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Nesius v. State Dept. of Revenue & Tax.3/15/1990
of us who have labored in the documentary world of private practice come frequently to know only too well, there is a simple solution. The arresting officer should either include the information on the face of the signed form or, if provided by attachment, then sign the attachment as explicit approval and certification of the factual statements.
At issue in this case is a controversy about what occurred prior to and at arrest. The documentation submitted by the state motor vehicle division is a computer print out from the office of the sheriff which, as an internal record, would certainly not, in itself, be admissible in a civil trial or for prosecutorial evidence in a criminal proceeding. This record does not demonstrate when Deputy Heller signed the FSFR-5 form, that he ever read the "standard trailer," or, in fact, that it actually existed at that time. If the FSFR-5 form was attached to the standard trailer as it is stated, it had to be signed before the office record narrative document was completed. What we do know is that the hearsay document — standard trailer — was typed four days after arrest and approved two days before it was typed.
It may seem insignificant to this court, but not to me, that the critical document in this proceeding has no independent evidentiary validity. We do not know what information may be subject to challenge, what supplementation occurs in the dictation and typing process, and whether the arresting officer is willing to swear to every typed statement found on the form under penalty of perjury. We have converted what was a first-party hearsay process for a driver's license hearing into a second or double hearsay substitute. A public record hearsay exception cannot properly be extended to this double hearsay opinion and conclusion content. Cf. State v. Monson, 113 Wn.2d 833, 784 P.2d 485 (1989).
All that would be needed is for the arresting officer to read, approve and specifically sign any "attachments" so that the required certification adopts the office record as his statement and asserts that the information contained is true and correct. I will not accept an undated form as real evidence or something that is sufficient to provide due process. An incomplete certification sheet which does not contain any actual information and a computer office record form prepared four days after the date of arrest by another person does not comply with W.S. 31-6-102(d) or even the Rules of the Wyoming State Tax Commission, ch. 1, § 6(e). It certainly provides neither reliability nor due process. Matter of GP, 679 P.2d 976 (Wyo. 1984); Jennings v. C.M. & W. Drilling Co., 77 Wyo. 69, 307 P.2d 122 (1957); Cooley v. Frank, 68 Wyo. 436, 235 P.2d 446 (1951); Brown v. Citizens' Nat. Bank of Cheyenne, 38 Wyo. 469, 269 P. 40 (1928).
The especially troubling aspect of this decision is this court's conclusion that the burden rests on the individual driver to challenge what is clearly an unsigned and unattested document. There is absolutely nothing wrong with requiring proper execution in accordance with the statutes so that the certification applies to the information upon which hearing relevancy and decision is to be vested. Basic rights are involved, see Com. v. Smith, 568 A.2d 600 (Pa. 1989); protection by minimal requirements should not be ignored. Sanchez v. State, 567 P.2d 270 (Wyo. 1977).
I would reverse and require either the presence of the officer for the hearing or documentary evidence which is, in fact, certified to be true and complete as constituting not more than first-party hearsay.
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