State v. McCallum

Decision Date02 January 1991
Docket NumberNo. 4,4
PartiesSTATE of Maryland v. Malcolm D. McCALLUM. Sept. Term 1990.
CourtMaryland Court of Appeals

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for petitioner.

Bradford C. Peabody, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for respondent.



On October 12, 1987 Respondent, Malcolm D. McCallum was involved in an automobile accident. The accident was investigated by an officer of the Anne Arundel County Police Department who, after completing his investigation, charged McCallum with driving while suspended under Maryland Code (1984, 1987 Repl.Vol.), Transportation Article, § 16-303(c), as well as several other motor vehicle violations. McCallum elected a jury trial and was ultimately convicted of the charged motor vehicle offenses. He was sentenced to one year incarceration with all but ninety days suspended for the driving while suspended conviction. McCallum appealed his convictions to the Court of Special Appeals. The intermediate appellate court reversed McCallum's conviction for driving while suspended, holding that the circuit court erred when it refused to give an instruction that scienter is an element of driving while suspended, and also erred in admitting into evidence McCallum's entire motor vehicle record. McCallum v. State, 81 Md.App. 403, 567 A.2d 967 (1990). We granted the State's petition for certiorari to consider both of these issues.

The evidentiary issue arose when the State offered into evidence a certified copy of McCallum's driving record from the Motor Vehicle Administration (MVA). The apparent purpose of offering the record was to establish that McCallum's license was suspended, and that suspension letters were mailed (although the record does not reflect to what address the notices were sent). The record was three pages long. It contained entries stating that McCallum's license was suspended and that suspension letters had been mailed. It also contained a great deal of irrelevant information about prior suspensions and prior convictions for other motor vehicle offenses, including prior convictions for reckless driving and for driving while suspended.

When McCallum's driving record was offered into evidence, defense counsel objected because some entries were highlighted with yellow markings. The objection was overruled. At the conclusion of the instructions and closing argument as the jury was ready to begin their deliberations, the court asked counsel to "check what's going into the jury room and make sure you're satisfied." At that time defense counsel again objected to the computer printout of McCallum's driving record because it "contains significant irrelevant information."

The State contends that McCallum waived any relevancy objection because his only objection when the record was originally offered was based on the fact that some entries were highlighted. Since we will be reversing the conviction and remanding for a new trial, we need not determine whether McCallum waived his relevancy objection. Suffice it to say, if the State offers the record at any subsequent trial and there is an objection, the court should redact all portions of McCallum's motor vehicle record which are not relevant to the charge at issue.

McCallum's motor vehicle record, which was introduced into evidence under the official record exception to the hearsay rule, contains the following entries that are relevant to the instant offense: On April 14, 1987, "fail to pay fine in district court--suspension letter mailed"; a second entry shows that again on April 14, 1987, "fail to pay fine in district court--suspension letter mailed"; on May 11, 1987, there were two entries of the suspensions for the two previous failures to pay fines in district court; then, on May 15, 1987, there is an entry of "district court fail to appear--suspension letter mailed."

McCallum's defense to the driving while suspended charge was that he had not received notice that his license was suspended. He testified that "I never received a suspension letter in the mail because I don't live at that address." McCallum indicated that, for several months during the period of time when the suspension letters were mailed, he was incarcerated on an unrelated charge. When he got out of jail he discovered that he had been evicted and all of his mail had been destroyed by his landlord. McCallum also testified that shortly before the instant offense he paid a $90.00 fine and was given a receipt by the district court clerk. He testified that he was told by the clerk that when he brought the receipt to MVA he would be able to pick up his license. 1 Apparently his contention was that, since he had received no suspension notice and had paid at least one fine, he was unaware that his driving privileges were still suspended.

McCallum's attorney requested the court to instruct the jury that criminal intent or mens rea is required for the offense of driving while suspended. The trial judge refused to give the instruction and opined that mens rea was not an element of the offense. In his closing argument, the State's Attorney told the jury that "the reason the court did not instruct you as to intent is that intent is not required."

