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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15

- CT

- 880
J EREMY J AMAINE O SBORNE , A PPELLANT ,

V
. D ISTRICT OF C OLUMBIA , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( C TF

- 14118

- 13 ) (Hon. Frederick Sullivan, Magistrate Judge) (Hon. John Ramsey Johnson , Reviewing Judge)
(Argu ed October 21, 2016 Decided September 21 , 201 7 ) Nigel A. Barrella for appellant. Janice Y. Sheppard , Assistant Attorney General, with whom K arl A. Racine , Attorney General for the District of Columbia, Todd S. Kim , Solicitor General, and Rosalyn Calbert Groce , Deputy Solicitor General, were on the brief , for appellee.
Before F ISHER and T HOMPSON , Associate Judge s , and S TEADMAN , Senior Judge

. F ISHER , Associate Judge : A ppellant Jeremy J. Osborne was convicted of operating a motor vehicle after his driver‘s license had been revoked ( ― OAR ‖ )

. At his bench trial, Mr. Osborne presented evidence that h e had not received notice2

informing him of t he revocation before his arrest. Mr. Os borne contends that , under these circumstances, the District was oblig at ed to show that it had sent him
notice before he could be convicted of OAR. We clarify the legal standard that applies and remand the case for a new trial.

I. Factual and Procedural Background

On August 10, 2013, Metropolitan Police Officer Michael Acevedo pulled

over Jeremy Osborne ‘s vehicle because he had fail ed to signal a lane change

. After checking the vehicle‘s registration and calling a dispatcher for confirmation,
Officer Aceved o determined that Mr. Osborne‘s District of Columbia (―D.C.‖ or ―District‖) driver‘s license had been revoked. Officer Acevedo arrested
Mr. O sborne for operating after revocation in violation of D.C. Co de § 50

- 1403.01 (e) (2012 Repl.)

.

At trial before Magistrate Judge Sullivan, Mr. Osborne claimed that he did
not know that his license had been revoked until Officer Acevedo arrested him. The revocation was not a complete surprise, however. Mr. Osborne testified that in April 2013 he had been tried for

— and subsequently convicted of

— ―a version of DUI in Virginia .‖ H is attorney in that case ― told [ him ] that the [Department of3

Motor Vehicles (―DMV‖)] in Virginia might contact the D.C. DMV‖ to report the Virginia conviction

. Not knowing exactly the consequences he fac ed in the
District or when they might occur, Mr. Osborne called the D.C. DMV once in May 2013 to ask if there was ―anything wrong with [his] D.C. license.‖ He
testified that a DMV employee told him ― no. ‖

In early June 2013 Mr. Osborne again inquired about the status of his license, this time after he was pulled over in the District for driving with one of his lights out. A police officer reportedly told him that ―there was nothing wrong‖ and ―just gave me my license back.‖ According to Mr. Osborne, he did not receive anything in the mail regarding the revocation of his license.

Mr. Osborne explained at trial that his mother, Aleah Osborne, would have a
record of any com munications that had arrived at their home from the D.C. DMV. Ms. Osborne testified that she called the D.C. DMV ―just about every day‖ from the time of her son‘s trial in Virginia to the time of his arrest in the District on August 10, 2013. Each time, employees ―told [her] that he didn‘t have a problem4

with his license.‖ 1 She occasionally communicated the employees‘ reassurances to her son.

The prosecutor ―acknowledge[d] that the defendant made attempts to find out the status of his driving privile ges , ‖ call ing such attempts ―commendable.‖
Sh e nonetheless maintained that ― operating after revocation does not require knowledge that the defendant knew that his license had been revoked. It merely requires that he was in fact operating a motor vehicle[ ,] which the defendant does not deny[,] and that at the time his license had been revoked.‖ Officer Acevedo had established that Mr. Osborne was operating a vehicle on August 10, 2013 , and appellant‘s driving record, which the District had entered into ev idence, showed that his driving privileges had been revoked ―as of‖ July 4, 2013

.

