Jeremy J. Osborne v. DC

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CT-880
JEREMY JAMAINE OSBORNE, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CTF-14118-13)
(Hon. Frederick Sullivan, Magistrate Judge)
(Hon. John Ramsey Johnson, Reviewing Judge)
(Argued October 21, 2016 Decided September 21, 2017)
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operating a motor vehicle after his driver‘s license had been revoked (―OAR‖).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
2
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―District‖) driver‘s license had been revoked.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not know that his license had been revoked until Officer Acevedo arrested him.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
3
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
4
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
1
The District objected to Ms. Osborne‘s testimony regarding what the D.C.
DMV employees told her about the status of her son‘s driver‘s license, calling it
hearsay. Judge Sullivan agreed to hear that testimony ―only because . . . it m[ight]
mitigate sentencing‖ if he found Mr. Osborne guilty.
5
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].‖
6
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
2
We see nothing in Judge Sullivan‘s findings to support the conclusion that
he had discredited this testimony.
3
Judge Johnson also rejected Mr. Osborne‘s claim that Judge Sullivan erred
in admitting into evidence his certified driving record. Mr. Osborne has not
challenged that ruling here.
7
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.
4
Bell specifically discussed procedural due process guaranteed by the
Fourteenth Amendment, which applies only to the states and not to the District of
Columbia. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). But the District is
bound by the same obligations under the Fifth Amendment. See id.
8
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 statute at issue here. That statute provides:
Any individual found guilty of operating a motor vehicle
in the District during the period for which the
individual‘s license is revoked or suspended, or for which
his right to operate is suspended or revoked, shall, for
each such offense, be fined not more than the amount set
9
forth in § 22-3571.01 or imprisoned for not more than 1
year, or both.
D.C. Code § 50-1403.01 (e). On its face, this language does not require proof that
the motorist acted with knowledge or intent.
Nevertheless, Ms. Loftus argued that the District should have had to prove
―that she knew or had reason to know that her license was suspended before she
was arrested.‖ Loftus, 51 A.3d at 1286. We observed that ―the facts and reasoning
of Santos [we]re not meaningfully distinguishable‖ on the question of whether the
legislature intended to include a mens rea element. Id. at 1287, 1289. Thus, we
concluded that operating after suspension (―OAS‖) is also a strict liability offense.
Id. at 1286. We added, however:
We here deal only with the issue whether, as an across-
the-board matter, the government must in all cases prove
notice or knowledge as an element of the offense of
OAS. We do not address a situation 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. In such a scenario, not present here, the
government, similar to instances where self-defense is
raised, may well have the obligation to at least present
proof that the constitutionally requisite notice of
suspension was properly sent.
10
Id. at 1289–90 n.10.
Mr. Osborne argues that his is ―the exact scenario envisioned by the court‖
in Loftus, as he provided evidence that he had no notice that his D.C. license had
been revoked. He asks this court to adopt the language from Loftus as a holding
and to reverse his conviction because the government supplied no evidence that he
had been sent the requisite notice of revocation. For its part, the District contends
that we cannot adopt the Loftus footnote as a holding without trampling on the
settled rule that operating after revocation requires no proof of mens rea. 5
We disagree with the District‘s assertion that Santos and Loftus foreclose
Mr. Osborne‘s argument. Those cases focused on one narrow question of statutory
interpretation: whether knowledge and intent were elements of the offense. See
Santos, 940 A.2d at 116–18; Loftus, 51 A.3d at 1288–90. As we understand it,
Mr. Osborne‘s request is (perhaps subtly) different. He has not demanded proof
5
Mr. Osborne effectively concedes that Loftus (which involved OAS)
establishes the mens rea requirement for OAR. We agree. Although ―suspension‖
and ―revocation‖ have different meanings, see 18 DCMR § 9901.1, OAS and OAR
are functionally the same offense as they criminalize the same conduct, violate the
same statute, and share the same elements. See D.C. Code § 50.1403.01 (e); see
also Criminal Jury Instructions for the District of Columbia, No. 6.403 (5th ed.
rev. 2013).
