Commonwealth v. Parenteau (June 10, 2011)

On June 10, 2011, in the case of Commonwealth v. Parenteau, the Massachusetts Supreme Judicial Court overturned a conviciton of driving after revocation for OUI, which carries an automatic additional license suspension and a minimum mandatory jail sentence.  The Mass. SJC held that Parentau's 6th Amendment Constitutional rights of confrontation and cross-examination were violated by the admission of a certified Registry reccord containing the letter which allegedly notified Parentau that his license was revoked for 10 years for OUI 4th offense. There was no testimony from any witness stating that the letter was actually mailed.  

Because of this case, DUI defense lawyers across Massachusetts are likely to file motions challenging notice, which is a required element of every operating after suspension conviction. This will likely result in dismissal of the operating after suspension or revocation charges, since the Registry will likely have difficulty producing a live witness to testify that the letter in question was actually mailed to the defendant. 

What Happened in the Parentau Case?

Boxborough Police Officer Nathan Bowolick saw Parentau's car parked in a fire lane at a gas station. He checked the plate number of the car and learned that the driver’s license of the vehicle’s registered owner (Parentau) had been revoked for OUI 4th offense. He saw Parentau get into the car and drive away. He stopped Parentau and he handed the officer what looked like a valid driver's license. Officer Bowolick arrested Parentau for operating a motor vehicle after his license had been revoked pursuant to G. L. c. 90, § 24 (1) (a) (1), for operating under the influence of intoxicating liquor.

At trial, the prosecutor introduced a certificate from the registry, dated July 24, 2009, on which appeared a stamped attestation of the registrar stating, in relevant part: “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 revocation was dated May 2, 2007, and the address to which it purportedly was mailed was the home of the defendant’s parents. The notice stated that Parentau's license was being revoked for 10 years pursuant to his 2007 guilty plea on a charge of DUI. He had 3 prior OUI convicitons at the time he pled gulty. operating a motor vehicle while under the influence of intoxicating liquor. 

The SJC concluded that the registry certificate, like a certificate of drug analysis, is testimonial in nature. (See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532 (2009.)) 

The Court explained that pursuant to G. L. c. 90, § 22 (d), the Commonwealth can satisfy its burden by showing that the registry properly mailed the notice of suspension or revocation, which constitutes “prima facie evidence of receipt by the addressee.” The problem was that the certificate (affidavit) introduced at trial was issued nearly two months after the criminal complaint for operating a motor vehicle after license revocation had issued. As such, it plainly was made for use at Parentau's trial as prima facie evidence that he was notified of his license revocation, an essential element of the charged crime that the Commonwealth was required to prove. The certificate did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed — notice had been mailed on a specified date. … The SJC stated that the mere existence of a copy of the notice of license revocation in the registrar’s files did not, in and of itself, constitute proof that it was mailed to Parentau's. Because the certificate is a testimonial statement, the Court held that its admission at trial in the absence of testimony from a registry witness violated Parentau's Sixth Amendment right to confrontation.