Mr. Osborne‘s driving record also noted other details about the revocation of
his license . It showed a ―withdrawal end date‖ of December 31, 2013. It also displayed two reasons for revocation: (1) ―more than or equal to 12 points‖ and (2) ―driving while intoxicated, 1st offense.‖ O ne section recorded a citat ion date of

1 The District objected to Ms. Osborne‘s testimony regarding what the D.C. DMV employees told her about the status of her son‘s driver‘s license, calling it hearsay. Judge Sullivan agreed to hear that testimony ―only because . . . it m[ight] mitigate sentencing‖ if he found Mr. Os borne guilty.5

March 3, 2013 , for Mr. Osborne‘s DUI offense in Virginia , and a disposition date of May 23, 2013. Nothing on the record established when the D.C. DMV received
the record of conviction ; when the DMV made the decision to revoke
Mr. Osborne ‘s license; or whether (and, if so, when) notice of the revocation was sent to Mr. Osborne.

Judge Sullivan opin ed that the ―nub‖ of this case was whether Mr. Osborne should have ―driven knowing that he didn‘t really know the status of his driver‘s license.‖ He c omment ed that ―[a] driver‘s license isn‘t a right. It is a privilege . . . you have to jump through the hoops to be able to do it. ‖ Moreover, the repeated inquiries to the D.C. DMV about the status of Mr. Osborne‘s license indicated that ―they felt it could be r evoked [.] ‖ Judge Sullivan concluded that ―there was enough notice to get out from underneath this absolute liability prohibition.‖ He expressed sympathy that Mr. Osborne ―got caught in . . . the transfer,‖ but remarked that his Virginia lawyer had warned Mr. Osborne to ―be careful.‖ Since ―his con viction out in Virginia trigger[ed] this reciproci ty business with the [D.C.] DMV,‖ Judge Sullivan rejected Mr. Osborne‘s due process defense and found him guilty of
OAR , as the judge believed ―t he law . . . require[d]

. ‖6

Mr. Osborne filed a motion for review of the judgment

. Quo ting a footnote
in Loftus v. District of Columbia , 51 A.3d 1285 (D.C. 2012) , Mr. Osborne argued
that al though OAR is a strict liability offense, ―where the defendant presents some evidence that he or she had no notice of suspension and had no idea that the permit had been suspended , ‖ the District has an ―obligation to at least present proof that
the constitutio nal ly requisite notice of suspension was properly sent.‖ Id. at 1289

– 90 n.10. After reviewing the record, Judge Johnson concluded that the trial judge
had ―reject[ed] the credibility of assertions by Defendant and Ms. Osborne that Defendant did not know there was a problem w ith his license in the District, ‖
which plac ed Mr. O sborne‘s situation outside the realm of cases addressed in the Loftus footnote. 2 Finding no reason to reverse Judge Sullivan‘s credibility determinations, Judge Johnson denied Mr. Osborne‘s motion

. 3

II. Legal Analysis

2 We see nothing in Judge Sullivan‘s findings to support the conclusion that he had dis credited this testimony.

3 Judge Johnson also rejected Mr. Osborne‘s claim that Judge Sullivan erred in admitting into evidence his certified driving record. Mr. Osborne has not challenged that ruling here.7

The Fifth Amendment provides that ―[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.‖ U.S. Const. amend. V. It is
well

- settled that ―[s]uspension of issued [driver‘s] licenses . . . involves state action
that adjudicates important interests of the licensees‖ and, thus, ―licenses are n ot to be taken away without . . . procedural due process.‖ Bell v. Burson , 402 U.S. 535, 539 (1971). 4 Generally, ―due process requires that when a State seeks to terminate
an int erest . . . it must afford  ̳notice and opportunity for hearing appropriate to the nature of the case‘ before the termination becomes effective.‖ Id. at 542 (quoting
Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 313 ( 1950)). ―[N]otice is  ̳constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent.‘‖ Kidd Int’l Home Care, Inc. v. Prince , 917 A.2d 1083, 1086 (D.C. 2007) (quoting Jones v. Flowers , 547 U.S. 220, 226 (2006)).

This case requires us to focus on whether, and if so when, the elements of OAR should be expanded to require proof that the District sent notice of revocation

to a driver. We first address the District‘s contention that our case law establishing
that OAR is a stric t liability offense forecloses such an inquiry.

