Request By:
Honorable J. D. Craddock, III
Hart County Attorney
Courthouse
Munfordville, Kentucky 42765
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to this office in which you requested an Opinion of the Attorney General regarding the method by which a prosecutor should seek to prove that a driver's license has been revoked pursuant to KRS 186.570, which requires mandatory revocation under certain circumstances. In your letter, you ask whether the production of both a certified record of the conviction which led to the mandatory revocation as well as a certified driving history record obtained from the Transportation Cabinet, Division of Driver Licensing, would be sufficient to overcome the "best evidence rule, " as addressed in Commonwealth v. Willis, Ky., 719 S.W.2d 440 (1986) and Commonwealth v. Dean, Ky., 732 S.W.2d 887 (1987). You also state that you have contacted the Division of Driver Licensing and that employees there have advised you that the only document which is maintained by the Division which records that mandatory revocation has taken effect is the driving history record.
We are of the opinion that a prosecutor may legally prove the existence of a mandatory revocation of operator's license made pursuant to KRS 186.570 by first producing a certified copy of a conviction for which mandatory revocation shall take place from the court which rendered the conviction. Second, the prosecutor should produce a certified copy of the driving history record, obtained from the Transportation Cabinet, in order to prove that such a revocation did in fact take place.
In reaching our opinion, we have researched the "best evidence rule, " as it has developed over the past several decades. In Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965), the court held,
[The best evidence rule] requires one to introduce the most authentic evidence which is within the power of one to produce, but in practical application it applies almost exclusively to documentary evidence.
Id., at 886. (Citations omitted). The rule further requires that "When attempting to prove the contents of a writing, a party must introduce the 'original' of that writing unless there is a satisfactory explanation for its nonproduction." R. Lawson, The Kentucky Evidence Law Handbook, § 7.15 (2nd Ed., 1984). See Bower v. Commonwealth, Ky., 357 S.W.2d 333, 335 (1962). In addition, we believe it necessary to state that the records which can be utilized to prove a mandatory revocation of driver's license, as well as the underlying conviction, can be admitted into evidence through the presentation of certified copies, as permitted by KRS 422.020.
We are further of the opinion that the Willis case merely stands for the proposition that the "best evidence" available to prove certain types of traffic offenses is a certified copy of the judgment or conviction from the trial court which rendered the conviction. In the Willis case, the prosecutor had sought to prove a conviction based only upon the driving history record which he had acquired from the Transportation Cabinet. The Kentucky Supreme Court held that the driving history record, alone, was insufficient to satisfy the best evidence rule. The Court held that a certified copy of the original record of conviction should have been produced.
While the Dean case, in its published form, provides limited information and does not expound upon this subject in great detail, our office obtained copies of the entire court record on file with the Clerk of the Kentucky Supreme Court. The record in Dean reveals a fact pattern almost identical to that of the Willis case, in that the prosecution had failed to properly admit the original record of conviction. The trial court ruled this inadmissible because it was incomplete, since it lacked a docket sheet. In both of these cases, the prosecutor failed to properly admit the original record of conviction from the trial court which had rendered it.
For this reason, we are of the opinion that the Dean case and the Willis case do not contain substantially different fact patterns, nor do they appear to be inconsistent with our opinion here.