11
that he actually knew his license had been revoked. Rather, following dictum in
Loftus, he argues that in some circumstances the District should be required to
demonstrate that it sent him notice of an important development—that his driving
was no longer authorized by the District but would now be considered criminal
conduct. Neither Santos nor Loftus rejected this argument.6 Indeed, Loftus plainly
advised that the door to such a rule remained open.
B. What Process Is Due?
But Loftus‘s cursory suggestion that a rule of this sort might be appropriate
does not settle the matter. Footnote 10 of Loftus contained no holding and, thus,
6
The defendants in Santos and Loftus did not contest whether the issuing
jurisdictions had complied with governing regulations when suspending their
licenses. See Santos, 940 A.2d at 115 (―The official record revealed that Santos‘s
Virginia driver‘s license was suspended on November 10, 2004. . . . Santos did not
dispute th[is] fact[], nor did he contest the legality or the effective date of his
November 10 suspension.‖); Loftus, 51 A.3d at 1289 n.10 (noting that Loftus did
not ―address a situation 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‖).
In Santos, the record showed that the Commonwealth of Virginia had sent notice
of suspension even though it was not clear whether Mr. Santos had actually
received it. Santos, 940 A.2d at 116 (―The somewhat cryptic driver history record
further states that notification of the suspension was mailed to Santos but was
‗unclaimed,‘ indicating that he did not receive it.‖). In Loftus, the defendant
objected to the admission of her driver‘s record, which referred to potentially
prejudicial, prior DUI convictions. Loftus, 51 A.3d at 1286. Instead, the parties
stipulated that her license was suspended on a particular date. Id.
12
has no binding effect. See Alfaro v. United States, 859 A.2d 149, 154 n.8 (D.C.
2004) (―Language in an opinion which ‗constitutes obiter dictum, entirely
unnecessary for the decision of the case . . . [has] no effect as indicating the law of
the District.‘‖ (alterations in original) (quoting Albertie v. Louis & Alexander
Corp., 646 A.2d 1001, 1005 (D.C. 1994))). Accordingly, we must independently
consider the propriety of such a rule.
Mr. Osborne does not argue that the District‘s current processes for revoking
a driver‘s license are constitutionally deficient. As best we can tell, he asks only
that the District follow its own procedures, and we focus our attention accordingly.
See Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536
A.2d 1, 16 (D.C. 1987) (―If there is one doctrine more deeply rooted than any
other, it is that we ought not to pass on questions of constitutionality . . . unless
such adjudication is unavoidable.‖ (alteration in original) (quoting Spector Motor
Servs., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944))). We describe the District‘s
system for revoking a license based on a motorist‘s out-of-state conviction, then
address disputes between the parties about what it requires with regard to notice
and an opportunity to be heard.
i. The Statutory and Regulatory Framework.
13
District statutory law provides that:
Except where for any violation of this subchapter
revocation of the operator‘s permit is mandatory or
where suspension or revocation is mandatory for
accumulated point totals pursuant to Chapter 3 of Title 18
of the District of Columbia Municipal Regulations, the
Mayor or his designated agent may revoke or suspend an
operator‘s permit for any cause which he or his agent
may deem sufficient; provided, that in each case where a
permit is revoked or suspended the reasons therefor shall
be set out in the order of revocation or suspension;
provided further, that such order shall take effect 10 (15,
if the person is a nonresident) days after its issuance. . . .
D.C. Code § 50-1403.01 (a). Regulations flesh out revocation procedures.
Chapter 3 of Title 18 of the District of Columbia Municipal Regulations
requires the Director of the D.C. DMV to revoke a motorist‘s driver‘s license in
certain circumstances. One section instructs the Director to ―forthwith revoke the
license of any person upon receiving a record of such person‘s conviction‖ of
driving under the influence or another of several enumerated offenses. 18 DCMR
14
§ 301.1; see also id. § 300.6.7 Another section establishes a system under which
the DMV assesses points against a motorist‘s driving record ―upon receipt of
evidence of a traffic conviction.‖ Id. § 303. When a driver accumulates twelve
points, ―[t]he Director or hearing examiner shall order the revocation of the
person‘s license.‖ Id. § 303.5. The DMV assesses twelve points for some
individual convictions, including driving under the influence. Id. § 303.2 (m), (n).