4 Bell specifically discussed procedural due process guaranteed by the Fourteenth Amendment, which applies only to the states and not to the District of Columbia. See Bolling v. Sharpe , 347 U.S. 497, 499 (1954). But the District is bound by the same obligations under the Fifth Amendment. See id.8

A. Santos and Loftus

In Santos v. District of Columbia , 940 A.2d 113 (D.C. 2007), this court held ―that operating a motor vehicle without a perm it in violation of D.C. Code § 50

- 1401.01(d) is a strict liability offense that does not require scienter. To convict Santos of that offense, therefore, the District did not have to prove that he knew his Virginia driver‘s license had been suspended. ‖ Id. at 118. That is, ― knowledge
and intent are not element s of the offense. ‖ Id . at 11 4

– 15

. We recognized ,
moreover, that ―requiring the government to muster evidence proving the non

compliant motorist‘s culpable mental state beyond a reasonable doubt would impair the effectiveness of the criminal sanction for violating the permit requirement.‖ Id . at 117.

Five years later , in Loftus

— and bound by Santos

— we reviewed a conviction
for violating the statute at issue here. That statute provides :

Any individual found guilty of operating a motor vehicle in the District during the period for which the individual‘s license is revoked or suspended, or for which his right to operate is susp ended or revoked, shall, for each such offense, be fined not more than the amount set9 forth in § 22

- 3571.01 or imprisoned for not more than 1 year, or both.

D.C. Code § 50

- 1403.01 (e ). On its face, this language does not require proof that the motorist acted with knowledge or intent.

Nevertheless, Ms. Loftus argued that the District should have had to prove ―that she knew or had reason to know that her license was suspended before sh e was arrested.‖ Loftus , 51 A.3d at 1286. We observed that ―the facts and reasoning
of Santos [we]re not meaningfully distinguishable‖ on the question of whether the legislature intended to include a mens rea element. I d. at 1287 , 1289. Thus, w e concluded that operating after suspension (―OAS‖) is al so a strict liability offense.
Id. at 1286. We added, however:

We here deal only with the issue whether, as an across

the

- board matter, the government must in all cases prove notice or knowledge as an element of the offense of OAS. We do not address a situation where the defendant presents some evidence that he or she had no notice of suspension and had no idea that the permit had been suspended. In such a scenario, not pres ent here, the government, similar to instances where self

- defense is raised, may well have the obligation to at least present proof that the constitutionally requisite notice of suspension was properly sent.10

Id. at 1289

– 90 n.10.

Mr. Osborne argues t hat his is ―the exact scenario envisioned by the court‖
in Loftus , as he provided evidence that he had no notice that his D.C. license had
been revoked. He asks this court to adopt the language from Loftus as a holding
and to reverse his conviction becaus e the government supplied no evidence that he
had been sent the requisite notice of revocation

. For its part, the District contends
that we cannot adopt the Loftus fo otnote as a holding without trampling on the
settled rule tha t operating after revocation requires no proof of mens rea . 5

We disagree with the District ‘s asser tion that Santos and Loftus foreclose
Mr. Osborne‘s argument

. Those cases focused on one narrow question of statutory interpretation : whether knowledge and intent were elements of the offense

. See
Santos , 940 A.2d at 116

– 18; Loftus , 51 A.3d at 1288

– 90. As we understand it,
Mr. Osborne‘ s request is (perhaps subtly) different

. He has not demanded proof

5 Mr. Osborne effectively concedes that Loftus (which involved OAS) establishes the mens rea requirement for OAR. We agree. Although ―suspension‖ and ― revocation‖ have different meanings, see 18 DCMR § 9901.1, OAS and OAR are functionally the same offense as they criminalize the same conduct, violate the same statute, and share the same elements. See D.C. Code § 50.1403.01 (e); see also Criminal Jury Instructions for the District of Columbia, No. 6.403 (5th ed. rev. 2013).11

that he actual ly kn e w his license had been revoked. R ather, following dictum in Loftus , he argues that in some circumstances the District should be required to
demonstrate tha t it sent him notice of an important development

— that his driving was no longer authorized by the District but would now be considered criminal
conduct. Neither Santos nor Loftus rejected this argument. 6 Indeed, Loftus plainly
advised that the door to such a rule remained open

.