The section under which McCallum was charged, Transportation Art., § 16-303(c), states: "A person may not drive a motor vehicle on any highway ... while the person's license or privilege to drive is suspended in this State." 2 Violation of this subsection is punishable by imprisonment not to exceed one year and/or a fine not to exceed $1,000.00 for a first offense, and imprisonment not to exceed two years and/or a fine not to exceed $1,000.00 for subsequent offenders. Md.Code (1984, 1987 Repl.Vol., 1990 Cum.Supp.), Transportation Art., § 27-101(h).

The intermediate appellate court held, and we agree, that mens rea is required for the offense of driving while suspended, and that the trial judge erred in failing to so instruct the jury. We recognize that other states are divided on this issue. In Zamarripa v. First Judicial Dist. Court, 103 Nev. 638, 747 P.2d 1386 (1987), the Nevada Supreme Court noted that:

"There is a wide split of authority on the question whether driving with a suspended license requires proof of intent. Oregon, Kansas, Ohio, [and] Nebraska ..., for example, have held that no criminal intent is necessary for conviction of driving with a suspended license. [Citing in n. 3, Grogan v. State, 482 N.E.2d 300 (Ind.Ct.App.1985) 3; State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982); State v. Grotzky, 222 Neb. 39, 382 N.W.2d 20 (1986); State v. Morrison, 2 Ohio App.3d 364, 442 N.E.2d 114 (1982); State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982).] Arizona, Alaska, Colorado and North Carolina, on the other hand, have all held that criminal intent or knowledge is necessary for conviction. [Citing in n. 4, Gregory v. State, 717 P.2d 428 (Alaska Ct.App.1986); State v. Jennings, 150 Ariz. 90, 722 P.2d 258 (1986); People v. Lesh, 668 P.2d 1362 (Colo.1983); State v. Finger, 72 N.C.App. 569, 324 S.E.2d 894 (1985).] California and Maine have statutes requiring knowledge of driving with a suspended license."

Id., 747 P.2d at 1388.

Transportation Art., § 16-303 defines the offense of driving while suspended without specifying any culpable mental state as an element. But as the Supreme Court cautioned, "Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854, 870 (1978).

In Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988), this Court discussed the development of the "public welfare" statutory offenses which are punishable without proof of mens rea. We noted that "the contemporary view ... disfavors strict liability offenses." Id. at 650, 547 A.2d at 1047.

In Dawkins, we identified some of the factors which would indicate that the Legislature intended to eliminate the requirement of mens rea and create a strict liability public welfare offense. Those factors were: 1) " 'Public welfare offenses' are generally regulatory in nature," and we noted that this could include some "traffic regulations and motor vehicle laws...." Id. at 644, 547 A.2d at 1044. "[T]he purpose of the penalty is to regulate rather than to punish behavior." Id. at 645, 547 A.2d at 1044. 2) Public welfare offenses "commonly involve light fines or penalties," id. at 644, 547 A.2d at 1044, and, quoting Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 70 (1933), "the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest." 3) "While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring." Dawkins, 313 Md. at 645, 547 A.2d at 1044.

Analyzing the instant offense using the considerations set forth in Dawkins, we reach the conclusion that driving while suspended is not one of those "public welfare" offenses where the Legislature intended to eliminate the requirement of scienter. We explain.

The first consideration is whether the offense is "regulatory in nature." While we recognized that many motor vehicle laws are regulatory, the instant offense is both regulatory and punitive. Some suspensions are for the purpose of at least temporarily taking unsafe or high risk drivers off the road; other suspensions are essentially punitive. Their primary purpose is to punish a driver for failure to appear in court, failure to pay a fine, or failure to take a chemical test for intoxication. The offense is not entirely regulatory in nature.

The second consideration...

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