Hedrick v. Commissioner of the Department of Public Safety

2013 OK 98, 315 P.3d 989, 2013 WL 6189234, 2013 Okla. LEXIS 136

• Court: Supreme Court of Oklahoma
• Decided: November 26, 2013
• Docket: No. 110199
• Status: Published

Opinions

KAUGER, J.;

{1 The dispositive issues are whether the holder of a driver's license brought a timely appeal to challenge his driver's license revocation and whether he was required to provide the district court with a certified copy of a Department of Public Safety (DPS) revocation order when he appealed the revocation. We hold that: the appeal was timely; 47 O.S. Supp.2007 § 2-111 expressly deems photocopies of DPS records to be considered originals for all purposes and admissible as evidence in all courts;¹ and that pursuant to 12 ©.S$.2011 § 3004(8), a certified copy of the DPS order was not required.²

FACTS

T2 The defendant/appellant, Kevin B. Hedrick (Hedrick) was arrested for driving under the influence in McClain County, Oklahoma. Details as to the date and circumstances surrounding the arrest are not provided in the record.³ DPS held a hearing on September 2, 2009, and determined that Hedrick's driving privileges should be revoked for 180 days. DPS mailed Hedrick a copy of its revocation order on September 28, 2009. On October 30, 2009, Hedrick filed an appeal of the DPS revocation to the District Court of McClain County and attached a copy of the DPS revocation order which DPS had mailed him. Hedrick sought to set aside the revocation, or in the alternative, have it modified based on extreme and usual hardship.

T3 When the matter came for trial on February 2, 2010, DPS objected to the trial court's jurisdiction to hear the appeal because Hedrick had not provided a certified copy of its order to the trial court. DPS also argued that the appeal was untimely, because it was filed thirty-seven days after it mailed the order to Hedrick.⁴ At the trial, DPS acknowledged that it issues thousands of these orders, but insisted that unless Hed-rick provided a certified copy of the order, the trial court could not review the matter.

T 4 Hedrick's attorney asked the DPS lawyer if she had a certified copy and she said it was not her burden to show that Hedrick had a right to be in the district court or that his appeal was timely. When the trial court asked if it could take judicial notice of the official business records of DPS, DPS contended that if it were not a certified copy, it was not sufficient evidence.⁵ DPS insisted that it was Hedrick's burden and that DPS was not required to provide a certified copy of its administrative order. The trial court recessed the matter and instructed the parties to submit briefs on the issues.

1 5 DPS submitted a brief on February 22, 2010, and Hedrick replied on March 22, 2010. On April 12, 2010, the matter was assigned to another trial judge, but nothing happened in the cause until nearly eighteen months later when DPS filed a motion to dismiss for failure to prosecute. Hedrick's lawyer responded, explaining that: 1) the trial court did not reset the hearing; 2) all of his cases at DPS were reset because of DPS's shortage of attorneys; and 3) he was willing to get a court date, but DPS had not cooperated on setting a date.

T6 On October 5, 2011, the trial court dismissed the case because Hedrick did not provide a certified copy of the DPS revocation order. It determined that: 1) Hedrick had the burden of proving jurisdiction and an uncertified copy of the DPS order was incomplete evidence to establish jurisdiction; and 2) the appeal was untimely. On October 17, 2011, Hedrick filed a motion to reconsider which the trial court denied on November 14, 2011.

I 7 On December 14, 2011, Hedrick appealed and the Court of Civil Appeals in an unpublished opinion affirmed on May 10, 2013,⁶ holding that, while the trial court had jurisdiction to hear the case,⁷ the photocopy of the DPS order was incompetent to establish that DPS ever revoked Hedrick's driver's license under 47 O.S8. Supp.2006 § 6-211(F)⁸ Certiorari was granted on October 14, 2018, and assigned to these chambers.

1.