Neither party disputes that Mr. Osborne‘s driver‘s license was subject to
mandatory revocation upon the D.C. DMV‘s receipt of the record of his conviction
in Virginia. And Mr. Osborne‘s driving record reveals that his license was revoked
under both procedures as he had accumulated twelve points under the District‘s
system and had been convicted of driving under the influence, an offense for which
revocation is mandatory.
If a driver‘s license has been revoked, regulations require that the licensee
―immediately return the license to the [DMV].‖ Id. § 305.4; see also id. § 305.3
7
The District is a member of the Driver‘s License Compact (―DLC‖), an
interstate agreement to share information concerning traffic-related convictions
and license suspensions and revocations. D.C. Code § 50-1001 (2012 Repl.).
Under the DLC, ―[t]he licensing authority in the home state, for the purposes of
suspension, revocation or limitation of the license to operate a motor vehicle, shall
give the same effect to the offense reported . . . as it would if such offense had
occurred in the home state, in the case of conviction[] for . . . [d]riving a motor
vehicle while under the influence.‖ Id., Art. IV (a)(2).
15
(―The Director upon canceling, suspending or revoking a license shall require that
the license shall be surrendered to and retained by the [DMV].‖). Provided that the
driver complies with other requirements when seeking reinstatement, a driver‘s
license is revoked only for a specified period of time. For commission of a first
offense for which revocation is mandatory, a driver faces a ―minimum revocation
period‖ of six months. Id. § 306.4. The penalties increase to one year and two
years, respectively, for second and third offenses. Id. § 306.5. ―Each person
whose license has been revoked shall be eligible to apply for restoration of
privileges at the expiration of the period for which the privileges have been
revoked.‖ Id. § 306.8.
When the Director proposes to revoke or suspend a license under his or her
discretionary authority, a motorist may petition for a hearing on the proposed
action. Id. § 309. However, ―[a] person is not entitled to a hearing when the action
taken by the Director is made mandatory by law or when the person has previously
been afforded an opportunity with appropriate notice for a hearing.‖ Id. § 1005.4.
The District‘s regulatory scheme also includes a section entitled ―Notice of
Suspension or Revocation,‖ id. § 307, which is divided into seven subsections.
Section 307.1 requires that when a license is mandatorily revoked as a
16
consequence of a conviction for a traffic offense, ―an order of revocation shall be
prepared setting forth the proposed action and the grounds therefor in sufficient
detail to permit the person to understand fully the nature of the order and the
reason for the order.‖ Id. § 307.1 (emphasis added). It also notes that the order
―shall include complete information on the manner in which that person may seek
restoration of the license.‖ Id. Section 307.2 explains that when a license is
revoked due to the accumulation of traffic points, ―[t]he notice shall notify the
person that the order will take effect within ten (10) days . . ., unless that person
files a written objection . . . based solely upon the accuracy of the driving record.‖
Id. § 307.2. Section 307.3 provides that when the DMV intends to revoke a license
under its discretionary authority, ―a notice of proposed suspension or revocation
shall be prepared setting forth the proposed action and the grounds for the
proposed action in sufficient detail to permit that person to understand fully the
nature of the proposed action and the reasons for the proposed action.‖ Id. § 307.3.
The remaining three subsections appear to establish rules applicable to all
suspensions and revocations. Section 307.4 states:
The notice shall take effect within ten (10) days . . .
unless that person files a written petition with the
Director for a hearing in which the Director must prove
sufficient grounds for the proposed action. . . . The filing
17
of such a demand does not operate as a stay of such order
when the order has been issued revoking or suspending a
permit . . . for driving . . . while under the influence of
intoxicating liquor or any drug or any combination
thereof. . . . Each notice issued pursuant to this section
shall inform the respondent of the effective date of the
notice and the right to a hearing.
Id. § 307.4. Section 307.5 explains that a ―notice or order‖ served under the rule is
―properly served‖ if the motorist is personally served or if a copy of the notice is
mailed to the motorist‘s last known address. Id. § 307.5. Section 307.6 defines
last known address. Id. § 307.6. Finally, § 307.7 provides that ―[p]roof of service
of any notice or order in the manner specified by this section may be made by the
certificate or affidavit of any officer or employee of the District, naming the person
on whom the notice or order was served and specifying the time, place, and
manner of service.‖ Id. § 307.7.
ii. Notice of Revocation Was Required.
