State v. Turner , 51 Or. App. 113 ( 1981 )

RICHARDSON, J.

Defendant was convicted of driving a motor vehicle while his operator’s license was suspended. ORS 484.365(4)(b). His sole assignment of error is that copies of documents from the Motor Vehicle’s Division were not properly certified and were therefore inadmissible. We reverse.

Following trial, the exhibits offered and received apparently became lost and are not part of the record. The State, in its brief, says "[t]he certification utilized in the present case is indistinguishable from the certification procedure approved by this court in [State v. Pingelton, 31 Or App 241, 570 P2d 666 (1977), rev den 281 Or 99 (1978)].” However, the description of the documents by the trial judge as they were offered is somewhat at variance with the state’s description.

The record indicates the state offered four exhibits, numbered 1 through 4. Exhibit #2 was admitted without objection and is not involved in this appeal. Exhibit #3 was a computer printout of defendant’s driving record containing a certification that "the foregoing driving record copy is a correct transcript of the specified data contained within the data processing device or computer.” This certification was signed: "Administrator, Motor Vehicles Division by David P. Moomaw.” According to the trial court’s description, the certification on Exhibit #3 was original, not a photocopy. The state offered Exhibit #3 to establish, by the entries regarding defendant’s driver’s license status, that the order of suspension was in effect on the day he was arrested. See State v. Harris, 288 Or 703, 609 P2d 798 (1980). Defendant objected to Exhibit #3 on the ground it contained inadmissible entries that he had been convicted of certain driving offenses. The state withdrew Exhibit #3 and offered Exhibit #1, which was a photocopy of Exhibit #3 with the objectionable entries deleted. Defendant objected to Exhibit #1 on the ground it did not contain an original certification. It is true that Exhibit #1 did not contain an original certification as offered, however, it was a photocopy of a properly certified document which had been altered to satisfy defendant’s objection. The court was aware, by the offer of Exhibit #3, that the material contained in Exhibit #1 was a correct copy of defendant’s driving record. Exhibit #1 was properly received.

Exhibit #4, offered by the state, consisted of four separate documents. Each document was a single photocopy. Two of the documents were photocopies of separate orders of suspension of defendant’s operator’s license, the other two were photocopies of envelopes addressed to defendant indicating they were mailed by certified mail but were not delivered. Each of the four documents contained a photocopied certification. None of the photocopied certifications contained an original signature.

As offered, Exhibit #4 was a photocopy of a certified document. This does not operate as a certification required by ORS 43.470(1). Defendant states in his brief that Exhibit #4 was presumably prepared by someone in the Multnomah County District Attorney’s office. For all that appears on the face of the document, that may well have occurred. We are unable to discern how the photocopy of the document was made or by whom. Exhibit #4 was improperly admitted.

Both parties pose the issue in this case as a reexamination of State v. Pingelton, supra. The separate concurring opinion of Thornton, J., accepts that challenge and concludes Pingelton should be overruled. Reversal of the judgment in this case does not require a reexamination of Pingelton or an assessment that it was wrongly decided.

lii Pingelton we held that a reproduction of a signature on a certification was sufficient. We concluded that an original signature was not required where a reproduction of a signature is adopted to authenticate a writing. This holding was in response to the issue "whether 'certified’ within the meaning of this statute [ORS 43.330] requires an actual signature.” 31 Or App at 243. In describing the exhibit challenged, we said:

"* * * Although the record is not clear, the appearance of the challenged documents suggests that the original document and the certification were placed together on a photocopying machine in such a manner that the original document and the certification were reproduced as a single page. * * *” 31 Qr App at 243.

It may be argued that affirming admission of the documents produced as we assumed occurred in Pingelton, in effect, holds a photocopy of a certified copy is admissible. However, we did not reach that issue in Pingelton; we decided only that a proper certification does not require an actual signature. With that narrow holding in mind it is unnecessary to even review Pingelton, much less overrule it.

We conclude that Exhibit #1 was properly received and that Exhibit #4 was not. Without the information contained in Exhibit #4 there was no proof of a critical element of the state’s case; proof that defendant’s license was suspended.

Reversed.