TITLE 47 O.S. SUPP.2007 $ 2-111 EXPRESSLY DEEMS PHOTOCOPIES OF DPS RECORDS TO BE CONSIDERED ORIGINALS FOR ALL PURPOSES AND ADMISSABLE AS EVIDENCE IN ALL COURTS. ALSO PURSUANT TO 12 0.8.2011 § 3004(8), A CERTIFIED COPY OF THE DPS ORDER WAS NOT REQUIRED.

A.

T8 DPS contends that unless Hed-rick attached a certified copy of its order to his petition in the district court, his appeal could not be perfected in the trial court. It insists that the photocopy of DPS's revocation submitted with his petition to the district court was incompetent evidence because it was neither certified, nor submitted with a certificate, pursuant to 12 0.S8.2011 § 8005 ⁹ or 12 O0.S8.2011 § 2902.¹⁰ Hedrick argues that the copy he attached to his district court petition need not be a certified copy. He relies on an exception to these requirements, found at 12 0.S8.2011 § 30048), which provides in pertinent part:

The original is not required, and a duplicate or other evidence of the contents of a record is admissible if;

8. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearings and the party does not produce the original at the hearing. ..

Although neither party mentions 47 O.S8. Supp.2007 § 2-111, we take judicial notice of the statute ¹¹ which provides in pertinent part:

C. 1. The Commissioner may cause any or all records kept by the Department of Public Safety to be photographed, micro-photographed, photostated, reproduced on film, or stored on computer storage medium. The film or reproducing material shall be of durable material, and the device used to reproduce the records on the film or reproducing material shall accurately reproduce and perpetuate the original ree-ords in all detail.

2. The photostatic copy, photograph, microphotograph, photographic film or computerized image of the original records shall be deemed to be an original record for all purposes and shall be admissible as evidence in all courts or administrative agencies. A facsimile, exemplification, or certified copy thereof shall be deemed to be a transcript, exemplification, or certified copy of the original. (Emphasis supplied.)

B.

T9 The trial court is required to examine all of the records in a DPS file relative to an offense committed.¹² Section 2-111 clearly and unambiguously declares photocopies of DPS records to be considered originals and admissible in any court. Applying this statute could end our inquiry but this is not the only dispositive statute applicable to this cause. Revocation appeal proceedings in the district court are exempt from the provision of the Oklahoma Pleading and Discovery codes, but they are not exempt from the Oklahoma Evidence Code.¹³ The requirements of 12 0.98.2011 § 30048) which are applicable here specifically allow admission of duplicates, or other secondary evidence, to prove the contents of a document, when the original document is:

1) under the control of the party against whom it is offered;

2) the party was put on notice by the pleadings or otherwise that the contents would be a subject of proof at the hearings; and

3) the party does not produce the original at the hearing.¹⁴

110 Title 12 0.8.2011 § 3004, which is identical to Rule 1004 of the Federal Rules of Evidence, carves out specific exceptions to the normal rules of admissibility under the evidence code.¹⁵ These requirements have been met in this cause because: 1) the original DPS revocation order was in the possession of DPS, against whom it was to be proffered; 2) DPS was put on notice by Hedrick's pleading that the contents of the revocation order would be a subject of proof at the hearing in the trial court; and 3) DPS did not produce the original at the hearing or any other time.

{11 Title 12 O.S8.2011 § 3004 does not require that a duplicate be certified if the necessary conditions are satisfied, nor does it recognize any degree of secondary evidence, such as first requiring a direct copy.¹⁶ The reason a certified copy is not required under this rule is because DPS has the original in their possession. If the authenticity of the copy is questioned they can easily introduce the original as proof.¹⁷

T 12 This rule has long been a settled issue under Oklahoma law. Interpreting a prior incarnation of this rule in Security State Bank v. Lane, 1917 OK 263, ¶ 3, 64 Okla. 11, 166 P. 160, we held:

In these circumstances the copy of the demand was admissible in evidence under the rule governing the admission of exhibits attached to pleadings and made a part thereof. Moreover, where, as in this and similar cases, the original paper is necessarily in the hands of the defendant, notice to produce the same is not required to allow a copy to be given in evidence where the form of the action and the allegations of the pleadings are such as to give notice that the production will be necessary at the trial.