The parties disagree about whether the District‘s regulatory scheme entitled
Mr. Osborne to notice that his license would be revoked. Mr. Osborne contends
that the regulations require notice even if revocation was based on conduct fairly
determined in an out-of-state proceeding. He also argues that, in any event, the
18
Due Process Clause mandates that the District send notice in these circumstances.
The District argues that Mr. Osborne received all the notice to which he was
entitled: he had actual knowledge that he had been convicted of driving under the
influence in Virginia, he was charged with knowledge of District law requiring
revocation of his driver‘s license upon the DMV‘s receipt of the record of his
Virginia conviction, and his lawyer in the Virginia case had warned him that he
might face driving restrictions in the District. Furthermore, the District maintained
that its DMV was to ―forthwith revoke‖ the license, 18 DCMR § 301.1, not to
afford Mr. Osborne additional notice.
While the statutory and regulatory provisions are far from a model of
clarity,8 Mr. Osborne has the better of the argument as to what these provisions by
their own terms require; hence, we do not reach any argument based on
8
Among other difficulties, neither ―order‖ nor ―notice‖ is defined. In some
instances, the terms are used seemingly interchangeably. Compare 18 DCMR
§ 307.2 (―The notice shall notify the person that the order will take effect within
ten (10) days‖), with § 307.4 (―The notice shall take effect within ten (10) days.‖).
Furthermore, § 307.2‘s explicit mention of notice in the context of revocations due
to an accumulation of points might suggest that notice is not sent in other
circumstances. But § 307.4, which seems to apply to all revocations, at least
implies that notice is sent in a broader range of situations. The record before us
contains no statement from the D.C. DMV regarding how to interpret these
regulations. On remand, the District is free to seek and supply the D.C. DMV‘s
interpretation of these and other relevant provisions.
19
constitutional due process. Under the District‘s own scheme, it was required to
send notice to Mr. Osborne.9 The District‘s position to the contrary is premised on
the idea that a motorist is obligated to refrain from driving once he is convicted in
an out-of-state proceeding, when his license becomes subject to revocation. This
simply is not so. The regulations clearly provide that the District‘s authority and
obligation to revoke do not arise until it has received an official record of the out-
of-state conviction. See id. §§ 301, 303. Likewise, under the regulations, a
motorist shall not ―drive a motor vehicle on any public highway in the District at
any time when his or her privilege to do so is suspended or revoked.‖ Id. § 305
(emphasis added). No provision brought to our attention supports the District‘s
argument that a licensed driver‘s responsibility to refrain from operating a vehicle
arises at some point before the District acts to revoke his or her license. In this
case, the driving record itself states that the revocation of Mr. Osborne‘s license
was to start July 4, 2013.
9
At oral argument, Mr. Osborne‘s counsel represented that he had procured
a copy of the order of revocation prepared in this case. But he could find no
certificate of service to clarify whether that order or other notice had been sent to
Mr. Osborne. He also commented that the order was created ten days before it was
to take effect on July 4, 2013.
20
The notice provisions reinforce Mr. Osborne‘s argument. First and most
significantly, § 307.2 unambiguously provides for notice when a license is revoked
due to an accumulation of points. As this was one of the reasons Mr. Osborne‘s
license was revoked, he was entitled to notice. Second, these sections plainly
contemplate that the District will articulate in writing its reasons for revoking a
driver‘s license, even when revocation is mandatory. See, e.g., id. § 307.1
(requiring articulation ―in sufficient detail to permit the person to understand fully
the nature of the order‖). It is difficult to understand why thorough articulation
would be necessary unless the notice would be sent to the motorist.
Relying on this triggering event is not a mere formality. The periods of
revocation described in § 307 must have beginning and ending dates to be at all
meaningful. Although it might be prudent to follow the approach the District
advocates, doing so would result in either the imposition of an unauthorized pre-
revocation penalty or an arbitrary extension of these periods of revocation. Here,
Mr. Osborne was convicted in Virginia in May 2013, but he could not control
when the record of that conviction would be sent, received, and recorded. Nor
could he predict when the District would act on that information. His D.C. driving
record specified that the period of withdrawal of his license was set to begin on
21
July 4, 2013, and to end on December 31, 2013. Under the District‘s position,
however, Mr. Osborne apparently was to stop driving at least a month earlier.