B. What Process I s Due?

But Loftus ‘s cursory suggestion that a rule of this sort might be appropriate
d oes not settle th e matter

. Footnote 10 of Loftus contain ed no holding and, thus ,

6 T he defendants in Santos and Loftus did not contest whether the issuing jurisdictions had compli ed with governing regulations when suspending their licenses. See Santos , 940 A.2d at 115 (―The official record revealed that Santos‘s Virginia driver‘s license was suspended on November 10, 200 4. . . . Santos did not dispute th[is] fact[], nor did he contest the legality or the effective date of his November 10 suspension.‖); Loftus , 51 A.3d at 1289 n.10 (noting that Loftus did not ―address a situation where the defendant presents some evidence that he or she had no notice of suspension and had no idea that the permit had been suspended ‖ ). In Santos , the record showed that the Commonwealth of Virginia had sent notice of suspension even though it was not clear whether Mr. Santos had actually rec eived it. Santos , 940 A.2d at 116 (―The somewhat cryptic driver history record further states that notification of the suspension was mailed to Santos but was  ̳unclaimed,‘ indicating that he did not receive it.‖). In Loftus , the defendant objected to the admission of her driver‘s record, which referred to potentially prejudicial, prior DUI convictions. Loftus , 51 A.3d at 1286. Instead, the parties stipulated that her license was suspended on a particular date. Id.12

ha s no binding effect

. See Alfaro v. United States , 859 A. 2d 149, 154 n. 8 (D. C. 2004) (―Language in an opinion which  ̳constitutes obiter dictum, entirely unnecessary for the decision of the case . . . [has] no effect as indicating the law of
the District. ‘ ‖ (alterations in original) (quoting Albertie v. Louis & Alexander Corp. , 646 A.2d 1001, 1005 (D.C. 1994))). Accordingly, we must independently
consider the propriety of such a rule.

Mr. Osborne does not argue that the District‘s current processes for revoking

a driver‘s license are constitutionally deficient. As best we can tell, he asks only
that the Dis trict follow its own procedures, and we focus our attention accordingly.
See Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ. , 536 A.2d 1, 16 (D.C. 1987) (―If there is one doctrine more deeply rooted than any other, it is that we ought no t to pass on questions of constitutionality . . . unless such adjudication is unavoidable.‖ (alteration in original) (quoting Spector Motor Servs., Inc. v. McLaughlin , 323 U.S. 101, 105 (1944))). We describe the District‘s system for revoking a license ba sed on a motorist‘s out

- of

- state conviction , then
address disputes be tween the parties about what it requires with regard to notice and an opportunity to be heard.

i

. The Statutory and Regulatory Framework .13

District statutory law provides that:

Except where for a ny violation of this subchapter revocation of the operator‘s permit is mandatory or where suspension or revocation is mandatory for accumulated point totals pursuant to Chapter 3 of Title 18 of the District of Columbia Municipal Regulatio ns, the Mayor or his designated agent may revoke or suspend an operator‘s permit for any cause which he or his agent may deem sufficient; provided, that in each case where a permit is revoked or suspended the reasons therefor shall be set out in the order of revocation or suspension; provided further, that such order shall take effect 10 (15, if the person is a nonre sident) days after its issuance

. . . .

D.C. Code § 50

- 1403.01 ( a )

. Regulations flesh out revocation procedures.

Chapter 3 of Title 18 of the District of Columbia Municipal Regulations requires the Director of the D.C. DMV to revoke a motorist‘s driver‘s license in certain circumstances. One section instructs the Director to ―forthwith revoke the license of any pers on upon receiving a record of such person‘s conviction‖ of driving under the influence or another of several enumerated offenses. 18 DCMR14

§ 301 .1 ; see also id. § 300.6. 7 Another section establishes a system under which the DMV assesses points against a m otorist‘s driving record ―upon receipt of evidence of a traffic conviction.‖ Id. § 303. When a driver accumulates twelve points, ―[t]he Director or hearing examiner shall order the revocation of the person‘s license.‖ Id. § 303.5. The DMV assesses twel ve points for some individual convictions, including driving under the influence. Id. § 303.2 (m), (n). Neither party disputes that Mr. Osborne‘s driver‘s license was subject to mandatory revocation upon the D.C. DMV‘s receipt of the record of his conviction in Virginia. And Mr. Osborne‘s driving record reveals that his license was revoked under both proc edures as he had accumulated twelve points under the District‘s system and had been convicted of driving under the influence, an offense f or which revocation is mandatory

.

