Steele v. State, Department of Commerce & Regulation, Division of Fire Safety & Regulation, Driver Improvement Program

HENDERSON, Justice

(concurring in result).

This case is on appeal from a trial de novo. A Judgment Affirming Decision of South Dakota Department of Commerce and Regulation was entered after a trial de novo. SDCL 32-12-59.* It behooved the trial court to take testimony and thereby render its own independent determination on the revocation or nonrevocation of the driver’s license at issue. See Dep’t. of Public Safety v. Weinrich, 263 N.W.2d 690, 692 (S.D.1978).

It appears the trial court did conduct an independent examination of the facts. It is significant to mention a certain judicial notice which the trial court took during the course of the de novo hearing. Appellant’s Wyoming conviction was under a “justice of the peace” court system. Appellant’s conviction arose in Lincoln County, Wyoming. Until July 1984, Lincoln County, Wyoming, operated under a “justice of the peace” court system.

As judicially noticed by the trial court, “[t]he system used no files, no formal information, no formal sentence, no formal judgment and was very disorganized.” Therefore, the State of South Dakota was hard put to meet the Uniform Enforcement of Foreign Judgments Act. SDCL 15-16A-2. So the State of South Dakota, through the South Dakota Department of Corn*320-meree and Regulation, relied upon the only proof available, namely, an “abstract.” The “abstract” was filed and made a part of the record below. It was also “certified.” Were we to follow the appellant’s advocacy to a logical extreme, any Wyoming conviction prior to July 1984 would be invalid in the State of South Dakota simply because the State of Wyoming used a different system than our state at the time in question.

Needless to say, I am impressed by the fact that the appellant stipulated to his DWI conviction in the State of Wyoming. Said stipulation also included the Butte County conviction. This stipulation, coupled with the “abstract,” justifies the af-firmance of the lower court’s decision beyond peradventure.

Finally, I am not enthralled with the 1974 Iowa decision as cited by the majority, and therefore do not wish to join the majority opinion in its recitation of the Iowa authority with approval. Iowa’s language paints with too broad a brush. I would not permit “any legal-appearing form” of notice of conviction to suffice. The document, from whatever state, should bear an indicia of the foreign state’s conviction. The legal form should reflect that it comes from a foreign state and that, indeed, a conviction for DWI took place on a certain date in a certain court and with the sentence. Be it by “abstract” or judgment, the plea should be recited and the finding of guilt.

I fear computer printouts will soon be in the offing for proof of previous convictions. Notices of conviction should not emanate from computer printouts and administrative flurry. A circuit court or an administrative body should have some type of document which is reliable and bears an air of officialdom. Pennsylvania, as the majority opinion points out, has likewise taken a fluid approach to the reception of evidence in an administrative body or a court. Our sister state of Nebraska, however, does require that reports of out-of-state convictions be authenticated and specified that it shall be “in due form for admission in evidence in the courts of this state.” Johnston v. Dep't. of Motor Vehicles, 190 Neb. 606, 608, 212 N.W.2d 342, 344 (1973). It should be noted that the statutes of Nebraska employ a scheme allowing reports from other jurisdictions but sets forth the contents of those reports.

In summation, although I agree with the result of this case, I cautiously approach the introduction of evidence in the courts of law or before administrative bodies that takes so many shortcuts it begets a burden of proof which is, by nature, wispy and without firmament.

As I read the record, appellant seeks review under this statute which allows a hearing in a court of record when a license is denied or revoked.