The District‘s reading of these provisions also undercuts the requirement
that a driver must ―immediately‖ return a revoked license. Id. § 305.3. If a driver
cannot even reliably determine whether his license has been revoked, he cannot be
expected to return the license immediately after revocation. Moreover, as a
practical matter, notice serves the important function of alerting a driver to an
erroneous suspension or revocation (due, perhaps, to a confusion of names) and
enables him or her to contest the District‘s action before facing criminal
prosecution.
iii. A Hearing Was Not Required.
Mr. Osborne also argues, for the first time on appeal, that he was entitled to
a hearing before his license could be revoked. We disagree. District regulations
unmistakably reject this argument. See 18 DCMR § 1005.4 (no entitlement to a
hearing when a license is subject to mandatory revocation). And this court has
held that ―the Full Faith and Credit Clause, U.S. Const. art. IV § 1, allows the
District to ‗adopt for purposes of its own compliance with due process, the
22
judgment of a court from another state,‘ . . . rather than hold a new hearing.‖ Wall
v. Babers, 82 A.3d 794, 802 (D.C. 2014) (citation omitted) (quoting Tomai-
Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228, 1232 (4th Cir. 1985)).
Furthermore, it is unclear what purpose a hearing would serve in this case.
Mr. Osborne conceded at trial that he had been convicted of a DUI offense in
Virginia, and he does not dispute that his conviction subjected him to mandatory
license revocation in the District. He has pointed to no factual dispute that might
be resolved in a hearing. We have previously rejected the notion that due process
requires empty process. See, e.g., Wall, 82 A.3d at 802–03 (rejecting due process
challenge to District‘s refusal to provide a hearing on driver‘s license renewal
where ―there were no contested facts that needed to be resolved at a post-
deprivation hearing‖).
C. When Is Proof of Notice Required?
Having established that Mr. Osborne was entitled to notice, we next consider
whether and in what circumstances the District should be required to verify that it
provided this notice.
23
While none of our prior decisions has squarely addressed the question
confronting us here, a few have presumed in dictum that the District and other
jurisdictions comply with the requirements of due process before revoking
licenses. In Santos, we ―perceive[d] no serious risk that strict liability for driving
without a permit [would] encompass ‗entirely innocent conduct‘‖ because ―a
driver‘s license cannot be suspended or revoked without due process, including
both fair notice of a traffic violation charge and the potential penalties, and the
right to a hearing.‖ 940 A.2d at 117. And in Loftus, we remarked that ―the District
of Columbia has a well-defined system for providing notice and a hearing before
licenses are suspended.‖ 51 A.3d at 1289. Moreover, we have discussed at length
the regulations which provide such process.
We have no doubt that in the mine run of cases, these presumptions reflect
reality. Usually, there will be no need to prove that notice was sent. But where a
defendant claims that he or she did not receive notice of revocation and the
evidence fairly raises the issue, we would be remiss to presume away rational
doubts about whether the District actually satisfied its regulatory obligation to give
notice. In these situations, the District controls the means for transforming conduct
that once was innocent into a criminal violation; it also controls information about
when that prohibition is set to begin. We should not demand that licensed
24
motorists stop driving before they receive the notice they are due. And we have no
qualms about requiring more from the District in the way of proof at trial under
these circumstances.
This holding is intentionally limited, however. We are not retreating from
our earlier conclusion that prosecution for OAR or OAS may not be used as a
vehicle to collaterally attack the revocation of a license. See Abbott v. District of
Columbia, 154 A.2d 362, 362–63 (D.C. 1959) (―[A]ppellant . . . sought to make a
collateral attack on the order of the [DMV], and this cannot be done.‖). A driver
who has received notice that his license has been revoked or suspended may not
continue driving until arrested and then defend by claiming that the order of
revocation was invalid. See id. As we explained in Abbott, that driver must
challenge the revocation through administrative channels. Id. at 363 (―If he felt
there was some invalidity in the proceeding he should have taken the steps
provided by law to correct it. He had no right to continue to operate a vehicle until
apprehended and then make a belated attack upon the revocation order.‖); accord,
Foster v. District of Columbia, 497 A.2d 100, 103 (D.C. 1985) (―Because of
appellant‘s failure to pursue his administrative remedies, the hearing examiner‘s
decision sustaining his suspension must be considered conclusive. Appellant may
not now mount a collateral attack on that decision.‖ (citation omitted)).