If a driver‘s license has been revoked, regulations require that the licensee
―i mmediately return the license to the [DMV].‖ Id. § 305.4; see also i d. § 305.3

7 The District is a member of the Driver‘s License Compact (―DLC‖), an interstate agreement to share information concerning traffic

- related convictions and license suspensions and revocations. D.C. Code § 50

- 1001 (2012 Repl.). Under the DLC, ―[t]he licensi ng authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the offense reported . . . as it would if such offense had occurred in the home state, in the case of conviction[] for . . . [d]riving a motor vehicle while under the influence.‖ Id. , Art. IV (a)(2).15

(―The Direc tor upon canceling, suspending or revoking a license shall require that
the license shall be surrendered to and retained by the [DMV].‖). Provided that the driver complies with other requirements when seeking reinstatement, a driver‘s license is revoked only for a specified period of time. For commission of a first
offense for which revocati on is mandatory, a driver faces a ―minimum revocation period‖ of six months. Id. § 306.4. The penalties increase to one year and two years, respectively, for second and third offense s
. Id. § 306.5. ―Each person
whose license has been revoked shall be e ligible to apply for restoration of privileges at the expiration of the period for which the privileges have been revoked.‖ Id. § 306.8.

When the Director proposes to revoke or suspend a license under his or her discretionary authority, a motorist may p etition for a he aring on the proposed
action. Id. § 309. However, ―[a] person is not entitled to a hearing when the action taken by the Director is made mandatory by law or when the person has previously been afforded an opportunity with appropriate notice for a hea ring.‖ Id. § 1005. 4.

The District‘s regulatory scheme also includes a section entitled ―Notice of Suspension or Revocation,‖ id. § 307, which is divided into seven subsections. Section 307.1 requires that when a license is mandatorily r evoked as a16

consequence of a conviction for a traffic offense, ―an order of revocation shall be prepared setting forth the proposed action and the grounds therefor in sufficient detail to permit the person to understand fully the nature of the order and th e reason for the order.‖ Id. § 307.1 (emphasis added)

. It also notes that the order ―shall include complete information on the manner in which that person may seek restoration of the license.‖ Id. Section 307.2 explains that when a license is
revoked due to the accumulation of traffic points, ― [t]he notice shall notify the person that the order will take effect within ten (10) days

. . . , unless that person files a written objection . . . based solely upon the ac curacy of the driving record.‖
Id. § 30 7.2. Section 307.3 provides that when the DMV intends to revoke a license
under its discretion ary authority , ―a notice of proposed suspension or revocation shall be prepared setting forth the proposed action and the grounds for the proposed action in sufficient detail to permit that person to understand fully the nature of the proposed action and the rea sons for the proposed action.‖ Id. § 307.3.

The remaining three subsections appear to establish rules applicable to all suspensions and revocations. Section 307.4 states:

The notice shall take effect within ten (10) days . . . unless that person files a written petition with the Director for a hearing in which the Director must prove sufficient grounds for the proposed action. . . . The filing17
of s uch a demand does not operate as a stay of such order when the order has been issued revoking or suspending a permit

. . . for driving . . . while under the influence of intoxicating liquor or any drug or any combination thereof. . . . Each notice issued pursuant to this section shall inform the respondent of the effective date of the notice and the right to a hearing.

Id. § 307.4. Section 307.5 explains that a ―notice or order‖ served under the rule is ―properly served‖ if the motorist is personally served or if a copy of the notice is mailed to the motorist‘s last known address. Id. § 307.5. Section 307.6 defines
last known address. Id. § 307.6. Finally , § 307.7 provides that ―[p]roof of service of any notice or order in the manner specified by this section may be made by the certificate or affidavit of any officer or employee of the District , naming the person
on who m the notice or order was served and specifying the time, place, and
manner of service.‖ Id. § 307.7.

ii. Notice of Revocation Was Required .