¶13 We revisited this rule in Smith v. Arrow Drilling Co., 1942 OK 337, ¶ 19, 191 Okla. 381, 130 P.2d 95, where we held that it was not an error to receive into evidence a carbon copy of an instrument, material to the issues, where it was shown that the original was in the hands of the adverse party.

IL.

THE APPEAL WAS NOT UNTIMELY.

114 DPS argues that Hedrick's district court appeal was untimely because it must be filed within thirty days pursuant to 47 0.8. Supp.2006 § 6-211(E).¹⁸ DPS argues that his petition was filed October 80, 2009, thirty-seven days after the order was mailed. The only evidence of this mailing date is found on the order itself, wherein it states the date it was mailed. Hedrick concedes that his petition must be filed within thirty days of service to him, but argues that DPS mailed the order through the United States mail and pursuant to 47 0.8. Supp.2007 § 2-116, when any notice is mailed by DPS, the notice is complete upon the expiration of ten days after it was mailed.

[ 15 Section 2-116 provides:

Whenever the Department of Public Safety is authorized or required to give any notice under this act or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with first class postage prepaid, addressed to such person at the address as shown by the records of the Department. The giving of notice by mail is complete upon the expiration of ten (10) days after such deposit of said notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Department or affidavit of any person over eighteen (18) years of age, naming the person to whom such notice was given and specifying the time, place and manner of the giving thereof. Failure of the person to receive notice because of failure to notify the Department of a change in his or her current mailing address, as required by Section 6-116 of this title, shall not be sufficient grounds for the person to protest the notice.

Hedrick argues that his thirty day deadline did not begin to run until ten days after September 23, 2009-the date DPS mailed the order. Even though DPS does not dispute that it mailed the order to Hedrick, it insists this statute only comes into play in certain cases so that a presumption can be made that the notice would be received in, at most, ten days after mailing, but, without explanation, insists this is not one of those cases.

1 16 We disagree. When DPS follows the procedures authorized by 47 0.8. Supp.2007 § 2-116 and chooses to mail orders through the United States mail, it would be inconsistent with the statute to deny its application to extend the deadline for the person receiving the order through the mail to file an appeal with the district court, Hedrick had ten days after September 23, 2009, before his notice was considered complete. He filed his appeal on October 30, 2009. Hedrick's appeal was timely filed in the district court.

CONCLUSION

€ 17 Title 47 0.8. Supp.2007 § 2-111 clearly and unambiguously declares photocopies of DPS records to be considered originals and admissible in any court.¹⁹ Even if it did not, the original DPS revocation order is in the possession of DPS. It mails, through the United States mail, copies of these orders to drivers whose licenses have been revoked. Pursuant to 12 0.8.2011 § 3004(8), a driver challenging the revocation is not required to obtain a certified copy of the same order DPS mailed in order to file an appeal to the district court to put DPS on notice of its own decision.²⁰ If for any reason the authenticity of the copy is called into question, DPS has the original to introduce as proof.

118 This procedure is no different than that followed by this Court. When the Court of Civil Appeals issues an opinion, it is mailed through the United States mail by the Supreme Court Clerk to the parties. If a party wishes to file a petition for certiorari, the party must attach a photocopy of the Court of Civil Appeals opinion to the petition, but it need not obtain a certified copy from our Clerk before filing the petition for certiorari. If the authenticity of the copy is called into question, the original is already in our possession via the Supreme Court Clerk.²¹

1 19 DPS is legislatively authorized to mail orders through the United States mail pursuant to 47 O.S. Supp.2007 § 2-116. When it does, notice is not complete until 10 days after the order is mailed.²² Once notice is complete, a driver has thirty days to file an appeal to the district court.²³

COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, TAYLOR, COMBS, GURICH, JJ., concur. EDMONDSON, J., concurs in result (by separate writing).

