that a notice of license suspension was mailed to the defendant on a specific date and, by inference, was received by him. The registry certificate was dated two months after the complaint for operating a motor vehicle after license revocation had issued and "plainly was made for use at the defendant's trial as prima facie evidence of notice."

NOTE: The SJC suggested that if the RMV had created a contemporaneous business record, at the time the notice was mailed, that showed that the notice of suspension was mailed on that date, and if it were preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. The Court strongly suggested that such a record would be "nontestimonial" and concluded, "[t]hat would have been the correct procedure for the admission of a business record from the registry."