The parties disagree about whether the District‘s regulatory scheme entitled
Mr. Osborne to notice that his license would be revoked. Mr. Osborne contends that the regulations require notice even if revocation was based on conduct fairly
determined in an out

- of

- state proceeding. He also argues that, in any event, the18

Due Process Clause mandates that the District send notice in these circumstances

. The District argues that Mr. Osborne received all the notice to which he was
entitled: he had actual knowledge that he had been convicted of driving under the
i nfluence in Virginia, he was ch arged with knowledge of District law requiring revocation of his driver‘s license upon the DMV‘s receipt of the record of his Virginia conviction, and his lawyer in the Virginia case had warned him that he might face driving restrictions in the District. Furthermore, the District maintained
that its DMV was to ―forthwith revoke‖ the license, 18 DCMR § 301.1, not to
afford Mr. Osborne additional notice.

While the statutory and regulatory provisions are far from a model of clarity, 8 Mr. Osborne ha s the better of the argument as to what these provisions by their own terms require; hence, we do not reach any argument based on

8 Among other difficulties, neither ―order‖ nor ―notice‖ is defined. In some instances, the terms are used seemingly interchangeably. Compare 18 DCMR § 307.2 (―The notice shall notify the person that the order will take effect within ten (10) days ‖ ), with § 307.4 (―The notice shall take e ffect within ten (10) days.‖). Furthermore, § 307.2‘s explicit mention of notice in the context of revocati ons due to an accumulation of points might suggest that notice is not sent in o ther circumstances. But § 307.4, which seems to apply to all revocations, at least implies that notice is sent in a broader range of situations. The record before us contains no statement from the D.C. DMV regarding how to interpret these regulations. On remand, the District is free to seek and supply the D.C. DMV‘s interpretation of these and other relevant provisions.19

constitutional due process. Under the District‘s own scheme, it was required to
send notice to Mr. Osborne

. 9 The District‘s positi on to the contrary is premised on
the idea that a motorist i s obligat ed to refrain from driving once he is convicted in

an out

- of

- state proceeding , when his license becomes subject to revocation. This simply is not so. The regulations clearly provide that the District‘s authority and obligation to revoke do not arise until it has received a n official record of the out

of

- state conviction. See id. §§ 301, 303. Likewise, under the re gulations, a motorist shall not ―drive a motor vehicle on any public highway in the District at
any time when his or her privilege to do so is suspended or revoked.‖ Id. § 305 (emphasis added)

. No provision brought to our attention supports the District‘s argument that a licensed driver‘s responsibility to refrain from operating a vehicle arises at some point before the District acts to revoke his or her license. In this
case, t he driving record itself states that the revocation of Mr. Osborne‘s license was to start July 4, 2013.

9 At oral argument, Mr. Osborne‘s counsel represented that he had procured a copy of the order of revocation prepared in this case. But he could find no certificate of service to clarify whether that order or other notice had been sent to Mr. Osborne. He also commented that the order was created ten days b efore it was to take effect on July 4, 2013.20

The notice provisions reinforce Mr. Osborne‘s argument. First and most significantly, § 307.2 unambiguously provides for notice when a license is revoked due to an accumulation of points. As this was one of the reasons Mr. Osborne‘s
license was rev oked, he was entitled to notice . Second, these sections plainly contemplate that the District will articulate in writing its reasons for revoking a driver‘s license, even when revocation i s mandatory. See, e.g. , id. § 307.1 (requiring articulation ― in sufficient detail to permit the person to understand fully the nature of the order‖). It is dif ficult to understand why thorough articulation would be necessary unless the notice would be sent to the motorist

.

Relying on this triggering event is not a mere formality. The periods of revocation described in § 307 must have beginning and ending dates to be at all meaningful. Although it might be prudent t o follow the approach the District
advocates , doing so would result in either the imposition of an unauthorized pre

revocation penalty or an arbitrary extensi on of these periods of revocation. Here, Mr. Osborne was convicted in Virginia in May 2013 , but he could not control
when the record of that conviction would be sent, received, and recorded. Nor
could he predict when the District would act on that inform ation. H is D.C. driving record specified that the period of withdrawal of his license was set to begin on21

July 4, 2013, and to end on December 31, 2013. Under the District‘s position, however, Mr. Osborne apparently was to stop driving at least a month earlier

.