1 . Title 47 0.$.2007 § 2-111 provides:

A. - All records of the Department, other than those declared by law to be confidential for the use of the Department, shall be open to public inspection during office hours. B. The Commissioner shall supervise the maintaining of all records of the Department and shall adopt rules concerning the destruction and retention of records. Records of the Department shall not be subject to the provisions of:

1. Sections 305 through 317 of Title 67 of the Oklahoma Statutes or be transferred to the custody or control of the State Archives Commission;

2. Section 590 of Title 21 of the Oklahoma Statutes; or

3. The Records Management Act, Sections 201 through 215 of Title 67 of the Oklahoma Statutes.

The Commissioner may, pursuant to an adopted rule, order destruction of records deemed to be no longer of value to the Department in carrying out the powers and duties of the Department.

C. 1. The Commissioner may cause any or all records kept by the Department of Public Safety to be photographed, microphoto-graphed, photostated, reproduced on film, or stored on computer storage medium. The film or reproducing material shall be of durable material, and the device used to reproduce the records on the film or reproducing material shall accurately reproduce and perpetuate the original records in all detail.

2. The photostatic copy, photograph, micro-photograph, photographic film or computerized image of the original records shall be deemed to be an original record for all purposes and shall be admissible as evidence in all courts or administrative agencies. A facsimile, exemplification, or certified copy thereof shall be deemed to be a transcript, exemplification, or certified copy of the original.

3. The photostatic copies, photographs, mi-crophotographs, reproductions on film, or computerized images shall be placed in conveniently accessible files and provisions made for preserving, examining, and using the copies, photographs, - microphotographs, - reproductions on film and computerized images. The Commissioner of Public Safety is empowered to authorize the disposal, archival storage, or destruction of the original records or papers. (Emphasis supplied.)

2 . Title 12 0.$.2011 § 3004(3) provides:

The original is not required, and a duplicate or other evidence of the contents of a record is admissible if:

1. All originals are lost or have been destroyed unless the proponent lost or destroyed them in bad faith;

2. No original can be obtained by any available judicial process or procedure;

3. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearings and the party does not produce the original at the hearing; or

4. The record is not closely related to a controlling issue. '

Because this statute remains unchanged since 2002, references are to the current version.

3 . Title 47 O.S. Supp.2005 § 754 provides in pertinent part:

A. Any arrested person who is under twenty-one (21) years of age and has any measurable quantity of alcohol in the person's blood or breath, or any person twenty-one (21) years of age or older whose alcohol concentration is eight-hundredths (0.08) or more as shown by a breath test administered according to the provisions of this title, or any arrested person who has refused to submit to a breath or blood test, shall immediately surrender his or her driver license, permit or other evidence of driving privilege to the arresting law enforcement officer. The officer shall seize any driver license, permit, or other evidence of driving privilege surrendered by or found on the arrested person during a search....

4 . Title 47 O.S. Supp.2006 § 6-211(E) provides:

E. The petition shall be filed within thirty (30) days after the order has been served upon the person, except a petition relating to an implied consent revocation shall be filed within thirty (30) days after the Department gives notice to the person that the revocation is sustained as provided in Section 754 of this title. It shall be the duty of the district court to enter an order setting the maiter for hearing not less than fifteen (15) days and not more than thirty (30) days from the date the petition is filed. A certified copy of petition and order for hearing shall be served forthwith by the clerk of the court upon the Commissioner of Public Safety by certified mail at the Department of Public Safety, Oklahoma City, Oklahoma.

