Hearsay and Driver Licenses

Hearsay is generally inadmissible in court. But not everything is hearsay, and many hearsay exceptions exist.

First, what is hearsay? Hearsay is:

An out-of-court statement, other than one made by the person testifying, offered to prove the truth of the matter asserted.

That’s kind of a bizarre phrase, so let’s explain it a little. Hearsay is a statement made out of court. It is also a statement made by a person or entity other than the person or agent of the entity testifying. And it is offered by to prove the truth of the matter asserted.

There are many exceptions to the hearsay rule. One exception – in fact one kind of out-of-court statement that is not even considered hearsay – is an admission by a party opponent.

In a criminal trial, the defendant is the party opponent, and so witnesses are usually able to testify as to anything the Defendant may have said.

It’s important to note that a statement may be verbal or written.

Whether someone says something or writes it down, it is a statement and potentially hearsay depending on the circumstances. Documents, therefore, are generally hearsay unless admissions by party opponents, statements against interest, or falling within an evidentiary or statutory exception.

A driver’s license and driving record is a document, prepared by the State Department of Motor Vehicles. The North Carolina General Assembly has created exceptions to the hearsay rule with respect to driving records by establishing in N.C.G.S. 8-35.1 that a properly certified driving record may be used to prove a prior DWI at sentencing and that under N.C.G.S. 20-26:

In addition to the uses authorized by G.S. 8?35.1, a copy certified under the authority of this section is admissible as prima facie evidence of the status of the person’s license. The Attorney General and the Commissioner of Motor Vehicles are authorized to promulgate such rules and regulations as may be necessary to implement the provision of this subsection.

This comes into play in certain kinds of cases involving, for instance, Driving after Consuming Under the Age of 21 where a key element that the State must prove is a person’s age.

In many cases, the state fails to bring a certified copy of the driving record to court to establish that the person was in fact underage at the time of the offense.

Where they do, the officer will often be asked on the stand whether he looked at the individual’s driver license and whether the driver license indicated the person was underage.

This is hearsay: it is an out of court statement by the DMV (the issuer of the license) offered to prove the truth of the matter – that the person is in fact under 21.

Now, you might say that I’m splitting hairs and that, let’s say, a police officer testifies in another case about someone running a Stop sign. Is the word “STOP” on the sign an out-of-court statement?

No. It is not an assertion or statement. It is an alleged fact that this sign said “STOP” and that is the rule that the statement STOP is of independent legal significance which is to say it is an operative legal fact, and not an assertion. In other words, the whole issue is whether the person stopped at the sign, and whether the sign was duly erected, and whether the sign said STOP. The officer can testify to all those things because those are not assertions, but facts to be proved at trial. Obviously a defendant or witness can testify that there was no stop sign or that the sign did not say stop. Again, not hearsay. Just a trial over the facts.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.