The District‘s reading of these provisions also undercuts the requirement that a driver must ―immediately‖ ret urn a revoked license. Id. § 305.3. If a driver cannot even reliably determine whether his license has been revoked, he cannot be expected to return the license immediately after revocation. Moreover, as a practical matter, notice serves the important function of alerting a driver to an erroneous suspension or revocation (due, perhaps, to a confusion of names) and
enabl es him or her to contest the District‘s action before facing criminal prosecution

.

iii. A Hearing Was Not Required .

Mr. Osborne also argues, for the first time on appeal , that he was entitled to a hearing before his license could be revoked. We disagree. D istrict regulations unmistakably reject this argument. See 18 DCMR § 1005 .4 (no entitlement to a hearing when a license is subject to mandatory revocation). And this court has held that ―the Full Faith and Credit Clause, U.S. Const. art. IV § 1, allows the District to  ̳adopt for purposes of its own compliance with due process, the22

judgment of a court from another state,‘ . . . rather than hold a new hearing. ‖ Wall
v. Babers , 82 A.3d 794, 802 (D.C. 2014) (citation omitted) (quoting Tomai

Minogue v. State Farm Mut. Auto. Ins. Co. , 770 F.2d 1228, 1232 (4th Cir. 1985)). Furthermore, it is unclear what purpose a hearing would serve in this case.
Mr. O sborne con ceded at trial that he had been convicted of a DUI offense in Virginia , and he does not dispute that his conviction subjected him to mandatory
lice nse revocation in the District. He has pointed to no factual dispute that might be resolved in a hearing. W e have previously rejected the notion that due process requires empty process. See, e.g. , Wall , 82 A.3d at 802

– 03 (rejecting due process challenge to District‘s refusal to provide a hearing on driver‘s license renewal where ―there were no contested facts that needed to be resolved at a post

deprivation hearing‖).

C. When I s Proof of Notice Required ?

Having established that Mr. Osborne was entitled to notice, we next consider
whether and in what circumstances the District should be required to verify that it provided this notice.23

While none of our prior decisions has squarely addressed the question confronting us here, a few have presumed in dictum that the District and other jurisdictions compl y with the requirements of due process before revoking
licenses. In Santos , we ―perceive[d] no serious risk that strict liability for driving without a permit [would] encomp ass  ̳entirely innocent conduct ‘ ‖ because ―a driver‘s license cannot be suspended or revoked without due process, including
both fair notice of a traffic violation charge and the potential penalties, and the right to a hearing.‖ 94 0 A.2d at 1 17

. And in Loftus , we remarked that ―the District
of Columbia has a well

- defined system for providing notice and a hearing before
licenses are suspended.‖ 51 A.3d at 1289. Moreover, we have discussed at length the regulations which provide such process.

We have no doubt that in the mine run of cases, the se presumptions reflect reality

. Usually , there will be no need to prove that notice was sent. But where a
defendant claims that he or she did not receive notice of revocation and the
evidence fairly raise s the issue , we would be remiss to presume away rational doubts about whether the District actually satis fied its regulatory obligation to give
notice

. In these situations , the District controls the mean s for transforming conduct
that once was innocent in to a criminal violation; it also controls information about
when that prohibit ion is set to begin

. We should not demand that licensed24

motorist s stop driving before they receive the notice they are due. And w e have no qualms about requiring more from the District in the way of proof at trial under
these circumstances.

This holding is intentionally limited, however. We are not retreating from
our earlier conclusion that prosecution for OAR or OAS may not be used as a vehicle to collaterally attack the revocation of a license. See Abbott v. District of
Columbia , 154 A.2d 362, 362

– 63 (D.C. 1959) (―[A]ppellant . . . sought to make a collateral attack on the order of the [DMV], and this cannot be done.‖)

. A driver
who has received notice that his license has been revoked or suspended may not continue driving until arrested and then defend by claim ing that the order of
revocation was invalid. See id. As we explained in Abbott , that driver must challenge the revocation through administrative channels

. Id. at 363 ( ― If he felt there was some invalidity in the proceeding he should have taken the steps provided by law to correct it. He had no right to continue to operate a vehicle until apprehended and then make a belated attac k upon the revocation order .‖); a ccord , Foster v. District of Columbia , 497 A.2d 100, 1 03 (D.C. 1985) (―Because of appellant‘s failure to pursue his administrative remedies, the hearing examiner‘s decision sustaining his suspension must be considered conclusive. Appellant may
not now mount a collateral attack on that decision.‖ (citation omitted)).25