5 . The trial court is required to examine all of the records on file in DPS relative to an offense committed. Title 47 O.S. Supp.2006 § 6-211(1) provides:

The court shall take testimony and examine the facts and circumstances, including all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of the person, and determine from the facts, circumstances, and records whether or not the petitioner is entitled to driving privileges or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department. The court may also determine whether or not, from the person's previous driving record, the order was for a longer period of time than such facts and circumstances warranted. In case the court finds that the order was not justified, the court may sustain the appeal, vacate the order of the Department and direct that driving privileges be restored to the petitioner, if otherwise eligible. The court may, in case it determines the order was justified, but that the period of the suspension or revocation was excessive, enter an order modifying the same as provided by law.

Title 47 O.S. Supp.2005 § 2-110 provides in pertinent part:

C. The Commissioner and any other officers of the Department as the Commissioner may designate are hereby authorized to provide a copy of any record required to be maintained by the Department at no charge to any of the following government agencies when requested in the performance of official governmental duties:

... 2. Any court, district attorney or municipal prosecutor in this state or any other state;

6 . The Court of Civil Appeals initially issued an opinion on March 15, 2013, and Hedrick filed for rehearing on April 4, 2013. In an order dated May 10, 2013, the Court of Civil Appeals withdrew the March 15th opinion and substituted it with the May 10th decision. We also note that after the substitute opinion was issued, the original DPS attorney withdrew from the case because she no longer worked for DPS.

7 . Okla. Const. art. 7, § 7(a) provides:

(a) The State shall be divided by the Legislature into judicial districts, each consisting of an entire county or of contiguous counties. There shall be one District Court for each judicial district, which shall have such number of District Judges, Associate District Judges and Special Judges as may be prescribed by statute. The District Court shall have unlimited original jurisdiction of all justi-ciable matters, except as otherwise provided in this Article, and such powers of review of administrative action as may be provided by statute. - Existing electing districts for all who are or who become District Judges and Associate District Judges under the terms of this Article shall remain as they are constituted for the offices formerly held by such persons on the effective date of this Article, until changed by statute. The Legislature may at any time delegate authority to the Supreme Court to designate by court rule the division of the State into districts and the number of judges.

Title 47 0.S. Supp.2006 § 6-211(a) provides:

A. Any person denied driving privileges, or whose driving privilege has been canceled, denied, suspended or revoked by the Department, except where such cancellation, denial, suspension or revocation is mandatory, under the provisions of Section 6-205 of this title, or disqualified by the Department, under the provisions of Section 6~205.2 or 761 of this title, shall have the right of appeal to the district court as hereinafter provided. Proceedings before the district court shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings. The district court is hereby vested with original jurisdiction to hear said petition.

The district court was vested with subject matter jurisdiction the moment Hedrick filed his petition in the trial court. Oklahoma Dept. of Public Safety v. Robinson, 1973 OK 80, 15, 512 P.2d 128.

8 . Title 47 0.S. Supp.2006 § 6-211(F) provides:

F. At a hearing on a revocation by the Department pursuant to the implied consent laws as provided in Sections 6-205.1, 753 and 754 of this title, the court shall not consider the merits of the revocation action unless a written request for an administrative hearing was timely submitted to the Department and the person actually exercised the opportunity to appear as provided in Section 754 of this title and the Department entered an order sustaining the revocation.

9 . Title 12 0.S.2011 § 3005 provides:

The contents of an official record or of a private record authorized to be recorded or filed in the public records and actually recorded or filed, if otherwise admissible, may be proved by a copy in perceivable form, certified as correct in accordance with Section 2902 of this title or testified to be correct by a witness who has compared it with the original. If a copy which complies with this section cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.

Because this statute remains unchanged since 2002, references are to the current version.

10 . Title 12 0.$.2011 § 2902 provides in pertinent part:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

1. A document bearing a seal purporting to be that of the United States or of any state, district, commonwealth, territory or insular possession thereof, including the Panama Canal Zone, or the trust territory of the Pacific Islands, or of a political subdivision, department, office or agency thereof, and a signature purporting to be an attestation or execution;

2. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph 1 of this section, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine;

4. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph 1, 2 or 3 of this section or complying with any statute or by rules prescribed by the Supreme Court pursuant to statutory authority;

Because this statute remains unchanged since 2002, references are to the current version.

