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F I LED Electronically

04-05-2010:11 :36:24 AM Howard W. Conyers Clerk of the Court 1 Code: 2685

Transaction # 1412695

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6 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

7 IN AND FOR THE COUNlY OF WASHOE

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9 DANIEL LEE PRESTON,

Appellant, Case No.: CR09-2365

11 vs. Dept. No.: 10 12

CITY OF RENO, a municipal corporation, 13

Respondent.14 ------------------------~/

ORDER AFFIRMING APPELLAI.\IT'$ COI.\IVICIION 16

Presently before the Court is an appeal from a judgment of conviction by the Reno 17

Municipal Court, which Appellant DANIEL L. PRESTON (hereafter "Appellant',) filed on 18

November 19, 2009. On January 8,2010, Appellant filed his Opening Brief. FollOWing, on 19

January 26/ 2010, Respondent CITY OF RENO (hereafter "Respondent") filed its Answering

Brief. Subsequently, on February 4, 2010, Appellant filed his Reply Brief. Thereafter, on 21

March 21, 2010, Appellant filed a Request for Submission, submitting the matter for the

22 Court's consideration. 23 I. Factual & Procedural Background 24

This matter comes before the Court as a result of a traffic stop by the Reno Police

Department that occurred on August 27, 2009. At the time of the stop, the DMV had 26

revoked Appellant's driving privileges based on a prior citation for driving under the 27

influence. As a result, the officer who stopped Appellant Cited Appellant for driving on a 28

revoked license.

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The matter went to trial on November 3, 2009, where Appellant appeared before

the Honorable Jay Dilworth, in the Reno Municipal Court. At trial, Respondent introduced

four documents into evidence in order to prove that Petitioner was driving on a revoked

license. Said documents included a copy of Appellant's driving record, which also

contained Appellant's mailing address; a copy of the order of revocation; a copy of the

certified mailing to Appellant; and a copy of the receipt of the certified mailing.

At the conclusion of the trial, Judge Dilworth found Appellant guilty of driving on a

revoked license. -l11ereafter, Judge Dilworth sentenced Appellant to sixty days house arrest

and $500.00 in fines. Appellant now appeals his conviction arguing that Respondent failed

to prove that the DMV notified Appellant that it has revoked Appellant's license.

II. Standard of Review

An appellate court with review a criminal conviction to ensure the conviction is

supported by suffiCient evidence. Gordon v. State, 121 Nev. 504, 507, 117 P.3d 214, 216­

17 (2005). Sufficiency of the evidence means that a "rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt, after viewing the evidence

in the light most favorable to the prosecution." Id. at 217, 508.

III. Analysis

In order to convict a person of driving on a revoked license, the prosecution must

prove that the defendant received from the DMV, actual or constructive notice of order of

revocation revoking the defendant's driver's license. Zamarripa v. FirstJud Dist. Ct, 103

Nev. 638, 643, 747 P.2d 1386, 1389 (1987). The DMV affords constructive notice by

mailing the order of revocation to the defendant's last known address as shown on any

application for a license. NRS 484C.220(4). The revocation then becomes effective five

days after the DMV mails it. NRS 484C.220(3). Once the DMV mails the order, a

presumption of notice is created. Zamarripa, 103 Nev. at 643, 747 P.2d at 1389. The

defendant may overcome this presumption by showing that his failure to receive notice

was not due to "his own culpable or dilatory conduct." Id.

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III

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As indicated above, in support of its case, the City of Reno presented Judge Dilworth

with the following: (1) a certified copy of Appelianfs driving record establishing Appellant's

identity and last known mailing address; (2) a copy of the order of revocation, dated

August 7, 2009, to show that the order applied to Appellant, that the DMV revoked

Appellant's license, and that the order was addressed to Appellant's last known mailing

address; (3) a copy of the certified mailing to Appellant from the Nevada DMV to show that

the DMV mailed the order of revocation to Appellant; and (4) a copy of the receipt for the

certified mailing to show that the Post Office delivered the order to Appellant's last known

address.

Respond contends that such evidence is sufficient to demonstrate that the DMV

notified Appellant that his license was revoked. Appellant, on the other hand, argues that

such evidence does not actually show that the DMV mailed the order of revocation to

Appellant. Rather, Appellant argues that any conclusion that Appellant received notification

from the DMV is mere supposition and speculation. After considering the Parties'

arguments, the Court is inclined to agree with Respondent and find that the evidence

presented at trial was sufficient to sustain Appe"ant's conviction.

Specifically, the Court believes that based on the evidence, a rational trier of fact

could find that Appellant was on notice that his driver licenses was revoked at the time he

was cited for driving without a license. This is because the order of revocation shows that

it applied to Appellant, related to Appellants case, and was sent to Appellant's last known

mailing address. In addition, the certified mailing documents demonstrate that the DMV

mailed the order of revocation to Appellant. SpeCifically, the certified mailing bears

Appel/ant's address, the certified mailing number 7113 3701 5371 3904 2434, and a stamp

which states "PRESORTED FIRST ClASS MAIL U.S. POSTAGE & FEES PAID FOSI" showing

that the postage was mailed. The certified mailing receipt contains the same certified

mailing number 7113.3701 5371 3904 2434, is addressed to Appellant, and bears a time

stamp showing when the post office delivered the mail to Appellant's last known address.

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III

1 Such evidence is sufficient to show that the DMV mailed notice of the license revocation to

2 Appellant, thereby meeting the notice requirement of NRS 484C.220(4).

3 In seeking to overturn his conviction, Appellant argues that NRS 484C.220(4)

4 requires that Respondent prove, via a certificate of an officer or employee of the DMV

S specifying the time he mailed the notice, that the DMV mailed the order of revocation.1

6 However, the Court finds this argument to be without merit. This is because the language

7 of NRS 484C.220(4) Is permissive/ suggesting that the State may prove notice of

8 revocation via other methods. Here, as noted above, Respondent sufficiently demonstrates

9 that the DMV mailed notice of the order of revocation by providing the Court with a copy 0

10 the certified mailing and its receipt.

11 As this Court has determined that the evidence was sufficient for a rational trier of

12 fact to find that Appellant received notice of the revocation of his license via certified mail,

13 the Court need not address the issue of a "per se revocation."

14 NOW, THEREFORE, IT IS HEREBY ORDERED that Appellant's conviction is

15 AFFIRMED.

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17 DATED this 5 day of April 2010.

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20 District Judge

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28 1 The portion of NRS 484C.220 that Appellant relies on states as follows: "The date of mailing may be proved by the certificate of any officer or employee of the Department, specifying the time of mailing the notice."

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