W e therefore hol d that , w hen a defendant claims that he or she did not
receive notice of revocation and the evidence fairly raise s the issue , 10 the District bears the burden of proving beyond a reasonable doubt that sufficient notice of
revocation was given

. 11 T he District may discharge this obligation by , for example, introduc ing proof of service of a noti ce or order sent in compliance with § 307

. Cf. Foster , 497 A.2d at 102 (―We need not decide whether notice of a suspension is a necessary element of the offense, for we conclude that there was sufficient evidence adduced at trial to permit the jury to find that adequate notice was given.‖). The District need not demonstrate that a letter was actually received,

10 This evidence need not (necessarily) be produced by the defense. Cf. Henry v. United States , 94 A.3d 752 , 757 (D.C. 2014) (noting that evidence supporting a self

- defense instruction ―may be an amalgam of  ̳portions . . . of the government‘s evidence and [portions] of defense evidence ‘ ‖ (alterations in original) (quoting Hernandez v. United States , 853 A.2d 202, 206 n.4 (D.C. 2004))).

11 In Loftus , we describ ed this ―some evidence‖ showing as ―similar to instances where self

- defense is raised.‖ Loftus , 51 A.3d at 1289 n.10. That comparison remains apt

— though, we admit, imperfect

. In the typical prosecution for simple assault, the government does not have to disprove self

- defense. When such a claim is made, however, a trial judge must determine ―whether there [i]s any evidence that fairly raise[s] the issue of self

- defense.‖ Guillard v. United States , 596 A.2d 60, 63 (D.C. 1991). If so, ―the government is required to disprove that the defendant acted in self

- defense beyond a reasonable doubt.‖ Ewell v. United States , 72 A.3d 127, 130 (D.C. 2013). In essence, a new element of proof is added. As in that context, no additional showing is mandated here unles s the evidence fairly raises the issue of whether notice was sent.26

opened, or otherwise acknowledged. Cf. Kidd Int’l Home Care, Inc. , 917 A.2d at 1087 (noting that the common law mailbox rule ―creates a rebuttable presumption that a letter properly addressed, stamped, and mailed, and not returned to the sender, has been delivered to the addressee.‖). Moreover, as Santos and Loftus establish, the government does not have to prove that the defendant acted knowingly or intentionally. We do not anticipate that this modest requirement will greatly burden the District or impair the effectiveness of the criminal sanction. After all, this showing requires only proof that the District co mplied with its own regulations.

III. Conclusion

This court grants retroactive application to ―new rule[s] for the conduct of criminal prosecutions‖ in all cases pending on direct review. Boone v. United
States , 769 A.2d 811, 824 (D.C. 2001) (quoting Johnson v. United States , 520 U.S. 461, 467 (1987)). Accordingly, we vacate appellant‘s conviction and remand this
case for a new trial. 12 If he so chooses, Mr. Osborne can present his lack

- of

- notice defense for the trial court to evaluate under the clarified legal standard.

12 We reject Mr. Osborne‘s suggestion that a retrial should be precluded because the evidence did not establish that the District sent him notice that his ( continued ...)27

It is so ordered

.

(... continued ) license had been revoked. Like many other courts, we decline to prohibit retrial where a post

- trial cha nge in the law has altered the elements of proof. See, e.g. , United States v. Robison , 505 F.3d 1208, 1225 (11th Cir. 2007); United States v. Ellyson , 326 F.3d 522, 533 (4th Cir. 2003) (―Any insufficiency in proof was caused by the subsequent change in th e law . . ., not the government‘s failure to muster evidence.‖); United States v. Wacker , 72 F.3d 1453, 1465 (10th Cir. 1996); United States v. Weems , 49 F.3d 528 , 530

– 31 (9th Cir. 1995). ―Remanding for retrial in this case does not give the government th e opportunity to supply evidence it  ̳failed‘ to muster at the first trial. . . . The government had no reason to introduce such evidence because, at the time of trial, under the law of our circuit, the government was not required to prove [the new element ].‖ Weems , 49 F.3d at 531.