11 . Title 12 O.$.2011 § 2201 provides in pertinent part;

A. Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States....

12 . Title 47 0.8. Supp.2006 § 6-211(I) see note 5, supra. - See also, 47 O.S. Supp.2005 § 2-110 see note 5, supra.

13 . Title 47 0.8. Supp.2006 § 6-211(A) provides:

A. Any person denied driving privileges, or whose driving privilege has been canceled, denied, suspended or revoked by the Department, except where such cancellation, denial, suspension or revocation is mandatory, under the provisions of Section 6-205 of this title, or disqualified by the Department, under the provisions of Section 6-205.2 or 761 of this title, shall have the right of appeal to the district court as hereinafter provided. Proceedings before the district court shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings. The district court is hereby vested with original jurisdiction to hear said petition.

While this provision specifically exempts proceedings of this type from the Pleading and Discovery Codes, it is silent on the application of the Evidence Code. Additionally, this court stated in Oklahoma Dept. of Pub. Safety v. Robinson, see note 4, supra:

Although the hearing for revocation of a drivers license is an administrative proceeding, when the order of the commissioner is appealed to the district court it becomes a judicial proceeding. Any evidence sought to be introduced must conform with judicial standards.

DPS relies on Robinson in arguing that a photo copy was insufficient because a police officer's uncertified affidavit was not allowed in Robinson as admissible. The affidavit did not fall under the exceptions of 12 0.$.2011 § 3004(3), nor did Robinson address its applicability to DPS proceedings.

14 . Title 12 0.$.2011 § 3004(3) see note 4, supra.

15 . 7 Okla. Prac., Trial Practice § 17:3 (2009 ed.), provides in pertinent part:

Even if § 3002 requires the proponent to introduce the original, § 3004 of the Oklahoma Evidence Code specifies "circumstances under which production of the original is excused" (quoting Fed.R.Evid. 1004, Adv. Comm. Note).

16 . 7 Okla. Prac., Trial Practice § 17:3 (2009 ed.); Fed.R.Evid. 1004, Adv. Comm. Note.

17 . See Fed.R.Evid. 1004(3), Adv. Comm. Note, explaining the provision of the Federal Rules of Evidence identical to 12 O.S.2011 § 3004(3), which provides:

A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward off secondary evidence by offering the original. The notice procedure here provided is not to be confused with orders to produce or other discovery procedures, as the purpose of the procedure under this rule is to afford the opposite party an opportunity to produce the original, not to compel him to do so.

18 . Title 47 O.S. Supp.2006 § 6-211(E), see note 4, supra.

19 . Title 47 O.S. Supp.2007 § 2-111, see note 1, supra.

20 . Title 12 0.S.2011 § 3004(3) see note 4, supra

21 . Much like this Court takes judicial notice of orders on the dockets of the District Courts and Appellate Courts, the trial court could have taken notice of the DPS revocation order. See, 12 0.S.2011 § 2201, note 11, supra; Collier v. Reese, 2009 OK 86, ¶ 8, fn. 7, 223 P.3d 966. See also, State ex rel. Oklahoma State Board of Examiners of Certified Shorthand Reporters v. Parrish, 2006 OK 91, ¶ 7 fn. 1, 152 P.3d 202; Mehdipour v. State ex rel. Department of Corrections, 2004 OK 19, ¶ 7 fn. 15, 90 P.3d 546; Myers v. Lashley, 2002 OK 14, ¶ 5, fn. 8, 44 P.3d 553. The District Court is required to consider and examine DPS records, see discussion note 3, supra.

22 . Title 47 0.8. Supp.2007 § 2-116, see page 9, supra.

²³