25
We therefore hold that, when a defendant claims that he or she did not
receive notice of revocation and the evidence fairly raises the issue,10 the District
bears the burden of proving beyond a reasonable doubt that sufficient notice of
revocation was given. 11 The District may discharge this obligation by, for
example, introducing proof of service of a notice or order sent in compliance with
§ 307. Cf. Foster, 497 A.2d at 102 (―We need not decide whether notice of a
suspension is a necessary element of the offense, for we conclude that there was
sufficient evidence adduced at trial to permit the jury to find that adequate notice
was given.‖). The District need not demonstrate that a letter was actually received,
10
This evidence need not (necessarily) be produced by the defense. Cf.
Henry v. United States, 94 A.3d 752, 757 (D.C. 2014) (noting that evidence
supporting a self-defense instruction ―may be an amalgam of ‗portions . . . of the
government‘s evidence and [portions] of defense evidence‘‖ (alterations in
original) (quoting Hernandez v. United States, 853 A.2d 202, 206 n.4 (D.C.
2004))).
11
In Loftus, we described this ―some evidence‖ showing as ―similar to
instances where self-defense is raised.‖ Loftus, 51 A.3d at 1289 n.10. That
comparison remains apt—though, we admit, imperfect. In the typical prosecution
for simple assault, the government does not have to disprove self-defense. When
such a claim is made, however, a trial judge must determine ―whether there [i]s
any evidence that fairly raise[s] the issue of self-defense.‖ Guillard v. United
States, 596 A.2d 60, 63 (D.C. 1991). If so, ―the government is required to disprove
that the defendant acted in self-defense beyond a reasonable doubt.‖ Ewell v.
United States, 72 A.3d 127, 130 (D.C. 2013). In essence, a new element of proof
is added. As in that context, no additional showing is mandated here unless the
evidence fairly raises the issue of whether notice was sent.
26
opened, or otherwise acknowledged. Cf. Kidd Int’l Home Care, Inc., 917 A.2d at
1087 (noting that the common law mailbox rule ―creates a rebuttable presumption
that a letter properly addressed, stamped, and mailed, and not returned to the
sender, has been delivered to the addressee.‖). Moreover, as Santos and Loftus
establish, the government does not have to prove that the defendant acted
knowingly or intentionally. We do not anticipate that this modest requirement will
greatly burden the District or impair the effectiveness of the criminal sanction.
After all, this showing requires only proof that the District complied with its own
regulations.
III. Conclusion
This court grants retroactive application to ―new rule[s] for the conduct of
criminal prosecutions‖ in all cases pending on direct review. Boone v. United
States, 769 A.2d 811, 824 (D.C. 2001) (quoting Johnson v. United States, 520 U.S.
461, 467 (1987)). Accordingly, we vacate appellant‘s conviction and remand this
case for a new trial.12 If he so chooses, Mr. Osborne can present his lack-of-notice
defense for the trial court to evaluate under the clarified legal standard.
12
We reject Mr. Osborne‘s suggestion that a retrial should be precluded
because the evidence did not establish that the District sent him notice that his
(continued…)
27
It is so ordered.
(…continued)
license had been revoked. Like many other courts, we decline to prohibit retrial
where a post-trial change in the law has altered the elements of proof. See, e.g.,
United States v. Robison, 505 F.3d 1208, 1225 (11th Cir. 2007); United States v.
Ellyson, 326 F.3d 522, 533 (4th Cir. 2003) (―Any insufficiency in proof was
caused by the subsequent change in the law . . ., not the government‘s failure to
muster evidence.‖); United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir. 1996);
United States v. Weems, 49 F.3d 528, 530–31 (9th Cir. 1995). ―Remanding for
retrial in this case does not give the government the opportunity to supply evidence
it ‗failed‘ to muster at the first trial. . . . The government had no reason to
introduce such evidence because, at the time of trial, under the law of our circuit,
the government was not required to prove [the new element].‖ Weems, 49 F.3d at
531.